Date of filing - 28.02.2011.
Date of final order - 28.06.2016
1. Mr. Ram Kanchan Hazra,
S/O. Late Sibaram Hazra.
2. (a) Sri Shibaram Majumder,
H/o. Late Ashima Majumder.
(b) Smt. Sukanya Majumder,
D/o. Late Ashima Majumder.
(c) Sri Sunabir Majumder,
S/o. Late Ashima Majumder.
3. Mr. Uttam Das,
S/o. Mr. Gurupada Das.
4. Mr. Asit Kr. Das,
S/o. Late Tara Prasanna Das.
5. Smt. Krishna Mukherjee,
W/o. Late Debasish Mukherjee.
6. Mr. Samiran Majilya,
S/o. Late Col. Hara Gobinda Majilya.
7. Mrs. Yasmin Sultana Begum,
W/o. Dr. Aminul Islam.
8. Mrs. Alamara Begum,
W/o. Mr. Moynal Haque.
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9. Mr. Muzibar Rahman,
S/o. Nobinewaj Sheikh.
10. Sk. Shorab Ali,
S/o. Sk. Somser Ali.
All are resident of Burdwan Residency, 60, B.B. Ghosh Road,
Jail Khana More, Town and District-Burdwan. Complainants.
VERSUS
- Burdwan Development Authority,
having its office at New Administrative Building,
5th Floor, Kachari Road, Burdwan, Pin-713101,
represented by its Chairman.
- Dheeraj Promoters (An Associate of Poddar Project Ltd.,)
having its office at 9A, Lord Sinha Road,
Kolkata-700 071, represented by its partner.
- Chairman, Burdwan Municipality, Burdwan. Opposite Parties.
Appeared for the complainant : Ld. Advocate Subrata Ghosh.
Appeared for the Opposite Party No.1. : Ld. Advocate P.K. Panja.
Appeared for the Opposite Party No. 2. : Ld. Advocate Sekhar Mukhopadhyay.
Appeared for the Opposite Party No. 3. : Ld. Advocate Sib Kumar Saw.
JUDGEMENT
This is a case U/S 12 of Consumer Protection Act, 1986 filed by the several complainants jointly with the prayer for an award directing the O.P. No.1 & 2 to provide the facility of Children play area, Jogging area, to complete the construction of the incomplete boundary wall, to provide the license of the lift, to provide the occupancy certificate/completion certificate, to provide fire fighting equipment as per building rules and building code, to remove or to demolish the illegally constructed privy adjacent to A-Block, to provide water purifying plant for the complex, to
refund the amount to the complainants after making deduction from actual incurred for the purpose of installation of transformer and electric lines, to provide the permission from the concerned authority necessary for installation of the generator in the complex, to provide draft copy of the lease deed to the complainants for inspection and to take necessary steps for execution and registration of said lease deed in favour of the complainants, to take necessary steps as per engineering science to prevent the damp of the living room, bed rooms and bath room and to give Rs.1,95,000/- to each of the complainants as compensation and Rs.30,000/- as
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litigation cost to the complainants in respect of the complex standing in R.S. Plot No.3 & 4 under Khatian No.6671, L.R. Plot No.3 & 5, having J.L. No.39 within the Mouja-Radhanagar, District-Burdwan, having a portion of premises No.60, B.B. Ghosh Road, Burdwan as mentioned in the schedule of the complaint.
The complainants’ case in short is that the land as described in the foregoing lines and in the schedule of the complaint belonged to the Jail Department, Govt. of West Bengal. The Jail Department relinquished said land in favour of the Land and Land Reforms Department, Govt. of Wes Bengal for inter-departmental transfer of the same in favour of Urban Development Department for the purpose of its use by the Burdwan Development Authority. The Joint Secretary of Land and Land Reforms Department, Govt. of West Bengal vide his notice bearing Memo No.5366-GE(M)/IL-132/03 dated 15.10.2003 issued to the Principal Secretary, Jail Department informed that by virtue of inter-departmental transfer, they may hand over the possession of the said land with some conditions mentioning in the notice to the Urban Development Department (Town and Country Planning Branch) in presence of the representative of Collectorate, Burdwan. Thereafter on 7.11.2003 the Jail Department delivered the possession of the said land in favour of the Urban Development Department (Town and
Country Planning Branch) for the use of Burdwan Development Authority. The said land was duly mutated in the name of Urban Development Department in the L.R. Record of Right. The Burdwan Development Authority, O.P. No.1 is set up by the Urban Development Department of the Govt. of West Bengal under the West Bengal Town and Country (Planning and Development) Act, 1979 for integrated planning and development of Burdwan Town. Giving effect to the notice dated 19.11.2003 issued by the O.S.D. & Ex-Officio, Deputy Secretary to the Govt. of West Bengal, the O.P. No.1 Burdwan Development Authority took up the land as mentioned above for building residential complex under the name “Bardhaman Residency” and Commercial Complex on Public Private Partnership Model and entered into an agreement with the Dheeraj promoters Pvt. Ltd on 11.10.2004. Dheeraj promoters Pvt. Ltd is the sister concern of M/s. B.P. Poddar Group. The O.P. No.1 granted exclusive right to the Dheeraj promoters Pvt. Ltd for the purpose of development of projects comprising of remunerative and non-remunerative component of residential and commercial complex on the terms and conditions mentioned in the agreement dated 11.10.2004. For the purpose of implementation of the project and for smooth functioning and management of the said project said Dheeraj Promoters Pvt. Ltd. formed a partnership firm named Dheeraj Promoters (O.P. No.2) by a partnership deed dated 11.10.2004 executed between Dheeraj Promoters Pvt. Ltd. and O.P. No.2. The Dheeraj Promoters (O.P. No.2) was granted right for the development of said residential and commercial complex in term and conditions mentioned in the agreement dated 15.10.2004 with a right to enter into agreement with the prospective Lessee and to receive premium amount and to do all other acts as mentioned in the agreement dated 15.10.2004. The Dheeraj Promoters Pvt. Ltd. also granted power of attorney in favour of O.P. No.2 for the purpose of execution of the said project. By an order dated 11.7.2005 passed in the Company Petition No.160/2005 connected with the Company Petition No.119/2005 by the Hon’ble High Court at Calcutta on an application made U/s. 391(2) and 394 of the Companies Act, 1956, the Dheeraj Promoters Pvt. Ltd. was
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merged with the M/s.B.P. Poddar Hospital and Medical Research and all the assets, liabilities, contracts, rights and obligation of Dheeraj Promoters Pvt. Ltd. are vested and transferred to M/s. B.P.Poddar Hospital and Medical Research Ltd. and accordingly M/s. B.P.Poddar Hospital
and Medical Research Ltd. become agency under the agreement dated 11.10.2004. The O.P. No.1 to build the said residential complex submitted a building plan before the O.P. No.3 in the name of “Bardhaman Residency” comprising of three blocks i.e. A, B & C over the land as mentioned, each block consisted of seven floor (G + 6) having four flats in each floor from first to sixth floor and the ground floor of Block-A & B having two flats in each block. As per said plan there are 76 flats in the entire “Bardhaman Residency”, out of total 334.5 sq. meter area, 168.5 sq. meter was allotted for car parking in the ground floor of each block. The O.P. No.2 floated a brochure describing about the facilities [which are, a) 60% open space b)Landscaped garden c) Community hall d) Health club e) Children Play area f) Jogging area g) Stand-by generator h) Intercom System i) Decorative Lobby j) Lifts in every buildings and k) Round the clock security] which would be available to the persons who would take lease the flats and same were communicated by the O.P. No.2 to the complainants. The complainants entered into separate agreements with an intention to take lease of the respective flats and as per terms of agreement they have paid entire consideration money for their respective flats. The O.P. No.2 has delivered possession of the respective flats to the complainants with unfinished condition of the complex. The complainants to solve their accommodation problem were compelled to take the possession of their respective flats with unfinished condition of the complex. The complainant formed an association in the name and style “Burdwan Residency Resident’s Welfare Association”. After taking the possession, the complainants personally and through their association requested the O.Ps. several times to provide the facilities as mentioned in the brochure but the O.P. No.1 & 2 did not provide the facilities as mentioned in the brochure. They have caused deviation of the sanctioned plan in constructing the complex and they violated the building rules. They have not completed the construction of boundary wall, they have installed the lift in the complex without license from the competent authority, they did not provide any occupancy certificate/completion certificate issued by the O.P. No.3 to the complainants and they have not provided the firefighting equipment for the complex. They have constructed illegally a privy adjacent to A-Block. They did not provide the water purify plant. The O.P. No.2 collected Rs.14,625/- and Rs.18,281.25 paisa from each two bed room flat holders and each three bed
room flat holders respectively for the purpose of installation of transformer and electric line of the complex but in spite of requests the O.P. No.2 did not provide the accounts of the amounts collected. They installed the generator in the complex without complying necessary rules and regulation and without obtaining permission from the concerned authority and for the defect in constructions of the flats by the O.P. No. 2 the living rooms, bed rooms and bathroom have severely damaged due to damp. The complainant repeatedly requested the O.P. No.3 to take steps against the O.P. No.1 & 2 for deviation of the sanctioned plan. But the O.P. No.3 has kept itself silent. Due to deficiency in service and unfair trade practice on the part of the O.Ps., the complainants have been suffering great mental pain and agony and for the deficiency in service on the part of the O.Ps. the complainants have been forced to come before this Forum. Hence, this case for an award as mentioned above.
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The O.P. No.1, Burdwan Development Authority contested this case by filing written version while stating inter-alia that the complainants have no cause of action to file this case, the complaint is barred by limitation, the complaint is bad as before institution of this complaint no notice was served upon the O.P. No.1, the O.P. No.1 did not entered into any agreement with the complainants, as such for the facilities as claimed by the complainant, this O.P. has no liability and the O.P. No.1 shall not liable for the deficiency in service if caused by the O.P. No.2.
It has been further stated by this O.P. that this O.P. came to know that the complainants were not ready to accept the parking spaces which the O.P. No.2 was ready to provide and in its presence the O.P. No.2 wanted to refund the amount received for parking space but the complainants refused to take back the same, there is no provision of children play area, jogging area and covered car parking spaces in the agreement executed between the complainant and the O.P. No.2, there is/was no deviation of sanctioned master plan of the project, 505.58 sq. meter area is still available there, residents are using a portion situated in front of Block-C of the same as their community space, the O.P. No.2 has already completed the boundary wall, as regard occupancy certificate/ completion certificate which has been provided in clause 3(J), the O.P. No.2 have completed the new building complex in all respect with service in operation and
this O.P. has obtained completion certificate from the O.P. No.3, the O.P. No.2 has complied all the norms for firefighting and on due inspection and satisfaction of the Directorate of Fire Service, Govt. of W.B, NOC has been provided from the Divisional Officer, ‘G’ Division, W.B. Fire and Engineering Security, no privy has been constructed adjacent to block-A and there is no provision in agreement regarding water purify plant. It has been further claimed by this O.P. No.1 that there is/was no deficiency in service on the part of this O.P. this case is liable to be dismissed against this O.P.
The O.P. No.2, Dheeraj Promoters contested this case by filing separate written version stating inter-alia that the case is not maintainable as the complainants jointly filed this complaint without observing the formalities as mentioned in Sec. 12(1)(c) of C.P. Act, the case is bad for defect of parties, the complainants are not the consumers as per provision of Consumer Protection Act, 1986, the case is barred by limitation, the total purchase value of the complainants in respect of their respective flats have well exceeded the pecuniary jurisdiction of this Forum, so this Forum has no jurisdiction to try this case and there is/ was no deficiency in service on the part of the O.P. No.2.
It has been further stated by the O.P. No.2 that prior to the commencement of the buildings commonly known as “Burdwan Residency”, the publication of a broacher was made but said broacher is not connected with the agreement made between the complainant and the O.P. No.2, nothing has been referred in the agreements in respect of the broacher which is not a sacrosanct document, the O.P. No.2 is bound to comply with the terms & conditions as mentioned in the agreements made between the complainants and the O.P. No.2, all the agreements made between this O.P. and the complainants are unregistered and accordingly on the basis of said agreement the complainants are not entitled to get relief against this O.P. No.2, all the agreements contained a specific clause for arbitration and without invoking the provisions of the Indian Arbitration and Conciliation Act, 1996, the complainants under no
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circumstances, can file any proceeding in any Court of Law, the complaint suffers from material defect as the complainants in numbers have jointly filed the complaint without observing the
formalities as mentioned in Sec. 12(1)(c) of C.P. Act, as for each complainant separate agreements were executed, the cause of action of all the complaints did not arise on the same day, the broacher is a primary document floated before commencing the project and it is not a document of the contract, the terms and conditions of the lease as mentioned in the letter of allotment and/ or the agreement for lease entered into by and between the individual flat allotee and O.P. No. 2 will be in force, there is sufficient space for children play area and jagging area in the complex, all the flat owners after full satisfaction that the facilities are available, have taken possession of their flats, there is no deviation of the sanctioned plan in constructing the complex, the O.P. No.2 duly installed firefighting equipment and duly obtained NOC from the West Bengal Fire & emergency Services, the O.P. No.2 on several occasions requested the O.P. No.1, who is the owner of the land, to obtained completion certificate, the O.P. No.2 has no liability to collect and hand over the completion certificate to the complainants, the draft lease deed has been finalized between the B.D.A. and various flat owners and the same has been approved by the O.P. No.1 and the same is available for the flat owners who desire, several flat owners have duly got their flats registered, the fire license has been duly obtained and the copies of the fire license have duly been handed over to the O.P. No.1 and the flat owners association, the O.P. No.2 has duly installed the water filtration plant as agreed, the amount charges for transformer electricity and other charges, is a part of the consideration amount and the same is not a deposit, so, the O.P. No.2 has no liability for rendering any account to the flat allottees, the O.P. No.2 has installed generator, it is the obligation of the flat allottees or association to run and use the said generator, if they desire to run and use the said generator they have to obtain necessary permission required in accordance with law, there is no defect or deficiency in the matter of construction of the flat, the complainants are not entitled to claim compensation or litigation cost, as per terms of agreements, the flats were duly constructed completely and the possession of the same were duly delivered to the complainants, the O.P. No.2 has also extended privilege by allowing discount on consideration value of the flats to the complainants for short coming, and against delay in delivery of possession of the flats. It has
been further claimed by this O.P. that there is no deficiency in service on the part of the O.P. No.2. The case is liable to be dismissed against this O.P.
The O.P. No.3 also contested this case by filing separate written version admitting the specific cases brought by the O.P. No.1 & 2 and denying the claim of the complainants and also stating that the O.P. No.1 & 2 have constructed the complex without deviation of the plan sanctioned by this O.P. and claiming that there is no deficiency in service on the part of the O.P. No.3, and accordingly the case against the O.P. No.3 is liable to be dismissed with cost.
DECISIONS WITH REASONS
This complaint was lodged by ten complainants together and out said ten complainants Mrs. Ashima Majumder died on 3.3.2012 and her legal heirs have been substituted as complainant Nos. 2(a), 2(b) & 2(c) in this case.
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In support of their respective cases the contesting parties have adduced their evidence on affidavit and several documents. We have carefully perused the evidence on record.
From the side of the complainant some documents including the copies of agreement for lease executed in between some complainants and O.P. No.2, have been filed. One agreement dated 25.11.2005 shows that said agreement was executed in between the O.P. No.2 in one side and complainant No.1 and Sibani Hazra in another side. Said Sibani Hazra has not been made party in this case. Another agreement dated 25.11.2005 shows that the same was executed in between the O.P. No.2 in one side and Mrs. Anita Majumder and Mr.Samiran Majumder in another side. Anita Majumder has not been made party in this case. The agreement dated 10.11.2005 shows that the same was executed in between O.P. No.2 in one side and Alamara Begam and Mr. Sk. Moynal Hossain in another side. Said Alamara Begam is the complainant No.8 in this case. But Mr. Sk.Moynal Hossain has not been made party in this case. Another agreement dated 10.11.2005 shows that the same was executed in between the O.P. No.2 in one side and Ashit Kr. Das and Mrs.Sephali Das in another side. But Sephali Das has not been made party in this case. The agreement for lease executed in between the complainant No.3 and O.P. No.2 has not been filed in this case for consideration. The agreement for lease was executed on 12.2.2007 in between the O.P. No.2 in one side and the complainant No.9, Mr. Majibar Rahaman and Mrs. Ajmira Khatun in another side. Said Ajmira Khatun has not been
made party in this case. So, all the persons who entered into an agreement to take lease of the flats, have not been made party in this case.
By filing this complaint the complainants have prayed for an award directing the O.Ps. to provide the facility of the children play area, jagging area within the complex, to make construction of the incomplete boundary wall in the complex, to provide license of the lift, to provide firefighting equipments, to remove/demolish the illegally constructed privy adjacent to A-Block, to provide water purifying plant for the complex, to refund the amount to the complainants after making deduction from the amount actually incurred for the purpose of installation of transformer and electric line in the complex, to provide the permission from the concerned authority necessary for installation of generator in the complex etc. It is admitted that more than 76 intending lessees entered into agreements with the O.P. No. 2 to take lease of the flats. No doubt, all such persons including the complainants are interested in the matter as mentioned above. All the other persons who entered into agreement for lease of the flats may not be on the same foothold with the complainants. So, in absence of other persons who entered into agreement for lease of the flats, no direction on the above matters should be given to the O.Ps. In the complaint the complainants have admitted that after taking possession of the flats by the persons who entered into agreements for lease have formed an Association under the name and style “Burdwan Residency Residents’ Welfare Association”. But said Association has not been made party in this case and the said Association did not file this case on behalf of the persons who entered into agreement with the O.P. No.2 to take lease of the flats. During the course of argument both the contesting parties have admitted that several cases filed by some other persons who have entered into agreement for lease, are pending in this Forum. In the above premises this Forum is not in a position to pass multiple orders in several cases on the
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self same matter. In the above premises we are of the opinion that the case is bad for defect of parties as all the interested persons have not been made parties in this case.
The contesting O.P. No.2 in its W.V. and the Ld. Advocate of the other contesting O.Ps. during the course of argument raised a point stating that this case is not maintainable as this case was not filed after observing the mandatory provisions of Section-12 (1) (c) of the C.P. Act, 1986.
Section 12 (1) (c) of the C.P. Act, 1986 provides:- “ Manner in which complaint shall be made-(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by-
- …………………………………………………. (b)……………………………………………….. (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or (d)…………………….”.
In this case the complainants individually entered into agreements to take lease of the flats with the O.P. No.2. So, the complainant had liability to take permission of this Forum as per provisions of Section-12(1)(c) of the C.P. Act, 1986. The case record shows that the complainants filed this complaint on 28.2.2011 without any prayer for permission to file this case together for their common interest and this Forum accordingly did not pass any order granting permission to the complainants to file this complaint as per provision of Sesction-12(1)(c) of the C.P. Act. So in this case the complainants have not complied with the mandatory provision of Section-12(1)(c) of the C.P. Act. Accordingly the complaint is not trainable.
As per provision of Section-11(1) subject to the other provisions of the act the District Forum shall have jurisdiction to entertain complaint where the value of the goods or services or compensation, if any, claimed (does not exceed Rs.20,00,000/-).
Agreements for lease as mentioned above clearly show that the total value of ten flats involved in this case exceeds Rs.20,00,000/-. As the ten complainants claiming themselves as consumers together, have filed this case, the total value of ten flats as claimed by them, should be taken into consideration to ascertain the case value. From the documents it is clear that the total value of the flats exceeds the pecuniary jurisdiction of this Forum. The O.P. No.2, Dheeraj Promoters in its written version has specifically stated that the total purchase value of the complainants in respect of their respective flats have well exceeded the pecuniary jurisdiction of this Forum, so this Forum has no jurisdiction to try this case. In this connection the Ld. Advocate for the complainant has relied upon the observation of the Hon’ble Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad, made in Mrs. C. Sita Prasad and Ano. Vs. M/s. Lodha Healthy Construction and Developers Pvt. Ltd. case vide C.C. Case No.107/2012. We carefully perused the above observation, it appears that in the above case the complainants did not claim the relief of possession of the flat or execution of the sale deed by the O.P. and accordingly the value of the flat was not taken into consideration to ascertain the pecuniary
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jurisdiction of the Hon’ble Commission. In this case the complainants have not made any prayer for award directing to deliver the possession of the flats involved in this case no doubt but they have made a prayer for an award directing the O.Ps. to provide draft copy of the lease deed to the complainants for inspection and after inspection by the complainants and after making necessary correction suggested by the complainants, to execution and register the respective lease deeds in favour of the complainants. From it, it is clear that the complainants have made a prayer for an award directing the O.Ps. to execute and register the deeds of lease in favour of the complainants in respect of ten Flats in question.
In the above premises we are of the opinion that the total value of ten flats as claimed complainants, should be taken into consideration to ascertain the value of the case. In view of our above discussions we have already stated in foregoing lines that the total value of ten flats involved in this case exceeds the pecuniary jurisdiction of this Forum. So, we are of the opinion that this Forum has no pecuniary jurisdiction to try this case.
As it has been decided that this Forum has no pecuniary jurisdiction to try this case and as the complaint is not trainable for non compliance of the mandatory provision of Section-12(1)(c) of the C.P. Act, we could not make any discussion in respect of the other issues involved in this case.
Accordingly, the case fails.
Fees paid is correct. Hence, it is
Ordered
that the complaint case being No.21/2011 is dismissed on contest against the O.Ps. without any cost.
Let the copies of this order be supplied to the parties free of cost.
(Asoke Kr. Mandal)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Asoke Kr. Mandal)
President
D.C.D.R.F., Burdwan
(Pankaj Kr. Sinha)
Member
D.C.D.R.F., Burdwan
