HON’BLE MR. SHYAMAL KUMAR GHOSH, MEMBER

The appeal has been directed against the judgment and order dated 23/06/2017 passed by Ld. DCDRF, Kolkata, Unit – II in CC case no – CC/143/2017 wherein the Forum concerned while disposing of the said complaint case dismissed the same ex-parte but on merit and being aggrieved by such order, the present appeal has been preferred by the appellant/complainant.

The brief fact of the case is that the complainant booked a plot being no – 257 measuring area 1460 sft in month of February 2007. The value of the said plot was 1,56,139/-. The complainant paid a sum of Rs 23,420/- in cash to the op. The rest amount would be paid by 36 installments. The allotment was issued by the op on 19/11/2007. Thereafter, the complainant paid total consideration amount of Rs 1,56,139/- to the op on different dates. The agreement for sale in respect of plot no – 257 was executed in the year 2008 between the op and complainant. But unfortunately, it was found that the plot of land was not developed. At that situation, the complainant vide letter dated 03/11/2014 requested the op to return the amount of Rs 1,56,139/-. But the op has paid only 30,000/- out of total amount of Rs 1,56,139/-. Thereafter, the complainant on several occasions requested the op to return the rest amount. In this regard mediation was held between the parties in the Consumer Affairs Department. But the said mediation was failed. The mediation center advised the complainant to approach the Consumer Forum. Having no other alternative, the complainant knocked at the door of the concerned Forum for getting his proper relief.   

None appeared from the side of the op after service of summons upon him and as such the case was heard ex-parte against the op.

In course of hearing Ld. Counsel appearing for the appellant/complainant drew our attention to the observation of Ld. DCDRF and pointed out that the Ld. Forum below completely ignored and overlooked the materials and documents on record while passing the impugned order mentioned above. Ld. Counsel also submitted that the Ld. Forum has failed to consider the fact of the various development works upon the said land. Ld. Counsel also argued that the Ld. Trial Forum wrongly held that the agreement of sale was merely for sale of plot of land ie the matter was related to sale simplicitor rather the actual truth was that the developer has promised to sell of plots of land after necessary modification and alteration along with providing various facilities/arrangements which are coming well within the purview of the definition of service provider. The Ld. Counsel has also stated that the impugned order is bad in law and the said order is liable to be set aside.

None appeared on behalf of the respondent. The appeal was taken up for ex-parte hearing. Hearing was concluded.

We have heard the Ld. Counsel for the appellant/complainant and have also carefully gone through the materials on record. It is admitted fact that the complainant already paid a consideration amount of Rs 1,56,139/- to the op ABS Land Development in respect of plot no – 257 measuring area 1460 sft which is clearly revealed from the letter of allotment dated 19/11/2007 issued by the op ABS Land. After careful perusal of the agreement for sale dated 30/07/2008, it is found that the company (ABS Land) has agreed to develop the said plot of land and after development, the op has also agreed to provide the same to the complainant along with providing the connecting road or pathway attached to the said plot by way of registered deed of conveyance. Not only that in ‘C’ schedule of the said agreement dated 30/07/2008, the op also promised to provide other facility or facilities such as park, lake, electricity, telephone line, water line, drainage system, road etc. In default, the op would be liable to refund the money given by the purchaser/purchasers which is clearly reflected in the aforementioned agreement.  It is admitted that the OP/ABS Land already refunded Rs. 30,000/- to the Complainant which is clearly stated in the Petition of Complaint filed by the Complainant.

Keeping in view of the above observations, we are of the view that the complainant comes well within the purview of the definition of the ‘Consumer’ as per Consumer Protection Act, 1986 and providing various amenities or facilities such as park, lake, road, electricity, telephone line, drainage, water line etc comes well within the purview of the development as well as within the periphery of the service as per Consumer Protection Act, 1986. In this respect there are plethora of decisions of the Hon’ble Supreme court and the Hon’ble NCDRC wherein the Hon’ble Courts decided for providing various amenities such as electricity, telephone line, road, water line, drainage etc come well within the periphery of the ‘service’ as per C.P. Act, 1986. 

Upon the above observations, we decide that the consumer case being no – 143/2017 should not be dismissed on the ground of sale simplicitor rather there is a strong reasonable plea against the op taken by the complainant in his Petition of Complaint. As per agreement the op has failed to develop the land in question within the stipulated period of time though the op has received the consideration amount from the complainant causing gross negligence and deficiency in service on the part of the OP/ABS Land. 

Accordingly, we allow the appeal ex-parte and set aside the impugned order dated 23/06/2017. The op is directed to pay the rest amount of Rs 1,26,139/- (Rupees one lakh twenty six thousand one hundred thirty nine only) to the complainant within 60 days from the date of this order. The op is further directed to pay compensation of Rs 20,000/- (Rupees twenty thousand only) for mental pain and agony suffered by the complainant and litigation cost of Rs 5,000/- (Rupees five thousand only) to the complainant within the stipulated period of time, in default, the complainant is as liberty to put the order in execution.

The appeal stands allowed and thus disposed of as per above observation.