National Consumer Disputes Redressal
Sukalyani Cil Women Welfare ... vs Prafulla Rajan Das on 8 December, 2021
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 565 OF 2017 (Against the Order dated 14/02/2017 in Appeal No. 1094/2015 of the State Commission West Bengal) 1. PRAFULLA RANJAN DAS S/O. LT. NALINI RANJAN DAS, SUKALYANI APARTMENT FLAT NO. N/1, 2A, KHASMAHAL STREET P.S. MANICKTALA KOLKATA-700006 WEST BENGAL ...........Petitioner(s) Versus 1. M/S. SUKALYANI CIL WOMEN WELFARE ORGANIZATION & 5 ORS. CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (N) KOLKATA-700064 WEST BENGAL 2. DR. (MRS.) REBA ROY, PRESIDENT, CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (N) KOLKATA-700064 WEST BENGAL 3. MRS. RUPALI PODDAR SECRETARY, FORMERLY MRS. BHARATI MUKHERJEE, CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (N) KOLKATA-700064 WEST BENGAL 4. MRS. SUSHMITA SENGUPTA, TREASURER, CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (N) KOLKATA-700064 WEST BENGAL 5. KOLKATA MUNICIPAL CORPORATION, 5, S.N. BANERJEE ROAD, KOLKATA-700013 WEST BENGAL 6. ASSISTANT ASSESSOR COLLECTOR (N) KOLKATA MUNICIPAL CORPORATION, 5, S.N. BANERJEE ROAD, KOLKATA-700013 WEST BENGAL ...........Respondent(s) REVISION PETITION NO. 2364 OF 2017 (Against the Order dated 14/02/2017 in Appeal No. 1093/2015 of the State Commission West Bengal) 1. SUKALYANI CIL WOMEN WELFARE ORGANISATION & 3 ORS. CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (NORTH) KOLKATA-700064 WEST BENGAL 2. DR. (MRS.) REBA ROY, PRESIDENT, CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (NORTH) KOLKATA-700064 WEST BENGAL 3. MRS. BHARATI MUKHERJEE SECRETARY, CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (NORTH) KOLKATA-700064 WEST BENGAL 4. MRS. SUSMITA SENGUPTA TREASURER CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (NORTH) KOLKATA-700064 WEST BENGAL ...........Petitioner(s) Versus 1. PRAFULLA RAJAN DAS S/O. LT. NALINI RANJAN DAS, SUKALYANI APARTMENT FLAT NO. 4/1, 2A, KHASMAHAL STREET P.S. MANICKTALA KOLKATA-700006 WEST BENGAL ...........Respondent(s) REVISION PETITION NO. 2460 OF 2017 (Against the Order dated 14/02/2017 in Appeal No. 1094/2015 of the State Commission West Bengal) 1. M/S. SUKALYANI CIL WOMEN WELFARE ORGANISATION & 5 ORS. CE-178, SALT LAKE NORTH, P.S. BIDHANAGAR (NORTH) KOLKATA-700064 WEST BENGAL 2. DR. (MRS.) REBA ROY PRESIDENT, CE-178, SALT LAKE NORTH, P.S. BIDHANAGAR (NORTH) KOLKATA-700064 WEST BENGAL 3. MRS. BHARATI MUKHERJEE, SECRETARY, CE-178, SALT LAKE NORTH, P.S. BIDHANAGAR (NORTH) KOLKATA-700064 WEST BENGAL 4. MRS. SUSMITA SENGUPTA, TREASURER, CE-178, SALT LAKE NORTH, P.S. BIDHANAGAR (NORTH) KOLKATA-700064 WEST BENGAL 5. THE KOLKATA MUNICIPAL CORPORATION, 5, S.N. BANERJEE ROAD, KOLKATA-700013 WEST BENGAL 6. THE ASSISTANT ASSESSOR COLLECTOR(N) THE KOLKATA MUNICIPAL CORPORATION, 5, S.N. BANERJEE ROAD, KOLKATA-700013 WEST BENGAL ...........Petitioner(s) Versus 1. DEBASIS MANDAL S/O. BHUPENDRA NATH MANDAL, SUKALYANI APARTMENT FLAT NO. N2, 2A, KHASMAHAL STREET P.S. MANICKTALA KOLKATA-700006 WEST BENGAL ...........Respondent(s) REVISION PETITION NO. 566 OF 2017 (Against the Order dated 14/02/2017 in Appeal No. 1093/2015 of the State Commission West Bengal) 1. DEBASISH MANDAL S/O. BHUPENDRA NATH MANDAL, SUKALYANI APARTMENT, FLAT NO. N2, 2A, KHASMAHAL STREET, P.S. MANICKTALA KOLKATA-700006 WEST BENGAL ...........Petitioner(s) Versus 1. M/S. SUKALYANI CIL WOMEN WELFARE ORGANIZATION & 5 ORS. CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (N) KOLKATA-700064 WEST BENGAL 2. DR. (MRS.) REBA ROY, PRESIDENT, CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (N) KOLKATA-700064 WEST BENGAL 3. MRS. RUPALI PODDAR SECRETARY, FORMERLY MRS. BHARATI MUKHERJEE, CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (N) KOLKATA-700064 WEST BENGAL 4. MRS. SUSHMITA SENGUPTA, TREASURER, CE-178, SALT LAKE NORTH, P.S. BIDHANNAGAR (N) KOLKATA-700064 WEST BENGAL 5. KOLKATA MUNICIPAL CORPORATION, 5, S.N. BANERJEE ROAD, KOLKATA-700013 WEST BENGAL 6. ASSISTANT ASSESSOR COLLECTOR (N) KOLKATA MUNICIPAL CORPORATION, 5, S.N. BANERJEE ROAD, KOLKATA-700013 WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER For the Petitioner : For the Complainant : Mr. Indrajit Bhattacharjee, Advocate For the Respondent : For the Opposite Parties : Mr. Neeraj Malhotra, Sr. Advocate Mr. Pawan Kumar Ray, Advocate Ms. Cassandra Zosangilani, Advocate Dated : 08 Dec 2021 ORDER The present Revision Petitions have been filed under Section 21(b) of the Consumer Protection Act, 1986, against the Impugned Orders dated 14.02.2017 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as State Commission) in Appeal Nos. A/1093/2015 and A/1094/2015, whereby the State Commission has partly allowed the Appeals filed by the M/s. Sukalyani CIL Women Welfare Organisation and modified the Orders passed by the District Forum by which the Complaints filed by Prafulla Ranjan Das and Debashish Mandal (hereinafter referred to as the 'Complainants') were allowed by directing the Opposite Parties 1 to 4 to jointly and/or severally execute and register the Deed of Conveyance in favour of the Complainant and also to pay as compensation to the Complainant ₹50,000/- for delayed delivery of possession, ₹50,000/- for shortage in area of the flat, ₹1,00,000/- for harassment and mental agony and ₹10,000/- as litigation cost within 30 days from the date of the order, failing which the entire amount shall accrue interest @ 10% per annum for the entire period of default.
Since the facts and question of law involved in all these Revision Petitions are similar except for minor variation in the dates, these Revision Petitions are disposed off by this common Order. However, for the sake of convenience, RP No. 565 of 2017 is treated as the lead case and the facts enumerated hereinafter are taken from Complaint No. CC/527/12.
Succinctly put, the material facts, giving rise to filing of the Complaint are that Prafulla Ranjan Das (hereinafter referred to as the Complainant) was allotted a Flat No. N/1, admeasuring 1080 sq. ft. (super built up area), by M/s. Sukalyani CIL Women Welfare Organisation (hereinafter referred to as the Opposite Party Organisation) vide Allotment Agreement dated 31.01.2003. The Complainant paid a total consideration of ₹12,96,000/- for the said flat @1200/- per sq. ft. It is alleged that the possession of the Flat was handed over to the Complainant on 31.01.2004. After taking possession on 31.01.2004, the Complainant alleged in the year 2005 that the area of the Flat is 970 sq. ft. instead of allotted 1080 sq. ft. super built up area. Vide letter dated 14.05.2005, the Complainant demanded adequate compensation, quantified at ₹1,37,500/-, towards less area provided in the flat, from the Opposite Party Organisation but in vain. It was also averred that till the date of filing of the Complaint, the flat was not transferred and sale-deed was not executed in favour of the Complainant by the Opposite Party Organisation. Alleging deficiency in service on the part of the Opposite Party Organisation, a Complaint was filed before the District Consumer Disputes Redressal Forum seeking compensation of ₹1,37,500/- for the shortfall of 110 sq. ft., ₹1,00,000/- for delayed delivery of possession; ₹1,00,000/- for the harassment and mental agony with direction to produce the building plan of the housing complex Sukalyani and direction to Asstt. Assessor-Collector Kolkata Municipal Corporation to produce the Inspection Book report of the Complainant's Flat.
The Opposite Party Organisation contested the Complaint by filing written statement before the District Forum in which it was submitted that the allottees are well-versed about the Building Plan and gap between super built up area and built up area due to number of lifts (4), staircases (4), a broad passage between two rows of flats, rooms for generator, electrical installation, community hall and common facilities and the area utilized for these facilities was divided amongst the allottees proportionately according to the area of the respective flats. It was denied that there is any shortfall in the area. Regarding delay in registration of the flats they submitted that due to modification sought by some of the allottees the sale deed was finalized only in March 2006 and a Notice dated 10.03.2006 followed by Reminder dated 20.03.2007 was issued by the Organisation to the allottees for registration of the Flats, yet the Complainant did not come forward for Registration. The Complainant has not paid the service tax. It was also stated that the Complainant was given possession of the flat on 17.12.2003 and not on 31.01.2004 as alleged by the Complainant. It was prayed that the Complaint be dismissed as there is no deficiency in service on their part.
The District Forum after hearing both the parties allowed the Complaint in following terms:-
"The case is allowed on contest with cost against the OP No.1 to 4 dismissed ex parte against OP No.5 and 6 without cost. OP No.1 to 4 are jointly and / or severally directed to execute and register the deed of conveyance in favour of the complainant and are further directed to pay to the compensation of ₹50,000/- (Rupees fifty Thousand) only for delayed delivery of possession of the flat in question, ₹50,000/- (Rupees fifty thousand) for short fall of measurement of the flat in question and ₹1,00,000/- (Rupees one lakh) only for harassment and mental agony suffered by complainant and litigation cost of ₹10,000/- Rupees ten thousand) only within 30 days from the date of communication of this order, i.d., an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization."
Being aggrieved against the Order passed by the District Forum, the Opposite Party Organisation preferred Appeals before the State Commission. The State Commission after hearing both the Parties and perusal of material on record, partly allowed the Appeals by observing as under:-
" Paragraph-VI of the Petition of Complaint reveals without any support of any documentary evidence that the Respondent No. 1/Complainant detected the area of the flat as '970 sq. ft' upon personal verification but without any mention whether the area so detected was super built-up area or not. Built-up area or carpet area as appearing to be the case of the Respondent No. 1/Complainant is always less than super built-up area which includes the open common space around the building, but the built-up or covered area do not as in the case on hand.
Further, the Inspection Report dated 14.1.2009 of the KMC, as relied upon by the Respondent No. 1/Complainant, also has not mentioned whether the area noted therein was super built-up area or built-up area or carpet area. But the narration of the spaces of the flat as described in the said Inspection Report implied that the area detected by the KMC was related to built-up area or carpet area but not super built-up area.
The built-up area or carpet area is generally less than super built-up area which, unlike the built-up area or carpet area, includes the open common space around the building concerned and hence, the Respondent No. 1/Complainant has not been able to prove conclusively that a flat with shortage of super built-up area was delivered to him. This apart, the Respondent No. 1/Complainant appears to have not raised any objection to the shortage of super built-up area of the flat in question at the time of receiving the possession of the same.
As regards the delay in registration of the Deed of Conveyance, it appears from Paragraph No. 14 of the written version, as filed by the Appellants/OP Nos. 1 to 4 before the Ld. District Forum concerned and as available on records, that the Appellant No. 1/OP No. 1 issued Notice only on 10.3.2006 to the Respondent No. 1/Complainant along with other allottees informing its readiness to register the Deed of Conveyance, although the possession of the flat was handed over in the month of December, 2003 and thus committed delay in registration of about 3 years, let alone the years subsequent to 10.3.2006, from the date of handing over the possession and such delay in completion of registration indicates deficiency in service on the part of the Appellants/OP Nos. 1 to 4.
The aforesaid facts, evidence and discussions lead to the conclusion that the impugned judgment and order deserves modification. Accordingly, the impugned judgment and order is modified to the following extent :
The Appellants/OP Nos. 1 to 4 are directed to pay to the Respondent No. 1/Complainant ₹1,00,000/- as compensation for harassment and mental agony suffered by the Respondent No. 1/Complainant for keeping the registration of the Deed of Conveyance pending at least for three years.
The Appellants/OP Nos. 1 to 4 are also directed to pay to the Respondent No. 1/Complainant ₹10,000/- as litigation cost.
All the above directions shall be complied with by the Appellants/OP Nos. 1 to 4 within 45 days from the date of the order, failing which interest @ 9% per annum shall accrue on the said amount till full realization of the same.
The other directions in the impugned judgment and order are hereby set aside.
Consequently, the instant Appeal is allowed in part and impugned judgment and order is modified to the aforesaid extent."
Aggrieved by the Orders passed by the State Commission, while the Complainants have filed Revision Petition Nos. RP/565/2017 and RP/566/2017, the Opposite Party Organisation has filed Revision Petition Nos. RP/2364/2017 and RP/2460/2017 before this Commission.
Mr. Indrajit Bhattacharjee, learned Counsel appearing on behalf of the Complainants submitted that the State Commission has failed to appreciate the copy of inspection book of record issued by the KMC, which clearly mentions the carpet area to be 815.6 sq. ft. and further mentions the common space charges to be ₹0.78 per sq. ft. which works out to be 115 sq. ft. when deduced from the total municipal charges of ₹90/- by dividing the same by 0.78 or by multiplying the said common space charge of ₹0.78/- with 115 which is the total common space area and thus the total area works out to be 930 sq. ft., which is less than the promised super built-up area of 1030 sq. ft.; the State Commission also erred in disregarding the letter dated 1.11.2003 issued by the OP Organisation, which clearly indicated that the delivery of the flat was delayed, therefore, the order passed by the State Commission be set aside, and prayed that the Order passed by the District Forum being legal, valid and sustainable in law, should be upheld.
Per Contra, Mr. Neeraj Malhotra, learned Senior Counsel appearing on behalf of the Opposite Party Organisation submitted that in the Allotment Agreement dated 31.01.2003, there is no mention about the expected date of Registration, therefore, State Commission erred in assuming a delay of 3 years in execution of Conveyance Deed in favour of the Complainant; there was default on the part of the Complainant in making payment towards service tax and maintenance charges after taking possession of the flat; even after issuance of repeated notice for the registration of the sale deed, the Complainant did not come forward for registration of the sale-deed, therefore, there is no deficiency in service on their part, this fact was totally ignored by the State Commission; the Complainant has not produced any documentary evidence regarding the area of the flat; as per terms of the Allotment Agreement, as soon as they got certificate of completion of the units from KMC, the possession was delivered to the Complainant, therefore, there was no delay in delivering the possession of the flat to the Complainant. It was also submitted that the Order passed by the Hon'ble State Commission suffers from illegality and perversity and prayed that it should be set aside and the complaint be dismissed.
We have heard Mr. Indrajit Bhattacharjee, learned Counsel appearing on behalf of the Complainants, Mr. Neeraj Malhotra, learned Senior Counsel appearing on behalf of the Opposite Party Organisation and given a thoughtful consideration to the various pleas raised by them.
As far as the issue regarding delay in delivery of possession, is concerned, the clause related to possession of flat of the Allotment Agreement dated 30.01.2003, reads as under:-
"Finally, the Organisation will hand over the possession of the flats to the respective allottees only after they obtain clearance certificate from the Organisation and completion of the building."
It is the case of the Opposite Party Organisation that as soon as they obtained clearance certificate, they handed over the possession of the flat to the Complainant on August 2003. But the Complainant has not filed any cogent evidence to prove that the Opposite Party Organisation has not handed over the possession of the flat after obtaining the completion certificate. Therefore, we find no force in the contention of the Complainant that there was delay in handing over the possession of the flat by the Opposite Party Organisation.
As far as the issue regarding shortage of area is concerned, the Complainant relied upon inspection book of record dated 14.01.2009 issued by the KMC. On perusal of the same, we found the total area to be 815.6 sq. ft. and the common space charges to be ₹.078 per sq. ft. and not ₹0.78 per sq. ft. as submitted by the Complainant. Moreover, there is also mention of car parking charges in the said document. It is not clear whether car parking is provided with the flat or not; if provided, whether it was payable or free; if free then its area should be included in the super-built up area. Therefore, this document cannot help the Complainant to prove his claim that the area provided was less than 1080 sq. ft. The Complainant has failed to produce any cogent evidence to prove its claim that he was provided lesser than 1080 sq. ft. super-built up area. Therefore, we do not find any ground to interfere with the following finding recorded by the State Commission:-
Further, the Inspection Report dated 14.1.2009 of the KMC, as relied upon by the Respondent No. 1/Complainant, also has not mentioned whether the area noted therein was super built-up area or built-up area or carpet area. But the narration of the spaces of the flat as described in the said Inspection Report implied that the area detected by the KMC was related to built-up area or carpet area but not super built-up area.
The built-up area or carpet area is generally less than super built-up area which, unlike the built-up area or carpet area, includes the open common space around the building concerned and hence, the Respondent No. 1/Complainant has not been able to prove conclusively that a flat with shortage of super built-up area was delivered to him. This apart, the Respondent No. 1/Complainant appears to have not raised any objection to the shortage of super built-up area of the flat in question at the time of receiving the possession of the same."
So far as the issue regarding delay in Registration of the Deed of Conveyance, is concerned, we do not find any force in the contention raised by the learned Counsel for the Opposite Party Organisation that there is no mention about the expected date of Registration in the Allotment Agreement. It is the duty and responsibility of the Opposite Party Organisation to make arrangements for Registration of Conveyance Deed in favour of the Complainants in a reasonable time. The Complainant cannot wait indefinitely for registration of Deed of Conveyance. The Opposite Party Organisation issued Notice for Registration of Conveyance Deed to the Allottees only on 10.03.2006, i.e., after almost 3 years of Possession of the flats, which is a clear case of deficiency in service on the part of the Opposite Parties. In view of this, we do not find any ground to interfere with the following observation made by the State Commission:-
"As regards the delay in registration of the Deed of Conveyance, it appears from Paragraph No. 14 of the written version, as filed by the Appellants/OP Nos. 1 to 4 before the Ld. District Forum concerned and as available on records, that the Appellant No. 1/OP No. 1 issued Notice only on 10.3.2006 to the Respondent No. 1/Complainant along with other allottees informing its readiness to register the Deed of Conveyance, although the possession of the flat was handed over in the month of December, 2003 and thus committed delay in registration of about 3 years, let alone the years subsequent to 10.3.2006, from the date of handing over the possession and such delay in completion of registration indicates deficiency in service on the part of the Appellants/OP Nos. 1 to 4."
In view of above discussions, we do not find any illegality or perversity in the Orders passed by the State Commission warranting our interference in Revisional Jurisdiction. The Orders passed by the State Commission are upheld. The Revision Petitions are dismissed. Keeping in view the facts and circumstances of the case, there shall be no order as to costs.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER