State Consumer Disputes Redressal Commission
Sri Jayanta Das vs Sri Arabindo Samanta on 27 September, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/324/2017 ( Date of Filing : 04 May 2017 ) 1. Sri Jayanta Das S/o Sri Ashok Kr. Das, Flat no.406, Sundaram Apartment, 64B, G.T. Road, Bhadrakali, Hooghly, Pin -712 232. ...........Complainant(s) Versus 1. Sri Arabindo Samanta S/o Lt. Tarini Charan Samanta, rep. by its partner, M/s. Dayal Construction, 8(old no.2C), Benimadhab Ghosh Lane, P.O.- Bhadrakali, P.S.- Uttarpara, Dist. Hooghly, Pin-712 232. 2. Sri Rabindranath Samanta S/o Lt. Tarini Charan Samanta, rep. by its partner, M/s. Dayal Construction, 8(old no.2C), Benimadhab Ghosh Lane, P.O.- Bhadrakali, P.S.- Uttarpara, Dist. Hooghly, Pin-712 232. 3. The Chairman, Uttarpara- Kotrung Municipality New G.T. Road, Uttarpara, Hooghly, Pin -712 258.
Deleted vide Order No. 4 dt. 01.02.2018 . ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Ayan Pal, Ms. Anita Paul, Advocate For the Opp. Party: Mr. Indrajit Bhattacherjee, Advocate Dated : 27 Sep 2018 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of a purchaser against a Construction Firm and its partners on the allegation in deficiency in services on the part of Opposite Parties in a dispute of housing construction.
In a nut shell, Complainant's case is that on 30.12.2014 he entered into an Agreement for Sale with the Opposite Parties to purchase of a self-contained flat measuring about 940 sq. ft. super built up area being Flat No.406 on the 4th floor in a building named 'Sundaram Apartment' lying and situated at Premises No.64, B.G.T. Road, P.S.- Uttarpara, Dist- Hooghly within the local limits of Uttarpara-Kotrung Municipalityat a total consideration of Rs.22,79,500/-. On payment of entire consideration amount, a Deed of Conveyance was executed by the developer/builder on 04.05.2015 and subsequently possession was also delivered in favour of the complainant. The complainant has alleged that the developer/builder has deviated and violated the sanction plan to earn extra profit by conversion of car parking space in to an office and shop rooms and a portion thereof has been let out to the bank most illegally. The complainant has also alleged that he has no free access to the premises which had been blocked and restricted by such unauthorised and illegal construction in deviation of the sanctioned plan of the municipality. Hence, the complaint with prayer for several reliefs, viz. - (a) a direction upon OPs to obtain Completion Certificate; (b) to refund the service tax of Rs.71,000/- etc. The Opposite Party Nos. 1 & 2 by filing a written version have stated that there was no deficiency in services on the part of them and as such the complaint should be dismissed.
The Chairman, Uttarpara-Kotrung Municipality was arrayed as Opposite Party No.3 but as no privity of contract between the complainant and the said OP exists, the name of OP No.3 was deleted by Order No.04 dated 01.02.2018.
In support of his case, complainant tendered evidence through affidavit. However, OP Nos. 1 & 2 have not filed any questionnaire. But at the time of final hearing, OP Nos. 1 & 2 was represented through their Ld. Advocate.
The overwhelming evidence on record makes it abundantly clear that on 30.12.2014 the complainant had entered into an Agreement for Sale with M/s. Dayal Construction represented by OP Nos. 1 & 2 to purchase of a self-contained flat measuring about 940 sq. ft. super built up area being Flat No.406 on the 4th floor in a building named 'Sundaram Apartment' lying and situated at Premises No.64, B.G.T. Road, P.S.- Uttarpara, Dist- Hooghly within the local limits of Uttarpara-Kotrung Municipality at a total consideration of Rs.22,79,500/-. On payment of entire consideration amount, a Deed of Conveyance was executed by the developer/builder on 04.05.2015 before the Office of Registrar of Assurance - III at Kolkata. Subsequently, on 06.05.2015 possession letter was issued in favour of the complainant and the complainant duly accepted the same.
The complainant, after purchase noticed several deficiencies on the part of the developer including construction of 5th floor without any sanction plan from the Municipality. In this regard, the complainant sought an information under Section 6 of RTI Act, 2005. As per the information provided by the Municipality, no revised building plan has been sanctioned in the name of developer till 20.07.2016.
It would be pertinent to record here that the complainant along with some other purchasers filed a writ petition in the Hon'ble High Court being WP No.28937(W) of 2016 against the Municipality, developer and others and by an order dated 03.04.2017 the said writ petition was disposed of. The order passed by the Hon'ble High Court speaks that the Board of Councillors of the Municipality was directed to proceed with the proceeding initiated against the developer and to see that the same comes to an end within 4 weeks from the date of communication of the order. Referring to the same, Ld. Advocate for OP Nos. 1 to 3 has submitted that when the matter is pending for consideration before the Hon'ble High Court against the order of Board of Councillors, the instant proceeding may be stayed. I do not find any force in such submission because a developer after receipt of entire consideration amount is under obligation - (1) to deliver possession; (2) to execute Sale Deed and (3) to obtain Completion Certificate from the competent authority and to handover an authenticated copy of the same to the purchasers in order to facilitate the purchaser to record his name in the Assessment Register of the competent authority. When from the information given by the Municipality itself, it transpires that the developer/builder by violating the building sanctioned plan constructed the building without the consent and knowledge of the purchaser certainly, the OPs are deficient in rendering services.
On query, Ld. Advocate for OP Nos. 1 & 2 has also failed to explain why they have collected service taxes of Rs.71,000/- and if so collected, whether the amount was paid to the Government to which Ld. Advocate for OP Nos. 1 & 2 could not give any satisfactory reply. Therefore, the OPs/developer should not have collected Rs.71,000/- from the complainant in the name of service tax.
So far as, prayer -(ii) and (iii) are concerned, those are relating to common facilities and in order to obtain relief, prior to filing of the complaint, a permission under Section 12(1)(c) of the Act should have been obtained to initiate a 'class action' and in view of the observation of the Larger Bench of Hon'ble National Commission in a decision reported in I (2017) CPJ 1 [Ambrish Kumar Shukla & 21 Ors. - Vs. - Ferrous Infrastructure Pvt. Ltd.]. Therefore, the complaint is not entitled any relief on that ground.
On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(1)(d) of the Act hired the services of OP Nos.1 & 2 on consideration and OP Nos.1 & 2 have failed to fulfil their part of obligations in providing Completion Certificate to the complainant and also intentionally collected Rs.71,000/- in the name of service tax and thereby deficient in rendering services towards the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some reliefs. In my view, a direction upon the OP Nos. 1 & 2 to obtain Completion Certificate from the Municipality and to refund Rs.71,000/- collected by them on the plea of payment of service tax should be refunded. The acts and conducts of the developer has caused tremendous mental agony and harassment to the complainant for which the complainant is entitled to compensation and considering the loss suffered by him, I assess the compensation at Rs.1,00,000/-. Under compelling circumstances, the complainant has to knock the door of a Forum constituted under the Act and therefore, complainant is entitled to litigation cost which I quantify at Rs.10,000/-.
With the above discussion, I dispose of the complaint on contest with the following directions -
The Opposite Party Nos.1 & 2 are jointly and severally directed to obtain Completion Certificate from the Utrtarpara-Kotrung Municipality and to handover an authenticate copy of the same to the complainant within 90 days from date;
The Opposite Party Nos.1 & 2 are jointly and severally directed to refund Rs.71,000/- collected from the complainant as service tax;
The Opposite Party Nos.1 & 2 are directed to refund pay compensation of Rs.1,00,000/- in favour of the complainant;
The Opposite Party Nos.1 & 2 are directed to pay Rs.10,000/- as cost of litigation to the complainant;
The above payments must be paid within 60 days from date in default, the amount shall carry interest @ 9% p.a. from date till its full realisation;
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER