HON’BLE MR. JUSTICE MANOJITI MANDAL, PRESIDENT
- The complaint case under section 17 read with section 12 of the Consumer Protection Act, 1986 has been filed against the opposite party praying for the following reliefs :-
“Directing the opposite party to provide an alternative flat which is constructed properly and strictly in accordance with the building sanction plan along with building completion certificate in lieu of the present defective flat in question and alternatively the opposite party be directed to make payment of Rs.66,47,781/- only to the complainant and further order be passed amounting Rs.10,00,000/- for harassment and mental agony and loss suffered by the complainant and further cost of Rs.50,000/- be awarded in favour of the complainant and pass further order or orders as Your Lordship may deem fit and proper.”
- Briefly stated the complaint case in short is that the complainant with the intention to purchase a flat for residential purpose approached the opposite party and the opposite party is a developer and constructed the building at premises No. A-2/29, Diamond Park, P.S. Haridevpur, P.O. Joka, Kolkata – 700 104.
- The complainant agreed to purchase a flat at the second floor of the said premises in the north-eastern side measuring 1170 sq. ft. more or less at a consideration of Rs.30,00,000/- (Rupees thirty lakh only). the complainant paid the consideration amount to the opposite party and the opposite party on receiving the said amount handed over the possession of the said flat and the possession letter at the time of registration of the said flat. The opposite party also executed and registered the Deed of Conveyance in favour of the complainant in respect of the said flat which is in question.
- Further case of the complainant is that after receiving the possession of the said flat the complainant found that the opposite party made the construction of the said building illegally using inferior quality of materials. The opposite party was allowed to construct a straight three storied building over the land appertaining to the said premises but the opposite party constructed one floor more / extra illegally and arbitrarily just on the plot of the complainant’s flat.
- Further case of the complainant is that the opposite party constructed the said flat using very low quality materials for construction for which walls, ceilings, the pillars of the said flat started absorbing water and became damp. The plaster on the walls have swollen, fallen down and patches of the same have started falling off. Portions of the ceiling have been heavily damaged by continuous absorbing of water from the flat just on the top of the complainant’s flat. It is swollen and fallen down and there is every possibility that chunks of concrete from the ceiling might collapse endangering the lives of the complainant and the family members.
- Further case of the complainant is that the portions of the pillar in many places is not straight and the wall of the said flat was not properly finished. The surface of the wall is uneven and it is made from low quality materials.
- Further case of the complainant is that the levelling of the floor is highly defective and levelling of the floor of the bathroom is completely defective which causes backflow of water on the floor of the bathroom and the accumulated water have been cleared every day by pushing it with the legs. The sliding windows are not properly working in some cases and the glasses of the windows are of very low quality.
- Further case of the complainant is that the marbles which have been used are of very low quality and many slabs are cracked and broken.
- Further case of the complainant is that common facility as mentioned in the Deed of Conveyance have not been constructed as yet. The submersible pump which is the only source of water for the said building has been installed for drawing water in such a manner in front of the said building that it cannot be repaired due to the extension of the front portion of the said building from the first floor and onwards covering the pump. The pipeline connected with the said pump has been installed under the building which is really beyond the scope of repairing. Due to such illegal construction the opposite party did not proceed in the matter of obtaining the completion certificate of the building. The complainant requested the opposite party to provide completion certificate but without any result.
- Further case of the complainant is that the opposite party did not rectify the defects and did not provide the complainant the copy of the completion certificate.
- Further case of the complainant is that the complainant appointed one engineer for inspection of the said flat in respect of the defects of the said flat and on inspection the said engineer has submitted a report. The complainant sent letters to the opposite party to provide completion certificate and also to rectify the defects as mentioned earlier but the opposite party did not come forward to take any action to that effect. Hence this case.
12. The opposite party entered appearance in this case and was contesting the case by filing written version denying the material averments of the petition of complaint. The specific case of the opposite party is that the complainant agreed to purchase a flat on the 2nd floor in north eastern side measuring 1170 sq. ft. more or less at a total consideration price of Rs.30,00,000/- (Rupees thirty lakh only). The complainant agreed to purchase the said flat and possession of the said flat was already handed over, long before the registration of the Sale Deed. Since getting possession of the flat and during possession and use for the period upto 4 years the complainant never made any complaint about the quality of materials used in the flat before any appropriate forum or the Secretary of the Flat Owners’ Association though the Flat Owners’ Association has already been formed.
13. Further case of the opposite party is that the building plan was duly sanctioned by the Gram Panchayat as per rules obtained at the material time and there is no deviation from the terms of the plan. The flat in question under the possession of the complainant, the complainant paid the amount to the opposite party on taking loan from the Bank.
14. Further case of the opposite party is that at the time of registration and making of payment of loan to the complainant, the Bank was fully satisfied about the condition of the flat as well as the building in all respect and the payment of loan amount was already made by the Bank to the complainant as the said flat was under the possession since long. Hence, the opposite party has prayed for dismissal of the complaint case.
15. The complainant has filed his evidence on affidavit which was challenged by the opposite party and no questionnaire was filed by the opposite party. The opposite party also adduced evidence on affidavit which was challenged by the complainant. The complainant files questionnaire and the opposite party gave reply to such questionnaire filed by the complainant.
16. Upon pleadings of the opposite party the following issues were framed for consideration :
i) Whether the complaint case is maintainable ?
ii) Whether there is any deficiency in service ?
iii) Whether the complainant is entitled to get any relief ?
iv) All other relief and / or reliefs, if any, as the complainant has prayed for is entitled to get ?
17. Decision with reasons :-
18. All these issues are taken up together for consideration for the sake of their brevity and their interrelatedness.
19. Having heard the Learned Advocate appearing for the parties and on perusal of the materials available on record it is found that it is an admitted position that the complainant agreed to purchase a flat at the 2nd floor in the north eastern side measuring 1170 sq. ft. more or less at a consideration of Rs.30,00,000/- (Rupees thirty lakh only) from the opposite party and the opposite party constructed the said flat at premises No. A-2/29, Diamond Park, P.S. Haridevpur, P.O. Joka, Kolkata – 700 104.
20. It is also an admitted position that the complainant paid the consideration amount to the opposite party and the opposite party on receiving the said amount handed over the possession of the said flat and the possession letter of the said flat was handed over to the complainant at the time of registration of the said flat.
21. It is also an admitted position that the opposite party executed and registered the Deed of Conveyance in favour of the complainant in respect of the said flat which is in question.
22. Now, I shall have to consider as to whether the opposite party constructed the said flat illegally using inferior quality of materials and whether the opposite party was allowed to construct a straight three-storied building over the land appertaining to the said premises. To prove the case the complainant has filed an Agreement for Sale dated 03/03/2024 bearing running page Nos. 11-34 of the petition of complaint, which was executed by the complainant with the opposite party in respect of the said flat. The complainant has also filed the Deed of Conveyance dated 23/05/2014 in respect of the said flat with the petition of complaint bearing running page Nos. 35 to 66. On perusal of the said Agreement for Sale dated 03/03/2024 and the Deed of Conveyance dated 23/05/2014 it appears to me that the complainant has purchased the flat which was ready to move from the opposite party after being satisfied with the construction work as well as the workmanship of the said flat as well as the said building within two months from the date of Agreement for Sale.
23. It is alleged by the complainant that after receiving the possession of the said flat the complainant found that the opposite party made the construction of the said flat illegally using inferior quality of materials and he constructed a straight three-storied building over the said land. Record goes to show that the building plan was sanctioned by the Joka Gram Panchayat No. II on 30/04/2010. It also appears that the copy of the said sanction plan is lying with the custody of the complainant but the complainant has not filed the said sanction plan with the petition of complaint for adjudication of this dispute as stated in the petition of complaint. No explanation for non production of the said sanction plan has been assigned by the complainant. Another aspect of this case is that the complainant has challenged the construction work and materials used therein in the said building and challenged about the illegal construction. Record goes to show that the complainant has filed the petition of complaint after 4 years and 3 months of the registration of the Deed of Conveyance. Within the said 4 years and 3 months he has not complained to the opposite party about the said illegal construction by the opposite party.
24. From the running page being No. 57 of the petition of complaint i.e. in schedule ‘B’ of the land of the Deed of Conveyance dated 23/05/2014 it has clearly and categorically been stated that the floor covered under mosaic and also in running page No. 70 of the petition of complaint which has declaration of the complainant dated 28/10/2024 it was clearly written (floor covered under mosaic). But the complainant herein has stated in the last paragraph of paragraph No. 7 of the petition of complaint that the marbles which have been used in the floor are of very low quality and many slabs are cracked and broken. I fail to understand how it is possible while the floor was covered under mosaic. I think that the complainant at her own risk and whims has changed the floor of the said flat by replacing the mosaic in the marble without carrying the cause of damage to the stability of the floor as well as the building during removing the mosaic and also without informing the opposite party and without informing the concerned authority.
25. The complainant has prayed for cancellation of the Deed of Conveyance dated 23/05/2014, the ownership in respect of the said flat shall be lying in favour of the complainant. I am of the view that the order of cancellation of the Deed of Conveyance is not vested within the jurisdiction of this Commission. Therefore, the prayer in the petition of complaint is completely civil in nature.
26. Under these facts and circumstances and on consideration of the materials available on record I am of the view that the complainant has totally failed to prove her case. So, the complainant is not entitled to get any relief in this case.
27. All the issues are thus decided and disposed of accordingly against the complainant and in favour of the opposite party. In the result, the complaint case be and the same is dismissed without any costs.
28. The complaint case is thus disposed of accordingly.
29. Let a copy of this order be given to the complainant free of cost and a copy also be served upon the opposite party.
