West Bengal

South 24 Parganas

CC/252/2015

Smt. Bijoli Chakraborty, Wife of Sri Subhas Chandra Chakraborty. - Complainant(s)

Versus

1. M/S Quantum Construction A registered Partnership Firm. - Opp.Party(s)

Sampa Saha.

26 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _252_ OF ___2015_

 

DATE OF FILING : 2.6.2015                       DATE OF PASSING JUDGEMENT:  26/09/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Subrata Sarker

                                                                             

COMPLAINANT        :    Smt. Bijoli Chakraborty, w/o Sri Subhas Chandra Chakraborty of 3, Santi Ghosh Street, P.S. Shyampukur, Kolkata – 3 and also of 13, Baikuntha Ghosh Road, P.S. Kasba, Kolkata – 42.

 

-VERSUS  -

 

O.P/O.Ps                            :     1.    M/s Quantum Construction represented by its Partners:

                                                 a.  Sk. Abdul Nabbar

                                                b.   Md.Mofizur Rahman

                                                at 29/1, Doctor Lane 2^nd Floor, P.S Taltala, Kolkata – 16.

                                                2.  Sri Gobindra Chandra Paul

                                                3.  Sri Tark Chandra Paul,

                                                Both sons of late Gopal Chandra Paul of 79/1 & 79/1A, Kumar Para Lane, P.S. Kasba, Kolkata – 42.

                                          

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that he entered into an agreement with the O.Ps to purchase one self contained first floor flat measuring 500 sq.ft super built up area to be erected or built on the south west side of the first floor of the proposed building being premises no.13, Baikuntha Ghosh Road, P.S. Kasba, Kolkata- 42  with the proportionate undivided impartiable share in land of the said premises at and for a total consideration of Rs.8,00,000/- only. It has claimed that O.P-1 was under obligation to complete the said flat and hand over the possession of the same only after executing the deed of conveyance on 24.5.2015 after completing the basic amenities  such as electricity and water but the same have not been done inspite of payment of entire consideration money by the complainant. The O.P-1 failed to perform their duties and obligations as stipulated in the deed of conveyance causing great harassment. The amenities and facilities  such as Electric meter, completion of electric wiring and fittings, water distribution system with fittings in toilet, sewerage and drainage pipelines of the building includ9ing providing commode in privy, completing the kitchen including providing marble slab and kitchen sink, completing the doors and windows of flat, polishing or colouring main entrance door of the flat including providing lock(latch) and building completion certificate are yet to be provided . But the deed of conveyance has already been executed and registered. Hence, this complaint with a prayer to direct the O.Ps to provide all assured amenities and facilities as stated in paragraph 8 of the complaint petition , to direct the O.P nos. 2 and 3 to provide free access to the meter board of the premises enabling the complainant to install a new meter and directing Gobinda Chand Paul to pay Rs.1,980/- which was paid for applying the new electric meter, compensation of Rs.2 lacs, cost of Rs. 20,000/- etc.

The O.Ps are  contesting the case  by filing joint written version and claimed that the case is not maintainable and denied all the allegations raised by the complainant against the O.Ps. It is the positive case of the O.ps that complainant already got deed of conveyance on 24.3.2015 . As such complainant has no right to ask the O.Ps to do various works in the said flat, particularly when the said incomplete works have not been mentioned in the registered deed and the further contention of the O.ps is that complainant purchased the suit flat as it where basis and there is no term as to completion of construction of the said flat by O.Ps and question of assuring the complainant to complete the said construction of the flat and other words does not arise . O.Ps also claimed that the O.Ps are not bound to prove completion certificate since there is no obligation mentioned in the registered deed of conveyance dated 24.2.2015. It has also claimed that installation of electric line and water connection in the said flat is not the obligation of the O.Ps ,particularly when the said flat was purchase as it where basis. So, the complaint case be dismissed with heavy cost.

Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.ps or not.

                                                            Decision with reasons

Admittedly complainant paid Rs.8 lacs to the O.P-1 for purchasing a flat measuring 800 sq.ft and it is also admitted fact that O.Ps already transferred the property by execution and registration of the deed of conveyance in favour of the complainant on 24.3.2015 and possession certificate was also issued on the same date.

It should be mentioned here that developer O.P-1 executed the deed of conveyance on behalf of the developer as well as the land owners being attorney of the land owners which is mentioned in the deed of conveyance.

Now the point to be decided in this case is whether the complainant is entitled to get incompleted works completed even after execution and registration of the deed of conveyance and whether the completion certificate is required to be handed over to the complainant by the developer O.P-`1 even the same is not mentioned in the deed of conveyance.

Firstly we find that this complaint is filed on 2.6.2015 and we are aware that the possession letter is dated 24.3.2015 and deed of conveyance was also executed on the same date. So, complainant has been able to prove that this case is not barred by limitation since it has been filed within two years from the date of delivery of possession and completion certificate has not yet been provided. So, in view of the decision of the Hon’ble Supreme Court and Hon’ble National Commission  cause of action is continuous and complainant has every right to agitate if there is any deficiency in service regarding construction and amenities which are required to be provided for using the said flat ,have not been provided by the developer O.P-1.   This is the dictum of Law.

It is true that complainant has failed to submit the agreement for sale which was executed on 14.3.2015 as mentioned in page no.8 of the deed of conveyance. But when the sale deed has been completed we have to look into the deed of sale. Normally in the sale deed all the amenities are not mentioned specifically, which are mentioned in the agreement for sale and looking into the terms and conditions of the agreement buyers firstly attracted to purchase the said flat or any portion of the said premises and paid the advance money and thereafter after completion of the construction and payment of entire consideration money delivery of possession usually made and thereafter deed of conveyance. This is the normal conduct of the parties . But here in the instant case sale deed was executed on 14.3.2015 and as per deed of conveyance at page no.8 complainant paid entire consideration money by account payee cheque dated 14.3.2015 total Rs.8 lacs towards full consideration money. We have scrutinized the question no.1 of the parties along with their reply and from meticulous scrutiny of the deed of conveyance ,which is the only weapon at this stage from the complainant’s side to prove whether flat of 500 sq.ft super built up area was sold as it where basis or not. But from the four corners of the said deed of conveyance we do not find any averment even in the schedule B that self contained residential flat measuring 500 sq.ft more or less with marble floor situated in the first floor south west side is being sold as it where basis. So, it is very difficult to hold that complainant purchased the said flat as it where basis and there is also no ligation on the part of the O.P-1 to complete the unfinished works namely electric connection, sewerage, water supply, fixing TV antenna, or cable line etc.

  It is true that in the deed of conveyance at page 12 it has mentioned that complainant has no claim or demand whatsoever from the developer/vendors or any person claiming through or under them . But fact remains that   common utilities and amenities are required to be provide and thereafter question of demand does not arise, particularly when in the schedule C of the deed of conveyance it has mentioned  stair area of the building from entrance to the roof having roof right, overhead reservoir, underground water tank, entry and exit in the lobby and common passage and common areas inside and outside the building. So, until and unless this common areas as mentioned in the Schedule C is being provided by the developer, how the complainant and other occupiers of the building will get the water, electricity and if the passage is not constructed properly how the complainant and other occupiers use the same. It is true that electric meter is required to be arranged by the complainant being a owner of the said flat at his own cost but further ingress and egress has to be provide by the land owner O.P nos. 2 and 3 and O.p-1 being a developer is required to see that there is no obstruction in the matter of taking electric connection which is the fundamental right of the complainant being an owner of the said flat. 

Again we turn our eyes on the deed of conveyance and found that the O.Ps have given the right to use and occupy the said flat as an absolute ownership basis along with right to use of common parts and areas of the premises together with undivided proportionate share in the said land including all fittings, fixtures, structures , privilege with all easement right whatsoever therein and all common right, utilities, amenities, paths, main gate, entrance in the common area and common walls whatsoever belonging to the said flat no.G+3 storied building ( last part of page no.9 continued to page no.10). So, until and unless the said amenities ,fittings, fixtures, light, utilities and amenities is being provided and constructed ,as the case may be, how the complainant will use the same . This is a pertinent point to be considered in this case, nothing more nothing less.

Apart from that, in page no.11 it has specifically mentioned that “The purchaser will enjoy the undivided uninterrupted supply of electricity and water to be provided in the said flat and in the said building and common electric meter for the purpose of running water pump and lighting the stair case or other common parts in the said building”.

So, all these things are mentioned in the deed of conveyance and until and unless all these things are provided, how and what manner the complainant will enjoy , probably the clever developer failed to assess all these things and denied in their written version claiming “As it where basis”. But unfortunate the said “As it where basis” is very much missing in the deed of conveyance, for which developer is liable to complete the incomplete flat for the peaceful occupation of a bonafide purchaser, the complainant herein. For which a local inspection was conducted by the Ld. Advocate Commissioner Madan Mohan Das who has filed his report to detect what amenities and facilities have been provide to the complainant . Inspection work was conducted by the Ld. Advocate Commissioner in presence of the complainant Bijoli Chakraborty with his Ld. Advocate Ramesh Kr. Choumal and Miss Deblina Chakraborty, Sri Gobinda Paul, O.P-2, one of the landowners  was also present in person there at the time of inspection and the flat and premises was duly identified by both the parties. A notice was served upon O.P1 and 1b on 5.8.2015 and O.P-3 refused to accept the notice as per postal report. It is further pointed out that the parties who are present extended their cooperation and absence of parties put no inconvenience in holding the schedule inspection work. It has observed by the Ld. Advocate Commissioner that (i) On left side at the entrance of the building a cage made of iron grill consisting of some meters are found under lock but there is no separate meter room. No meter in the name of Smt. Bejoli Chakraborty complainant has been installed and it has been reported that an application has been made by herself for meter.

(ii)  Electric wiring and fittings in the flat in question have not been provided and no electric connection exists.

(iii) Now alter distribution system in the flat has been provided and as such no water is coming in. It is pointed out by the land owner, O.P-2 Gobinda Chandra Paul that water tank and reservoir are of insufficient capacity and one pump machine has been installed for that purpose of supply of water to other flat owners/occupiers.

(iv)   One commode is found (English type) but without water supply connection and even no other fittings. Only some points are evident. There is lacking of processing to pass night soil to sewerage and pipes from flat to pit are missing and/or not installed.

(v)    Sewerage and drainage pipe liens of the building including report on plumbing work are poor as reported buy the land owners ,O.P-2 but there is no sewerage and drainage pipe lines , incomplete plumbering work.

(vi)  There is no existence of any kitchen in the flat.

(vii)    Door is fitted in the room but no door on the entrance in the bath room /toilet is found, sliding window are there in the flat but no window in the bath room.

(viii)   No colouring on the door, only batch is there put by the complainant but there is no lock(latch).

Apart from that both the parties have pointed out some points such as no calling bell outside the entrance of the flat. It has further observed that in the first floor two other flats except this flat in dispute but the doors of those flats are well polished and painted with collapsible fittings having calling bell . Apart from that the land owner  submits that the building is of three storied building and it is evident that the ground floor consists of several rooms occupied by others and common passage of the ground floor of the building has been encroached and used by these persons who have been put in possession by the developer O.P-1 .

This is the report of the Ld. Advocate Commission, wherefrom we can detect the clear picture of the flat in dispute as well as noble observation of the land owners regarding the unauthorized occupants which was done by the O.P developers.

Thus, if we consider the report and observation of the Ld. Advocate Commissioner along with the deed of conveyance dated 25.3.2015 which is admitted by the O.P nos. 1 wherein it has been mentioned in schedule B that 500 sq.ft flat more or less ,marble flooring of the first floor south west side consisting of two bed rooms, one dining, one toilet and one kitchen . But unfortunately Ld. Advocate Commissioner has mentioned that there is no existence of any kitchen in the flat. So, non-existence of any kitchen which was required to be provide specifically in the deed of conveyance at page 15 clearly proved beyond reasonable doubt that O.P developers acted deficiency in service and unfair trade practice . Apart from that, which has not been specifically mentioned in the deed of conveyance but if we consider the common areas then we find the overhead reservoir,underground water tank, entrance in the lobby, was mentioned and we have already stated that developers also agreed by the said deed to provide KMC water supply and electricity to be provided in the said flat. Off course, the electricity has to be arranged at the cost of the complainant but there will be a provision of electricity but the Ld. Advocate Commissioner has mentioned that electric wiring and fittings in the flat in question has not been provided. If the electric wiring and fittings which are required to be provided by the developer is not provided, how the complainant will get the electric connection at his own cost ,although applied for.

Again amenities have not yet been provided. Amenities will be considered in a broader sense ,i.e. water distribution system with fittings in toilet, sewerage and drainage pipelines, kitchen with black marble , kitchen sink , polishing and painting of the main entrance which have also been provided ot the other flat owners of the said floor, have not been provided to the complainant.

It is strongly mentioned here that completion certificate is mandatory in view of KMC Act and Rules. So, it has not been mentioned in the agreement for sale or sale deed is not acceptable when KMC Act is otherwise because when the developer obtained the sanctioned plan they have to and bound to provide the building completion certificate. So, it is mandatory and developer cannot save his skin from that demand of the complainant and it should not be the demand of the complainant but it is the demand of all the occupiers of the building including land owners who are residing in the said building also. It is like an universal truth.

It is also unfortunate to point out that although land owners have stated to the Ld. Advocate Commissioner that water tank and reservoir are of insufficient capacity and one pump machine has been installed for that purpose for supply of water to other flat owners and occupiers but fact remains that his complainant is not getting the water supply which is his constitutional right. The O.P-1 developer should bear in mind that there is a Constitution of India and being an Indian citizen he has to obey the dictum of Article 21 of the Constitution of India, wherein right of electricity and water is falling under the essential need of any human being. So, developer cannot deprive the said essential need to the complainant by not providing water line, electric wiring inside the flat and to the meter board as well as in the overhead reservoir. It is also mentioned here that until and unless there is sewerage connection up to the pick how the common people utilities which is existed in the said flat can be used by any human being. So, if any prudent person turned their eyes on the report of the Ld. Commission, then it can be safely presumed that this is a glaring example of unfair trade practice.

With that observation we are highly satisfied and we found that the complainant is entitled to get electric wiring inside the flat and up to the existing meter board position at the cost of the developer O.P1 and 1a  as well as water line , fittings in the toilet and it should be connected with the overhead reservoir, sewerage and drainage pipeline have to be provided from the flat to the pit and drain also. Kitchen room should be constructed  since there is no kitchen in the said flat along with marble stone and kitchen sink at least 3 ft tile in the kitchen area. Doors should be polished along with lock in the main gate and completion certificate has to be handed over to the complainant not only to the complainant but to all the occupiers of the building. Apart from that calling bell has to be made at the time of wiring of electric connection but calling bell will be purchased by the complainant and complainant has to arranged his own meter from the CESC ltd. One key of the common meter board has to be handed over to the complainant so that complainant can get his own meter which will be installed by the CESC like other owners.

It is pertinent to point out that although not alleged by the complainant but during the course of inspection by the Ld. Advocate Commissioner who is the representative of the bench the land owner submitted that ground floor consisting of several rooms are occupied by others and common passage of the ground floor of the building has been encroached and used by these persons who have been put in possession by the developer . Our observation in this regard is to remove the unauthorized occupants in the common passage is a matter of all the flat owners including the land owners by making complaint to the concerned P.S and KMC authority and thereby taking legal action to dispossess those persons through Civil Court.

With that observation it is ,

                                                                                    Ordered

That the complaint case is allowed on contest against the O.Ps but O.P nos. 2 and 3 have no liability to complete the incomplete works, since registration of the sale deed has already been completed.

In light of the above observation, O.P nos. 1,1a and 1b are directed jointly and/or severally to complete the following incomplete works in the flat of the complainant;

1.   Complete electric wiring and fittings inside the flat of the complainant which should be run to the common meter board position in the ground floor wherefrom complainant will take electric connection by paying electric chares to the CESC authority.
2. Sewerage and drainage pipeline of the flat should be provided which will be fitted with the pit as well as the drain so that outlet of the water can be drained out properly including from the toilet.
3. The kitchen has to be arranged  providing marble slab, sink as well as upto 3 ft  in the wall of the kitchen area has to be covered by glazed tiles.
4. Bathroom windows have to be provided and front door have to be polished with key(Lach).

O.P nos.1, 1a and 1b are also directed jointly and/or severally to pay compensation to the tune of Rs. 2 lacs for the mental agony and harassment suffered by the complainant for not using properly the flat inspite of full payment and to pay Rs.20,000/- towards litigation cost to the complainant.

All the above orders have to be complied with within 45 days from the date of this order.

The O.P nos.1,1a and 1b are jointly and/or severally directed to hand over the completion certificate of the building to the complainant within three months from the date of this order, failing which punitive damage will be charged to the tune of Rs.100/- per day  for the  failure in compliance of the orders  after the stipulated period of three months from this date to till its compliance and that amount has to be deposited in the fund of Consumer Legal Aid Fund to assist the poor consumer at large.

Complainant is at liberty to file execution case mentioning that non-supply of the Completion certificate and for non-completion of the other orders ,and the executing bench will consider the same in accordance with law as to whether O.Ps have taken any initiative for obtaining completion certificate within the span of 3 months or not.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

                                                       Member                                                                President

Dictated and corrected by me

                               

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

                                               

 

                                                                                    Ordered

That the complaint case is allowed on contest against the O.Ps but O.P nos. 2 and 3 have no liability to complete the incomplete works, since registration of the sale deed has already been completed.

In light of the above observation, O.P nos. 1,1a and 1b are directed jointly and/or severally to complete the following incomplete works in the flat of the complainant;

5.   Complete electric wiring and fittings inside the flat of the complainant which should be run to the common meter board position in the ground floor wherefrom complainant will take electric connection by paying electric chares to the CESC authority.
6. Sewerage and drainage pipeline of the flat should be provided which will be fitted with the pit as well as the drain so that outlet of the water can be drained out properly including from the toilet.
7. The kitchen has to be arranged  providing marble slab, sink as well as upto 3 ft  in the wall of the kitchen area has to be covered by glazed tiles.
8. Bathroom windows have to be provided and front door have to be polished with key(Lach).

O.P nos.1, 1a and 1b are also directed jointly and/or severally to pay compensation to the tune of Rs. 2 lacs for the mental agony and harassment suffered by the complainant for not using properly the flat inspite of full payment and to pay Rs.20,000/- towards litigation cost to the complainant.

All the above orders have to be complied with within 45 days from the date of this order.

The O.P nos.1,1a and 1b are jointly and/or severally directed to hand over the completion certificate of the building to the complainant within three months from the date of this order, failing which punitive damage will be charged to the tune of Rs.100/- per day  for the  failure in compliance of the orders  after the stipulated period of three months from this date to till its compliance and that amount has to be deposited in the fund of Consumer Legal Aid Fund to assist the poor consumer at large.

Complainant is at liberty to file execution case mentioning that non-supply of the Completion certificate and for non-completion of the other orders ,and the executing bench will consider the same in accordance with law as to whether O.Ps have taken any initiative for obtaining completion certificate within the span of 3 months or not.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

                                                       Member                                                                President