DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 135 of 2017

 

1. Shri Pijush Kanti Dutta

S/O- Late Adhinath Dutta,

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

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

Owner of the Land.,.…..................…...........................Complainant.

 

VERSUS

 

1. Dr. Achintya Bhattacharya,

S/O.-Late Sushil R. Bhattacharya,

Resident of Ramnagar Rd. No.5,

C/O. Teresa Diagnostic Centre,

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

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

Developer 

 

2. Mrs. Lili Sen, 

W/O. Shri Ashish Sen,

Resident of Pragati Road,(Near Ice Factory),

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

Dist.-West Tripura, Developer,….........................Opposite parties.

 

 

      __________PRESENT__________

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. Dr. G. DEBNATH

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

C O U N S E L

 

For the Complainants : Sri Haradhan Sarkar,

  Sri Sovam Mahajan,

  Sri Anupam Paul,

  Advocates. 

For the O.Ps. : Sri Kanu Lal Das,

  Smt. Manisha Majumder,

  Sri Suryabrata Chakraborty,

  Advocates. 

 

JUDGMENT  DELIVERED  ON: 05/08/2019

J U D G M E N T

The Complainant Sri Pijush Kanti Dutta, being the Land Owner set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act, 1986 complaining deficiency of service committed by the O.P. Nos.1&2 who are the Developers.  

  The complainant's case, in brief, is that the Complainant is the Owner of the Land measuring 0.0670 acres comprised of Sebek Dag No.MPB-13, 6247/p,MPB-13 6248/p,MPB-136249/p,Hal Dag Nos.-2933/3653,2939/3652,2940/3651, under Khatian No.2185 within District West Tripura, Sub-Registry Office – Sadar, Agartala Sheet No.7, Tehasil -Agartala, West Tripura. Being the Owner-cum-possessor of the aforesaid land, the Complainant had entered into an agreement on 28/03/2014 with the O.P. Developers 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 ready 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/-(Rupees Thirty lac) 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 6 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 by 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 has alleged in his complaint the total period of completion of building and handing over the same to the Complainant took 38 months by the O.Ps. As a result of which as per the agreement the Developers are liable to pay an amount of Rs.2,88,000/-(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 has further alleged in his complaint 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 godown by them and that was done without his consent and beyond  the approved plan of the 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 & 25/11/2017 requesting the developers to demolish the additional construction that had been raised in the ground floor. 

The Complainant further alleged in his complaint that instead of demolishing it , the developers sold the premises Sri Gautam Saha and other on 08/12/2017 as 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 also stated in his complaint the developers have fail to furnish completion / occupancy certificate to him from the Agartala Municipal Council.

Alleging deficiency of service the Complainant has filed instant complaint praying compensation of Rs.18,45,056/- including cost of litigation.  

Hence this case. 

2. The O.Ps. who are the promoters appeared before the Forum through their engaged counsel and contested the Consumer complaint by filing a written objection jointly denying the averrments and contentions made by the complainant in his complaint.  

According to the O.Ps. the Complainant has no locustandy / right to file the complaint U/S 12 of the Consumer Protection Act, 1986 against them.  The Complainant does not come under the purview of the Consumer as defined under the section 2(d) of the Consumer Protection Act, 1986. According to the O.P.s., the complainant being the land owner has already got his own entire share as per the agreement and that out of two flats he has sold out one flat which amounted to achieving commercial gain. By referring clause V and clause 12.3 of the Development Agreement the O.Ps. have asserted that the construction of the building was completed within the stipulated time from the date of approval of the plan by the AMC on 16/10/2015 and handing over of it's possession was given to the complainant on 28/05/2017. The O.Ps. in their W.O. has 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. So the O.Ps. have asserted in their W.O. 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 Rs.25,000/- per month as rent to the Complainant for the alleged delay of 12 months in handing over the flats. 

The O.Ps. in their W.O. also denied having constructed any additional construction in the ground floor beyond the sanctioned plan of the AMC. According to the O.Ps. the alleged 1100 sq. feet  area on the Norther 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. The said portion of the garage according to the O.Ps. 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 O.Ps. further stated in their W.O. 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 O.Ps. have denied in their W.O. about construction of any flat on the ground floor deviating from the building plan that had been approved by the AMC.  

The O.Ps. also stated in their W.O. that they have collected occupancy certificate from the AMC and handed it over to the Complainant long before the complaint has been filed before the Forum by the Complainant. 

Denying any deficiency of service having been committed towards the Complainant, the O.Ps. have prayed for dismissal of the complaint with costs. 

 3. EVIDENCE ADDUCED BY THE PARTIES:

In support of the Complaint, the Complainant himself has been Examined as witness. He has produced documents as per his statement recorded on 08/08/2018, namely Letters, Approved Plan, Municipality Tax receipt, Letter of handing over of vacant land, Taking over of flat, Development agreement, Power of Attorney, Receipt of cash payment & Photographs. The complainant did not adduce any other witness in support of his case. 

On behalf of the O.P. one witness namely Sri Achintya Bhattacharjee who is one of the promoters has been Examined. He has produced some documents namely Building Plan, Occupancy Certificate & Sale Deed. 

 POINTS TO BE DETERMINED:- 

4.  Based on the contentions raised by both the parties, the following issues were framed for determination:  

   (I). Whether  there was  any deficiency of service committed by the O.Ps. towards the Complainant?

     (ii). Whether the Complainant is entitled to get any  compensation/relief ?

 

 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.27of 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. 

6. In view of the discussion made above we find and hold that the Complainant has failed to establish his complaint U/S 12 of the Consumer Protection Act 1986 against the O.P. Developers as we do not find any deficiency of service committed by the O.P. Developers towards the Complainant. 

  We accordingly dismiss the Complaint filed by the Complainant. 

  There is no order as to costs. 

 

 

ANNOUNCED

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

 

 

 SMT. DR. G. DEBNATH,

 MEMBER, 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA

 

SRI U. DAS

MEMBER,

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA.