DATE OF FILING : 02-02-2012.
DATE OF S/R : 26-03-2012.
DATE OF FINAL ORDER : 26-03-2013.
Sk. Altaf Hossain,
son of late Sk. Ashraf Ali,
103/1, Currie Road (2nd floor ),
Howrah – 711103. ---------------------------------------------------- COMPLAINANT.
Versus -
Mrs. Kulsum Bibi,
widow of Amirullah Ansari,
103/1, Currie Road (1st floor ),
Howrah – 711103.
Parvej Ansari,
son of late Amirullah Ansari,
103/1, Currie Road (1st floor ),
Howrah – 711 103.
Aslam Ansari,
son of late Amirullah Ansari,
103/1, Currie Road (1st floor ),
Howrah – 711 103.
Asgari Khatoon,
d/o. late Amirullah Ansari,
103/1, Currie Road (1st floor ),
Howrah – 711 103.
Akhtar Ali,
son of Md. Moinuddin
of 87, Gangaram Bairagi Lane,
P.S. & District – Howrah,
PIN – 711101.
Javed Nayeem,
s/o. late Md. Naimuddin
of 74, Gangaram Bairagi Lane,
P.S. & District – Howrah,
PIN – 711101.-----------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
The instant case was filed by complainant U/S 12 of the C.P. Act, 1986
wherein the complainant has prayed for direction upon the o.ps. to complete the unfinished works as detected vide report of the L.B.S., Howrah Municipal Corporation and K.M.C.; to remove the unauthorized common toilet in the ground floor alternatively to reimburse the complainant in case the complainant completes the undone works and for damages of Rs. 6 lacs for repairing the damaged roof and wall due to seepage of rain water together with litigation costs as the O.P. nos. 5 & 6 in gross violation of the agreement dated 11-12-2008 and receiving the total consideration money of Rs. 11,66,000/- + Rs. 25,080/- paid to them on the date of execution of the deed i.e., 15-02-2010, the O.P. nos. 5 & 6 did not complete the undone works and turned a deaf ear to the lawyer’s notice dated 25-08-2011 and 14-09-2011. The complainant took possession of the flat on 16-02-2010 and to his utter surprise found most of the works were incomplete and the condition of the roof was really deplorable.
The o.p. nos. 1, 2 & 3 in their written version stated that the complainant took
delivery of possession at his full satisfaction and no question of incomplete job does arise.
The O.P. nos. 5 & 6 in their written version contended interalia that no work
of the flat in question remained unfinished and incomplete ; that he took possession of the complete flat after execution of the deed of conveyance. So the complaint is liable to be dismissed.
Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
Both the points are taken up together for consideration. To ascertain the
dispute of the incomplete work ld. Commissioner was appointed. It is found from the report of the ld. Commissioner that the staircase has no cover or shed and is thoroughly open to the sky; water found stagnant in the upper landing of the staircase owing the overflow of the overhead tank water on the entire stair ; the total building is without any painting outside.
With respect to the condition of the roof it is found from the report that iron
rods are visible through the concrete roof in several places ; TMT bars are also open and visible ; there is no parapet wall on the side of the roof ; the stair case portion is thoroughly dark and no arrangement of light for the common users of the staircase; flat
owners had to provide personal light for the stairs ; there is no provision of any gate at the entrance of the common passage of the building ; there is one toilet in front of the entrance of the staircase of the building and a tap water. Continual flowing of the tap water has made the entrance slippery ; the drainage system thoroughly cracked and the drain water percolates through cracked portion of the drain ; the outside plaster of the building still incomplete ; the shed box of grill constructed on the second floor flat windows are larger than the linton; bamboo, bricks and other building wastes are stored on the roof and staircase ; the windows of the second floor flat are not same in height and measurement ; entire ceiling of the second floor flat ( complainant’s ) is damped and there are signs of crack on the ceiling and the walls of the room of the flat.
The report of the ld. Commissioner as above clearly depicts how deplorable
the condition of the flat in question is. If after receiving a total sum of Rs. 11,66,000/- + Rs. 25,080/-, the O.P. nos. 5 & 6 delivered an unfinished incomplete flat with dirty entrance, we are to hold that the O.Ps. namely 5 & 6 are guilty of unfair trade practice. It is not desirable that a toilet should be allowed to exist in front of the entrance of the building. The complainant occupies the top floor flat and the roof is his only shed from the sun and rain. If the roof is constructed with low grade materials without due care of safety, the complainant is to suffer immeasurably.
The report of the ld. Commissioner is in fact substantiated by the certificate
issued by Swapan Kr. Das, L.B.S. of Howrah Municipal Corporation L.B.S. No. 167. He has mentioned 19 items describing the existence of the toilet at the open space of the northern side of the building. It further narrates that the stair head roof was not constructed; cantilever portion of the building is not as per sanctioned plan ; parapet wall incomplete ; outer walls are 125 m.m. thick instead of 200 to 250 m.m., making the wall vulnerable to dampness at the outer side of the building ; no sufficient opening at the stair, suffering from insufficient light even at day time. When we come across the report with respect to the roof we are shell-shocked. The O.P. nos. 5 & 6 used inferior grade of concrete. The minimum covering of roof slab and beam were not maintained causing the reinforcement susceptible to rusting. This report sends a signal of caution when we go through item nos. 18 & 19. It is noted that underground water reservoir was made below the staircase instead of north open space risking great accident of the building any time. He is of further opinion that this reservoir is to be replaced immediately. He is of further opinion that the total condition of the building is very poor and there should not be any further construction for any further floor.
Another report is also enclosed, prepared by Shri Subir Kr. Kundu, LBS Class
1 no. 515 of Kolkata Municipal Corporation. He inspected the premises no. 103/1 Currie Road, P.S. Shibpur, Howrah, Ward No. 41 that means the building in question on 27-11-2011. He has categorized 13 items and supports the report of Swapan Kumar Das as discussed above.
If we place three reports namely two L.B.S. reports and the report of the ld.
Commissioner appointed by this Forum, we get a very very sad and shocking picture of the building. We have no hesitation in our mind that money and only the money was the top priority to the O.P. nos. 5 & 6. They in fact sacrifice the safety of the building by using sub standard and low quality materials. The total cost of work and especially the roof of the flat of the complainant was a mess with cheap materials. If the complainant in spite of paying huge consideration money does not receive the minimum comfort and satisfaction and pass his days with danger and dirty atmosphere, we have no option than to brand the O.P. nos. 5 & 6 as the propounders of unfair trade practice. We trace gross deficiency in service in the conduct of the O.P. nos. 5 & 6. Such type of developers should be debarred from making any further construction and their license should be cancelled for the safety of the society. They left no stone unturned to frustrate the prayer of the complainant in filing a non-maintainable petition which was rejected by this Forum on 29-06-2012 vide order no. 11. They preferred Hon’ble High Court against this order where they cut a very sorry figure in not contesting it. Then again they strongly resisted the local inspection prayer of the complainant with malafide intention to stall the process of having a better picture of the flat and building in question.
Therefore, in the light of the above we are of the view that this is a fit case
where the prayer of the complainant shall be allowed. As we cast serious doubt about the efficiency and honesty of the O.P. nos. 5 & 6 we are not inclined to direct the O.P. nos. 5 & 6 to finish the incomplete works, we feel it expedient and proper to direct the complainant to complete the unfinished works of the flat especially the roof after receiving the cost from the O.Ps. For this purpose, we are inclined to saddle the O.P. nos. 5 & 6 with a tentative cost as being incorporated in the ordering portion.
Hence,
O R D E R E D
That the C. C. Case No. 11 of 2012 ( HDF 11 of 2012 ) be and the same is allowed on contest with costs against the O.P. nos. 5 & 6 and dismissed without costs against the rest.
The O.P. nos. 5 & 6 be directed to pay Rs. 2,00,000/- ( Rupees two lakh ) towards tentative costs to the complainant within 30 days from the date of this order to complete the repair works of the badly damaged roof and to complete the other unfinished works.
The complainant after receiving the said amount from the O.P nos. 5 & 6 shall proceed towards repairing the roof and to complete the other unfinished works as expeditiously as possible.
The O.P. nos. 5 & 6 be further directed to remove toilet and the tap from the entrance gate within 30 days from the date of this order and to complete the other unfinished works of the building inclusive of the shed of the stairs and pending of the outer walls of the building within the said period as directed.
The o.p. nos. 5 & 6 do further pay a sum of Rs. 4,00,000/- ( Rupess four lakh ) to the complainant for causing mental pain, agony and prolonged harassment to the complainant.
The complainant is also entitled to a litigation cost of Rs. 5,000/- from the O.P. nos. 5 & 6.
The complainants is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
