State Consumer Disputes Redressal Commission
Sri Swapan Kumar Mukherjee vs Sri Kashinath Jaiswal on 6 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/202/2014 1. Sri Swapan Kumar Mukherjee S/o Late Biswanath Mukherjee, 42/5, Swami Vivekananda Road, P.S. Shibpur, Dist. Howrah. 2. Sri Arijit Das S/o Sri Kali Charan Das, 42/5, Swami Vivekananda Road, P.S. Shibpur, Dist. Howrah. ...........Complainant(s) Versus 1. Sri Kashinath Jaiswal S/o Late Lakhmi Narayan Jaiswal, Prop., M/s Maa Construction, 17, Dr. P.K. Banerjee Road, P.S. & Dist. Howrah. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. P. R. Bakshi , Advocate For the Opp. Party: Mr. Rajarshi Dutta, Advocate Dated : 06 Apr 2017 Final Order / Judgement Date of filing - 17.06.2014 Date of final hearing - 24.03.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of two flat owners out of eight flat owners of a complex against the developer/Opposite Party on the allegation of deficiency in services on the part of him in a consumer dispute of housing construction.
In a nutshell, Complainants' case is that on 04.02.2008 they had entered into an agreement with the opposite party to purchase of two flats measuring about 1012 sq. ft. on the 2nd floor and measuring about 620 sq. ft. on the 1st floor respectively of Holding No.42/5, Swami Vivekananda Road, P.S.- Shibpur, Dist- Howrah. In accordance with the terms of Agreement for Sale on payment of consideration amount, Sale Deed was executed by the OP in favour of the complainants on 03.10.2008 and 01.06.2009 respectively. After execution of the Sale Deed, the complainants took possession of their respective flats and found that the developer did not finish the said building in complete manner though at the time of the execution of the Deed of Sale the developer gave assurance that the incomplete works would be completed within a short period in respect of - (i) erection of boundary wall, (ii) to protection of meter box of electricity; (iii) for lighting the common areas of the building and the surroundings; (iv) to protect the stair by installing the glass windows; (v) to complete the passage from ingress and egress up to main gate; (vi) to ensure adequate supply of water; (vii) to obtain building completion certificate from Howrah Municipal Corporation and (viii) the surrounding wall of the roof should be made at least 3 ft. height. In this regard, all the attempts and persuasions of the complainants turned a deaf ear. Hence, the complainants have filed the complaint with prayer for following reliefs, viz - (a) to give direction upon the OP to complete all incomplete works and jobs; (b) to pay compensation to the tune of Rs.5,00,000/- to each of the complainant; (c) to pay litigation cost to the tune of Rs.25,000/-.
The opposite party by filing written version disputed the claim of the complainants stating that the complaint is not maintainable and it is barred by limitation. The specific defence of the OP is that out of eight flat owners, six flat owners have not come up to lodge the complaint and the complaint has been lodged after long six years from the date of obtaining possession. According to the opposite party, there is no deficiency on the part of him and as such the complaint should be dismissed.
On the basis of contention of the parties, the following points are framed for adjudication:-
Is the complaint maintainable in its present form?
Is the OP deficient in rendering services to the Complainants?
Are the Complainants entitled to get the relief/reliefs, as prayed for?
During hearing of the case Sri Swapan Kumar Mukherjee, complainant no.1 has tendered evidence on affidavit on behalf of the complainants. He has also given reply against the questionnaires set forth by the OPs.
On the other hand, the OP himself has filed evidence of affidavit. He has also given reply against the questionnaires set forth by the complainants.
On the basis of the materials indicated herein above, I shall proceed to discuss how far the Complainants have been able to substantiate the case.
DECISION Point No.1:
The materials on record indicate that the opposite party being proprietor of a construction firm raised construction of a three-storied (G+2) building by amalgamating two holdings i.e. Holding Nos. 42/5 and 42/6, Swami Vivekananda Road, P.S.- Shibpur, Dist- Howrah in a single holding. The complainant no.1 has purchased the flat no.201 on the 2nd floor measuring about 1012 sq. ft. from the OP on a consideration of Rs.15,82,630/-. The Sale Deed was executed by the OP on 03.10.2008 and the same was duly registered on 15.10.2008. Similarly, the complainant no.2 purchased the flat no.103 on the 1st floor measuring about 620 sq. ft. at a total consideration of Rs.5,82,800/- and the Sale Deed to that effect was executed by the OP on 01.06.2009 and the same was registered on 02.06.2009. The evidence on record also goes to show that there are altogether six flat owners in the said building and out of them only two flat owners have lodged the instant complaint alleging deficiency in services on the part of the opposite party.
Therefore, as the complaint has been lodged by more than one consumer, Section 12(1)(c) of the Act comes into play which provides -
"Manner in which complaint shall be made.
A complaint in relation any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by -
.......
........
One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of or for the benefit of, all consumers so interested".
Admittedly, eight persons purchased the flat from the opposite party and two of them have filed this complaint. This indicates that other six flat owners are either satisfied with the construction made by the opposite party or not interested to lodge complaint. In any case, perusal of prayer clause would show that the relief has not been claimed for other similarly placed persons. The interpretation and scope of Section 12(1)(c) of the Act was the subject matter of adjudication before Three-Member Bench of the Hon'ble National Consumer Commission reported in I (2017) CPJ 1 (Ambrish Kumar Shukla & 21 Ors. - vs. - Ferrous Infrastructure Pvt. Ltd.). While dealing with the scope of Section 12(1)(c) of the Act, the Hon'ble Commission has observed thus -
"The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them, therefore, will not be maintainable ........".
The Hon'ble National Commission in the said case has further observed - "The term 'persons interested' and 'persons having the same interest' used in Section 12(1)(c) means the persons having a common grievance against the same service provider. The use of the words 'all consumers so interested' and 'on behalf of or for the benefit of all consumers so interested', in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking common relief and consequently having community of interest against the said service provider".
The materials on record indicates that the complainants have not filed any application for leave of the Commission to file the complaint in a representative capacity. It should be noted here that the out of eight flat owners, earlier three flat owners including one Sri Biswanath Mukherjee lodged a complaint before the Ld. District Forum being HDF Case No.11 of 2010. Subsequently, the said Biswanath Mukherjee has lost his interest to lodge the complaint with the present complainants.
From the record, it has also come to my notice that all the eight flat owners have made a joint complaint regarding deficiency in services on the part of the developer. Subsequently, when excepting two flat owners, other flat owners have lost their interests to proceed against the developer, certainly the complainants should have obtained permission of the Commission prior to filing of the complaint.
Considering all the above, in view of the provisions of Section 12(1)(c) of the Act, the complaint being not maintainable in this form, the Point No.1 decided in the negative and against the complainants.
Point No.2:
In Paragraph-8 of the petition of complaint, the complainants have made instances of deficiencies highlighting the incomplete works as follows - (1) (i) erection of boundary wall, (ii) to protection of meter box of electricity; (iii) for lighting the common areas of the building and the surroundings; (iv) to protect the stair by installing the glass windows; (v) to complete the passage from ingress and egress up to main gate; (vi) to ensure adequate supply of water; (vii) to obtain building completion certificate from Howrah Municipal Corporation and (viii) the surrounding wall of the roof should be made at least 3 ft. height.
From the materials on record, it reveals that one Advocate Commissioner was appointed by the Ld. District Forum in HDF Case No.11/2010, who after holding inspection submitted report before the Ld. District Forum on 19.03.2012 with his valued opinion. For the purpose of determining the alleged deficiencies, one technical person should have been appointed in accordance with provisions of Section 13(4) of the Act. Section 13(4)(iv) of the Act provides - "The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source". The Section does not authorise any non-expertise to make any investigation for the purpose of appreciation of any dispute under the Act. The Ld. Commissioner, who has held inspection having no expertise, the said report has no bearing to prove the alleged deficiencies. In all fairness, the complainants should have filed an application for appointment of a technical person and non-compliance of the same creates a dent to the complainants' case.
This point is, accordingly, decided against the complainants.
Point No.3:
In view of foregoing discussion in respect of Point Nos. 1 & 2, the only irresistible conclusion should be drawn that the complaint is bereft of any merit and as such it deserves dismissal. Accordingly, the complaint is liable to be dismissed. However, I do not make any order as to costs.
The point no.3 is also disposed of accordingly.
In the result, complaint fails. It is, therefore, ORDERED The complaint is dismissed on contest but without any order as to costs.
However, this does not debar the complainants to lodge a fresh complaint before the appropriate Forum in accordance with law and in the process, to overcome the hurdle of limitation, they may seek assistance of the decision of Hon'ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works - Vs.- PSG Industrial Institute). [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER