SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint case has been filed by the complainants under Section 17(1)(a)(i) of the CP Act, 1986 alleging deficiency in service against the OPs.
The facts of the case, in a nutshell, are that the complainant and his mother Smt. Anusree Roy applied for allotment of flat/apartment and covered car parking space at Purba Abason Housing Complex developed by the OPs. In terms of application allotment was made by the OPs upon compliance of formalities vide allotment letter dated 10.09.2005 allotting the apartment/flat being No. GD-A-1, A-3/3/3 (third floor) measuring about 1307 sq. ft. at a total consideration of Rs.20,91,200/- and covered car parking space being No. 1 at a consideration of Rs.1,75,000/- in favour of the complainant and his mother. The complainant paid entire amount for the flat and covered car parking space Rs.22,66,200/- through bank draft on 10.02.2006. The OP issued the possession letter on 03.11.2008. accordingly, the complainant has requested the OP to execute the deed of conveyance in favour of the complainant, but till date the OP has not executed the deed of conveyance in favour of the complainant. The mother of the complainant died on 12.07.2010 and complainant intimated the same to the OP. The OP suggested the procedure for submission of declaration expressing their no objection regarding their claim over the said property by legal heirs of the deceased Anusree Roy. Said Anusree Roy leaving intestate her husband Sri Shyamal Roy and two sons, namely, Anirban Roy and Indranil Roy (complainant). Said Indranil Roy, elder son is already on record as complainant and the younger son Anirban Roy and husband Shyamal Roy already executed declaration expressing their no objection in the matter of execution and registration of the deed of conveyance in respect of the apartment/flat in question and the car parking space. In spite of making payment in full and compliance of all formalities, the OPs failed and neglected to discharge their obligation in respect of execution and registration of the deed of conveyance for which the complainant has suffered a lot. Hence, the complainant has filed the instant application before this Commission praying for direction upon OPs to execute and register the deed of conveyance in favour of the complainant in respect of apartment and car parking space along with compensation of Rs.5,00,000/- and litigation cost of Rs.1,00,000/-.
Upon receipt of notice, all the OPs appeared before this Commission and filed their written version. In their written version, the OPs denied all material allegations inter alia stated that the instant complaint is barred by limitation and the complainant did not file any application under Section 24A of CP Act, 1986 and therefore, the instant complaint is liable to be dismissed.
Further case of the OPs is that the instant complaint is not maintainable and barred under the provision of West Bengal Building Permission and Regulation Act, 1993 under Section 12A of the Act. No service has been rendered by the OP. A transaction between the parties is governed under the provision of Civil Court as the nature of the complaint is complicated and in nature and requires lengthy hearing which cannot be adjudicated in summary trial.
The complainant along with his mother was successful in lottery which was held on 10.09.2005 and possession letter in respect of a Flat being No. A-3/3, Block GD-1, Kolkata-700107 and covered garage space No. o1 (per day No. 3) in Purba Abasan was allotted vide Memo No. 234/KMDA/MM/PURBA/PH-II/O5 dated 03.11.2008. Subsequently, one letter has been received from Sri Shyamal Roy on 12.02.2013 informing the death of Anusree Roy who died on 12.07.2010 regarding inclusion of names of Shyamal Roy and Anirban Roy as legal heirs of Anusree Roy, since deceased. The case has been forwarded to the authority concerned and the decision was taken on 22nd meeting of LFAC on 10.08.2013 regarding inclusion of names of three legal heirs which was also ratified in 173rd Authority meeting held on 13.08.2013. Thereafter, Sri Shyamal Roy and Anirban Roy and Sri Indranil Roy became treated as co-owners/co-shares of the said flat and garage. Subsequently, on 10.07.2017 Sri Shyamal Roy and Anirban Roy intimatedthe OPs that they wanted to change the ownership of the flat and garage and would like to withdraw their names and the complainant would be the sole owner of the flat and garage. The OPs accepted the proposal and referred the same for changes before the legal cell. The complainant applied for registration of the flat and garage on 25.11.2017 and he specifically for Sale Deed as per mentioned previous terms and conditions. But the OPs intimated the complainant about the KMDA’s policy regarding registration procedure and their competent authority clearly mentioned that only lease deed can be executed from their end as per KMDA’s letter vide Memo No. 234/KMDA/MM/PURBA/PH-II/-5/P-66 dated 08.06.2018, but the complainant did not agree with the direction of the competent authority of KMDA and filed this complaint for illegal gain which is not tenable under law. The OPs have mentioned in their written version that after demise of mother of the complainant, his father, brother were claiming the right over the flat and covered car parking space and subsequently withdrew their claim. Before death of Smt. Anusree Roy, since deceased they did not approach the OPs for execution of the deed of conveyance. The OPs have also submitted that the property is of 999 years lease. Therefore, the OP will execute a lease deed in favour of the complainant which they have provided to all the flat owners. The OPs are under the West Bengal Government Undertaking and their Rules and Regulations are being framed accordingly. The property has been obtained from Government of West Bengal under 999 years lease and therefore, the OPs can deliver the right and title by way of deed of assignment and not by way of deed of conveyance. Since the complainant has failed to show their diligent approach before the OPs for registration and at their own delayed the matter. Therefore, he is not entitled to get compensation from the OPs. The OPs did not commit any delay and deficiency on their part and, therefore, they are not liable to pay any amount towards compensation.
Hence, the OPs prayed for dismissal of the complaint as not maintainable.
In course of argument, the Ld. Advocate for the complainant has stated that the complainant has filed the instant complaint alleging deficiency in service on the part of the OPs. It is true that the complainant and his mother Smt. Anusree Roy, since deceased applied for allotment of flat/apartment and covered car parking space at the complex namely, Purba Abason Housing Complex. The allotment letter was issued by the OP on 10.09.2005. The complainant already paid Rs.20,91,200/- towards the consideration of the apartment and Rs.1,75,000/- towards the consideration of the covered car parking space. After expiry of Smt. Anusree Roy, the complainant intimated the same to the OPs. As per procedure, the complainant submitted the no objection document by the legal heirs of deceased Anusree Roy. The dispute has cropped when up the OPs refused to execute the deed of conveyance, they only expressed to execute the lease deed in favour of the complainant. In this regard, the Ld. Counsel for the complainant has showed the Clause No. 2 of the allotment document. After payment of final price, OPs are bound to execute the deed of conveyance in favour of the complainant. Ld. Counsel has also stated that Hon’ble High Court at Calcutta in similar case has observed that when the flat was allotted indicating to execute the deed of conveyance then subsequent offer to execute the lease deed cannot and does not arise and the OPs are liable to execute the deed of conveyance in terms of the allotment.
The complainant has also cited the judgment passed by the Hon’ble High Court in the case of Usha Biswas and another versus the State of West Bengal and Ors. which was reported in 2019 (2) Cal. H.C.N. 72 where the Hon’ble Court has observed that:
“In view of the discussions made hereinabove it is held that the writ petition is not hit by the principles of res judicata. The order of the Land and Land Reforms Department dated 26th December, 2012 and the subject notification dated 10th November, 2016 are not applicable to the petitioners. KMDA is directed to execute the necessary deed of transfer of the subject apartment in favour of the petitioners within a period of ten weeks from the date of receipt of a copy of this order. The petitioners will be at liberty to initiate appropriate proceedings for compensation and damages against the respondents if so advised.”
Hence, the Ld. Counsel has prayed for allowing the complaint petition by giving the direction upon the OPs to execute and register the deed of conveyance in favour of the complainant for the flat and car parking space in question.
Ld. Counsel for the OPs has argued that Smt. Anusree Roy since deceased and Indranil Roy were successful in lottery held on 10.09.2005 for distribution of flat of Purba Abasan and accordingly they allotted a flat being No. 1.3/3/, Block – GD-1, Kolkata 700001, and covered car parking space being No. 01. The allottees deposited the relevant installment against the flat and car parking space. Subsequently one letter has been received from Sri Shyamal Roy, husband of Smt. Anusree Roy that said Anusree Roy died on 12.07.2010 and requested to include the names of Shyamal Roy and Anirban Roy/younger son of Anusree Roy. Thereafter, the case has been forwared to the authority concerned and decision was taken regarding inclusion of the three legal heirs as joint alloottee. Subsequently, on 10.07.2017 Sri Shyamal Roy and Anirban Roy intimated that they wanted to change the ownership of the flat and the garage and would like to withdraw their names. The OPs referred the same to the legal cell. When the complainant applied for registration of the flat and garage on 25.11.2017 the OPs intimated the KMDA’s policy which clearly mentions that only the lease deed can be executed from their end.
The Ld. Counsel for the OPs has also submitted that the case is barred by limitation. The OPs vide their letter dated 11.07.2011 requested for execution of lease deed but complainant did not express his willingness to execute the lease deed and subsequently the case has been filed in the year 2018. No explanation was made nor any condonation of delay has been filed with the petition of complaint why the complaint did not approach the commission within two years from 11.07.2011. The complainant has not filed the documents in total therefore, the Ld. Counsel for the OPs has submitted that the complainant has not come with clean hands. Since after demise of Smt. Anusree Roy there are three legal heirs being the co-sharer of the said immovable property, there is title dispute. By way of affidavit filed by Sri Shyamal Roy right of other legal heirs cannot be relinquished. All the legal heirs should be the allottees. But the complaint did not impleade their names in the petition of complaint. As per clause of Agreement, this Commission has no declaratory power. The property is 999 years leased property and therefore, sale deed cannot be executed. There are number of purchasers in Purba Abason and the deeds of the purchasers have been executed in the year 2011 through the flat owners’ association namely, Purba Apartment Residents Welfare Association. The complainant intentionally delayed the issue for years together for which the OPs are not liable and responsible.
Both the parties filed their respective evidence on affidavit, questionnaire and reply.
Upon hearing the parties and on perusal of entire materials on record, it is admitted position that the complainant and his mother Smt. Anusree Roy were allotted the apartment/flat being No. GD-A-1, A/3/3for a consideration of Rs.20,91,200/- along with one covered car parking space for a consideration of Rs.1,75,000/- in Purba Abason Housing Complex as per allotment letter dated 10.09.2005 issued by OPs. There is no dispute that the payment has been made in full. The possession letter was issued on 03.11.2008 to the allotment. The argument on behalf of the OPs is that the complaint case is barred by limitation. This plea cannot be entertained since till date the registration of the apartment and the car parking space is due. Therefore, it is a case of continuous cause of action.
The dispute arises on two aspects: Firstly, only the complainant is entitled to get the flat executed and registered in his name after expiry of other allottee, Smt. Anusree Roy, since deceased and secondly, whether the OPs can execute and register the deed of conveyance of the flat in question in favour of the complainant instead of executing lease deed.
It is admitted position that on 12.07.2010, one of the allottees namely, Smt. Anusree Roy, expired and subsequently, husband of Sri Anusree Roy intimated the incident to the OPs and prayed for inclusion of names of all the legal heirs of Smt. Anusree Roy on 12.02.2013. The case was forwarded to the authority and the decision was taken in 2nd meeting of LFAC held on 10.08.2013 in regarding inclusion of names of three legal heirs as joint allottee which was ratified in 173rd authority meeting held on 13.08.2013. Subsequently, Sri Shyamal Roy intimated by his letter dated 17.07.2017 that they want to change the ownership of the flat and garage and would like to withdraw their names and the complainant would be the sole owner of the flat and the car parking space in question and this intimation was submitted before the OPs by way of affidavit before the Ld. First Class Judicial Magistrate. Accordingly, Sri Shyamal Roy/the husband of Anusree Roy and their younger son namely, Sri Anirban Roy executed declaration expressing their no objection in the matter of execution and registration of the apartment/flat in question and the car parking space. This declaration has been made by way of filing evidence on affidavit by Sri Shyamal Roy himself before this Commission. Now the question is whether the rights of the other legal heirs can be relinquished by way of declaration before the OPs. The fact remains that when the other legal heirs of the complainant submitted their willingness to withdraw their names and to execute and register the deed of conveyance of the flat in question in the name of the complainant for sole ownership then the OPs accepted the proposal which is mentioned in Para 12(d) of written version. Now at this stage, the OPs cannot ask any question about the claim of the complainant for the flat in question along with car parking space. Once the OPs have accepted the proposal they are now barred by law of estoppels for questioning the legal right of the complainant for the ownership of the flat in question.
Another point is to be considered whether the OPs can execute and register the deed of conveyance of the flat in question in the name of the complainant for the suit property or they can only execute the lease deed. The Ld. Counsel for the OPs has showed us the notification vide Memo No. 234/KMDA/MM/Purba/PH-II/-5/P-66 dated 08.06.2018. On the other hand, It appears from the Clause No. 11 of the Terms and Conditions issued by the OPs that the transfer/conveyance deed/unit shall be executed and registered in favour of the allottee(s). The clause No. 11 of the Terms and Conditions is reproduced hereinunder:
“The Transfer/Conveyance deed of the units shall be executed and registered in favour of the allottee(s) by way of ouuright sale after payment of final price in full and after handing over of the maintenance responsibility to an appropriate body, already formed by the apartment owners for maintenance of common areas and facilities. The deed of transfer have to be executed in the from prescribed by KMDA.
The allotte will be required to pay stamp duty, registration charges and other related charges as may be levied by the Government from time to time for registration of the deed of transfer of their respective units.
Each allottee will also be required to pay to KMDA towards service charges @1% of total sale price of the unit at the time of payment of the last instalment.”
Now by showing the Government notification dated 08.06.2018 vide Memo No. 234/KMDA/MM/Purba/PH-II/-5/P-66, the OPs cannot take the plea that the property is of 999 years leased property and they only execute the lease deed. The Notification cannot have any retrospective effect when the possession advice was issued on 03.11.2008. By their letter dated 11.07.2011 addressed to Sri Chandra Prakash, General Secretary, Purba Apartment Residents Welfare Association, the OPs sent a copy of draft deed of conveyance for execution and the requested the General Secretary to distribute the copies of the same among the members of the society enclosing a calendar of registration of deed. Therefore, the OPs cannot escape their liability towards execution and registration of deed of conveyance by showing the Government Notification dated 08.06.2018. If the notification was issued before the issuance of allotment letter and the possession advice then the terms and conditions should be obeyed in terms of the aforesaid Government Notification. But in this case, that event not happens. Therefore, the OPs are bound to follow the Clause No. 11 of the terms and conditions which was annexed when the applications were invited from the prospected buyers and subsequently, by their intimation to execute and register the sale deed through the Housing Apartment Association. The OPs have not intimated the notification to the purchasers. When the complainant has requested for registration of the flat in question by his letter dated 08.06.2018 then the OPs have taken the plea that they are not in a position to execute and register the deed of conveyance instead of execution of lease deed which is not tenable in the eye of law.
Under the facts and circumstances, we may conclude that the OPs did not pay any heed to the request of the complainant which is proved beyond reasonable doubt. There is clear deficiency in service on the part of the OPs to the complainant. Being one of the allottees of the flat in question, the complainant has the right to get the deed of sale of registration in respect of his flat in question. But the OPs deliberately the denied the same and deprived the complainant to get the ownership of the flat upon registration of deed of conveyance after full payment of the consideration amount. As per conditions of the brochure published by the OPs, the act of the OPs amounts to gross negligence in service towards complainant.
However, it is pertinent to mention that the possession letter in respect of the flat and car parking space in question was issued on 03.11.2008. Only the execution and registration of the deed of conveyance is pending due to technical issues and the laches on the part of the allottee(s) since he/they did not avail the opportunity to get the flat and car parking space registered at that time when the OPs intimated for the same through the Owners’ Association of the premises in question. Therefore, we are not inclined to pass any order towards cost and compensation.
In view of above discussion, the complainant has substantiated his case and as such, he is entitled to get relief but without any compensation and cost.
As a result, the complaint case succeeds.
Hence,
It is
O R D E R E D
The Complaint Case being No. CC/805/2018 be and the same is allowed on contest against the OPs but without any cost.
The OPs are directed to execute and register the flat/apartment and the car parking space in question in favour of the complainant within 60 (sixty) days hereof.
The cost of registration shall be borne by the complainant.
There is no order as to compensation and cost.
The complaint case is, thus, disposed of accordingly.
