For the Complainant - Mr. Arindam Peyada, Advocate
For the OPs - Mr. Abhijit Saha, Advocate
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of the case are that complainant is the owner of a piece and parcel of a plot of land measuring about 02 cottahs 04 chittaks and 0 sq.ft. more or less lying and situated in Dag Nos. 4, 7 & 8 under Khatian No. 73, Mouza - Lashkarhat within Kasba P.S. being KMC Premises No. 57, Dr. Girindra Sekhar Bose Road, Kolkata – 700039. She had entered into a registered Development Agreement dated 01.09.2014 with the OPs for construction of a G+IV storied building on the said premises. She also executed a registered Power of Attorney in favour of the OPs. As per registered Development Agreement, the OPs agreed to handover 50 percentof the total build up area on the proposed building within 24 months from the date of execution of the Development Agreement. There is a clause for extension of time for another three months, in default, the OPs shall have to pay Rs.5,000/- per month to the complainant till handover possession of her allocation. The OPs are less interested to handover her allocation on the proposed building despite several request. Neither the OPs paid Rs.5,000/- per month nor taken any positive step for giving possession of her allocation. OPs also violated the terms & conditions of the Development Agreement. Complainant alleged that the acts, activities and conduct of the OPs constitute a clear case of deficiency of service and unfair trade practice. Being aggrieved against the activities of the OPs, the complainant approached this Forum by way of consumer complaint seeking reliefs as per prayer.
The complaint has been resisted by the OPs by filing written version contending inter-alia that the complaint is not maintainable in law and facts and the complainant has no cause of action to bring the complaint. The specific case of the OPs is that the complainant did not deliver vacant possession of the land measuring about 02 cottah 04 chittack 0 sq.ft. to them in spite of several request. There is a nickel factory in the land of the complainant and the factory has not been removed therefrom. Even the complainant did not handover Porcha, ROR and Mutation Certificate of BLRO of the land fully described in the schedule of the Development Agreement. As a result, the OPs could not start construction of the proposed building over the plot of land after obtaining sanction plan from the Kolkata Municipal Corporation. Thus, there is no deficiency in service and/or unfair trade practice on their part. Accordingly, the OPs have prayed for dismissal of the complaint with cost.
The only point that falls for consideration whether there is any deficiency in service on the part of the OPs and the complainant is entitled to get relief as per terms and conditions of the registered Development Agreement dated 01.09.2014.
Decision with Reasons
Both parties have tendered their examination in chief through affidavit. Both Parties have also filed their Brief Notes of Agreements.
We have heard the Ld. Advocate for the parties and also carefully perused the consumer complaint, written version, evidence and documents on record.
The fact not in dispute that the complainant being the owner of Premises No.57, Girindra Sekhar Bose Road, Kolkata-700039, had entered into a registered Development Agreement dated 01.09.2014 with the OPs for construction of a G+IV storied building on the said premises. It is also true that complainant also executed a registered Power of Attorney in favour of the OPs to perform, execute all or any of the several acts, deeds, powers and authority for proposed construction, sell flats, car parking to the intending purchaser or purchasers after handing over owner’s allocation. There is a clause in the Development Agreement that the OPs are liable to handover possession to the extent of 50 percentto the complainant within 24 months from the date of execution of the agreement with a further time to the extend of 03 months, in default, the OPs are liable to the pay Rs.5000/- per month till the possession of owner’s allocation.
It is the case of the complainant that despite expiry of 27 months in terms of development agreement, the OPs did not handover possession of her allocation in the proposed building. Complainant claims possession of her allocation in the proposed building along with penalty at the rate ofRs.5000/- per month, compensation of Rs.15,00,000/- and ligation cost of Rs.50,000/-.
On the contrary, the plea of the OPs is that in spite of several request the complainant did not handover vacant possession of the land including various documents pertaining to the land to them. There is a nickel factory in the land of the complainant and such factory had not been removed from the said land. Thus, the question of deficiency in service and/or unfair trade practice does not arise.
Complainant in her reply against question No.1 of the OPs has admitted that she did not handover possession of vacant land of the proposed building. Thus, the question of proposed construction of G+IV storied building on the land of the complainant does not arise. In this context, it is pertinent to mention here that on the prayer of the complainant Mr. Samir Banik, LBS, Kamarhati Municipality was appointed as Engineer Commissioner for holding inspection to ascertain the status of construction work of the proposed building. Mr. Banik hold the Commission Work in presence of both sides. On plain reading of the said report dated 26.09.2019, it appears to us that there is a dilapidated structure standing on the proposed construction site, lots of tin box and machine installed in a table. 50 percentof the structure is covered by asbestos and remaining portion is covered by concrete roof. On physical measurement Ld. Commissioner found that the adjacent plot of north side encroached 2 feet on right side and 3 feet 9 inches on the left side of the proposed construction site. In course of consumer work Ld. Commissioner did not find any new pillar, beam, tie beam or any other structure, dig in the proposed construction side. Ld. Commissioner also prepared a site plan of the land of the complainant.
We may add that the OP2 had entered into an Agreement for sale dated 14.02.2018 with one Tapashi Raj of 37, S.P. Mukherjee Road, Kolkata-700026 in respect of a flat measuring about 200 sq.ft. on the 4th floor of the proposed building being KMC Premises No.57, Dr. G.S. Bose Road, Kolkata-700039 and the total consideration of the flat was Rs.5,00,000/- OP2 had received Rs.2,00,000/- as part consideration from Tapashi Raj. Ultimately, OP2 expressed her inability to construct the building within the stipulated time and agreed to refund the part consideration amount to said Tapashi Raj as it appears from the photocopy of judgement passed in CC No.97 of 2019.
We are astonished that without receiving vacant possession of the land of the proposed construction site how the OP2 had entered into an Agreement for sale dated 14.02.2018 with the intending purchaser named Tapashi Raj violating the terms & conditions of Development Agreement. OPs have failed to produce any scrap of paper to show that they approached the complainant for delivery of vacant possession of the land of the proposed building site, otherwise construction work could not be done. Development Agreement was executed on 01.09.2014 and the OP2 had entered into an Agreement for sale dated 14.02.2018 with one Tapashi Raj for sell of a flat measuring about 200 sq.ft. on the 4th floor of the proposed building. The attitude of the OPs/Developers is not legal. As a result, the complainant being a senior citizen sustained mental pain, agony and physical dis-comfort. There is no construction of G+IV storied building on the land of the complainant. Thus, the question of hand over owner’s allocation in terms of the development agreement dated 01.09.2014 does not arise but the complainant is entitled to get compensation from the OPs for her mental pain, agony and physical discomfort.
The Consumer Protection Act came in to being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The act and conduct of the OPs are a clear case of deception which resulted in the injury and loss of opportunity to the complainants. The complainants has suffered mental agony and harassment. It is settled principle of law that the compensation should be commensurate with the loss of suffered and it should be just fair and reasonable and not arbitrary. To get the relief the complainant has to wage a tedious legal battle. In such circumstances, the complainant is entitled to get compensation and litigation cost from the OPs.
Base on the above discussion, we disposed of the consumer complaint with the following directions:-
- That the OPs are jointly and severally directed to pay Rs.3,00,000/- (Rupees Three lakhs) only to the complainant as compensation for mental pain, agony and harassment.
- The OPs are jointly and severally directed to pay Rs.10,000/- (Rupees Ten thousand) only to the complainant as litigation cost.
Time of compliance is 45 days from the date of the order failing which complainant may enforce the order u/ss 25 & 27 of the Consumer Protection Act, 1986 against the OPs.
