DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 29 OF 2019
DATE OF FILING: 27.02.2019 DATE OF JUDGEMENT: 29.11.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
Member : Jagadish Chandra Barman
COMPLAINANT : Mrs. Jasmin Ali, W/o – S.M. Ali Akbar, Ukila, Paikpara, P.O. – Narendrapur, P.S. – Sonarpur, Dist. – South 24 Parganas.
Presently residing at : Mrs. Jasmin Ali, W/o – S.M. Ali Akbar, P-26/37, Nilachal Complex, P.O. – Narendrapur, P.S. – Sonarpur, Dist. – South 24 Parganas, Kolkata – 700 103.
O.P/O.Ps : 1. M/S D.S. Construction a proprietorship firm, Smt. Shila Patwari, Proprietor, 286, Sontoshpur Avenue, P.S. – Survey Park, Kolkata – 700 075.
2. Smt. Shila Patwari, Proprietor, M/S D.S. Construction, Amber Apartment, 146/1, Harisadhan Patwaripara Road, Patwaripara, P.S. – Survey Park, Kolkata – 700 075.
3. M/S D.S. Construction (Site office), Smt. Shila Patwari, Proprietor, Ukila, Paikpara, P.O. – Narendrapur, P.S. – Sonarpur, Dist. – South 24 Parganas.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Facts leading to the filing of the instant case may be epitomized as follows.
Complainant is the owner of the property described in schedule A to the complaint. A development agreement dated 01.08.2012 was struck between the complainant and the O.P.s and thereby the O.P.s agreed to raise a multi storied building upon the land described as above. General power of attorney was also executed by the complainant on 03.08.2012 in favour of the O.Ps. Vacant possession of the land was made over to the O.Ps by the complainant within 7 days of the development agreement in order to enable the O.Ps to take step for construction of multi storied building. Work of construction of the said building was to be completed within 2 years from the date of displacement / handing over physical possession of the land to the O.Ps. But the said construction was not completed within the agreed time and the possession of the flat was not delivered to the complainant by the O.Ps. Further, the O.Ps has not also paid Rs. 10,000/- per month as agreed upon to the complainant for her displacement from the scheduled land. Now the complainant has filed the instant case praying for possession of the flat and also for payment of compensation etc. by the O.Ps. Hence, this case.
The O.Ps have been contesting the case by filing W/V wherein it is admitted by the O.Ps that they made an agreement with the complainant to complete the proposed building within 24 months from the date of obtaining sanctioned building plan. But, they never agreed to pay Rs. 10,000/- per month as compensation to the complainant for her displacement from the subject property. The building plan was sanctioned on 06.09.2016 and it was valid till 06.09.2019. The O.Ps have completed the construction work of the building and have also submitted completion plan before the concerned municipality for its approval. According to the version of the O.Ps, installation of lift, water course, drainages etc. have also been completed within the agreed period and they have also applied for providing electricity connection. The owners’ allocation has not been handed over to the complainant for unavoidable circumstances and the O.Ps are always ready and willing to deliver the owners’ allocation to the complainant if she so desires. The allegation of deficiency in service is unfounded and therefore the complaint should be dismissed with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINTS FOR CONSIDERATION
- Are the O.P.s guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for?
Evidence on affidavit is filed by the complainant as well as the O.Ps. BNAs filed by the parties are kept in record after consideration.
DECISION WITH REASONS
Point nos. 1 and 2:
It is argued on behalf of the complainant that the O.Ps agreed to pay Rs. 10,000/- per month as compensation to the complainant from the date of delivery or displacement of the subject property till the date of delivery of possession of the flat to her. That commitment of the O.Ps have not been honored by them and she is therefore entitled to get the compensation amount at the rate of Rs. 10,000/- per month from the O.Ps. Ld. Lawyer appearing for the O.Ps have contended that the complainant is not at all entitled to get such compensation amount, as there is no such condition written in the development agreement reached between the parties. His further contention is that there arises no question of displacement of the complainant from the subject property, as the complainant is residing at different place other than the subject property.
It is true that there is no provision laid down in the development agreement to the effect that the O.Ps would pay compensation to the complainant from the time of her alleged displacement till the delivery of the possession of the flat to her. Ld. Lawyer appearing for the complainant has not also been able to invite the attention of the forum to any provision in development agreement, requiring the O.Ps to pay such compensation to the complainant. In absence of such provision in the development agreement, we cannot say that the complainant is entitled to such compensation from the O.Ps for her alleged displacement. Further, upon the scrutiny of the materials on record, it is found that there has been no displacement of the complainant from the subject property. In the version of the complainant, the subject property was made over to the O.Ps / developer within 7 days of the execution of the development agreement. The subject property was a vacant land; it was a “danga” land by classification and the complainant did never reside on that land. A perusal of good numbers of documents i.e. the complaint, the affidavit to the complaint, development agreement, general power of attorney, Adhaar card of the complainant and also the gift deed dated 31.12.2008 of the complainant, reveals that the complainant has her residential house at P-26/37, Nilachal Complex under P.O. – Narendrapur and P.S. – Sonarpur. But the subject property is situated in Mouza – Ukila Paikpara under Rajpur Sonarpur Municipality. So it is found that the subject property is quite different from the property on which stands the residential house of the complainant. This being so, the question of displacement of the complainant from the subject property does not at all arise and the allegation of the complainant that she has been dispossessed from the subject property appears to be quite a myth. Under such circumstances, we do find that there is no substance whatsoever in the prayer of the complainant to the effect that she is entitled to get compensation for her alleged displacement from the subject property and therefore such prayer of the complainant deserves to be turned down and it is accordingly turned down.
The complainant has prayed for compensation due to deficiency in service on the part of the O.Ps. According to her the project was to be completed and the possession of the flat was to be delivered to her by the O.Ps within 2 years of her displacement / handing over of the physical possession of the subject property to the O.Ps. The physical possession of the subject property was made over to the O.Ps within 7 days of the date of development agreement. The possession of the flat has not yet been delivered to the complainant even after expiry of more than 2 years from the date of development agreement. It is further submitted on behalf of the complainant that the O.Ps did not take any step for getting the building plan sanctioned for long 4 years and this is nothing but gross negligence on the part of the O.Ps. For this negligence, as goes the submission of the complainant, the complainant has suffered a lot of financial loss and she is therefore entitled to be compensated for such loss suffered by him. Ld. Lawyer appearing for the O.Ps has contended that there is no term for completion of the project within 2 years from the date of handing over the physical possession of the subject property. The project was to be completed and the physical possession of the flat was to be delivered to the complainant within 24 months from the date of sanctioned plan. The O.Ps have completed the construction of the building within that period. The flat of the complainant is ready and the O.Ps are also ready and willing to deliver the flat to the complainant. Lift has been installed in the project building after having got the license therefor. Application for installation of electric line has also been made by him before the electric department. There is neither negligence nor any deficiency in service on the part of the O.Ps.
It is to be seen now whether the O.Ps have been guilty of any negligence in so far as the execution of the project work is concerned. It is also to be seen whether the complainant is likely to suffer any damage due to negligence, if any, of the O.Ps. If the complainant suffers any loss or damage arising out of all negligence of the O.Ps, the O.Ps will have to compensate the loss suffered by the complainant. Coming to the facts of the instant case, it is found that the development agreement was executed on 01.08.2012 between the parties and power of attorney was also executed on 03.08.2012. It is true that there is a provision in development agreement to the effect that the project work is to be completed within 24 months from the date of sanction of the building plan. It is undisputed fact that application for sanction of building plan was made on 24.02.2016 before the concerned municipality by the O.Ps and the building plan was approved on 06.09.2016. Application for conversion of subject property i.e. from “danga land” to “bastu land” was made by the O.Ps on 06.09.2016. So it is found that the O.Ps only proceeded for execution of their project work in the year 2016 i.e. about 4 years after the execution of development agreement. Delivery of physical possession of the subject property was made within 7 days of the development agreement. There is no latches whatsoever on the part of the complainant and the complainant has performed her part of the agreement by delivery of physical possession of land to the O.Ps. But, now it is seen that the O.Ps did not take any action towards execution of their project for long 4 years. Why? There is no explanation not to speak of any plausible explanation for such long delay of the O.Ps. Now the O.Ps rely on the provision of the development agreement that the delivery of possession of the flat was to be made within 24 months from the date of obtaining building sanctioned plan from the municipality. The O.Ps have wanted to tide over the murky situation by banking upon this provision of the agreement. Upon an in-depth consideration of the materials of record, it appears to us that the said provision has been kept there in the development agreement scrupulously and cunningly by the O.Ps. Getting opportunity of that provision, the O.Ps have delayed for 4 years in submitting application for sanction of building plan and conversion of the subject property. The O.Ps have failed to give any explanation for such long delay. This culpable delay on the part of the O.Ps appears to be a fraud under section 17 of Contract Act. There is no provision in the agreement that the O.Ps will submit building plan for sanction of the municipality after expiry of 4 years. This cunning desire of the O.Ps was not brought to the notice of the complainant. From the materials on record, it is found that application for sanction of building plan was submitted on 24.02.2016 and the building plan was approved by the municipality on 06.09.2016. It took about 7 months for getting the building plan sanctioned by the municipality. Had the building plan been submitted before the municipality in the year 2012, the plan would have got the approval of the municipality within 2012. Had the project work been started within 2012 by the O.Ps, the project work would have been completed within 2014 and in that case the complainant would have got the physical possession of her flat within the year 2014. Had she got the physical possession of her flat within 2014, she could have settled the same with a tenant on rental basis to earn a good amount of money. But it has not been possible for the complainant, as the O.Ps slept for long 4 years having procured the development agreement from the complainant. The possession of the flat has not yet been delivered to the complainant and for this reason the complainant has certainly sustained a good amount of loss. The O.Ps have not only been guilty of deficiency in service but they have also been guilty of unfair trade practice perpetrated by clandestine trick of them. They will have to compensate the loss sustained by the complainant; they will have to deliver the physical possession of the flat of the complainant and also completion certificate. The complainant is entitled to get all these and accordingly the order is passed as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with a cost of Rs. 10,000/-.
The O.Ps are directed to do the following :-
- To hand over the possession of the flat to the complainant in terms of owners’ allocation as mentioned in development agreement dated 01.08.2012 along with a copy of building sanctioned plan.
- To deliver the completion certificate of the building to the complainant.
- To pay a sum of Rs. 1,00,000/- as compensation to the complainant for loss sustained by her, owing to unusual delay, mental agony and harassment.
All the aforesaid directions are to be carried out by the O.Ps within a month of this order failing which they will have to pay interest at the rate of 9% p.a. upon the cost amount and compensation amount till full realization thereof.
Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.
I/We agree President
Member Member
Directed 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 be and the same is decreed on contest against the O.Ps with a cost of Rs. 10,000/-.
The O.Ps are directed to do the following :-
- To hand over the possession of the flat to the complainant in terms of owners’ allocation as mentioned in development agreement dated 01.08.2012 along with a copy of building sanctioned plan.
- To deliver the completion certificate of the building to the complainant.
- To pay a sum of Rs. 1,00,000/- as compensation to the complainant for loss sustained by her, owing to unusual delay, mental agony and harassment.
All the aforesaid directions are to be carried out by the O.Ps within a month of this order failing which they will have to pay interest at the rate of 9% p.a. upon the cost amount and compensation amount till full realization thereof.
Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.
