Tripura

StateCommission

A/25/2019

Shri. Pijush Kanti Dutta - Complainant(s)

Versus

Dr. Achintya Bhattacharya (Developer) - Opp.Party(s)

Mr. Haradhan Sarkar

09 Dec 2019

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.25.2019

 

 

1. Shri Pijush Kanti Dutta

S/o Late Adhinath Dutta,

43, Akhaura Road, P.O.-Agartala-799001,

P.S. West Agartala, District - West Tripura.

… … … … Appellant/Complainant.

 

Vs

 

1. Dr. Achintya Bhattacharya, [Developer]

S/o Late Sushil R. Bhattacharya,

Resident of Ramnagar Road No.5,

C/o Teresa Diagnostic Centre,

7 Hospital Road, P.O. Agartala - 799001,

P.S. West Agartala, District - West Tripura.

 

2. Mrs. Lili Sen, [Developer]

W/o Shri Ashish Sen,

Resident of Pragati Road, (Near Ice Factory),

P.O. Agartala - 799001, P.S. East Agartala,

District - West Tripura.

… … … … Respondent/Opposite Party No.1 and 2.

 

 

 

PRESENT

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

 

 

For the Appellant:                                        Mr. Jayanta Majumder, Adv.

For the Respondents:                                   Mr. Kanu Lal Das, Adv.

Date of Hearing:                                           14.11.2019.

Date of Delivery of Judgment:                     09.12.2019.

 

J U D G M E N T

 

U.B. Saha, J,

The instant appeal is directed against the judgment dated 05.08.2019 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.135 of 2017 whereby and whereunder the learned District Forum dismissed the complaint petition. Hence, the appeal.       

2. Heard Mr. Jayanta Majumder, Ld. Counsel appearing for the appellant (hereinafter referred to as complainant) as well as Mr. Kanu Lal Das, Ld. Counsel appearing on behalf of the respondent (hereinafter referred to as opposite parties/Developer).
3. The instant appeal was heard on 14.11.2019 and the judgment was reserved.
4. Brief facts of the case are as follows:-

The complainant, Sri Pijush Kanti Dutta, being the land owner entered into an agreement on 28.03.2014 with the opposite party-Developers, Dr. Achintya Bhattacharya and Mrs. Lili Sen for development of the land by demolishing the old structure for construction of G+3 storied building on the land of the complainant. As per clause-1.10 of the Agreement, the complainant shall be entitled to get the entire second floor of the newly constructed building consisting of two flats having 800 sq. feet carpet area each, one number of garage at the ground floor and 50% of the roof of the top floor and also Rs.30,00,000/- which shall not be adjusted from the owner's share. As per clause-12.1 of the Agreement, the Developers will get maximum time for getting the plan sanctioned by the appropriate authority within a period of six months from the date of execution of the Agreement and that if the Developers do not succeed in getting the plan sanctioned, the complainant shall extend the period by another two months. Thus, the Developers under the agreement shall have to complete the construction work within 26 months (18+8). In clause-12.3 of the said Agreement, it has been incorporated that in case the construction is not completed within 26 months, then the Developers shall be liable to pay compensation to the complainant @ Rs.24,000/- per month towards rent for the time taken beyond 26 months till the date of handing over the possession of the flats.

The complainant alleged in the complaint petition that the total period of completion of building and handing over the same to the complainant took 38 months by the opposite parties. As a result of which, as per the agreement, the Developers are liable to pay an amount of Rs.2,88,000/- (Rs.24,000/- X 12) to the complainant. As per clause-9.1, the Developers shall be solely responsible for construction of the building as per sanctioned plan including other amenities as required for habitation in the building.

The complainant also alleged in his complaint petition that at the time of taking over possession of his flats, he found that one permanent structure measuring 1100 sq. feet more or less having brick wall with cement plastering with doors and windows affixed thereon has been constructed at the northern side on the ground floor by the Developers for utilizing the same as go-down by them and that was done without the consent of the complainant and beyond the approved plan of the Agartala Municipal Corporation (AMC). The complainant raised strong objection to the said illegal construction. The Developers had assured him to demolish the additional construction, but they did not demolish it, rather they have got benefit out of the aforesaid constructed place. According to the complainant, by constructing such a permanent structure on the ground floor, the purpose of keeping the ground floor open for parking has totally been frustrated and this also caused great inconvenience to the complainant as well as the inhabitants of the building. The complainant had sent three letters dated 21.09.2017, 27.10.2017 and 25.11.2017 requesting the Developers to demolish the additional construction which had been raised in the ground floor.

The complainant further alleged in his complaint petition that instead of demolishing it, the Developers sold the premises to Sri Gautam Saha and other on 08.12.2017 at the cost of Rs.20 lac showing the constructed place as a covered garage. According to the complainant, the Developers sold it behind his back and deprived him of getting due amount from it. The complainant in his complaint petition also stated that the developers failed to furnish completion/occupancy certificate to him from the AMC.

Being aggrieved by the action of the Developers, the complainant filed an application under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum alleging deficiency of service by the opposite parties and prayed for compensation of Rs.18,45,056/- including cost of litigation.   

5. The opposite parties who are the developers appeared before the learned District Forum through their engaged Counsel and contested the case filed by the complainant filing a written objection jointly denying the averments and contentions made in the complaint petition.  According to the opposite parties, the complainant has no locus standi/right to file the complaint under Section 12 of the Consumer Protection Act, 1986 against them.  In the written objection, it is stated that the complainant does not come under the purview of the ‘consumer’ as defined under Section 2 (d) of the Consumer Protection Act, 1986. According to the opposite parties, the complainant being the land owner already got entire share of his own as per the Agreement and that out of two flats he has already sold out one flat which amounted to achieving commercial gain. By referring to clause V and clause-12.3 of the Development Agreement, the opposite parties have asserted that the construction of the building was completed within the stipulated time from the date of approval of the plan by Agartala Municipal Corporation on 16.10.2015 and handing over of the possession of flats was given to the complainant on 28.05.2017. The opposite parties in their written objection specifically stated that due to some unavoidable circumstances and on account of natural calamities etc., both being beyond their control, the construction work of the building had to be stopped for some days. The opposite parties asserted in their written objection that handing over of possession of flats as per owner's share had been done by them within the stipulated period as per the contract and hence, they denied to pay the amount of rent of Rs.24,000/- per month as claimed by the complainant on alleged delay of one year in handing over the flats. The opposite parties in their written objection also denied the contention regarding making of any additional construction in the ground floor beyond the plan sanctioned by Agartala Municipal Corporation. According to the opposite parties, the alleged 1100 sq. feet  area on the northern side of the ground floor is one of the garage spaces which had to be blocked by erecting brick wall for security purpose and that it was done in order to prevent incident of theft. According to the opposite parties, the said portion of the garage has already been sold to Sri Gautam Saha and one Sri Tapan Debnath on consideration of Rs.6,36,000/- (Rs.2,80,000/-  + Rs.3,56,000/- respectively). Both the opposite parties further stated in their written objection that as per the Development Agreement dated 28.03.2014 and by virtue of the Power of Attorney, they are authorized to sell their share to any body and for that purpose prior consent from the complainant is not at all necessary. The opposite parties denied in their written objection about the construction of any flat on the ground floor deviating from the building plan that had been approved by the Agartala Municipal Corporation. The opposite parties also stated in their written objection that they have collected occupancy certificate from the AMC and handed it over to the complainant long before the complaint lodged before the learned District Forum by the complainant. The opposite parties denied the prayer for compensation and have also prayed for dismissal of the complaint petition with costs.  
6. In support of the case, the complainant has examined himself as witness. He has also produced the statement on oath, letters, Approved Plan, Municipality Tax receipt, letter relating to handing over of vacant land, taking over the possession of flat, Development Agreement, Power of Attorney, Receipt of cash payment amounting to Rs.30,00,000/- and photographs. The complainant did not examine any other person as witness in support of his case.
7. Opposite party, on the other hand, examined one witness, namely, Dr. Achintya Bhattacharya, who is one of the developers. He has produced some documents, namely, Building Plan, Occupancy Certificate and Sale Deed.
8. The learned District Forum after going through the pleadings of the parties as well as evidence on record framed the following points for deciding the case.

1. Whether there was any deficiency of service committed by the O.Ps towards the Complainant?
2. Whether the Complainant is entitled to get any compensation/relief?

9. The learned District Forum after considering the evidence on record dismissed the complaint petition.
10. Being aggrieved by the judgment of the learned District Forum as stated (supra) the complainant filed the instant appeal.
11. Mr. Majumder, Ld. Counsel appearing for the appellant-complainant while urging for setting aside the impugned judgment would contend that the learned District Forum passed the impugned judgment on mere surmise and considered the case of the parties beyond the evidence on record. Though according to the agreement, the parking area should be considered as open space/place, but the learned District Forum dismissed the complaint petition even when the respondent-opposite parties covered the parking space/place instead of open parking space/place. He has also submitted the written argument. Mr. Majumder while alleged regarding the covered parking space/place, he has also argued that Developers had taken extra time of 12 months beyond the stipulated period of 26 months for completion of building and handing over the same to the complainant and as such, violated the clause-9 of the Development Agreement. Hence, the opposite party-Developers are liable to pay an amount of Rs.2,88,000/- (24,000/- x 12 months) as rent to the complainant. His further contention was that the opposite party-Developers sold out the parking space/place without his consent which was covered by them beyond the approved plan of the AMC to Sri Gautam Saha and Sri Tapan Debnath on consideration of an amount of Rs.6,36,000/- depriving due share to the complainant.  
12. Per contra, Mr. Das, Ld. Counsel appearing for the opposite parties while supporting the impugned judgment would contend that the opposite parties handed over the possession of flats including the complainant's allocated share to him in time as per clause V and clause 12.3 of the Development Agreement dated 28.03.2014. According to him, the period of time for handing over of the constructed building to the complainant is to be reckoned from the date on which the plan was sanctioned or handing over the peaceful vacant possession  of the land to the Developers whichever is later. Moreover, as per clause 12.3 of the Agreement, the opposite party-Developers are also entitled to get extra period which was necessitated for the grounds/reasons beyond their reasonable control. He has further contended that the Agartala Municipal Corporation had approved the building plan on 16.10.2015 and handing over the possession of the building to the complainant was done on 28.05.2017. Thus, it took only 19 months 13 days time instead of 18 months as mentioned in the Agreement. So, the extra time was taken only for 1 month and 13 days as the work was stopped for some period due to the reasons beyond control of the opposite party-Developers. He has also contended that though the complainant in his complaint petition stated that by way of constructing permanent structure on the ground floor, the purpose of keeping the ground floor open for parking has totally been frustrated and caused great inconvenience to the complainant as well as the inhabitants of the building, but none of the inhabitants of the building were examined by him as witnesses and more so, none of them were also made party in the complaint petition for which itself the complaint petition is liable to be dismissed. He has submitted the written argument and also referred to a decision of this Commission reported in (2011) 4 CPJ 63 (F.A.27 of 2011, between Binay K. Bhattacharya - Appellant Vs.  Agartala Municipal Council - Respondent).
13. We have gone through the evidence on record as well as the agreement and impugned judgment. The main grievance of the complainant is regarding parking space/place which was covered by the Developers without his consent. In the approved plan there is nothing as to whether the parking space/place should be open or covered. Sub Section 47 of Section 2 of the Tripura Building Rules 2004 specifically mentioned that “(47) ‘parking space’ means an area enclosed or unenclosed, covered or open, sufficient in size to park vehicles with a driveway connecting the parking space with a street or alley and permitting ingress and egress of vehicles;”. Therefore, according to us, parking space/place can be opened or covered unless specifically mention in the approved plan. It appears from the record that before lodging the complaint, the complainant has already received Rs.30 lacs as per agreement and also sold out one flat from his share and also did not raise any objection regarding the parking space/place to the Developers. Thus according to us, the whole allegation is an afterthought mainly for the purpose of harassing the opposite parties-Developers. We have also gone through the evidence as stated (supra) as well as the findings of the learned District Forum in Paragraph-5 of the impugned judgment which is as follows:-

“5. DECISION AND REASONS FOR DECISION:

We have heard arguments from both sides' Advocates.  Both sides Advocates have also submitted written arguments. Learned Advocate for the O.Ps. in support of his arguments has also referred to a decision of our  Hon'ble State Commission reported in (2011) 4 CPJ at page 63 (in case no. F.A.27 of 2011, between Binay K. Bhattacharya – Appellant Vs Agartala Municipal Council – Respondent).

It was argued by Learned Advocate for the Complainant that the O.P. Developers had taken extra time of 12 months beyond the stipulated period of 26 months for completion of building and handing over the same to the Complainant and as such as per clause 9 of the Development Agreement, the O.P. Developers are liable to pay an amount of Rs.2,88,000/- (24,000/- x 12 months) as compensation to the Complainant.

Secondly, it was argued that the O.P. Developers without the consent of the Complainant raised a permanent structure measuring 1100 sq.  feet more or less having brick wall with cement plastering, doors  and windows affixed thereon at the Northern side of the ground floor which is parking space and that the said construction had been done beyond the approved plan of the AMC.  The O.Ps also sold out the aforesaid construction area to Sri Gautam Saha & Sri Tapan Debnath on consideration of an amount Rs. 6,36,000/- depriving due share of the complainant. It was also argued that in spite of objection of the Complainant, the O.P. Developers raised the said illegal construction. Though the O.Ps. had promised to the Complainant to demolish it but they did not keep their promise. It was further argued that due to the illegal construction raised on the Northern side, the parking space became congested on account of hindrance to the movement of air in the parking space. This causes much inconvenience to the Complainant as well as to the inhabitants of the building.

Lastly, it was argued by Learned Advocate for the complainant that the Developers have failed to hand over final occupancy certificate to the complainant as required under the Building Rules. Learned Advocate has thus concluded his argument with the submission that the Complainant was entitled to get Rs.18,45,056/- in total as compensation including cost of litigation from the O.Ps. Developers.

Per-contra, Learned Advocate appearing for the O.Ps. argued that the O.Ps. have handed over the possession of flats including Complainant's allocated entire share to the Complainant in time in compliance with the clause V and clause 12.3 of the Development Agreement dated 28/03/2014. According to the Learned Advocate, the period of time for handing over of the constructed building to the complainant is to be reckoned from the date on which the plan was sanctioned or handing over the peaceful vacant position of the land to the Developers whichever is later. Moreover, as per clause 12.3 of the Agreement, the O.P. Developers are also entitled to get extra period which was necessitated for the grounds/reasons beyond their reasonable control.

Learned Advocate submitted that the AMC had approved the building plan on 16/10/2015 and handing over the possession of the building to the Complainant was done on 28/05/2017. So it took only 19 months 13 days time in place of 18 months for completing handing over of the building to the Complainant. According to the Learned Advocate the extra time of one month thirteen days was spent due to the grounds / reasons beyond the control of the O.P. Developers. The O.Ps. are entitled to take such benefit under clause 12.3 of the Development Agreement. With this submission Learned Advocate has contended that the Complainant is not entitled to get any compensation on this count.

Regarding the plea of the complainant as to the additional construction measuring 1100 sq feet on the Northern side in the ground floor, Learned Advocate argued that the alleged area in the ground floor is one of the garage spaces which had to be blocked by erecting brick wall for security purpose and that it was done in order to prevent incident of theft. Moreover, the construction was done by the O.Ps. in parity with the approved plan of the AMC. Learned Advocate further argued that the plea of the Complainant that he & other inhabitants were suffering inconvenience due to the construction raised on the Northern side in the ground floor has not been substantiated by the complainant as none of the inhabitants of the building came forward to support such plea of the Complainant before the Forum. Learned Advocate in support of this argument has refereed to a decision rendered by our Hon'ble State Commission reported in (2011)4 CPJ at page 63 (in case no. F.A.27of 2011, between Binay K. Bhattacharya – Appellant Vs.  Agartala Municipal Council – Respondent).

Learned Advocate appearing for the O.Ps., has lastly argued that the Complainant has been given Provisional Occupancy Certificate by the AMC on 20/04/2017 and the same is still continuing.

According to the Learned Advocate the Complainant has failed to produce cogent evidence to prove his case.  He has thus prayed for rejection of the complaint with costs.

We have considered the submissions of both sides' Advocates.

We have gone through the pleadings of the both sides, oral and documentary evidence of the Complainant and that of one of the O.P. Developers, materials on record and the written arguments furnished by both sides.

We find that the contention of the complainant that O.P. Developers took extra 12 months beyond the provisions of the Development Agreement does not appear to us having any substance. We find that as per Article V of the Development Agreement, the Developers have to complete the construction of the building within 18 months from the date of obtaining sanctioned plan and / or handing over the peaceful vacant possession of the land whichever is later. In the instant case the Developers got the building plan sanctioned by the AMC on 16/10/2015 and the Developers after completing the construction have handed over possession of the building to the Complainant on 28/05/2017. So it took 19 months and 13 days for the Developers to get the building construction work completed and also handing over the possession of it to the Complainant. The O.Ps. in their W.O. as well as in the statement on affidavit have clearly explained the reasons for one month and thirteen days delay in handing over the possession of the building. The delay explained by the O.P. Developers has not been controverted by the Complainant.  We also find that as per Article 12.3 of the Development Agreement, the Developers can be exempted from paying compensation if the delay was caused due to Force MeaJeura or circumstances which were beyond the control of the O.P. Developers. The cause of delay explained by the O.Ps. according to us is reasonable and we have accordingly accepted it.

The allegation of the Complainant about raising of additional structure on the Northern sides of the garage space in the ground floor, we find that the space where the construction was done it falls within the Developers' allocated portion as described under Article VIII of the Development Agreement and that for raising such construction and selling of it prior consent of the Owner of the land is not necessary. Moreover, the Complainant has failed to produce any iota of evidence to prove that the construction that had been raised contravenes the approved plan of the AMC. The Complainant also has failed to establish his another allegation that due to raising of such construction he and the inhabitants of the building are / were suffering inconvenience. We find that except the Complainant no other flat owners in the building came forward to support the plea of the Complainant. Hence, we are not inclined to accept that allegation of the Complainant. In arriving this decision we have relied upon the decision of the Hon'ble State Commission reported in (2011) 4 CPJ at page 63 (in case no. F.A.27of 2011, between Binay K. Bhattacharya–Appellant Vs.  Agartala Municipal Council – Respondent) as referred to by Learned Advocate for the O.Ps.

We further find that the complainant has already been furnished Provisional Occupancy Certificate by the AMC on 20/04/2017 and the said Certificate is still in force. The Complainant did not disclose either in his complaint or in his Statement on Affidavit as to how has he been affected due to non furnishing of Final Occupancy Certificate.

Hence, we do not find any laches on the part of the O.P. Developers regarding the matter. We are thus unable to accept the contention of the Complainant.”

According to us, the learned District Forum did not commit any error while passing the impugned judgment and rightly held that the complainant has failed to establish his case before the learned District Forum and there was no deficiency in service on the part of the opposite parties Developers which would be evident from the aforesaid findings of the learned District Forum. Thus, no interference is called for.

In the result, the appeal is dismissed being devoid of merit. No order as to costs.

Send down the records to the learned District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura