PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                                                    CONSUMER COMPLAINT NO. 69/2023

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Dr. Sitaram Mohanty, aged about 74 years,

S/O- Bhimsen Mohanty,

R/O-Brij Dham, A.N. Guha Lane, PO-Sambalpur, Ps-Town,

Dist-Sambalpur-768001, Odisha. Mob-9437933467.   ………………......Complainant.

Vrs.

1. M/S Siba Habitats Pvt. Ltd, having its registered office

At- Siba Complex Fatak, PO-Budharaja, Ps-Ainthapali, Dist- Sambalpur Represented through its Director Sri. Silla Siba Prasad aged about 55 years, S/O- Late Silla Narayanmurty, R/O- Siba Complex, Fatak, PO-Budharaja, Ps-Ainthapali, Dist-Sambalpur-768004.

2. Smt. Silla Arti, W/O- Sri. Silla Siba Prasad, Aged about 52 years, R/O- Fatak, PO-Budharaja, Ps-Ainthapali, Dist-Sambalpur-768004.
3. Ramesh Kumar Agrawal, S/O- Debendra Lal Agrawal,

R/O-Dalaipara, Sambalpur town, Ps-Town, PO/Dist-Sambalpur

Partner M/S Kaivalya Dham Nirman-768001.

4. Sri. Sidharth Saha, S/O-Satrughan Lal Saha,

R/O-Dalaipara, Sambalpur town, Ps-Town, PO/Dist-Sambalpur

Partner M/S Kaivalya Dham Nirman-768001.……......Opp.Parties

Counsels:-

1. For the Complainant         :- Sri. P.K. Pradhan Adv. & Associates
2. For the O.P.No.1 & 2         :- Sri. P.P.Panigrahi, Adv.
3. For the O.P. No.3                           :- Sri. B.P. Padhee, Adv.
4. For the O.P. No.4                           :- Sri. K.K. Patel
5. Adv. For S.D.A.                 :-G.P.

Date of Filing: 10.05.2023,Date of Hearing : 06.11.2023,Date of Judgement : 16.01.2024

  Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The case of the Complainant is that the Complainant is having a residential flat with built up area of 1300 Sq ft and the O.P. No.1 & 2 registered the flat vide E-Regd. ID No. 1621501819 & E-Regd document No.11621501783  dated 07.05.2015. The O.P. No.1 is a developer company having registered office at Shiba Complex, Fatak, Budharja. The O.P. No.2 is the recorded owner of the land appertaining to M/S Khata No. 644/191 plot No. 185 and plot No. 205/4308 Kisham-Gharabari situated at mouza Sambalpur Town Unit No.5, Sakhigopinath. The O.P. no.3 & 4 are the directors of O.P. No.1 Company.

The O.P. No.1 before initiation of the project made a news paper advertisement, issued brochure etc. to sale the flats so that intending purchaser will purchase flats. The O.P. No.1 provided the record of right, S.D.A. approved key plan dated 21.07.2010 and brochure etc. to the Complainant. The S.D.A. approved plane vide letter No. 1285/SDA dated 21.07.2010 for construction of stilt floor +4 storied building, approach road common areas were indicated in the key plan and brochure too. The O.P. No.1 constructed 46 individual flats in Shiba Enclave in schedule B. with key plan.

Later the Complainant came to know that the S.D.A. granted permission in favour if Brij Dham Housing Society promoted by M/S Shiba Habitates through Kaibalya Dham Nirman through promoter Ramesh Kumar Agrawal and Sri. Siddhartha Saha.

The approved plan dated 21.07.2010 shows the specific location for parking, garden, common area, play area, plantation, swimming pool, jogging track and club etc. which reflects in para 10 clause E of the agreement for sale dated 21.01.2010. Further the purchaser shall be exclusively absolute and the feasible owner of the floor/flat as shown in schedule C to use and enjoy the Common area, all amenities, all conveniences to be provided in the complex with other purchasers. The approved plan also stipulates plantation of trees 20% of the total area and at least 20 ft. wide approach road from the main road.

The Complainant acquired ownership right over flat No. 604 on the6^th floor and space for parking on the stilt and all other common space for use.The O.P. no.1 & 2 conveyed and transferred undivided interest over shown in sch. C.D. & E AC 0.52 decs and 0.03 decs allocation made as shown in schedule ‘A’ under the Orissa Apartment Ownership Act.

During April, 2023 the O.Ps took up construction over the plantation/garden portion of approved plan of SDA-2010 illegally.

The Builder deviated from the Original approved plan. The O.Ps not maintained the free area and common space of amenities violating the Orissa Apartment Ownership Act and Rules which covers 20% of the total land area. The O.Ps by unfair means going to construct commercial complex having guarded approached road through the main gate from the main road. Complainant made objections but the O.Ps gathered huge house building materials. For the change in geographical changes, the Complainant now facing inconveniences in protecting rights of safety and security.

The common areas has not been transferred to the society along with amenities and facilities to the society since 2015 through regd. Sale deed. Absence of jogging track, play ground, greeneries, plantation, Gym, Swimming pool, pent house etc. no termite treatment at the foundation, in appropriate duct size, foundation base, no quality work item in concrete, plastering, wooden choukaths, other wooden item, no dripping course at the outer wall, inferior quality of fittings, fixtures, workmanship, approach road have not provided with expansion joint. Initially foundation was for up to 4^th floor but it was raised up to 7^th floor, Structural safety certificate, quality control measures and design of high rose made which makes the building unfit and no safety exists.

The land is in ‘Kata’ Kisam i.e. pond whereas in the sale deed it has mentioned as ‘Ghara bari’. No any notice has been given to the Sambalpur Development Authority that the construction/buildings have been completed. The size of ducts were meant for up to 4^th floor from stlilt floor for light and air, but after construction of flat above 4^th floortill 7^th floor, the ducts, corridor up to 4^th floor have no facilities of right and air etc. and without right in day time it remains deep dark.

The discharge pipes and water connections are of inferior quality. The floor of community hall in in 9 inches below the open front area. The roof qualities are of inferior quality. Proportion of concrete in 7^th floor is poor quality for which there is leakage of water to 6^th floor. No pent house is made. The open space has been converted to flat and sold which amounts to unfair trade practice.

The O.P. No.1 & 2 are not supplying occupation certificate, safety certificate in the name of the society. The O.Ps habitually violated the law. For deficiency in service and unfair trade practice this complaint has been filed.

2. The O.P. No.1 & 2 in their version submitted that this commission has no jurisdiction to entertain the complaint. The complaint is barred by limitation as after 9 years dwelling in house complaint has been raised. The sale was made on 07.05.2015. The house project was completed in March 2014.

In a neighbourhood plot, ‘Brijdham Housing Society’ for ongoing construction alleging as commercial complex over the common area/space, which is over 20% of the housing project left for garden/plantation are not true. The Sambalpur Development Authority has submitted a factual report which needs to be considered. The answering O.Ps are not indulged in construction activities in the common space they have only and exclusive common right.

There is no cause of action for the complaint as it is made after 9 years of purchase. There is no any basis of the complaint. The case is civil in nature and no any allegation can be made against the State authorities under the Consumer Protection Act, 2019.

In the neighbourhood plot with due approval of the government and section under the statute construction work has been resumed after 2013. The said plot already had a foundation, plinth and pillars since 2013 and Mrs Silla Arati is the developer. The property of Silla Arati is different from land of M/S Shiba Habitats Ac 0.52 decs. The personal property of Silla Arati and property in the name of M/S Shiba Habitat, director Silla Arati are different. Mr. Shiba Prasad and Mrs Silla Arati in the capacity of Director of the company developed the Ac 0.52decs. which is M/S Shiba Habitatas. The construction in neighbouring plot No. 200/4556 Ac 0.09 decs of Mrs. Silla Prasad is different. The Complainant is with erroneous impression and confusion as two plots neighbouring recorded in the name of Mrs Silla Prasad namely plot No. 200/4556-0.09 decs and plot No. 185 wherein “Shiba Enclave” in Brijdham Housing Society has been developed.

On the sale deed dated 09.10.2014 plot No. 205/4308 and plot No. 185 both consisting of 0.52 decs reveals the facts.

In the permission of Sambalpur Development Authority and regularisation letter dated 20.01.2024 plot No. 200/4556 wrongly mentioned for which Mrs Silla Arati has made a protest vide letter dated 10.07.2014 with request for necessary correction of letter No. 210/SDA/x477/2012 dated 20.01.2014.

The easement common approach road(approaching Laxmi Talkies-GM College Main road) can not be the exclusive use of Complainant or apartment owners alone. The Plot owners on either side of this approach road (Some of the plots are land locked and no means but this approach road for exposure to the outer world) also have the easementary rights of passage on this approach road.

The O.P. No.3 & 4 are neither partners nor Directors of the O.P.No.1 company. The year of agreement for sale is 2011. The brochure filed by the Complainant is to be proved that it is supplied by O.Ps. The Apartment owners Association formation is the duty of apartment owners soon after the occupancy of 33% in the group housing. The Association is to maintain the buildings, common area and bear the charges and not the promoters. After forming the association they are to demand for documents pertaining to construction and management.

The sale deed reflects the description of the area of land of 0.52 decs(0.49 dec+0.03 dec) and not 0.55 decs (0.52dec +0.03 decs). The common area left from its land by O.P. no.1 is much more than 20% of the total area 0.52 decs. The Shiba habitat stands only by 0.2143 decs. The Complainant and Apartment owners Association(AOA) can not have exclusive right of use of the approach road and their internal road. Other land owners and residents on either side of the approach road has the easementary right on this approach road who are staying more than 80 years. They shall be land locked in case the approach road is not allowed to them.

The Complainant has no right to restrain the neighbouring plot owners or easementary rights with the help of consumer law. The Complainant has filed false affidavit and needs proceeding for contempt. The O.Ps are not deficient in their service nor any unfair trade practice exists and accordingly, complaint needs to be dismissed.

3. The O.P. No.3 Ramesh Kumar Agrawal in his version submitted that he is not a partner of O.P. No.1 & 2 nor provided any approved plan to the Complainant. Land of O.P. no.1 & 2 is adjacent to the land of O.P. no.3 & 4 and jointly applied for permission from S.D.A., Sambalpur in 2010. The disputed flats situated over land of O.P. No.1 & 2 not over land of O.P. No.3 & 4.

On 30.01.2017 the partnership between O.P. no.3 & 4 was dissolved and the O.P. no.3 became the exclusive owner of the firm Kaivalya Dham Nirman and as some minor construction of flats over the land of Kaivalya Dham was not complete, he has not submitted the completion certificate before the S.D.A., Sambalpur. There is no cause of action for the Complainant and is liable to be dismissed.

4. The O.P. No.4 in his version adopted the same version of O.P. No.3.
5. The Complainant filed the copy of following documents:

1. E-Registered sale deed No. 11621501783 dated 07.05.2015.
2. Letter No. 1285 dated 21.07.2010 issued by Sambalpur Development Authority to Brij Dham Housing Society promoted by M/S Siba Habitates Builder through builder Silla Prasad and M/S Kaibalya Dham Nirman through Promoters Sri. Ramesh Kumar Agrawal and sri. Siddhartha Sa.
3. Copy of plan of the project.
4. Brouchure issued by Siba Enclave Unit 05, Sakhi Gopinath, Sambalpur.
5. Letter No. 210 dated 20.01.2014 issued by S.D.A., Sambalpur in favour of Ramesh Kumar Agrawal and Smt. Silla Arati, Director, Siba Habitats Pvt. Ltd. for approval/regulation of 5^th and 6^th floor over approved 3 block of existing S +4 and of 7^th floor over one approved block of existing S +6 storid.
6. Bhulekh Record of right mouza Sambalpur Town Unit No.5, Sakhi Gopinath, Sambalpur that Khata No. 644/1190 recorded in the name of Silla Prasad W/O-Silla Siba Prasad.
7. Letter No. 198/SDA dated 21.02.2023 supplied by PIO, SDA, Sambalpur.

No any documents have been filed by the O.Ps. The Complainant filed a petition dated 03.10.2023 for production of documents like occupancy certificate, structural certificate, fire safety certificate, certificate of quality test, designs/civil, electrical and sanitary along with conversion of land u/s 8A of the Orissa Land Reforms Act, but the O.Ps in reply submitted that the Complainant sorts for documents to linger the case and earlier it has been supplied to the Complainant and there is no need to supply or file any other documents. The documents are not available with the O.Ps. The Complainant sort for structural report which is very vital in this case but the O.ps have not filed any documents.

The Complainant filed a petition that the O.Ps are constructing over the common area of the project and sort for intervention of this commission. I.A. Case No. 12/2023 was initiated and the O.Ps were restrained to continue further construction if any over the common area of the project until further order and a report was called for from Sambalpur Development Authority about the utilisation of the common area of the project.

9. The Sambalpur Development Authority appeared through the Govt. pleader and submitted a factual report on the issue on 22.08.2023. The S.D.A. submitted that vide letter No. 1285/SDA dated 21.07.2010 the S.D.A. granted permission to build stilt +4 storey building in respect of plot No. 220, 205/4310, Khata No. 644/1188, Plot No. 2978/1, Khata No. 617 plot No. 205/3, Khata No. 421, Plot No. 2978/2, Khata No. 617 Plot No. 185, Khata No. 644/1191, Plot No. 205/4308, Khata No. 644/1190 of mouza-Sambalpur Town Unit No. 5 Sakhi Gopinath in favour if M/S Brijdham Housing Society promoted by 1) M/S Siba Habitats Builder through its promotor Silla Arati and 2) M/S Kaibalya Dham Nirman through promoters i) Sri. Rameh Kumar Agrawal and ii) Sri. Siddhartha Saha.

Later S.D.A. vide letter NO. 456/SDA dated 19.02.2013 granted permission in favour of Silla Arati, promoter M/S Siba Habitats Builder for construction of 5^th and 6^th floor on existing stilt +4 building in respect of plot No. 205/4308, 185, 198(P), 200(P) appertaining to Khata No. 644/1190, 644/1191, 492 of mouza, Sambalpur Town unit No. 5, Sakhi Gopinath.

S.D.A. in letter No. 210/SDA dated 20.01.2014 granted permission for approval/regularisation of 5^th & 6^th floor over three block of existing S +4 & 7^th floor over one approached block of existing S +6 storeys building in respect of plot No. 220, 205/4310, 205/4306, 2978/1, 2978/2, 185,200/4556,219,205/4557, 206/4558, 205/3, 205/4308, 220/2518(A), 220/2518(B), 198 Khata No. 644/1194/644/1188, 617, 421, 644/1190, 644/1191, 644/1410,492 of mouza Sambalpur Town Unit No.5, Sakhi Gopinath in favour ofSri. Ramesh Kumar Agrawal and Sri. Siddhartha Saha, partner of M/S Kaibalya Dham Nirman A.N. Guha Lane, Sambalpur and Smt. Silla Arati Director of M/S Siba Habitats Pvt. Ltd. fatak, Sambalpur for residential purpose. An area was left for “future Development of Commercial complex”.

S.D.A. in letter No. 269/SDA dated 04.03.2023 accorded permission of Stilt +2 retail commercial building over the existing plinth in respect of plot No.200/4556, 198/4555, Khata No. 644/1410 of Mouza-Sakhi Gopinath in favour of Smt. Silla Arati.

The S.D.A. submitted that enquiry was made and found that no unauthorised construction has been made over the common area. A commercial complex is under construction over the land/area which is embarked for “future Development of Commercial Complex” as per permission granted by S.D.A. in letter no. 269/SDA dated 04.03.2023. The report submitted by one Bandita Mahapatra, on behalf of S.D.A.

10. The O.P. no.1 & 2 on 03.01.2024 filed written note of argument and certain documents serving a copy to the Complainant. The O.P. No.1 & 2 filed the following documents:

1. Two Photographs showing community hall, Brijdham Society.
2. Occupancy Cum Completion Certificate of Anindita Das, Architect for building on plot No. 205/4308, 185 and 198 of mouza. Sakhigopinath with the plan approved by SDA vide letter No. 210/SDA dated 20.01.2014.
3. Letter dated 14.02.2018 of M/S Siba Habitat Pvt. Ltd. to the Secretary Siba Enclave.
4. Notice in Complaint Case No. 288/2023 of the Orissa R.E.R.A., Bhubaneswar along with paper book filed by Suraj D.Gwalani.
5. News Paper clips in two number.

11. Perused the pleading of the parties and documents filed. Basing on the available materials the following issues are framed:
103606587.  

1. Is the complaint not maintainable and is Civil in nature? The Complainant is not a consumer of the O.Ps?
2. Whether the O.Ps violated the terms of sale deed and declaration made at the time of construction of M/S Siba Habitat Pvt. Ltd. Project namely “Siba Enclave” by misutilising the common spaces meant for the inhabitants of the project:
3. Whether the complaint is barred by limitation?
4. What relief the Complainant is entitled to get?

ISSUE NO.1 Is the complaint not maintainable and is Civil in nature? The Complainant is not a consumer of the O.Ps?

                                                     &

ISSUE NO.3 Whether the complaint is barred by limitation?

It is the admission of both the parties that Smt. Silla Atri, O.P. no.2 and M/S Siba Silla Shiba Prasad executed a sale deed in favour of the Complainant vide e-Regd. Document No. 1162140308 dated 09.10.2024 for a consideration amount of Rs. 24,76,748/- khata No. 644/1190 and 644/1191 has been recorded in the name of O.P. no.1 in royati status, The O.P. No.1 vide money receipt No. AC280787 dated 04.06.2009 u/s 8 (i) of the O.L. R. Act vide case No. 933/2008 for Khata No. 644/1190 and vide M.R. No. AT 3249093 dated 16.02.2010 and OLR Case No. 118/2010 paid the premium for M.S. Khata No. 644/1191 for total area Ac 0.52 decs over which the residential flat bearing No. 604 on the 6^th floor in Shiba Enclave is situated having build up area of 1300 Sq. ft.

Prior to registration of the sale deed the Complainant and O.P. No.1 entered into an agreement for sale wherein both the parties agreed and declared that Siba Enclave is situated over M.S. Khata No. 644/1190 plot No. 205/4308- Ac 0.49 decs Kisan-Ghara-bari flat No. T-401 in Third floor measuring super built up are 1593 Sq. ft. with a car parking constructed over the said 0.49 decs of land having stilt +04 storeyed residential building means ground, first, second and Third floor respectively. Another parcel of land under M.S. Kharata No. 644/1191. Plot No. 185-Ac 0.03 decs Kisham Gharabari in the name of O.P. No.2 was also included with 0.49 decs and the project area covered Ac 0.52 decs. In the agreement dated 21.02.2011 approval of S.D.A., Sambalpur bearing No. 1285/SDA dated 21.07.2010 was reflected.

As per approval letter of S.D.A. dated 21.07.2010 the O.P. no.1 and M/S Kaibalya Dham Nirman through promoters O.P. no.3 & 4 accorded permission for stilt floor +4 storeyed residential building for plot No. 220,205/4310 of Khata No. 644/1194, Plot No. 205/4306 of Khata No. 644/1188, Plot No. 2978/1 of khata No. 617, Plot No. 205/3 of Khata No. 421, Plot No. 1978/2 of Khata No. 617 plot No.185 of Khata No. 644/1191 and plot No. 205/4308 of Khata No. 644/1190 of Mouza Sakhigopinath, Sambalpur. It was agreed by the O.Ps that development of the project shall be undertaken strictly accordingly to the approved plan. Parking space shall not be less than 22293 Sq. fts. The front exterior wall of the building should be at distance of 87’ 8’’ from the centre of the approach road laying to the Northern side of plot. Width of the road should be 20’0’’. The completion certificate shall be duly signed by an architect/Civil Engineer or Town planner empanelled in S.D.A. on or before 20.07.2013. Plantation of tree is to be taken up within the plot area @20% of total area. The land owner is required to develop and maintain the road side drain on his/her own land at his/her own cost until handed over to local body. Roof top rain water harvesting, fire fighting equipments in consultation with fire department, sewage treatment plant for environment, society room of size 60 Sqm. For Block A,B,C in the stilt floor and of 60 Sqm. For block Siba Habitats Builder. The Plot area is 69043Sq Fts and plinth area approved.

Stilt floor- 25196 Sq ft.

Ground floor-26642 Sq ft.

First floor-26642 Sq ft.

Second floor-26642 Sq. ft.

Third floor-26642 Sq ft.

Total         -131764 Sq. fts

The Sambalpur Development Authority vide letter No. 210/SDA dated 20.01.2014 approved/regularised 5^th & 6^th floor over approved S +4 & of 7^th floor to O.P. No.3 & 4 along with O.P. no.2 in respect of plot No. 220, 205/4310, 205/4306, 2978/1, 2978/2, 185, 200/4556, 219, 205/4557, 206/4558, 205/3, 205/4308, 220/2518(A), 220/2518(B), 198 of Khata No. 644/1194, 644/1188, 617, 621, 644/1190, 644/1191, 644/1410 & 492 of mouza-Sakhigopinath, Sambalpur. As per statement of O.P. No.2 M/S Shiba Habitat and its project Shiva enclave is situated over M.S. plot No. 205/4308 and plot No. 185 whereas the Kaibalya Dham developed by O.P. No.3 & 4 is a separate project and here question arises except common plot No. 185 why repeatedly permission have been obtained from S.D.A. for extension of the existing building over plot No. 205/4308 and 185. From the permissions granted by S.D.A., Sambalpur in 2010, thereafter in 2014 and in 2023 vide letter No. 269/SDA dated 04.03.2023.

From the circumstances of the case it is clear that the O.P. no.1 & 2 is collusive action developing two projects namely “Kaibalya Dham Nirman” and “Siba Enclave” and the collusive action of the Sambalpur Development Authority can not be ignored. Each time permission has been granted to the O.Ps collectively and the O.Ps treating two separate distinct project before the public.

From the Supra discussion it is clear that the Complainant has purchased the flat from the O.P. No.1 & 2 and it is alleged that the O.P. no.1 & 2 violated the agreement. The deficiency is a continuing one after grant of permission by S.D.A., Sambalpur in 2010, 2014 and 2023 March where the residential flat of the Complainant was affected. In collusion with the O.P. no.3 & 4 project has been developed namely ‘Siba Enclave’, easementary and other rights are effected. As the Complainant has paid and in collaboration with O.P. No.3 & 4 the project has been developed after obtaining permission of S.D.A., Sambalpur the Complainant is a consumer of the O.Ps and this Commission has jurisdiction to examine whether any deficiency exist on the part of the O.Ps. No doubt this Commission has no jurisdiction to give any observation of the easementary rights of the parties but taking into consideration the structures of the project, assurances for amenities to fullfill by the O.Ps this is a fit case under the Consumer Protection Act, 2019 and it is not barred by limitation.

Accordingly, issue No.1 and 3 are answered.

ISSUE NO.2 Whether the O.Ps violated the terms of sale deed and    declaration made at the time of construction of M/S Siba Habitat Pvt. Ltd. Project namely “Siba Enclave” by misutilising the common spaces meant for the inhabitants of the project:

1. Both the parties admitted that land has been transferred to the Complainant and other purchasers under housing development scheme. Sakhi Gopinath mouza is one of the prime place, can say as heart of Sambalpur Muncipality and now in Municipal Corporation. Learned advocate for Complainant Sri. Pradhan in his argument submitted that in the registered sale deed Kisam of the land has been mentioned as Ghara-bari and the O.P. no.1 & 2 reflected that vide O.L.R. Case No. 933/2008 M.S. Khata No. 644/1190 has been converted to Ghara-bari Kisham and likewise in OLR Case No. 118/2010 M.S. Khata No. 644/1191 has been converted to Ghara-bari Kisham after depositing the premium vide MR No. AC280787 dated 04.06.2009 and MR No. AT3243093 dated 16.02.2010 u/s 8(i) of the O.L.R. Act. Sri Pradhan filed copy of said Khatas. At present also plot No. 205/4308-0.49 decs Kisham-‘Kata’ plot No. 185-0.03 decs Kisham-Ghara bari refelected in the name of the Silla Arati W/O Silla Shib Prasad. Here question arises The Tahsildar, recorded the plot No. 185 and covered the land whereas no any correction was made in respect of plot No. 205/4308. If the O.P. no.1 & 2 paid premium for 0.49 decs of land then non-recording/conversion in R-O-R automatically created suspicion. Sri Panigrahi learned advocate for O.P. No.1 & 2 submitted that approval has been given by the S.D.A., Sambalpur and the premium receipts are not traceable.

After going through the contention of the parties this commission observed as follows:-

1. Plot No. 205/4308-Ac 0.49 Kisham ‘Kata’ means water body in Sakhi Gopinath mouza under Sambalpur Muncipality is although a royati water source, the ‘kata’ is used for preservation of water in the locality that may be rain water or other sources.
2. During this juncture relating to Topan Kumar Das V. Commissioner Cuttack Muncipal Corporation & others W.P.(C) No. 8797/2004 and another case Prasanta Kumar Das vs. State of Orissa & others, O.J.C. No. 6721/1999 was highlighted. The hon’ble High Court, Orissa issued certain guidelines to check conversion of ‘water bodies’ in urban areas. Accordingly, Govt. of Orissa Revenue and Disaster Management Department vide letter No. 44549 dated 22.12.2017 constituted a committee under the chairmanship of R.D.C. (concerned Division) in pursuance to supra judgements for the protection, preservation and conservation of water bodies(Jalasaya Kisam) in the urban areas of the State.
3. As conversion of ‘Kata’, ‘Jalasaya’ water bodies was in controversy here question arises in what way permission u/s 8(i) of the O.L.R. Act was given by the Tahsildar, Sambalpur. In judgement of W.P.(C) No. 8797/2004 hon’ble High Court at para -15 observed, “……………. It will be open to the State Govt. to adopt the directions given in respect of cuttack city in the foregoing paragraph for other cities in the State”. The guidelines issued during the relevant period has been ignored by the Tahsildar, Sambalpur but when later came to his/her notice plot No. 205/4308-Ac 0.49 decs ‘Kata’ Kisham was not converted in the R.O.R.
4. The O.Ps failed to submit any documents relating to conversion of the alleged land nor any order of Tahsildar, Sambalpur was filed. Further as per guidelines issued by hon’ble High Court, the collector, Sambalpur was competent authority to direct the Authorised officer under O.L.R. Act to convert ‘Kata’ Kisham to Ghara-bari. No such order has been filed by the O.Ps.

From the Supra discussion it is transparent that by without following due procedures the O.P. no.1 & 2 declaredto convert the land from ‘Kata’ Kisam to Ghara-bari, not only kept the Complainant and other purchasers in darkness but also have taken large amount to-wards construction cost, built the apartment which amounts to deficiency in service and unfair trade practice, The very foundation of the Shiva Enclave is weak and against the procedures of law which gave rise this dispute.

2. The Second point of consideration in this Complaint is that the “Common areas and amenities under the Orissa Apartment Ownership Act, 1982. Sec3 (f)  of the Act defines as follows:

“Unless otherwise provided in the declaration or in lawful amendments there to, includes-

1. The land on which the building is located and all easements, rights and appurtenances belonging to the land and building.
2. Supports, main walls, halls, corridors, lobbies, staries, stairways, life escapes and entrances and exists of the building.
3. The basement cellars, yards, gardens, parking areas, shopping areas, schools, garages and storage spaces.
4. The premises for the lodging of Janitors or person employed for the manger of the property.
5. Installation of common services such as power, light, gas, hot and cold water, heating, refrigeration, air-conditioning, sewage.
6. Elevators, tanks, pumps, motors, compressors, pipes and ducts and in general all apparatus and installations existing for common use.
7. Such other community and commercial facilities as may be specifically provided for in the declaration and
8. All other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use.

Sri. Pradhan, Advocate for Complainant submitted that the O.Ps are deficient in their service for non supply for following documents and acts.

1. Occupancy certificate
2. Completion certificate
3. Structural Safety certificate
4. Fire safety certificate
5. Environmental Clearance certificate
6. Certificate of quality test relating to design/Civil, electrical and sanitary.
7. To register the society as per Orissa Apartment Ownership Act.
8. To register the common areas, approach road and internal roads in the name of the society/Association.
9. To direct the O.P. to demarcate the land, actual construction, area for garden/plantation, main approach road and internal road.

Sri. Panigrahi, Learned advocate for O.P. no.1 & 2 contended that common space has not been misutilised by the O.Ps. After 9 years of purchase and staying frivolous complaint has been filed. In Civil Court easementary right, encroachments, Kisam of land etc. can be agitated. The Complainant has misunderstood the resumption of the discontinued (Since 2013) construction on the neighbouring plot with due approval of the government and sanction under the status by the statutory authorities of the State. The flat owners entered into their flats in 2015. At present also Ac 0.52 decs land stands in the name of silla Arati. In neighbouring Plot No. 200/4556-Ac 0.09 decs land is in the name of Silla Arati and it is not under Siva Enclave. The said land is covered under Brijdham Nirman. It is the duty of Complainant and other residents to register the society, intimate the O.P. No.1 & 2 about registration to the promoters, but it is sad enough that the apartment owners are sleeping over the matter. After 33% purchase of the apartments the AOA is to inform the registering authorities and promoter, AOA will collect common expenses, but the owners failed to do so. Maintaince after delivery of possession is not with the O.Ps. By filing a complaint mischief has been done by Complainant. Construction in neighbouring plot can not be coloured as construction in the internal area of the group housing scheme.

From the letter dated 14.02.2018 of the O.P. No.1 it reveals that one Mr. P.K. Panda, former president of Society received following documents from O.P. No.1

1. S.D.A. approved plan copy.
2. Sale deed copy of land.
3. Ghara-bari conversion receipt.
4. 3 SDA approval letters.
5. Patta copy of land (Constructed area)
6. Map
7. Certificate of Encumbrance on property.

During 14.02.2018 Sri. Debasis Das was the former Secretary.

As per the Orissa Apartment owner Act. till date the apartment owners not registered the Association and accordingly coming to this Commission independently. Relating to demarcation of M/S Shiba Enclave the Complainant and other occupants are at liberty to demarcate the land to that it can be ascertained that whether any illegal construction has been made or not. After registering the Association the members are at liberty to approach the promoters to hand-over the internal road, common areas, approach road etc. Regarding occupancy certificate, Completion certificate, structural safety certificate, fire-safety certificate etc as prayed for the complaint including every purchaser in the shib Enclave have the right of entitlement, whereas the O.Ps failed to provide the same. Further the O.P. No.1 & 2 failed to submit the same before the Commission which amounts to deficiency in service on the part of the O.P. no.1 & 2.

3. The third point of consideration in this complaint is that Shib Enclave has been constructed covering the following plots in the name of Silla Arati Mouza-Sakhi Gopinath, Sambalpur.

M.S. Khata No. Plot No. AreaKisham

In the other hand M/S Kaibalya Dham Nirman has been promoted by O.P. No.3 & 4 covering the following land.

Mouza-Sakhi Gopinath, Sambalpur.

M.S. Kh. No. Plot No.Area R.T.

205/4310 0.5952Dham Nirman

As admitted by O.P. No.1 & 2 there is no any construction over plot No. 185 and 205/4308. In the other hand the O.P. No.1 & 2 stated that over plot No. 200/4556 of the O.P. no.2 construction held up in the year 2013 has been taken up. As there is no any specific proof submitted by Complainant, violation of the order of the Commission can not be taken up, accordingly no any order can be passed in I.A. No. 24/2023 and disposed of.

The O.P. No.1 & 2 submitted that the Complainant and others have filed R.E.R.A. case before the authority concerned for the same land. This Commission is only concerned with the deficiency in service part and not to go beyond that.

4. In the Brochure the O.P. No.1 & 2 assured to provide amenities

1. Children paly area with beautifully land scape garden
2. Jogging track, party lawn foundation.
3. Gymnasium
4. Reputed brand lift,
5. Diesel generator.
6. Advance fire fighting system
7. CCTV door videophone with intercom security system etc.

but failed to prove the amenities provided above. Accordingly, non-fulfilment of assurance for the project amounts to deficiency in service and unfair trade practice on the part of O.P. No.1 & 2. The O.Ps failed to establish the 20% area used as greenery under the project and plantation has been made.

ISSUE NO.4: What relief the Complainant is entitled to get?

          As discussed supra the Complainant is entitled for the relief but in part.

          Accordingly it is ordered:

ORDER

The Complaint is allowed against the O.P. no.1 & 2 partly.  The O.P. No.1 & 2 are directed provide occupancy certificate, completion certificate of quality test relating to designs/civil, electrical and sanitary. For deficiency in service and unfair trade practice the O.P. No.1 & 2 are liable to pay compensation of Rs. 5.00 lakhs and litigation expenses of Rs. 20,000/- to the Complainant.

The Shiba Enclave has been constructed without following the norms of Orissa land reforms Act, 1960, Orissa Apartment Ownership Act, 1982, Orissa Town Planning Improvement Trust Act, 1956 and Orissa Development Authorities Act, 1982. The construction is illegal and as collusively the Sambalpur development authority, Tahsildar, Sambalpur granted permission, converted the land and registered the land before DSR, Sambalpur. The Secretary Urban Development and Housing Department and The Principal Secretary Revenue Department, Govt. of Orissa are directed to take immediate steps against the erring officials for whom the Complainant and other apartment owners are suffering investing huge money for their residence.

Order pronounced in the open Court today on 16^th day of Jan, 2024.

Free copies of this order to the parties are supplied.