Smt. Sangita Paul, Member

This is a case filed by Smt. Namita Chakraborty Wife of Sri PRasanta Chakraborty of Kolkata-700 146, Sri Sudipta Chakraboty S/o. Sri Prasanta Chakraborty of Kolkata – 700 146 and Sri Prasanta Chakraborty S/o. Late Santosh Kumar Chakraborty of Kolkata – 700 146 against Archi Construction (A sole proprietorship firm) of Howrah, Pin-711 102 and Shri Pankaj Gupta of Howrah, Pin – 711 102 with a prayer for a direction to the OPs to pay charges for alternative accommodation @ Rs.2,04,000/- (i.e. @ Rs.6,000/- per month from March, 2019 till December, 2021) and to continue to pay per month till handing over the re-constructed old building, to pay compensation to the tune of Rs.10,00,000/- for harassment, mental agony and pain and for severe financial hardship, to start the work of re-construction of the old demolished building and complete the entire work as per their old sanctioned plan, to pay Rs.25,000/- only per month equivalent to the rent of such area on the basis of market rate prevailing in the locality till completion of the work and handing over the possession of the said building, to pay the cost of two storied building existed earlier, and  to pay Rs.50,000/- as litigation cost..

OP No. 1 is Archi Construction (a proprietorship firm) is situated at 82 Ramkrishnapur Lane, P.S. & P.O. – Shibpur, Dist.-Howrah, Pin – 711 102.

OP No.2 is Mr. Pankaj Gupta, Son of Sri Mahesh Prasad Gupta.  The Address is 82 Ramkrishnapur Lane, P.S. & P.O. – Shibpur, Dist. – Howrah, Pin – 711 102.

Complainants by filing this case state that the complainants are the absolute owner of the property over the Schedule A land measuring 8 decimal along with structure standing thereon situated in the Mouza – Kodalia, J.L. No.35, Revenue Survey No.146, Touzi No.-120, R.s. Dag No.382, corresponding LR Dag No.471 under R.s. Khatian No.347 and LR Khatian No.7313, 7352 collectively within limits of Rajpur Sonarpur Municipality and being portion of Holding No.325, P.S. - Sonarpur, Dist. – 24 Pgs(South).

Complainants are willing to construct a building over the Schedule –“A” landed property.  Complainants decided to take the service of a developer by paying service charge in the form of developer’s allocation in the newly constructed building.  Complainants entered into a “registered development agreement for construction with power of attorney” on 22.11.2018 with the OPs 1 & 2 for construction of a multi storied building. 

On 15.10.2018 complainants received Rs.50,000/- X3= Rs.1,50,000/- only  and on 22.11.2018 on the registration of development agreement for construction of power of attorney Rs.1,83,333/- X3=Rs.5,49,999/- only.

As per terms and conditions of the said agreement, entire construction work will be completed within 36 months + 6 months from the date of sanctioned plan and complainant will hand over the physical possession of Schedule-“A” property to OP No.1 & 2 within 21 days from obtaining the sanctioned plan.

That in the beginning of March, 2019 complainants handed over the physical possession of the Schedule-“A” property to the OPs and the OPs demolished and sold the building material but did not start the construction work after demolition.  Already 32 months were expired.  There is no possibility of completing the work within 36 months + 6 months from the date of sanctioned plan as per terms of the agreement.  Complainants would be deprived of getting the owners allocation i.e. 1590 Sq.ft in time and will also be losing rent of Rs.14,000/- only per month equivalent to rent of such area on the basis of the prevailing market rate in the locality. 

As per the registered development agreement, the OPs did not pay the non-refundable money i.e. Rs.5,00,000/- on the date of obtaining the physical possession.  OPs were also supposed to pay Rs.6,000/- per month for alternative accommodation –charges to complainants from the month of handing over the physical possession of the Schedule-“A” property till the complainants get the physical possession of the owners allocation in the newly constructed building.  But complainants get no charges for alternative accommodation since March, 2019.  Finally, complainants sent a legal notice on 30.11.2021 to the OPs.  That the cause of action arose on 22.11.2018 and 30.11.2021 within the P.S.- Sonarpur  under the jurisdiction of Ld. Commission.  At the time of hearing argument complainants state that as on date the stipulated time of 42 months is over complainants do not allow to extend the time of agreement.  Hence, no question of constructing new building arises.

Hence complaints pray for directing the OPs to pay charges for alternative accommodation @ Rs.2,04,000/- (i.e. @ Rs.6,000/- per month from March, 2019 till December, 2021) and to continue to pay per month till handing over the re-constructed old building to pay compensation to the tune of Rs.10,00,000/- for harassment, mental agony and pain and for severe financial hardship, to start the work of re-construction of the old demolished building and complete the entire work as per their old sanctioned plan, to pay Rs.25,000/- only per month equivalent to the rent of such area on the basis of market rate prevailing in the locality till completion of the work and handing over the possession of the said building, to pay the cost of two storied building existed earlier, to pay Rs.50,000/- as litigation cost

                                                                                                  or

to construct / restore the demolished building as per the plan, sanctioned by concerned authority, demolished by the OPs for construction of a new building over the scheduled property as stated in the agreement. 

The case was filed on 03.01.2022. The complaint case was admitted on 17.01.2022.  On 24.02.2022 notices upon the OPs were served duly.  On 16.03.2022 OPs did not enter appearance.  The case proceeded exparte against the OPs.  On 20.01.2022 evidence on affidavit has been filed by complainant.  On 27.06.2022 BNA was filed by complainant and argument was heard and we proceeded for giving judgement. 

Points of Consideration :-

1.  Are the complainants consumers?
2. Are the O.Ps. guilty of deficiency in service and unfair trade practice?
3. Are the complainants entitled to get relief as prayed for?

Decision with Reasons :-

1. On perusal of records and documents, it appears that complainants were the absolute owner of the property over the Schedule-A property.  The land is situated in Mouza Kodalia, J.L.No.35, Revenue Survey No.146, Tuzil No.120, R.S. Dag No.382, corresponding to L.R. Dag No.471 under R.S. Khatian No.347 and under L.R. Khatian No. 7313, 7352 and 7316, presently under Ward No.20, valued Rs. 37,17,500/- collectively within the limits of Rajpur Sonarpur Municipality and being portion of Holding No.325, P.S.- Sonarpur, Dist. – 24 Pgs (South).  The development agreement for construction with power of attorney was signed on 22.11.2018.  The agreement was signed between Smt. Namita Chakraborty, Sri Sudipta Chakraborty, Sri Prasanta Chakraborty on one hand and Archi Construction and Sri Pankaj Gupta on the other hand.  Complainants are the owners of the land measuring 8 decimal along with a two storied building.  Archi Construction a proprietorship firm and Pankaj Gupta, the owner of the proprietorship firm were assigned to construct a building by demolishing the existing building of the land owners.  As the complainants are the owners of the land along with two storied building, complainants are consumers under section 2(7) of Consumer Protection Act, 2019. The first point is decided in favour of complainants.
2. OPs were supposed to do the work of construction as per sanctioned plan.  From the very beginning, the OPs failed to perform their duties.  The developers were supposed to complete the construction within 36 months from the date of getting the sanctioned plan.  OPs got the physical possession of the building on March, 2019 from the complainants.  The complaint case was filed on 3.1.2022.  The OPs demolished the existing building of complainant but could not complete the work of construction at the site.  The OPs failed to provide adequate service.  Rather they were deficient in providing service.  As per agreement, complainants did not get Rs.5,00,000/- only from the developer.  Complainants handed over the physical possession of the Schedule –A property as per development agreement just after 3 months from the registration of development agreement.  OPs verbally informed that they had obtained the sanctioned plan.  Hearing these complainants vacated the land within 21 days.  The building was demolished by the developer.  Complainants hoped for having a new building.  In the meantime complainants were supposed to get rent for alternative accommodation.  The OPs did not proceed according to the agreement.  They did not give rent to complainants as per agreement.  Complainants somehow managed to stay here and there.  They are facing immense trouble and inconvenience.  OPs sold the building material but did not start the work of construction.  OPs did not give the rent.  OPs did not render proper service to the complainants.  After acquiring the land the OPs did not proceed a step further.  He earned money by selling the building materials and complainants spend time in great hardship and mental agony.  Hence, we are of the firm opinion that the OPs are guilty of deficiency in service and unfair trade practice.  Hence, the second point is decided in favour of complainants. 
3. Complainants, as per development agreement dated 22.11.2018 gave permission to the developers for demolishing the old building and constructing the new one.  But complainants neither get flats nor the rent for alternative accommodation.  The OPs could not even start the work of construction.  Complainants lost their dwelling place, now they are bound to stay at the rented house and the OPs are supposed to pay the charge for alternative accommodation.  But the OPs are not ready to pay for alternative accommodation.  Complainants are not in a position to spend a huge amount for rent still they somehow manage.  Complainants permitted the OPs to demolish the house with a hope of getting a new accommodation.  Neither they got new accommodation nor did they receive rent from the OPs.  Complainants requested the OPs for the same several times.  OPs got the physical possession of the subject property on March, 2019.  OPs must give rent for alternative accommodation to complainants since March, 2019 and the OPs are also supposed to pay Rs.5,00,000/- as per payment schedule.  Complainants are no longer interested to extend the time of agreement.  They want their earlier accommodation as the OPs failed to act according to the agreement.   

Time is the most important factor.Complainants cannot wait for indefinite period of time.There is gross negligence and deficiency in service on the part of the OPs.The earlier building was demolished. As a result, the dream of complainants did not materialize.There is no chance to complete the construction work and handing over the owner’s allocation within stipulated period.Complainants sent a legal notice on 30.11.2021 but the OPs did not pay any heed to the complainant’s request.Hence, the complainants are entitled to get the relief as prayed for.In the result, the complaint case succeeds.Hence, it is,

                                                                            Ordered

That the complaint case be and the same is allowed exparte against the OPs with cost of Rs.30,000/-.

That the OPs jointly or severally are directed to pay charges for alternative accommodation @ Rs.2,04,000/- (i.e. @ Rs.6,000/- per month from March, 2019 till December, 2021) and to continue to pay per month till handing over the re-constructed old building within 60 days from the date of this order i.d., it will carry simple interest @10% since March, 2019 till final realization.

That the OPs jointly or severally are directed to pay compensation to the tune of Rs.3,00,000/- only for harassment, mental agony and pain for severe financial hardship for such a long period of time within 60 days from the date of this order i.d., it will carry simple interest @10% since March, 2019 till final realization.

OPs jointly or severally are directed to start the work of re-construction of the old demolished building and complete the entire work as per their old sanctioned plan within 60 days from the date of this order.

If it is not done within the stipulated period of 60 days OPs are directed to pay Rs.25,000/- per month equivalent to the rent of such area on the basis of the prevailing market rate in the locality till completion of the work and handing over the possession of the said building within the stipulated period of 60 days. 

That the Complainants are also directed to pay back Rs.1,50,000/- ( Rs.50,000/- X 3) and Rs.1,83,333/- X 3=Rs.5,49,999/-  to the OPs after handing over the peaceful possession of the newly reconstructed  two storied building  by the OPs within the stipulated period of 60 days. 

That the OPs are directed to pay the litigation cost within 60 days from the date of this order.

Complainant is at liberty to put the order into execution if the orders are not complied with within the stipulated period of 60 days.

Let a copy of the order be supplied free of cost to the parties concerned. 

The final order will also be available in the following website www.confonet.nic.in.

                  Dictated and corrected by me. 

                              (Sangita Paul)

                      Member