District Consumer Disputes Redressal Commission, Hooghly

                                                      PETITIONER

VS.

OPPOSITE PARTY

Complaint Case No.CC/70/2019

                                      (Date of Filing:-17.06.2019)

1. Sipra Samanta

of Tarakeswar, Tentultala, Power House Road,

Ward No. 4, P.O. and P.S.- Tarakeswar, Dist:- Hooghly

Pin:-712410

Presently residing at “Parul Apartment”

Vill:- Kismatapurbapur (Natunbazar), P.O. and P.S. Singur

District:- Hooghly, Pin:- 712409

   Versus 

1. Mithun Das
2. Kausik Das
3. Moumita Das
4. Monika Das,

serial No. 1 to 4 residing at “Parul Apartment”,

Village:- Kismatapurbapur (Natunbazar), P.O. and P.S. Singur Dist:-Hooghly,Pin:-712409

5. Samir Kumr Patra, residing at Chakshibarambati, P.O. Balarambati, P.S. Singur, District:- Hooghly P.S. Pin:-712409
6. Dhiren Maji
7. Tanusri Dutta
8. Somnath Santra
9. Sima Nandi
10. Samit Kumar Shaw
11. Bina Shaw
12. Susanta Kumar Nandi
13. Tultul Nandi,

Serial No. 6 to 13 residing at “Parul Apartment”, Village:- Kismatapurbapur (Natunbazar) P.O. and P.S. Singur

District:- Hooghly, Pin:- 712409

…………….Opposite parties

Mr. Debasish Bandyopadhyay, President

Mr. Debasis Bhattacharya, Member

Mrs. Babita Chowdhury, Member

PRESENT:

Dtd. 02. 04. 2024

Final Order/Judgment

Debasis Bhattacharya:- PRESIDING MEMBER

The instant case filed u/s 12 of the Consumer Protection Act 1986 by the complainant flat owner of one ‘Parul Apartment’, originates from her grievances arising out of the opposite parties’ alleged denial to access to common space attached to that ‘Parul Apartment’, for parking her two-wheeler, reluctance to form flat owners’ association under West Bengal Apartment Ownership Act 1972, collection of maintenance charges by one co-resident of that apartment and alleged misappropriation of the fund by that co-resident..

The fact of the case in a nutshell is as follows.

Reportedly, OP-1 to 4 are the legal heirs of the original land owner, OP-5 is the developer and all other OPs are other flat owners of the said cluster of Apartments. On the other hand the Complainant is the owner of a first floor flat of the said ‘Parul Apartment’, purchased on 19.02.2014 under registered sale deed 657 of ADSR, Singur, Hooghly.

It is claimed that in the sanctioned plan dtd.20.03.2008 a specific area for common garage was provided in the eastern side of the ground floor. The Complainant further claims that the promoter or the land owners cannot sell garage/parking area as independent units as the particular area is to be treated as common area and the flat owners were entitled to the common area, proportionate to the carpet area of individual flats.

Allegedly, OP 6, one of the flat owners with dishonest intention was misusing the common space meant for garage space, for wrongful gain by renting out the garage temporarily, by extending facilities for advertisement without any written consent of other flat owners.

Apart from the above the Complainant expresses her grievances also over non-formation of apartment owners’ association and the developer’s indifference towards installation of separate electric meter in respect of the common area and common facilities.

The Complainant also alleges that in spite of payment of charges for common areas and facilities to OP 6, she was not being given access to the common area for parking her two wheeler, whereas other opposite parties flat owners were parking their cars in that area.

On 31.07.2018 the Complainant sent a legal notice to the Opposite Parties with a request to form flat owners’ association and to give free access to the common space/garage. A reply dtd. 27.08.2018, to the said legal notice was received by the Complainant.

Referring to the series of events the Complainant claims that the cause of action first arose on 19.02.2014 when she purchased the flat by virtue of the registered deed and thereafter several times when the Complainant requested the opposite parties to form flat owners’ association, to allow access to the common space/garage and on 31.07.2018 when the legal notice was sent to the OPs.

Now, considering the treatment extended to her by the OPs as deficiency of service, the complainant approaches to this Commission with a prayer for imposing direction upon the OPs to set up flat owners’ association in terms of rules and regulations of the West Bengal Apartment Ownership Act, 1972, to direct OP 5 to arrange a separate electric meter in respect of the common facility, in the name of the owners’ association, to hand over the key of common garage situated in the ground floor of the building, for parking two wheeler, to pay 50,000/- to the Complainant as compensation as well as litigation cost and to pay further Rs.50,000/- for causing mental agony and harassment.

The Complainant to establish her points has annexed photo-copies of the deed of sale, sanctioned plan, possession letter issued by the developer, tax receipt of the concerned Gram Panchayat and an electric bill dtd.26.09.2015 in the name of the Complainant.

Evidence on affidavit and brief notes of argument filed by the complainant in course of hearing of the case are almost replicas of the complainant petition.

In view of the above discussion and on examination of available records it transpires that the complainant is a consumer in terms of the provisions laid down under section 2(1)(d)(ii) of the Consumer Protection Act so far as OP 1 to 5, legal heirs of the land owner and the developer of the project only are concerned.

Both the consumer and OPs 1 to 5, legal heirs of the land owner and developer are residents within the district of Hooghly.

The claim preferred by the complainant does not exceed the limit of Rs.20,00,000/-

Thus, this Commission has both territorial as well as pecuniary jurisdiction to proceed in the instant case.

Now the issues whether there was any deficiency of service on the Opposite Parties’ part and whether the Complainant is entitled to any relief will be taken together in the concluding part of the order.

Defence case:-

Written version was filed collectively by OP 1,2,3,4,6,7,8,10,11and 13. However, eventually the case ran ex parte against OP 3, 4, 5, 9, 10, 11, 12 and 13.

Evidence on affidavit and BNA have also been filed by OP 1,2,6,7 and 8.

In the written version, not only almost all the developments as narrated by the complainant have been denied but also all the charges leveled against the OPs have also been brushed aside on the ground that the instant case is allegedly based on false, fraudulent, and concocted allegations. The issues which are pointed out in the evidence on affidavits and brief notes of argument are as follows

1. No flat owner in the said cluster of apartments has purchased any portion of the so called garage/common space for keeping their two wheelers and the space is not used for keeping cars of the flat owners.
2. The approach to the garage/common space is so narrow and the space within is so small that it is hardly possible for anyone to keep four wheelers in that space.
3. In the representations it is claimed that the status of OP 1, 2, 6, 7, and 8 being co-residents are same as of the Complainant. Thus so far as these OPs are concerned the Complainant cannot be called a consumer and persons shown as opposite parties cannot actually be called opposite parties.
4. As the garage/common space was not purchased by anybody, there was no question of locking the space and of handing over the key to the Complainant.
5. It is further claimed that the Complainant has never paid any charges towards maintenance to anyone.
6. It is put on record that while purchasing the flats by the respective flat owners, there was no mention of any common garage in the respective deeds. So far as this aspect is concerned, opposite parties contesting the case are on the same footing as that of the Complainant.
7. The OP flat owners also claim that they on several occasion approached to the promoter for formation of flat owners’ association but the promoter was reluctant to take any step in this regard.

Decision with reasons

Materials on records are perused.

Firstly, as regards the deed of sale, no specific mention of any common space/garage and corresponding share of individual purchaser over that common space are categorically mentioned.

Secondly there is no such evidence that the said common space is being used by other flat owners, being rented out to others for wrongful gain and no access to that common space is being given to the Complainant in spite of paying charges for the common space to OP 6, another flat owner.

However to substantiate that charges have been paid to OP 6 no corroborating documents viz. money receipts etc. could be produced.

Moreover no other resident flat owner has raised any allegation against OP-6 who is also a flat owner.

Now so far as the exact location of the common space, its usage, encroachment if any and common electric meter are concerned, the Complainant should have approached for a commission report. However no such prayer for Commission report has been submitted before this Commission by the Complainant.

Hence deficiency of service on anyone’s part in this regard cannot be established.

Now comes up the issue related to formation of association. In many case it is found that the promoter is not inclined to form flat-owners’ association for some illegal gains. However, in these cases the flat owners’ have to serve notice upon the promoter for formation of flat-owners’ association and competent authority. In case of no response from the promoter side a general body meeting i.e. meeting of all apartment owners has to be convened and resolution has to be passed  to form flat-owners’ association and to elect office bearers. Subsequent to that, necessary technical steps have to be taken for registration of the Association with the concerned Registrar of Societies.

It is the joint responsibility of the apartment owners and promoter to form the association. In case despite all legal requirements being met but still if the promoter is not forming the association then it is imperative on some volunteer residents to take steps for the formation of the same with help of the competent authority.

However it cannot be denied that initial onus of formation of the association lies on the promoter.

In view of the above the Commission is of the opinion that there was blatant deficiency of service on the OP 5 developer’s part         

Hence it is

ORDERED

that the complainant case no.70/2019 be and the same is allowed on contest but in part.

The opposite party no. 5 will take necessary steps to form apartment owners’ association under the West Bengal Apartment Ownership Act 1972.

 The compliance of this order has to be done within 45 days from the date of this order. In case of non-compliance the OPs will be liable to pay Rs.30,000/- to the Consumer Legal Aid Account.                                                                       

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information and necessary action.

The final order will be available in the website www.confonet.nic.in.