Hon’ble Mr. Manojit Mandal, President
This is a petition u/s 12 of the C.P. Act, 1986.
The Complainant Sri Dhiresh Ch. Majumder has stated inter-alia that he and Smt. Maya Majumder, Sri Shuvasish Majumder, Sri Shibasish Majumder and Smt. Debopriya Mitra entered into an Agreement for developing the landed property situated at Plot No.9882, 9883, 9884 and 10050 in the L.R. Khatian No.3651,3715 situated within Cooch Behar Sahar, J.L. No. No.130 (Land measuring 0.095 and 0.061 acres) with the Partnership Firm “Happy Home Developers” having its office at Siliguri through a Development Agreement dated 22.08.13. As per Agreement, it was settled that a sanctioned building plan will be obtained from the concerned Municipality and as agreed, a building plan was duly sanctioned by the concerned authority at Cooch Behar Municipality through a building plan No.244/13-14 dated 28.10.14 for erecting a multistoried building in the said property belonging to the Complainant and family members situated at Cooch Behar. It was mutually agreed between the parties that the construction of the proposed multistoried building will be completed within 36 months from the date of sanction of the building plan by the competent authority.
Further case of the Complainant is that after sanctioning of the building plan by the competent authority, the O.P Firm have merely erected few pillars below the base level and the Firm did not complete the construction or any brick construction upon the proposed developing site since 3 years from the date of execution of the Development Agreement and from the date of sanction of the building plan with a mala-fide intention.
Further case of the Complainant is that the construction work was discontinued from July, 2014 though the construction work was to be completed by 28.10.16. The Promoters/Developers have tried to delay the completion of the project for some mala-fide, illegal gain/bad business purposes. Due to such actions of the O.Ps, the Complainant and others have suffered mental pain, agony, unnecessary harassment and huge monetary loss. Hence, this case.
The O.Ps are contesting the case by filing w/v stating inter-alia that the case is not maintainable in its present form and the case is barred by law of estoppels, waiver and acquisance. The case of the O.Ps is that there is no deficiency of service on the part of the O.Ps. The Complainant has not come before this Ld. Forum with clean hands and has suppressed the true and correct facts. The present complaint is not maintainable as the dispute between the parties appears to be civil in nature. The C.P. Act, 1986 do not cover the claims arising under the present complaint. The Complainant has not filed any Power of Attorney attached with the complaint and as such the Complainant is not the authorized representative of other owners as alleged. The Complainant has no locus- standi to file this case against the O.Ps.
Further case of the O.Ps is that as per Agreement, on the date of service of notice of possession in respect of the new building/construction, the owners and the developers shall be responsible to pay and bear proportionate share of the service charges for the common facilities in the building payable in respect of both owners’ and developers’ allocation and the said charges shall include proportionate share of premises for insurance of the building, water, fire and scavenging charges and taxes, light, sanitation and lift maintenance, operation, repair and renewal charges for bill collection, maintenance of the common facilities, renovation, replacements, repair and renewal charges and expenses for the building and common wiring pipes, lifts, electrical and pumps, motors and other electrical and mechanical installation, application and equipments, stairways, corridors, passage ways, and other common facilities whatsoever as may be mutually agreed from time to time.
Further case of the O.P No.1 is that the O.P No.1 never assured the Complainant for completion of works within 36 months from the date of sanction of the said multi-storied building plan.
Further case of the O.P No.1 is that the O.P. No.1 is a very reputed builder/promoter and has been developing a number of buildings for the years with its name and fame and after knowing/hearing/gathering all the information regarding the name and the working report in market of the O.P. No.1, the Complainant himself made an application for the construction of a multi-storied building on the land of the Complainant and his family members. Moreover, the O.P. No.1 used to visit his construction site during the construction very frequently and watching and consulting about the various construction works of his flat with the Electrician, Plumber, Rajmistri and others. Surprisingly, the Complainant never pointed out any kind of objection.
Further case of the O.Ps is that the O.P. No.1 is a renowned developer in Siliguri. The Complainant applied for booking of the said flat after perusing all the necessary documents and proper inspection of the said building. So, the O.Ps have prayed for dismissal of the complaint with cost.
POINTS FOR CONSIDERATION
- Is the case maintainable in its present form and prayer?
- Whether the Complainant is a “Consumer” as per provision of C.P. Act, 1986?
- Whether there is any deficiency in service and unfair trade practice on the part of the O.Ps as alleged?
- Whether the Complainant is entitled to get any relief as prayed for?
- To what other relief/and or reliefs, if any, is the Complainant entitled to get?
DECISION WITH REASONS
Point No.1.
This point is taken up first for consideration.
The Ld. Agent appearing for the O.Ps did not turn up for hearing argument. As such, this issue has not been pressed by the Ld. Agent appearing for the O.Ps. We also do not find any reason to hold that the case is not maintainable in its present form and prayer.
Point No. 2.
It appears from the complaint and from the w/v of the O.Ps that the development Agreement was executed and registered by the Complainant and his family members and the O.P No.1 and 2 and they have entered into an Agreement for making construction of the Multi-storied building in the case property. It is alleged by the Complainant that the O.Ps have not completed the construction of the building in the case property. So, the Complainant has filed this case and has prayed for passing award. Therefore, it reveals that it is an Agreement in between the Complainant and his family members on one side and the O.Ps on the other side for the purpose of construction of Multi-storied building. There is nothing on record to show that the consideration for the development was paid by the Complainant. Now, let us see whether this complainant is a consumer or not as per provision of Section 2(1)(d) of the C.P Act, 1986. It has been observed by the Apex Court reported in 2009 (SUPP) page 577 (A) that Consumer Protection Act, 1986 Section 2(1) (d) (O) – Consumer and the land owner agreeing with Builder to construct and share constructed area- Not truly a co-venture with Builder and he is simply a consumer - Builder, a service provider - Land owner, can raise consumer dispute as regards deficiency in service by Builder.
In another case reported in VII (2016) SLT 135=111(2016) CPJ 1 (SC), the Hon’ble Apex Court has observed that in cases where development is made by a developer in the property provided by the land owner, and in lieu of that a certain portion of the developed property is to be provided to the land owner, the Builder does come under the definition of “Service Provider” vis-a-vis the land owner and hence, the land owner does come under the definition of consumer. There is only one rider provided in the matter that the land owner should not be an active participant in managing the affairs of the builder. In the present case, it is made out that the complainant along with his family members made case property available to the opposite parties and they had no role in the management of the affairs of the Builder.
In view of the above observations of the Hon’ble Apex Court in the present case, we find that this Agreement for development of the case property is not the joint venture of the Complainant and his family members and opposite parties. The Agreement was made in between them and as per Agreement a share of the building i.e. some flats would be paid to the Complainant and his family members by the O.Ps. So, we find, in view of the above observations of the Hon’ble Apex Court that the Complainant is a consumer and the O.Ps are the service provider. Therefore, we have no hesitation to hold that this complaint is maintainable.
Point Nos.3, 4 & 5.
These 3 points are taken up together for consideration for the sake of convenience, bravity and their inter-relatedness. Upon hearing the Ld. Agent for the Complainant and on consideration of the evidence and the materials on record, we find that it is an admitted position that the Complainant and others viz. Smt. Maya Majumder, Sri Shuvasish Majumder, Sri Shibasish Majumder and Smt. Debopriya Mitra were the absolute owners of the property i.e. land at Plot No.9882, 9883, 9884 and 10050 in the L.R. Khatian No.3651,3715 situated within Cooch Behar Sahar, J.L. No. No.130 (Land measuring 0.095 and 0.061 acres). It is also an admitted position that the O.Ps “Happy Home Developers” is a developer/promoter by profession and had experience and adequate resources of finance in construction of Multi-storied building. It is also an admitted position that on 22.08.13, the Complainant and other family members of the said property as well as opponents entered into an Agreement for development of the said property on certain terms and conditions. The said Agreement is not at all disputed, rather, it is admitted by both parties. It is alleged by the Complainant that it was agreed between the parties that the construction of multi-storied building will be completed and handed over within 36 months from the date of sanction of the building plan by the competent authority from 28.10.13 i.e. by 28.10.16. The O.Ps have denied the same. From the written Agreement dated 22.08.13, it appears to us that the said document discloses that it was agreed between the parties that the multi-storied building will be completed within 36 months from the date of sanction of the building plan by the competent authority.
Therefore, on consideration of the said document, it can be said that it was agreed between the parties that the building will be completed within 36 months from the date of sanction of the building plan i.e. 28.10.13. The O.Ps have no where stated in their w/v that they have completed the building within the stipulated time. Moreover, we also do not find any reason to disbelieve the contents of the petition of the Complainant as well as the evidence of the Complainant on affidavit. So, it is proved that the O.Ps have failed to complete the building in time. Accordingly, we hold that the Complainant is entitled to an order in this matter in respect of his prayer about completion of work as per terms and conditions of the development Agreement.
The Complainant has prayed for direction upon the O.Ps to pay Govt. Land tax with interest amounting to Rs.629.20, Municipal Holding Tax for the period from 2014 to 2018 along with interest amounting to Rs.5,612/- and Six Standard Truck of Filling sand amounting to Rs. 14,400/- and Strewing the same to locations amounting to Rs.3,600/- -Total Rs.18,000/-. The O.Ps have denied the same. The O.Ps have stated in w/v that there is no such Agreement to pay the said amount to the Complainant and others. Written Agreement dated 23.08.13 goes to show that it was agreed between the parties that the Developer shall pay and bear the property taxes and other dues as and from the date of this Agreement till the said building is fully constructed. Thereafter, respective purchaser of flats/shops shall bear the same proportionately.
So, we hold that there is deficiency in service on the part of the O.Ps in the matter of construction of building in case property as per terms and conditions of the written agreement.
Therefore, on consideration of the said Agreement, we are of the view that the O.Ps are bound to pay Rs.18,000/- towards Govt. Land tax with interest amounting to Rs.629.20, Municipal Holding Tax for the period from 2014 to 2018 along with interest amounting to Rs.5,612/- and Six Standard Truck of Filling sand amounting to Rs. 14,400/- and Strewing the same to locations amounting to Rs.3,600/-.
The Complainant has also prayed for rental charges along with interest amounting to Rs.5,78,100/- for the period from November, 2016 to February, 2018 @ Rs.4,500/- per month and Rs.3,17,000/- towards demolition of concrete pillars, removal of debris, filling of project site with filling sand, rebuilt of damaged Municipal drain and supervision charges.
On careful scrutiny of the written Agreement between the parties, we find that there is no whisper in the written Agreement dated 22.08.13 that the O.Ps have agreed to pay the above amount in case of O.Ps failure to complete the building within 36 months from the date of sanction of the building plan. Therefore, we have no hesitation to hold that the Complainant is not entitled to get the above amount from the O.Ps.
Under the facts and circumstances and on consideration of the evidence and the materials on record, we hold that if Rs.50,000/- is awarded towards damage due to mental and other harassment and Rs.8,000/- as cost of litigation that will meet the ends of justice.
In the result, this complaint succeeds in part.
Hence,
It is Ordered,
That the present Case No. CC/7/2018 be and the same is allowed on contest in part against all the O.Ps.
Rs.50,000/- is hereby awarded towards damage due to mental and other harassment and Rs.8,000/- is awarded as cost of litigation. Rs. 18,000/- is also hereby awarded towards Govt. Land tax with interest, Municipal Holding Tax with interest, Six Standard Truck of Filling sand and Strewing the same to locations.
The other prayers made by the Complainant in his petition of complaint are hereby rejected.
The O.Ps are directed to pay the said amount within 30 days from the date of passing of this order, failing which the Complainant is at liberty to get the order implemented with due course of law.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order is available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
