State Consumer Disputes Redressal Commission
Aloke Nath Bhadra vs Smt. Sumitra De on 9 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/590/2016 (Arisen out of Order Dated 01/03/2016 in Case No. Complaint Case No. CC/269/2015 of District South 24 Parganas) 1. Aloke Nath Bhadra S/o Lt. Bhupendra Nath Bhadra, 14/3, North Road, P.S. Jadavpur, Kolkata - 700 032. ...........Appellant(s) Versus 1. Smt. Sumitra De W/o Lt. Milan Kumar Dey, 88, Subodh Park, Bansdroni, P.S. Bansdroni, Kolkata - 700 070. 2. Miss Maitrayee De D/o Lt. Milan Kr. Dey, 88, Subodh Park, Bansdroni, P.S. Bansdroni, Kolkata - 700 070. 3. Miss Malabika De D/o Lt. Milan Kr. Dey, 88, Subodh Park, Bansdroni, P.S. Bansdroni, Kolkata - 700 070. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Nitish Saha, Ms. Sanghamitra Das Chatterjee, Advocate For the Respondent: Mr. Susanta Kr. Chowdhury,Sk. Sabir Ali., Advocate Mr. Susanta Kr. Choudhury, Sk Sabir Ali., Advocate Mr. Susanta Kr. Choudhury, Sk Sabir Ali., Advocate Dated : 09 Mar 2017 Final Order / Judgement
Date of Filing - 05.07.2016 Date of Hearing - 01.03.2017 The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Opposite Party/developer to impeach the Judgement/Final Order dated 01.03.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, South 24 Parganas at Alipore (for short, Ld. District Forum) in Consumer Complaint no. 269/2015. By the impugned order the consumer complaint initiated by the Respondents herein under Section 12 of the Act was allowed with certain directions upon the Appellants like - (a) to handover two car parking spaces as per Schedule-'A' to the petition of complaint; (b) to pay compensation of Rs.60,000/- and (c) to pay litigation cost of Rs.5,000/-.
The Respondents herein being Complainants lodged the complaint asserting that on 04.08.2005 they had entered into a Development Agreement with the Opposite Party for construction of a new building after demolishing the existing one at Premises No.88, Subodh Park, Roy Nagar, P.S.- Bansdroni, Kolkata - 700070, District- South 24 Parganas and within the local limits of Ward No.112 of Kolkata Municipal Corporation. On 08.08.2005, they have also executed one registered Power of Attorney authorising the OP to raise construction etc. Admittedly, on 04.06.2009, the OP/developer handed over possession of entire 2nd floor comprising two flats measuring about 1156 sq. ft. but the OP did not deliver the two car parking spaces as per terms of the Agreement. Hence, the Respondents approached the Ld. District Forum with prayer for certain reliefs, viz - (a) to direct the OP to allot two car parking spaces; ( b) compensation of Rs.1,00,000/- for harassment and mental agony and (c) litigation cost of Rs.10,000/-.
The Appellant being OP by filing written version has stated that in the agreement, it was stipulated that if the 35% of the FAR is not covered by two car parking space, the OP shall pay for remaining area and it was agreed that the OP shall pay a sum of Rs.33,000/- to the Complainant and the OP is always ready to pay the said amount. The OP has further stated that he has already executed the Deed of Conveyance in respect of the flats and car parking spaces falling in developer's allocation on the strength of General Power of Attorney executed by the Complainants.
After assessing the materials on record, the Ld. District Forum by the impugned Judgement/Final Order allowed the complaint with certain directions upon the OP, as indicated above, which prompted the OP/developer to prefer this appeal.
I have considered the submission advanced by the Ld. Advocates appearing for the Appellant and Respondent nos. 1 to 3. I have also scrutinised the materials on record.
Having heard the Ld. Advocates for the respective parties and on going through the materials on record, it would reveal that the Respondents herein are the landowners in respect of 3 cottahs 2 chitaks and 25 sq. ft. and 1 cottah 5 chitaks and 55 sq. ft. of land lying and situated at Premises No.88, Subodh Park, Roy Nagar, P.S.- Bansdroni, Kolkata - 700070, District- South 24 Parganas and within the local limits of Ward No.112 of Kolkata Municipal Corporation. On 08.08.2005, they have also executed one registered Power of Attorney authorising the OP to raise construction etc. Admittedly, on 04.06.2009, the OP/developer handed over possession of entire 2nd floor comprising two flats measuring about 1156 sq. ft. but the OP did not deliver the two car parking spaces as per terms of the Agreement.
On having a look to the contents of the Development Agreement, it emerges that in Paragraph-9 of Article-1, the owners allocation shall mean the entire 2nd floor of the proposed building and two car parking spaces on the ground floor subject to 35% of total FAR according to sanctioned building plan.
Mr. Abhik Kumar Das, Ld. Advocate for the Appellant has submitted that in compliance with the order of the Ld. District Forum his client has already paid Rs.60,000/- and Rs.5,000/- as compensation and litigation cost and the developer had every intention to handover two car parking spaces but as the developer had sold out all the car parking spaces excepting one, there is no scope to handover two car parking spaces to the Respondents. The Ld. Advocate for the Appellant has further submitted the agreement was executed on 04.08.2005 and building sanctioned plan was obtained from the Corporation on 11.07.2007 and in the sanctioned building plan, the sanctioning authority has only sanctioned 4 car parking spaces and if 35% of FAR is taken into consideration, the Respondents are not entitled to two car parking spaces.
The Ld. Advocate for the Respondents supporting the decision of the Ld. District Forum has left the matter for consideration of this Commission.
At the time of hearing, Ld. Advocate for the Appellant has placed before me a copy of Sanctioned Plan to impress that the sanctioning authority has only sanctioned four car parking spaces and as such the developer is not in a position to handover more than one car parking space to the respondents. However, on a close scrutiny of the said sanctioned plan, I find that only three nos. of car parking spaces were required and the Corporation has provided four car parking spaces. In all fairness, before selling out the car parking spaces to outsiders or third party, the developer should have consulted with the landowners so that no dispute cropped up in the future. The intention of the developer was, therefore, is very clear to victimise the landowners from getting their share of car parking spaces.
Needless to say, the parties are bound by the agreement. When the Agreement clearly stipulates that the landowners are entitled to two car parking spaces of 100 sq. ft. each, before selling out to any other party, the developer should approach the landowners. This shows clear negligence and deficiency on the part of the developer.
Considering the above, I do not find any shortcoming in passing the order impugned. On the contrary, the developer intended to play a trick to make wrongful gain and as such the Ld. District Forum was quite justified in passing the order impugned.
Consequently, the appeal is dismissed on contest.
The impugned Judgement/Final Order is hereby affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (now at Baruipur) for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER