The case of the Complainant in brief is that the complainant obtained a lottery ticket on payment of  Rs. 250/-(Rupees two hundred fifty) only to participate in the allotment of a flat to be developed by Bengal Shelter Housing Development Ltd./ the Opposite Party no. 1herein. The complainant won the lottery and on 11.04.2011a flat in Block-3, Flat no.2D,  2^nd floor at Sisir Kunja, Madhyamgram, North 24 Parganas . Thereafter the Complainant applied for the said flat and deposited an amount of Rs.41,000/- (Rupees forty one thousand) only to the opposite party no.1 on 14.01.2011 vide customer ID no. SKA/02 and his application number was 451 dated 12.01.2011. The opposite party no 1 assured that the flat would be handed over to the Complainant within two months from the date of application. Thereafter, the Complainant paid entire amount of the flat but till the filing of the case the opposite parties did not hand over the flat bearing no.Block 3, Flat no. SK/A/3/2D(Type D) to the Complainant. It is further stated in the petition of complaint that an order was passed by  the Hon’ble High Court of West Bengal directing the opposite parties to hand over all flats within September 2013 but opposite parties did not comply the Hon’ble High Court’s order till date. Finding no other alternatives the Complainant filed this case praying for direction upon the opposite parties to hand over the allotted flat to the complainant along with compensation of Rs.10,000/- (Rupees ten thousand) only and litigation cost of Rs.3,000/-(Rupees three thousand) only.

Opposite Parties have contested this case by filing written version, denying and disputing all the material allegations made against them. The opposite parties state that the opposite party no. 1 is a reputed joint sector company incorporated under the Companies Act 1956, working with West Bengal Housing Board and Shelter Projects Limited providing services in the field of real estate where West Bengal Housing Board is a body incorporated under the West Bengal Housing Board Act 1972 headed by Housing Commissioner. The Government of West Bengal constructs housing complex at an affordable prices through West Bengal Housing Board with the conception of public – private partnership. It is further stated by the opposite parties that the Complainant was allotted a flat being no. 2D, 2^nd  floor measuring 475 sq. ft. area at Block no. 3, Sisir kunja, Madhyamgram, 24 Parganas (north) vide allotment letter dated 11.04.2011 on the basis of application no. 451 dated 12.01.2011 to the Complainant. The Complainant has paid the first three installments as well as service tax and application money totaling Rs. 4,10,000/- (Rupees four lakh ten thousand) only of the flat and paid Rs 50,000/- (Rupees fifty thousand) only for one two wheeler parking space to the opposite parties. It is further stated by the opposite parties that they were trying to execute and complete the said work of the flat within next two or three months and they had already installed L.T. Panel, transformer, vacuum circuit breaker and L.T. and S.T. Cable. As such the opposite party no. 2 has duly performed their part of duties to the Complainant, hence the opposite party no. 2 has no deficiency in providing service to the Complainant and they prayed for dismissal of the case.

                                                       Points for determination

1. Whether the complainant is consumer in terms of consumer Protection Act?
2. Whether the opposite parties are deficient in providing service to the complainant?
3. Whether the Complainant is entitled to get the relief as prayed for?

                                                        Decision with reasons

Point nos. 1, 2 and 3

For the sake of convenience all the three points are taken up together for consideration and discussion.

Admittedly, the complainant in his affidavit in chief submitted that he paid Rs. 4,10,000/- (Rupees four lakh ten thousand) only to the opposite parties on their demand but the opposite parties did not allot flat in question in his favour on different pretext. It is further stated that the complainant requested several times to the opposite parties for allotting his flat as per agreement but the opposite parties did not pay any heed till today. It appears that the opposite parties in their evidence on affidavit admitted that the complainant was allotted a flat being No. 2D on the 2^nd Floor having an area measuring about 475 Sq.ft. at ‘Anurag’, Block – 3, Sisir Kunja, District – North 24 Parganas and paid the total consideration amount of the flat by way of three installments to the tune of Rs. 4,10,000/- (Rupees four lakh ten thousand) only along with service tax and Rs. 50,000/- (Rupees fifty thousand) only for one two wheeler parking space.

According to the opposite parties, the flat in question is ready but inspite of vigorous persuasion installation transformer by WBSEDCL has been delayed. However, they have informed the members by letter dated 06.05.2013 that already 170 allottees were given possession with limited power supply at the said project with the help of digital generator as an emergency basis. There is no laches or deficiency in service on the part of the opposite parties.

Neither the complainant nor the opposite parties submitted any documentary evidence in the case. Though the complainant in his affidavit in chief alleged that the opposite parties have failed to deliver the possession of the flat in question in his favour as per terms of agreement, but no such agreement has come forth as evidence to ascertain of allegation made by the complainant in this case. It is needless to mention that parties to the case are liable to adduce evidence in terms of Section 38(9)(b)(c) of the Consumer Protection Act, 2019 read with Order XVIII of the Code of Civil Procedure. In absence of any documentary evidence it cannot be ascertained the period of delivery of possession of the flat by the opposite parties, consequently it also cannot be ascertained that whether there is deficiency in service on the part of the opposite parties as alleged by the complainant. However, it is apparent on the face of the record and from the evidence of both parties that though the entire consideration amount of the allotted flat has been received by the opposite parties but till date, possession of the flat has not been delivered neither deed of conveyance is registered in favour of the complainant and admittedly the payment had been made by the complainant in the year 2011. The purchaser is not expected to wait for an indefinite period for getting possession of the allotted flat for which he had already paid the entire consideration amount. It is apparent that the complainant is a consumer in terms of Consumer Protection Act, 2019. As the opposite parties though received the entire consideration amount of the flat in the year 2011 and till date have not provided the possession of the flat to the complainant it certainly tantamounts in deficiency in service. Therefore, we are of the opinion that the complainant is entitled to get relief as prayed for.

Hence, it is,

Ordered

         that the complaint case being no. RBT/CC/643/2022 is allowed on contest against the opposite parties with cost.

Opposite parties are directed to hand over the possession of the allotted flat complete in all respect to the Complainant within two months from this date of order. Opposite parties are further directed to pay Rs. 10,000/- (Rupees ten thousand) only as compensation and Rs. 3,000/- (Rupees three thousand) only as litigation cost to the complainant within 2 (two) months from this date of order in default interest @ 9% shall accrue on the deposited amount of Rs. 4,60,000/- (Rupees four lakh sixty thousand) onlyfrom the date of payment till hand over the possession of the flat to the complainant.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MRS. Sagarika Sarkar]
MEMBER