State Consumer Disputes Redressal Commission
Unnayan Developers (P) Ltd. vs Bibartan Sen on 11 July, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/195/2017 ( Date of Filing : 15 Feb 2017 ) (Arisen out of Order Dated 17/01/2017 in Case No. CC/778/2013 of District Kolkata-I(North)) 1. Unnayan Developers (P) Ltd. 18/44, Ballygunge Place(East), Kolkata -700 019. ...........Appellant(s) Versus 1. Bibartan Sen presently at DI-703, Golden Palms Apt. K. Nayayanapura, Kothanur Post, Bangalore -560 077. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Soikat Ghosh, Advocate For the Respondent: Subhas Basu, Advocate Dated : 11 Jul 2018 Final Order / Judgement
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of Opposite Party to impeach the final order/judgment being Order No. 19 dated 17th January, 2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, 'Ld. District Forum') in Consumer Complaint No. 778 of 2013. By the impugned order, the Ld. District Forum allowed the complaint lodged by respondent Shri Bibartan Sen under Section 12 of the Act with certain directions upon the opposite party/appellant like - to refund Rs. 15,00,000/-, to pay compensation of Rs. 2,00,000/- and to pay litigation cost of Rs. 20,000/- within thirty (30) days from the date of communication of the order in default the amount shall carry interest @10% p.a. to the credit of the respondent/complainant till its realisation.
The respondent herein being complainant lodged the complaint before the Ld. District Forum asserting that being allured by the advertisement in the website and in the form of booklet for sale of land in the name of project 'Unnayan Garden', the respondent had entered into an agreement with the appellant/opposite party on 02.04.2008 to purchase of a plot of land measuring about 3 cottahs in R.S. Dag No. 674, Khatian No. 1363 under JL No. 7 at Mouza-Kulberia under P.S.- Kolkata Leather Complex (K.L.C.), Dist.- South 24 Parganas at a total consideration of Rs. 6,00,000/- per cottah totalling Rs. 18,00,000/-. As per terms of the agreement, the respondent has already paid instalments of Rs. 15,00,000/- as part consideration amount. In the agreement, it was stipulated that the appellant will complete all necessary development works of the said land within 4 years and 6 months from the date of execution of agreement. The respondent visited the site in July, 2011 and once again in December, 2012 and found that no development work as promised by the appellant has been done. Subsequently, the respondent/complainant came to know that the land in question is substantially a water body oriented area (part) and agricultural area (part) and no permanent construction including residential building or conversion of land of use will be allowed. The respondent being disheartened sent a notice through his Ld. Advocate requesting the appellant/developer to re-allot 3 cottahs of land at Rajarhat as per advertisement in their brochure or to refund the amount of Rs. 15,00,000/- together with interest @ 10% p.a. within fifteen (15) days but it yielded no response. Hence, the respondent approached the Ld. District Forum on the allegation of deficiency in services on the part of opposite party/appellant and prays for several reliefs, viz.- (a) a direction upon the opposite party to provide a plot of land measuring about 3 cottahs at Rajarhat-New Town as per advertisement of Unnayan Group in default to refund Rs. 15,00,000/-; (b) a direction upon the opposite party to pay interest @ 12% on the depositing amount from the date of first deposit till the date of payment; (c) compensation of Rs. 2,00,000/- for harassment and mental agony; (d) litigation cost etc. Appellant being opposite party by filing a written version disputed the claim and it has been stated that the plot in question is not a water body but an agricultural land which can be converted to homestead land and as per terms of the agreement if the complainant/respondent cancels the agreement, the Company will refund the amount paid by complainant after deduction of 25% of the amount paid on account of price of land. The opposite party has also raised objection that the agreement for sale cannot be considered in evidence as it has not been property stamped.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with the certain directions as indicated above. To assail the said order, the opposite party has come up in this Commission with the present appeal.
Mr. Sujash Ghosh Dostidar, Ld. Advocate for the appellant has submitted that the respondent has set up the law in motion on the basis of the reply given by Chief Technical Officer, East Kolkata Wetlands Management Authority (E.K.W.M.A.) dated 14.08.2013 where it has been mentioned that the subject plot is listed substantially water body oriented area (part) and agricultural area (part) and no permanent construction including residential building or conversion of land will be allowed in the said land as per the existing Acts and Rules governing East Kolkata Wetlands area. Expanding his submission, Ld. Advocate for the appellant has drawn my attention to the provisions of Section 9 of East Kolkata Wetlands (Conservation and Management) Act, 2006 which provides-
"9. Maintenance and preservation in East Kolkata Wetlands - Notwithstanding anything contained in any law for the time being in force every person holding any land in the East Kolkata Wetlands shall maintain and preserve such land in a manner that its area not diminished, or its character is not changed, or it is not converted for any purpose other than the purpose for which it was settled or previously held, except with the previous sanction of the Authority under Section 10".
Section 10 read with Rules 8 & 9 of East Kolkata Wetlands (Conservation and Management) Rules, 2006 prescribes that any person holding a land in the East Kolkata Wetlands may apply to the Authority for change of character or mode of use of the land and after examination of the case and inspection, the Authority shall refer the case to the Collector of the concerned District for taking necessary action for issuance of an order under Section 4C of the West Bengal Land Reforms Act, 1955. The Ld. Advocate for the appellant has submitted that Plot No. 674 is partially water body and partially agricultural land and there is scope to convert the agricultural land into homestead land. Drawing my attention to Clause 8 of the agreement for sale, Ld. Advocate for the appellant has submitted that the appellant undertook to develop the land on behalf of respondent and for conversion of land the respondent should have approached the Authority for the purpose of changing of mode of user of the land. He has also submitted that alternatively the appellant has no impediment to refund the deposited amount to the respondent subject to deduction of Rs. 25% of service charges as embodied in Clause 7 of agreement for sale.
Per contra, Ld. Advocate for the respondent has contended that as per Clause 9 of the agreement, the appellant was under obligation to complete all the necessary works of the said land within four years and six months from the date of execution of the agreement and when the appellant has failed to keep their promise and even could not make any application for conversion of nature of land it indicates that there was not only deficiency in services on the part of appellant but also the appellant adopted an unfair trade practice to grab money from a consumer.
I have given due consideration to the submissions made by the Ld. Advocates appearing of the parties and seen the materials on record.
Undisputedly, on 02.04.2008 the respondent had entered into an agreement with the appellant to purchase of a plot of land measuring about 3 cottahs at Dag No. 674 Khatian No. 1363 under JL No. 7 being Plot No. A-164 of the scheme plan 'Unnayan Garden' at Mouza-Kulberia under P.S.- K.L.C., Dist.- South 24 Parganas at a total consideration of Rs. 18,00,000/- @ Rs. 6,00,000/- per cottah. In accordance with the terms of the said agreement, the respondent had already paid Rs. 15,00,000/- to the appellant as part consideration amount besides making payment of Rs. 200/- for the purpose of booking fee for notarisation of the agreement. As per terms of the agreement, the appellant/developer was under obligation to complete all the necessary works of the said land within four years and six months from the date of execution of the agreement but the appellant could not make any development whatsoever in the said property.
The fact remains that the respondent visited the site in July, 2011 to ascertain the progress made by the developer as assured but to his utter surprise even no demarcation of plots were made. Again he visited the site sometimes in December, 2012 and found that no development work as promised by the developer has been done. Finding some scent of foul play, the respondent wrote a letter to the Chief Technical Officer, East Kolkata Wetlands Management Authority on 20.07.2013 enquiring about the permission of construction of permanent structure at the land booking in favour of him. In reply to the said letter dated 14.08.2013 the C.T.O. has informed that the plot of land is listed substantially water body oriented area (part) agricultural area (part) and no permanent construction including residential building or conversion of land use will be allowed in the said land as per the existing Acts and Rules governing East Kolkata Wetlands Authority. In the said letter it has also been mentioned that any contravention of such provisions shall be treated as an offence under Section 18 of the said Act and shall be a cognizable and non-bailable offence. In such a situation, the respondent through his Ld. Advocate wrote a letter on 12.11.2013 requesting the appellant calling upon him to re-allot 3 cottahs of plot of vastu land at Rajarhat or refund the amount of Rs. 15,00,000/- together with interest thereon @ 10%.
The facts and circumstances of the present case indicate that the appellant/opposite party (developer) did not obtain any permission from E.K.W.M.A for the purpose of development of the area or the plot in question. In such a situation, without obtaining permission the appellant had no authority to enter into an agreement for sale with the intending buyers.
The Hon'ble National Commission in a decision reported in III (2007) CPJ 7 [Kamal Sood - vs. - DLF Universal Ltd.] relying upon the decision of Hon'ble Supreme Court reported in II (2000) CPJ 1 [Ghaziabad Development Authority - vs.- Union of India] has observed that it is unfair trade practice on the part of the developer to collect money from the prospective buyers without obtaining the required permissions, such as zoning plan, lay out plan etc. It is the duty of the developer to obtain the requisite permissions or sanctions in the first instance and thereafter recover the consideration money from the purchaser.
Therefore, the referred decision is squarely applicable in the facts and circumstances of the present case. The manner in which the appellant dealt with the intending buyer not only construes deficiency in services but also falls under unfair trade practice as defined in Section 2(1)(r) of the Act.
Ld. Advocate for the appellant has submitted that though the point was raised before the Ld. District Forum regarding the agreement for sale which was not sufficiently stamped but no observation has been made by the Ld. District Forum. According to the Ld. Advocate for the appellant the said unregistered agreement for sale cannot be admitted as evidence.
The fact remains that both the parties have relied upon the agreement for sale executed by and between them and none of the parties have picked up any quarrel as to the terms and conditions of the agreement. Now, there is hardly any scope on the part of the appellant to raise the issue. The decisions referred by the Ld. Advocate for the appellant in this regard reported in 2001 (2) Supreme 365 [Chilakuri Gangulappa - vs. - Revenue Divisional Officer, Madan Palle & Anr.] and also another decision of the Hon'ble Supreme Court reported in 2009 (1) Supreme 58 [Avinash Kumar Chauhan - vs. - Vijay Kumar Misra] have no manner of application in our case because both the said cases were relating to civil suits. There is no gain-saying that the act is a legislation for social benefit, meant to protect the interests of consumers and therefore, in order to achieve the objective and purpose of the legislation, a Consumer Forum is expected to adopt a constructive approach and not get bogged down by hyper-technicalities of procedure. Therefore, the alleged non-payment and sufficient stamp duty is not material for the purpose of determining the question as to whether there was any deficiency in services under Section 2(1)(g) read with Section 2(1)(o) of the Act.
After giving due consideration to the submission advanced by the Ld. Advocate appearing for the parties and on perusal of the entire materials on record, I am of the view that the Ld. District Forum was quite justified in allowing the complaint lodged by the respondent and the amount of compensation awarded by the Ld. District Forum is also appear to be quite justified in the facts and circumstances of the case. As a result, the appeal being devoid of merit should be dismissed.
Consequently, the appeal is dismissed on contest. However, there will be no order as to costs in this appeal.
The impugned judgment/final order is hereby affirmed.
The Registrar of the Commission is directed to send a copy of this order to the District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER