DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 333 OF 2014
DATE OF FILING:30.7.2014 DATE OF JUDGEMENT: 11.7.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : 1. Sri Baidya Nath Mitra, son of late Kali Charan Mitra
2. Ms Indrani Mitra, wife of Shri Baida Nath Mitra of Krishna Apartment, Flat no.3, 2nd floor, Ukilpara, First Lane, P.O & P.S Baruipur, Dist. South 24-Parganas, Kolkata- 144.
O.P/O.Ps : 1. Sri Rajib Goswami, son of Biplab Goswami , C/o Goswami Enterprise, Church Lane, P.O & P.S Baruipur, Kolkata- 144, Dist. South 24 Parganas.
2. Sri Pradip Baidya, son of Omprakash Baidya at Astarag, Flat no.1B, Diamond Park, Kolkata-104.
3. Smt. Rupa Roy, wife of late Goutam Roy, P.O Ramgopalpur, P.S Baruipur, South 24-Parganas, Pin-743387 and also at ICON, Baruipur Kulpi Road, P.O & P.S Baruipur, Kolkata-144.
4. Sri Alok Kumar Das, son of late Krishna Chandra Das of Krishna Apartment, 1st floor, Flat no.1, Uttar Ukil Para, P.O & P.S Baruipur, Kolkata-144.
5. Sri Ashok Kumar Das, son of late Krishna Chandra Das of Krishna Apartment, 1st floor, Flat no.1, Uttar Ukil Para, P.O & P.S Baruipur, Kolkata-144.
6. Sri Sankha Jyoti Maitra, son of late Bibek Jyoti Maitra of Amrita Vihar Apartment, Block-B, Flat -3/3, Garia Main Road, Kamalgazi, P.O Narendrapur, P.S Sonarpur, Kolkata-103.
7. Sri Saikat Ganguly, son of late Timir Ganguly of Krishna Apartment, 3rd floor, Flat no.1, Uttar Ukil Para 1ST Lane , P.O & P.S Baruipur, Kolkata-144.
8. Sri Sandeep Chatterjee, son of late Satyendra Nath Chatterjee
9. Smt. Jui Chatterjee, alias Smt. Ruchira Chatterjee ,wife of Sri Sandeep Chatterjee, both at Krishna Apartment, 2nd floor, Flat no.2, Uttar Ukil Para, P.O & P.S Baruipur, Kolkata-144.
10. Sri Rahul Roy, son of late Goutam Roy, P.O Ramgopalpur, P.S Baruipur, South 24-Parganas, Pin-743387.
11. Smt. Puja Roy, daughter of late Goutam Roy of P.O Ramgopalpur, P.S Baruipur, South 24-Parganas, Pin-743387.
12. Sri Anupam Panda, son of Banabihari Panda of 25, B.K Roychowdhury Road, Chakraborty Para, P.O & P.S Baruipur, South 24-Paranas, Pin-700144.
13. Miss Adrija Panda, daughter of Sri Anupam Panda and late Juine Panda ,being minor represented by her natural guardian and father Sri Anupam Panda, son of Banabihari Panda of 25, B.K Roychowdhury Road, Chakraborty Para, P.O & P.S Baruipur, South 24-Paranas, Pin-700144.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Delay and negligence on the part of the developers i.e O.P nos. 1 and 3 for not installing the transformer at the subject building has galvanized the complainant to file the instant case under section 12, C.P Act, 1986, alleging deficiency in service on the part of the aforesaid O.Ps.
Facts leading to the filing of the instant case by the complainant and as it transpires in the amended complaint filed on 26.3.2018, run as follows.
O.P-1 and one Goutam Roy were the co-developers of the subject building succinctly described in schedule to the complaint. Goutam Roy died and O.P-3 i.e his wife stepped into the shoes of Goutam Roy. Both the O.P-1 and O.P-3 raised the subject building on the land of the land owners i.e O.P nos. 4 and 5 who have inherited the properties after death of the original owners. O.P nos. 6 to 9 are owners of different flats in the subject building and O.P nos. 10 to 13 are the legal representatives of late Goutam Roy, the erstwhile developer. O.P-10 has also expired during pendency of the case.
O.P-2 purchased a flat as described in schedule to the amended complaint from the developers and the original land owner; sale deed was also registered by them in favour of O.P-2 vide copy of sale deed dated 27.1.2010 filed herein. Thereafter, during continuance of possession of the flat, O.P-2 has sold away his flat to the complainants by registered sale deed dated 27.7.2011. But since then, no transformer has been installed at the subject building by the developers and, therefore, the complainants have been compelled to get electricity from the commercial meter of the developers. The complainants have requested the developers to install transformer several times ,but to no effect. Even, they including other flat owners have paid Rs.15000/- each totaling to Rs.1,80,000/- to O.P-1 for installation of transformer. Still, O.P nos. 1 and 3 have not installed the transformer as yet and the complainants have been paying electricity bill at enhanced rate for getting electricity from the commercial meter of the developers. The complainant now pray for installation of transformer , payment of compensation etc. Hence, this case.
O.P-2 has filed written version of his statement ,wherein it is averred by him that he has soled away the flat to the complainants and have also delivered the possession thereof to them. The sale deed has also been registered by him in favour of the complainants and, therefore, he is no longer liable for installation of the transformer at the subject building. There is no cause of action arising against him and, therefore, the case should be dismissed in limini.
O.P-1 has also filed written version to contest the case and he has submitted therein that the complainants are not consumers under him , that there is no provision for installation of transformer in the agreement or in the sale deed and, therefore, he is not liable in any manner for installation of transformer at the subject building.
O.P nos. 6 to 9 are the flat owners of the subject building and they have fully supported the version of the complainant in the written version filed by them.
O.P-3 has not filed any written version to contest herein and ,therefore, the case is heard exparte against her.
Although no written version is filed by the O.P-3, she has participated in the proceedings of the case by filing questionnaires, replies and also BNA ,which are kept in the record.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service for not installing the transformer at the subject building ?
- Are the complainants entitled to get relief or reliefs, if any, as prayed for?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed on behalf of the complainant and the O.P nos. 1,2 and 3. Questionnaires, replies and BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers ,appearing for the parties. Perused the petition of complaint, written versions filed by the O.Ps, evidences led by them and also other materials on record. Considered all these.
The instant case is instituted by the complainants for the reason that the transformer has not yet been installed by the developers at the subject building and, therefore, the complainants are being compelled to pay electric bill at exorbitant rate as they have been getting electricity from the commercial meter of the developers. The version of the developers i.e O.P-1 and 3 are that there is no provision for installation of the transformer at the subject building and, therefore, the developers are not liable for installation of the transformer at that building. O.P-3 submits that she is a co-developer and not a partner of O.P-1 and that she does not have any knowledge about the receipt of any money from the flat owners by O.P-1 for installation of transformer at the subject building. According to her, she is not liable for installation of transformer at the subject building.
It is true that O.P nos. 1 and 3 are not partners of each other; they are independent developers. Being independent developers, they jointly raised the subject building; they were jointly authorized by the land owners for construction of the subject building and they have jointly sold out the flat in question to O.P-2. So, from their conducts, it stands established that the liabilities have been shared between the two developers in equal proportion and now, O.P-3 cannot be allowed to adopt an escape route by saying that she has no liability to install transformer as she is an independent developer and she is not partner of O.P-1. It has been submitted on behalf of O.P-3 that there is no provision in the development agreement to the effect that transformer is to be installed at the subject building by the developers. It is true that there is no provision in so many words in the agreement for installation of transformer at the subject building by the developers. But, if we once cast our glance to sale deed dated 27.1.2010 executed by the developers and the land owners in favour of the O.P-2 , it will be discernible there from that the liability of installation of a transformer at the subject building rests upon none but the developers. The relevant provision of the sale deed as transpiring at page 9 thereof is quoted as hereunder:
“10. That the purchaser shall use the existing electric service connection standing in the name of the vendor in the said flat until the purchaser gets electric connection from the authority concerned and the purchaser will go on paying the electric charges during the period of their consumption to the vendor”.
The aforesaid provisions of the sale deed makes it clear that the purchaser of the flat will continue to pay the electric charges to the developers until the purchaser gets electricity in his own name from the authority concerned. What does it mean? It means and means only that the purchaser will make payment of electric charge to the vendor until he gets electric line in his own name. To get electric line in his own name, requires fulfillment of some conditions and if these conditions are not fulfilled, no purchaser of flats can get electric line in his own name. The condition is that one transformer is to be installed at the subject building and it is only thereafter, the flat purchasers can get electric line in their individual name.
Now arises the question as to who will install the transformer at the subject building. According to O.P-3 it is the flat purchasers who will have to bear the cost of installation of transformer at their building. We are not inclined to accept this submission of O.P-3. Electricity is essential service for each and every man. Without electricity, none will purchase any flat and none can be able to live in a flat. It is as essential as water. So, it is implied duty of the developers to make arrangement for installation of transformer in the flat. O.P-1 was quite aware of this position of law and, therefore, as it is found now that he has gone a long way ahead towards the installation of transformer. He has collected Rs.1,80,000/- from all the flat owners of the subject building and thereafter he is also found to have deposited a huge sum of quotation money i.e Rs.2,11,531/- on 27.4.2011 with the Electricity Department of the Government. This conduct of O.p-1 makes it crystal clear that the developers are liable for installation of the transformer at the subject building and O.P-3 cannot evade that liability at present by saying that there is no express provision in the agreement executed between the parties for installation of the transformer. The developers i.e O.P-1 and 3 will have to install the transformer at the subject building.
On perusal of the materials on record ,it is found that O.P-1 deposited the quotation money i.e Rs.2,11,531/- with the Electricity Department on 27.4.2011 and thereafter he has taken no step for progress in the work. Delay and negligence on the part of the developers have taken its toll as transformer has not been installed by them as yet and as a result the complainants and other flat owners have been paying electric charges at exorbitant rate as they have been getting electricity from the commercial meter of the developers. This delay and negligence on the part of the developers are nothing but glaring example of deficiency in service and, therefore, the complainants have certainly undergone tremendous harassment and mental agony throughout these years. The complainants are, therefore, entitled to relief and the relief is granted as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P-1 and decreed exparte against O.P-3 with a cost of Rs.10,000/-.
The case stands dismissed against rest of the O.Ps ,but without any cost.
The O.P nos. 1 and 3 are directed to install the transformer at the subject building within a month of this order, failing which the complainants are at liberty to execute this order through the machinery of this Forum.
The said O.Ps i.e O.P nos. 1 and 3 are also directed to pay Rs.30,000/- as compensation to the complainants within a month of this order ,failing which, the compensation amount and the cost amount will bear interest @10% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
