State Consumer Disputes Redressal Commission
Satadal Gupta vs Flat Owners Association Of Kheya ... on 3 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/860/2015 (Arisen out of Order Dated 18/06/2015 in Case No. Complaint Case No. CC/61/2015 of District Kolkata-II(Central)) 1. Satadal Gupta No. - 29/1B, Northern Avenue, P.S - Chitpur, Kolkata - 700 002. ...........Appellant(s) Versus 1. Flat Owners Association of Kheya Apartment 13A, Ganguly Para Lane, P.S - Chitpur, Kolkata - 700 002, represented by its Secretary, Mrs. Bhakti Chakraborty. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Barun Prasad Mr. Subrata Mondal Mr. Sovanlal Bera , Advocate For the Respondent: Mr. Kishore Brata Das, Advocate Dated : 03 Aug 2017 Final Order / Judgement
Date of Filing - 07.08.2015 Date of Hearing - 13.07.2017 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 to impeach the Order No.14 dated 18.06.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No.61/2015. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Flat Owner Association of Kheya Apartment represented by its Secretary Mrs. Bhakti Chakraboty under Section 12 of the Act with several directions upon the Appellant to complete the incomplete work and to secure sanctioned plan after submitting revised plan to the Kolkata Municipal Corporation and to collect the Completion Certificate and hand over completion certificate, sanctioned plan, original sanctioned plan to the Complainant and also to hand over the entire premises as per Development Agreement and it must be completed within 60 days and if Opposite Party fails to do that in that case for non-compliance of the Forum's order, OP shall have to pay penal damages @ Rs.30,000/- per month to this Forum till satisfaction of the award etc. The Respondent herein being Complainant lodged the complaint asserting that OP being promoter/developer has constructed a G+4 storied building at Premises No.13A, Ganguly Para Lane, P.S.- Chitpur, Kolkata - 700002. The members of the complainant Association have individually purchased individual self-contained flat/unit in the said premises for valuable considerations and in the year 2010 on the request of OP, they accepted the possession in respect of their respective flats from the OP on payment of full consideration. The complainant alleged that for non-supply of relevant papers and documents, the Municipal Authority has not connected the appropriate/required diameter of the drainage and/or sewerage connection pipe to the said premises for which there is water logging in and around of the said premises. The complainant has also alleged that they are facing acute shortage of drinking water as the connection of water pipe between the ferule and the reservoir is totally damaged resulting leakage and percolation of water and under compelling circumstances, the flat owners jointly raised a fund and replaced the old damaged pipe line with a new pipe line and also caused necessary repairs. The complainant submits that finding no other alternative, on 23.09.2014 they expressed their grievances and demand to the OP through their Advocate but the OP has deliberately failed to discharge his duties. Hence, the complainant approached the Ld. District Forum with prayer for several reliefs, viz. - (a) refund of payment of Rs.7,80,000/-; (b) compensation of Rs.8,80,000/-; (c) litigation cost etc. The Appellant being OP by filing a written version has stated that they have made an application before the Kolkata Municipal Corporation (KMC), Borough No - 1 on 09.03.2010 for regularising the changes in the construction and it has further been stated that in the matter of construction, he has used quality of products and being satisfied the flat owners have obtained possession in the year 2008.
On evaluation of materials on record, the Ld. District Forum by the impugned Judgement/Final Order allowed the complaint with certain directions as indicated above, which prompted the OP to come up in this Commission with the present appeal.
Mr. Barun Prasad, Ld. Advocate for the Appellant has submitted that if the value of the flats of all the flat owners of Kheya Apartment and the compensation of Rs.8,80,000/- as claimed by the Respondent are taken together, certainly it would exceed Rs.20 lakhs and the Ld. District Forum had no pecuniary jurisdiction as envisages under Section 11(1) of the Act. In reply to the same, Ld. Advocate for the Respondent has submitted that this point was not agitated before the Ld. District Forum and as such the question of pecuniary jurisdiction cannot be raised at this appellate stage.
Needless to say, the jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz - (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence, the said order would be a nullity. It is well settled that the question of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or in the nascent phase of the proceeding. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi - vs. - D.L.F. Universal Ltd. & Anr.) the Hon'ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage. Therefore, the question of lacking pecuniary jurisdiction of Ld. District Forum cannot be entertained in an appeal.
Ld. Advocate for the Appellant has also submitted that when the subject flats were handed over to the flat owners and further Deed of Conveyances were executed in the year 2010, the complaint is barred by limitation under Section 24A of the Act. In support of his submission, Ld. Advocate for the Appellant has placed reliance to a decision of Hon'ble National Commission dated 01.03.2016 in FA/493/2015 (Rajat Kumar De - Vs. - M/s. Sagar Creation). Per contra, Ld. Advocate for the respondent has submitted that when Completion Certificate has not yet been delivered to the flat owners, the cause of action is a continuous one.
After entering into agreement with a buyer on consideration and on receipt of entire consideration amount, it is statutory obligation on the part of the developer to provide to the buyer - (i) delivery of possession; (ii) execution and registration of Sale Deed and (iii) to provide Completion Certificate. After taking possession on execution of Sale Deed by a developer/builder, if a buyer does not get Completion Certificate certainly he/she will not be able to mutate his/her name in the Assessment Register of the Corporation resulting thereby he/she would be a defaulter in payment of taxes. Therefore, mere execution and registration of Sale Deed and delivery of possession by a developer/builder to a buyer does not absolve his/her responsibility and in such a situation, unless completion certificate is provided by the developer the cause of action is a continuous one. The decision in the case of Rajat Kumar De (supra) is distinguishable with the facts and circumstances of our case because in the referred case, no allegation was made as to non-availability of Completion Certificate. Therefore, the submission of the Ld. Advocate for the appellant on this ground also fails.
Ld. Advocate for the appellant, thereafter, submitted that the respondent has filed the complaint before the Ld. District Forum which is a non-registered association and there is no whisper in the petition of complaint how many flat owners are members of the said association or how many flat owners are yet to be member of the association and therefore, in accordance with Section 12(1)(c) of the Act, the permission of the Ld. District Forum should have been obtained before the Ld. District Forum and when no such permission was accorded, the petition of complaint should have been dismissed by the Ld. District Forum. In support of his submission, Ld. Advocate for the appellant has placed reliance to a decision of Hon'ble National Consumer Commission reported in I (2017) CPJ 1 (NC) (Ambrish Kumar Shukla & 21 Ors. - Vs. - Ferrous Infrastructure Pvt. Ltd.). In reply to the same, Ld. Advocate for the respondent has submitted that the appellant has adopted an unfair method in dealing with the flat owners and as such the Ld. District Forum has rightly passed the order impugned.
Evidently, this complaint has been filed by one unregistered association represented by one of the flat owners. There are other several flat owners but they have not been impleaded as parties. The Respondent did not seek permission of the Ld. District Forum to lodge complaint in a representative capacity which is condition precedent and pari materia to Order - 1 rule 8 of Civil Procedure Code. Section 12(1)(c) of the Act 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, a number of persons of Kheya Apartment purchased the flat from the opposite party and one of them has filed the complaint before the Ld. District Forum. This indicates that other flat owners are either satisfied with the construction made by the developer 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 of Kheya Apartment. While dealing with the scope of Section 12(1)(c) of the Act, in the case of Ambrish Kumar Shukla & 21 Ors. (supra), the Larger Bench of 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. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 agreed persons will be compelled either to file individual complaint or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have the legislative intent. 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 indicate that the complainant has not filed any application for leave before the Ld. District Forum to file the complaint in a representative capacity in accordance with the provisions of 13(6) of the Act. The complainant has not stated in her petition of complaint whether she is the representative of all the flat owners of Kheya Apartment or even did not mention how many flats are there in the Kheya Apartment.
Therefore, the Ld. District Forum should not have admit the complaint when it has not been filed in a representative capacity as provided in Section 12(1)(c) of the Act.
The Respondent/complainant has alleged about several deficiencies in the petition of complaint but did not take any pain to prove those deficiencies by appointing any expert. Moreover, in the prayer clause of the petition of complaint, the respondent did not make any prayer for a direction upon the developer to hand over completion certificate in favour of the flat owners. It is also not clear how the complainant has claimed refund of Rs.7,80,000/- and what is the reason behind assessment of claim of Rs.7,80,000/-.
It is unfortunate to record that the appellant/developer has not constructed the building in accordance with the building sanctioned plan and has made deviation of the same and as such could not obtain completion certificate for long seven years and to overcome the situation, the developer submitted deviation plan under Rule 25 of the KMC Building Rules, 1990. In this regard, I could not restrain my temptation to refer the observation of the Hon'ble Apex Court in Civil Appeal No.7934/2012 (Esha Ekta Apartments Cooperative Housing Society Ltd. & Ors. - Vs. - Municipal Corporation of Mumbai & Ors.) has observed thus - "In last five decades, the provisions contained in various Municipal Laws for planned development of the areas to which such Laws are applicable have been violated with impunity in all the cities, big or small, and those who entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of citizens, repeatedly cautioned the concerned authorities against arbitrary regularization of illegal construction by way of compounding and otherwise".
In the said decision, the Hon'ble Apex Court has made it clear that it is a duty cast upon the promoters to develop in accordance with the plans and specifications and there is a prohibition against alteration or addition in the plans and specification without the consent of the persons who have agreed to take the flats. In our case, it is quite evident that the OPs took the law in his own hand showing a thumb to the Kolkata Municipal Corporation.
Therefore, it is palpably clear that the respondent/complainant had a very good case but as the complaint has not been lodged in accordance with the provision of Section 12(1)(c) of the Act, the appeal should be allowed on that ground alone.
For the reasons aforesaid, the appeal is allowed on contest. There will be no order as to costs.
The impugned Order is hereby set aside.
Consequently, CC/61/2015 stands dismissed.
However, this order will not debar the Respondent/Complainant to approach a competent Court/Forum in accordance with law and in the process he may seek assistance of the decision of Hon'ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works - vs.- P.S.G. Industrial Institute).
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER