Judgment : Dt.20.4.2017
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed by Sri Utpal Tapadar under Section 12 of the C.P.Act, 1986, alleging deficiency in service on the part of the (1) M/S Greencon, (2) Sri Ranjit Bagchi, (3) Sri Kalyan Dey and (4) Sri Arup Banerjee.
Facts in brief is that the Complainant is one of the co-sharers of a piece of land, situated at 6/64, Bijoygarh Colony, P.S.-Jadavpur, Kolkata-700 032 within KMC Ward No.95, KMC Premises No.83/6/1, Mina Para Road, District- South 24 Parganas.
The Complainant along with other co-sharers entered into an agreement for development dt.6.6.2013 with the OPs for development of the said piece of land by constructing a multi-storied building therein under certain terms and conditions including allocating 50% of the said building space and undivided proportionate share of the land to the land-owners which was scheduled to be delivered to them within 18 months from the date of getting vacant, physical possession of the said premises from the owners. Accordingly a power of attorney was executed in favour of the developers by the land-owners on 06.06.2013. It is specific allegation of the Complainant that the allocated portion meant for him has not been completed so far and, therefore, possession of the said portion is yet to be delivered as the OP developers stopped the construction work since long. The Complainant several occasions requested the developers to complete the construction work but the developers paid no heed to the requests. The Complainant has further stated that there is huge outstanding amount of tax lying with the KMC which the developers are trying to make the Complainant to pay although he is not liable to pay the same before delivery of peaceful khas possession of the flat of his allocation. Accordingly, the Complainant has prayed for direction upon the OPs to complete the construction work as early as possible to hand over the owners’ allocation to pay Rs.10,00,000/- for harassment, mental agony and Rs.50,000/- towards cost of litigation to the Complainant to hand over possession letter along with building completion certificate to the Complainant.
The OPs appeared and contested the case and filed written objection denying of disputing all material allegation made out in the petition of complaint stating, inter alia, that the building situated at KMC premises No.85/1/H, Mina Para Road, Kolkata-700 032, having postal address 6/64, Bijoygarh Colony has been completed in February, 2016, in all respect and the land-owners other than the Complainant as well as the purchasers of other units/flats are satisfied about their respective flats which they have specifically stated in writing to the developers. It is specifically stated by the OPs that on 12.2.2016 peaceful vacant possession was given to all flat owners and possession letters were also given to the flat owners and they acknowledged the same excepting the Complainant as he refused to take the possession. The OPs further mentioned that the Complainant has already obtained a new electric connection from the CESC which would not have been possible had the said building in question not been completed in all respect. Accordingly, the OPs have prayed for dismissal of the petition of complaint with cost.
Parties have adduced evidence on affidavit respectively which are followed by cross-examination in the form of questionnaire and reply thereto.
In course of hearing, Ld. Advocate for Complainant has submitted that the Complainant is entitled to get relief as sought for since the OPs have deficiency in providing service due to non-completion and non-delivery of the allocated portion of the building to the Complainant. Ld. Advocate for the OPs have submitted that the flat as meant for the Complainant is very much ready in all respect since February, 2016, although the Complainant refused to receive the possession of the same. In support of such contention Ld. Advocate for the OPs has mentioned that the Complainant got an electric connection in favour of him and had the building or the flat remained incomplete in any respect it would have not been possible to get electric connection in the said flat.
Points for determination:
Whether the Complainant is a consumer under the OP.
Whether this case is maintainable
Whether there is any deficiency in service on the part of the consumer.
Whether the Complainant is entitled to get relief as prayed for.
Point Nos. 1 & 2 – Both points are taken up together for brevity of discussion. The Complainant by entering into development agreement and thereby offering land to the developers has become consumer under the OP. The case is well within territorial and pecuniary jurisdiction of this Forum. Thus, the case is maintainable.
Point Nos.1 & 2 are answered accordingly.
Point Nos. 3&4 – The Complainant has alleged specifically regarding non-completion of the flat I n question as well as the building where as the OPs have stated the building (including the flat) has been completed in all respect by February, 2016. The Complainant, although, has alleged that the said building as well as the flat in question have not been completed so far, but, failed to substantiate by adducing cogent evidence like commissioners report, etc. Further, Question No. G of the questionnaire filed by the Complainant asking the OP developers that whether they are ready to give possession to the complaint for the flat of his allocation. In reply the OP developers have expressed their readiness and willingness to deliver possession of the said flat. In reply to the cross-examination the Complainant has stated that he brought a new electric connection in favour of him. All these state of affairs indicate that the Complainant could not substantiate his allegation regarding non-completion of the building as well as his flat.
However, it is duty on the part of the developer to obtain the completion certificate from the competent authority but in this case the C.C. has not been delivered to the Complainant. Therefore, direction is to be given upon the OPs to deliver C.C. to the Complainant.
Considering the facts and circumstances, we are of opinion that the developers are not liable to pay any cost or compensation.
Point Nos.3 & 4 are answered accordingly.
In the result the petition of complaint succeeds in part.
Hence,
ordered
That CC/335/2016 is allowed in part but without any cost or compensation. The OPs are directed to issue possession letter and to deliver possession of the allocated portion of the Complainant in respect of the building situated at 6/64, Bijoygarh Colony, P.S.-Jadavpur, Kolkata-700 032 within KMC Ward No.95, KMC Premises No.83/6/1, Mina Para Road, District- South 24 Parganas within 30 days from the date of this order.
The OPs are further directed to deliver copy of the Completion Certificate to the Complainant within one month from the date of this order.
In the event of non-compliance of this order or any part thereof the Complainant may file an execution application.
