State Consumer Disputes Redressal Commission
Mr. Uttam Kumar Chatterjee vs Jayshree Tea And Industries Ltd. on 1 October, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/9/2018 ( Date of Filing : 03 Jan 2018 ) 1. Mr. Uttam Kumar Chatterjee S/o Lt. Chandra Narayan Chatterjee, Mangalam Apartment, Flat no. 4B, Front Block, 33, Raja Santosh Road, Kolkata -700 027. ...........Complainant(s) Versus 1. Jayshree Tea and Industries Ltd. Industry House, 10, Camac Street, Kolkata -700 017. 2. Alipore Mangalam Resident Welfare Association Through Secy, Mr. R.K. Ganeriwala, Front Block, 33, Raja Santosh Road, Kolkata -700 027. 3. Kolkata Municipal Corporation 5, S.N. Banerjee Road, Kolkata - 700 013. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Sankar Mukhopadhyay, Advocate For the Opp. Party: Dated : 01 Oct 2019 Final Order / Judgement PER: HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 of the Consumer Protection Act, 1986,(for brevity, 'the Act') is at the behest of a couple/purchaser against the developer/ builder(Opposite Party No. 1), the Residential Welfare Association of the complex (Opposite Party No. 2) ,and the Kolkata Municipal Corporation (Opposite Party No. 3) on the allegation of deficiency of services, primarily on the part of Opposite Party No. 1 in dispute of housing construction.
Succinctly put, complainants' case is that on 15.03.2003 they entered into an agreement for sale with OP No. 1 to purchase of a self-contained flat measuring about 2320 sq. ft. being flat No. 4B on the 4th floor together with one open/ covered car parking space in the ground floor in a building christened 'Mangalam Apartment' lying and situated at premises No. 33, Raja Santosh Road, P.S.- Alipore, Kolkata- 700027 within the local limits of Ward No. 74 of the Kolkata Municipal Corporation at a total consideration of Rs. 42,00,000/-. On payment of entire consideration amount by the complainants, a registered Deed of Conveyance dated 29.01.2007 has been executed by OP No. 1 in respect of the flat in question and one open/ covered car parking space in the ground floor and hand over the possession thereon. The complainants have stated that they solely used the car parking lot for their car which is a small car maker Maruti Wagan R and they were given a clear impression that they were the sole owner of North Eastern parking space in the front block. The complainants have stated that as they were used to live in Mumbai and was out of station their flat was being rented out. Taking the advantage of long absence of them, the OP Nos. 2 and 3 divided the parking lot into two by a yellow line, all on a sudden, an allotted one such divided parking to one Sri Gautam Agarwal of flat No. 1C, front block without any knowledge of them. Around this time the car parking spaces in the building were also marked with flat numbers on small places. This was noticed by the complainants in one of their visits to Kolkata in early 2015 when they came to take over their flat form their tenant. The complainants time and again requested the OP Nos. 1 and 2 to remove such illegal allotment lying ingress by another car in their parking lot but there was no response from OP No. 1 though there were virtual assurance on several occasions to solve the problem. Hence, the complainant approach this commission with prayer for several reliefs, viz.- (a) to issue specific allotment letter showing covered parking space to your petitioners and to endure free ingress and egress of your petitioners car into the said parking; (b) to issue completion certificate of the building;(c) to issue receipts of Maintenance charges month by month; (d) to issue all audited report of accounts of Mangalam Residents Welfare Association; (e) to remove all illegal constructions of the building beyond the Sanction Plan B.S.41 (B-IX) dated 7.10.98; (f) Rs. 4 Lakhs for compensation of mental agony and harassment (g) Cost of the Case Rs. 1 Lakh (h) OP. No. 3 be directed to submit a report to this Hon'ble Commission, regarding illegal constructions as narrated hereinbefore and/or such other relief and relieves which this Hon'ble Commission may deem fit and proper.
The notice upon Opposite Party Nos. 1 and 2 have been duly delivered on 21.12.2018 but despite receipt of the notice the Opposite Party Nos. 1 and 2 have neither appeared nor filed written version. Under compulsion, the complaint was heard against OP Nos. 1 and 2 ex parte.
The Opposite Party No. 3 by filing a written version has stated that they are in no way connected with the instant dispute and as such the complaint should be dismissed against them.
In support of their case, complainant No. 1 has tendered evidence through affidavit on behalf of the complainants. Besides the oral statement, the complainants have relied upon several documents including copy of agreement for sale, copy of deed of conveyance, copy of sanctioned building plan etc. The evidence tendered by complainant No. 1 Sri. Uttam Kumar Chatterjee has not been contradicted by filing any questionnaire. The Opposite Parties did not choose to file any evidence on their behalf. During hearing of the case, on behalf of complainants a brief notes of argument has been filed.
The overwhelming evidence on record make it quite clear that the Opposite Party No. 1 was the owner of the entire building and the land thereon lying situated at premises No. 33, Raja Santosh Road, P.S.- Alipore, Kolkata- 700027 within the local limits of Ward No. 74 of Kolkata Municipal Corporation. On 15.03.2003 complainants had entered into an agreement for sale with the Opposite Party No. 1 to purchase of a self-contained flat measuring about 2320 sq. ft being flat No. 4B on the 4th floor together with one open/covered car parking space in the ground floor together with proportionate share in land and common portion in the building christened 'Mangalam Apartment' at a total consideration of Rs. 42,00,000/-. It is also not in dispute that on payment of the entire consideration amount the Opposite Party No. 1 executed and registered one deed of conveyance in favour of the complainants on 29.01.2007. In Clause 1.13 of the sale deed it has been categorically mentioned that the said flat and the properties appurtenant thereto mean all that the flat No. 4B on the 4th floor of the building being Front Block commonly known as 'Mangalam' comprised in the said premises containing measurement of an area of 2320 sq. ft. super built up area together with one open/covered car parking space together with the undivided impartiable proportionate share in the land comprised under the said building at the said premises attributable thereto and together with the undivided proportionate share in common parts and portions.
Therefore, in accordance with the terms of the agreement for sale dated 15.03.2003 and recital of deed of conveyance dated 29.1.2007, the complainants are entitled to the flat in question and also open/covered car parking space. However, the whole dispute cropped up on account of non-availability of the car parking space allotted to the complainants. It is pertinent to mention here that in the agreement for sale although measurement of the flat was mentioned but no measurement on number of the covered car parking space was mentioned.
In course of handing over possession of the said flat and car parking space, it appears that the complainants were shown two similar car parking spaces, the entrances whereof were from the eastern side and were asked to exercise their choice and the complainants having obtained for the north-east corner space, the same was allotted to the complainants. However, the said car parking space, as allotted to the complainants although is slightly bigger than the standard one, but not sufficient for parking two cars or proper manoeuvring space for the same for ingress and egress to and from the said parking space.
The complainants have specifically alleged that during their absence and stay in Mumbai, the Opposite Party Nos. 1 and 2 taking advantage of the long absence sold the car parking space to a third party named one Gautam Agarwal to use the said space for parking his car there. Subsequently, coming to Kolkata they found that another car allegedly of one Gautam Aggarwal has been kept at the said car parking space by removing the car of the complainants from the place where it was kept and parked causing blockage in the ingress and egress of the car of the complainants to and from the specifically allotted car parking space.
In that perspective, the complainants have approach this commission for redressal of their grievances. In this regard, it will be worthwhile to record Rule 2 (43) of the Kolkata Municipal Corporation Building Rules, 2009 which defines word 'parking space' as under:
"parking space means an area either enclosed or unenclosed, covered or open sufficient in size to park vehicle(s) located at any level having sufficient manoeuvring space for loading and unloading."
Rule 77 of the said rules deals with minimum parking space, which reproduces below:
"(1) 'No off-street parking space shall be less than
(a) 12.5 sq. m. ( 2.5 m in width and 5 in the length) for a motor car, with a minimum head room of 2.2m. if parked in a covered area"
(b)...........................
(2) "The minimum width of circulation driveway to be provided for adequate manoeuvring of vehicles shall be 4.0 m. for cars...................
(3) "the parking layout plan shall be so prepared that parking space for each vehicle becomes directly accessible form driveway or circulation driveway or aisles............."
From the aforesaid, it would appear that the legislative intent in framing said rules was to ensure not only to make provision for adequate space for parking cars but also for providing sufficient space for easy and hassle free maneuvering of the car to put in and take out from the parking space.
Therefore, the Opposite Party No. 1 should be directed to restore the original parking space at the North-East corner of front block at premises No. 33, Raja Santosh Road, Kolkata- 700027 to the complainants with sufficient maneuvering as defined Rule 2 (33) read with Rules 77 and 78 of the Kolkata Municipal Corporation Building Rules, 2009.
Needless to say, the statutory obligation as on the part of developer does not end only after execution of sale deed and handing over the possession. It is also incumbent upon the developer to obtain completion certificate from the competent authority and to hand over an authenticate copy of the same to the purchaser.
Admittedly, the complainant filed affidavit by way of evidence but OPs neither filed questionnaire nor filed evidence through affidavit. In a decision reported in (2003) 1 SCC 240 (Sarwan Singh vs. State of Punjab), while discussing on the point, in paragraph 9 of the said decision the Hon'ble Supreme Court has observed thus:
"it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. A decision of the Calcutta High Court lends support to the observation as above. [see in this context A.E.G Caraplet v. A.Y derderan4 (opinion of P.B Mukherjee, J, as he then was).]"
In this regard, it would be profitable to refer the observation made by Justice P.B. Mukharji, j. in paragraph 9 of the said decision reported in AIR 1961 Cal 359 (A.E.G Caraplet Vs. A.Y. Derian). In paragraph 9 of the said decision it has been observed -
"9. the law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses............"
Admittedly, the complainant filed affidavit by way of evidence but the opposite parties neither filed any affidavit by way of evidence nor cross-examined the complainants witness i.e. complainant No. 1. In such circumstances, keeping in view the proposition of law, the allegations of the complainants which remained uncontroverted shall prove their case in the absence of any counter affidavit filed by opposite parties.
On evaluation of materials on record and having heard the Ld. Advocate for the complainants it appears to us that the complainants being 'Consumer' as defined in section 2 (1)(d) of the Act hired the services of Opposite Party No. 1 on consideration to purchase of a self-contained flat and an open/ covered car parking space and despite execution and registration of sale deed, the Opposite Party No. 1 has failed to keep their commitment in delivering the possession of the car parking space in question in accordance with the provisions of the Kolkata Municipal Corporation Building Rules 2009 and as such they are deficient in rendering services within the meaning of Section 2 (1) (g) read with section 2 (1) (o) of the Act. Accordingly, the complainants are entitled to some reliefs. In our view, an order to direct the Opposite Party No. 1 to provide a proper parking space to the complainants in accordance with Rules 77 and 78 of Kolkata Municipal Corporation Building Rules will sub-serve the object of justice. The OP No. 1 has also an obligation to obtain completion certificate and as such complainants is also entitled to an order to that effect. However, the other reliefs claimed by the complainants except compensation and litigation costs cannot be considered because in respect of prayer iii, iv, v and viii only 'class action' is entertainable under section 12 (1) (c) of the Act and as such they are not entitled to any relief to that extent. As the situation compelled the complainants to lodge the complaint they are entitled to compensation and considering the harassment and mental agony coupled with the loss suffered by them we assess the compensation to the extent of Rs. 1,00,000/-. As the situation compelled the complainants to lodge complaint, they are also entitled to litigation cost which we quantify at Rs.10,000/-.
In view of the above, the complaint is allowed ex parte against Opposite Party No. 1 and dismissed against Opposite Party Nos. 2 and 3 with the following directions:
(i) The Opposite Party No. 1 is directed to give specific allotment letter showing open/covered car parking space to the complainants in accordance with Clause 1.13 (inner page 14) of the deed of conveyance dated 29.01.2007 and to ensure free ingress and egress of the complainants car in the said parking after following the provisions of Rules 77 and 78 of the Kolkata Municipal Corporation Building Rules, 2009 within 60 days from date;
(ii) The Opposite Party No. 1 is directed to obtain completion certificate from the Kolkata Municipal Corporation and to hand over an authenticate copy to the complainants within 60 days from date;
(iii) The Opposite Party No. 1 is directed to pay Rs. 1,00,000/- to the complainants as compensation within 30 days from date, in default the said amount shall carry interest @ 9% p.a. from date till its realisation;
(iv) The Opposite Party No. 1 is directed to pay Rs. 10,000/- to the complainants as costs of litigation;
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER