West Bengal

South 24 Parganas

CC/68/2014

PARIMAL KANTI MONDAL, S/O. Late Bhusan Chandra Mondal. - Complainant(s)

Versus

1. SRI DILIP KUMAR MUKHERJEE. S/O.Late Rabindra Nath Mukherjee. - Opp.Party(s)

BARUN PRASAD.

28 Apr 2015

ORDER

      DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _68_ OF ___2014___

 

DATE OF FILING : 21.2.2014     DATE OF PASSING JUDGEMENT: 28.4.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Dr. (Mrs.)  Shibani Chakraborty

                                                                             

COMPLAINANT             :   Parimal Kanti Mondal,s/o late Bhusan Chandra Mondal of

“Ganga Apartment” 20, Bhusan Mohan Roy Road, Raha Colony, Kolkata – 78, P.S. Haridevpur.

 

-VERSUS  -

 

O.P/O.Ps                            :   1.  Sri Dilip Kumar Mukherjee,s/o late Rabindra Nath Mukherjee of

                                                28, Kendua Main Road, P.S. Jadavpur, Kolkata – 84

                                                2.     M/s Samanta Enterprise, 72, Bhuban Mohan Roy Road,

P.S. Haridevpur, Kolkata – 8 represented by its Prop. Sri Ashis Samanta.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            This application under section 12 of the C.P Act,1986 filed by the complainant disclosing himself as an owner of one self contained flat being no.2A, in the second floor north eastern side of building namely Ganga Apartment measuring 704 sq.ft built up area consisting of two bed rooms, one living room, one kitchen, one toilet  one W.C and a verandah of municipal premises no. 20, Bhuban Mohan Roy Road, Kolkata – 8 . It has further stated that O.P-1 is the land owner and O.p-2 is the developer. Both of them entered into a joint venture agreement dated 10.2.2011 for construction of ground plus three storied building and O.p-1 executed one power of attorney in the name of O.P-2 on 10.2.2011. It is stated that complainant was a tenant under O.P-1 and for the purpose of construction of a multi storied building it was proposed by the complainant to vacate the tenanted portion till construction is completed and after construction complainant will get 704 sq.ft out of which 500 sq.ft of developer’s allocation free of cost and 204 sq.ft will be  cost @700/- per sq.ft and Rs.2 lacs for car parking space. Accordingly one agreement for sale dated 30.6.2011 has been executed between the complainant and the O.Ps and complainant made payment of consideration price for 204 sq.ft but due to insufficient fund he has not accepted the car parking space. Thereafter, one deed of conveyance has been executed on 28.1.2013 and possession letter in the flat in question has been delivered to the complainant on 1.2.2013 along with key of the flat and complainant has been possessing the same. It has alleged that after possession complainant has noticed some anomalies /deficiencies which are (i) the O.Ps did not construct boundary wall in the eastern side of the building and parapet walls of the roof low in height and thereby violating the National Building Rules,

ii)   the O.Ps did not cover the main electric line and meter board, therefore there is every possibility for threat of safety and security.

iii)     the O.Ps did not finish all the electric wire and lighting of the entire building,

iv)     the O.Ps did not construct and hand over guard room,

v)         the O.Ps did not demarcate and cover garages as per sanctioned building plan,

vi)       the O.Ps did not provide completion certificate till date,

vii)      the complainant has paid outstanding areas of municipal tax fort the period 3^rd quarter and 4^th quarter of 2012 whereas the complainant got possession in his flat on 1.2.2013 and therefore is not liable to pay the aforesaid amount of tax of Rs.165/- and Rs.1244/- which the O.Ps are liable to refund,

viii)      that the O.Ps did not pay up to date non-agricultural tax which are liable to pay,

ix)          that the O.Ps did not perform roof treatment with chips, which is causing severe damage of roof and will create seepage and leakage in future,

x)     that the O.Ps illegally and by violating the present law of the land tried to sale car parking space to the outsiders, which is not permissible under the law. The O.ps cannot sale car parking areas to the outsiders ,which is common in nature and for which the complainant and other flat owners have every right to enjoy.

xi)     the main entrance of the apartment is not up to the limit of the ceiling, therefore there is every possibility for threat of security from intruder and trespasser.

            Inspite of sending notices the O.Ps did not pay any heed. Hence, this case.

            O.P nos. 1 and 2 filed joint written version and has denied all the allegations leveled against them. It is the positive case of the defense that the deed of conveyance in favour of the complainant is made on 28.1.2013. Thus the allegation as deficiency in service after a year of possession and free for enjoyment is not at all tenable and liable to be rejected. The O.Ps have taken steps for completion certificate before the competent authority and as such deficiency in service does not arise. It has strongly claimed that complainant was a tenant in the said premises before construction of the multi storied building and agreed to fetch benefit out of the said tenancy and as such payment of municipal tax suo moto motivated for the period of 3^rd quarter and 4^th quarter of 2012 during stay outside the said premises by the complainant does not create any obligation upon the O.Ps to refund the same and in the same manner seepage and leakage due to damage of roof in future does not call for any interference at this premature stage. O.P strongly denied that the car parking space as in the sanctioned building plan is common  space which will remain with the developer like other portions of the building commonly used and enjoyed by the flat owners . The complainant has claimed that right of security of the flat owners is highly protected and the electric meter in the building are well protected and there is no cause of apprehension of danger to the flat owners and flat is in habitable condition with all amenities . The allegations after a year is an afterthought. Hence, he prays for dismissal of the case.

            Points for decision is whether there is any deficiency in service on the part of the O.Ps or not  .

                                                            Decision with reasons

            We find that the allegation of the complainant is based mainly on point no.6 of the complainant i.e. defective and deficiency. We have narrated the points at the time of discussion of the flat of the case. So, in view of the reported decision of the Hon’ble National Commission reported in 2013 (4) CPR page 589 the said dispute only can be solved by expert evidence. We find that expert was appointed and he has submitted the report on 4^th February, 2015. The expert is a Chattered Engineer and Registered Valuer of Calcutta High Court. The expert conducted joint inspection and observed that the main structure of the building had been constructed almost as per sanctioned plan. Thus at a glance we find that building is constructed almost as per sanctioned plan. It has stated that electric meters are placed in front of the main access which as per sanctioned building plan should be on the other side. Again, the construction of the guard room in the ground floor as per plan which is being used (as reported for other purposes).

            Other than a few electrical points all area found covered. As assured by the O.Ps representative, the same should be covered within a day or two in that period. There are several types of roof treatment, out of those one type had been done. The life of this type is 4/5 years. Although there is no occasion of leakage at present . Without periodic maintenance there might be problem. The Engineer Commissioner has opined that other than these above all the building is satisfactory erected.

            Again in paragraph B the Engineer Commissioner has made comments regarding the above which are as follows :

i)    the boundary wall should not substitute the MS Posts. In this case the privacy of the building occupiers is being hampered.

ii)     the electrical meters (although covered through MS net) in main entrance space is not at all desirable. In fact, the location is being shown in sanction plan. The same should be corrected and should be as per sanctioned plan.

iii)        The assurance to construct other structure in future is only possible after obtaining revised sanctioned plan from competent authority, which is next to impossible since there are so many pros and corns related to FAR of the building. Therefore the existing space for guard room should have to be left for guards etc. as the case may be.

iv)        to obtain the completion certificate from the competent authority is inevitable. During issue of the said certificate there are the usual visit by competent person of Building permit Department of KMC and all these points would likely to be surfaced and only after rectification the certificate should be issued.

            So, from thorough reading of the observation and comments of the Engineer Commissioner we find that there is a deficiency of service which is nakedly appearing in the report of the Engineer Commissioner, because the boundary wall should not be substituted by MS Post wherein every apprehension of privacy of the building occupiers may be occurred  and the electric meters are placed in front of main access not as per sanctioned plan. It should be installed in other side, otherwise safety and security of the life will be at stake. The assurance to construct the other structure in future as per report is next to impossible. We also are of the same view with the Engineer Commissioner because when the possession was handed over and registration was made, it is very difficult to get the job from the developer. So, developer knowing fully well did all these mischief and used the guard room for other purpose which is highly deficiency in service on the part of the O.Ps.

            From the report it is clearly demonstrate that there is some variation of the sanctioned plan. So, until and unless the said thing is being rectified, the completion certificate cannot be achieved. So, this is another deficiency in service by the developer,O.P.

            Apart from that, when the Engineer Commissioner did not find any leakage of the roof, the apprehension of the complainant is go-bye because the occupiers of the flat have to maintain the same and if it is properly maintained, then there may be no problem which has been observed by the Engineer Commissioner.

            The O.Ps have stated in their written version that within one year from the date of possession and deed of conveyance the complainant has pointed out some defects and departure from the agreement for sale, which is not a deficiency of service. We hold that after the date of possession as well as deed of conveyance there is two years  clear time to agitate the matter of deficiency of service. On a view until and unless the complainant is being given opportunity to possess the flat ,how the complainant will take or notice all these things which have been mentioned in the petition of complaint in para 6 . But we have clarified the said complaint and allegations of the complainant by appointing one Chartered Engineer and Registered Valuer of Calcutta High Court ,who has thoroughly examined and inspected the building by way of joint inspection and from his report we find that some quantum of deficiency are there ,which we have pointed out in the body of the judgement.

            Apart from that complainant is also entitled to get the money for the tax paid for the period when he was not in possession of the said flat.

            With that observation, it is

                                                                                    Ordered

That the application under section 12 of the C.P Act 1986 is allowed in part.

The O.P-2 is directed to construct the boundary wall after removing the MS Post which is hampered the privacy of the occupiers of the building.

The O.P-2 is directed to place the electric meter at the place shown in the sanctioned plan and hand over the guard room to the occupiers of the building including the complainant which should not be used other than guard room and lastly obtain completion certificate by applying before the competent authority of Building Department of KMC after removing the defects pointed by the Engineer Commissioner as discussed in the body of the judgement within  45 days from the date of this order, failing which the complainant is at liberty to execute the order through this Forum.

The O.P-1 is directed to refund Rs.165/- and 1244/- which is the tax for the 3^rd quarter and 4^th quarter 2012 since  possession was given on 1.2.2013 within 45 days from this date.

The O.P-2 is directed to pay compensation to the tune of Rs.50,000/- and litigation cost of Rs.5000/- to the complainant within 45 days from the date of this order.

Let a plain copy of this order  be sent to the O.P through this Forum and one copy be handed over to the complainant free of cost.

 

                                                Member                                               President

 

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

 

Ordered

That the application under section 12 of the C.P Act 1986 is allowed in part.

The O.P-2 is directed to construct the boundary wall after removing the MS Post which is hampered the privacy of the occupiers of the building.

The O.P-2 is directed to place the electric meter at the place shown in the sanctioned plan and hand over the guard room to the occupiers of the building including the complainant which should not be used other than guard room and lastly obtain completion certificate by applying before the competent authority of Building Department of KMC after removing the defects pointed by the Engineer Commissioner as discussed in the body of the judgement within  45 days from the date of this order, failing which the complainant is at liberty to execute the order through this Forum.

The O.P-1 is directed to refund Rs.165/- and 1244/- which is the tax for the 3^rd quarter and 4^th quarter 2012 since  possession was given on 1.2.2013 within 45 days from this date.

The O.P-2 is directed to pay compensation to the tune of Rs.50,000/- and litigation cost of Rs.5000/- to the complainant within 45 days from the date of this order.

Let a plain copy of this order  be sent to the O.P through this Forum and one copy be handed over to the complainant free of cost.

 

                                                Member                                               President