DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
North 24 Pgs., BARASAT
C.C. No./85/2020
Date of Filing Date of Admission Date of Disposal
16.10.2020 21.12.2020 24 05 2024
Complainant/s:- | Sri Benode Behary Datta, S/o. Late Pratap Chandra Datta, 2/A, Chhayanir Apartment, 2nd Floor, 103, Sodepore Road, Basunagar, P.O. and P.S. Madhyamgram, Dist-North 24 Parganas, Kolkata-700129. |
Opposite Party/s:- | Vs- 1.M/S. Manik’s Dreamland Construction and presently known as M/s. Manik’s Dreamland Pvt. Ltd. A Development Firm Having its principal place of business at Sodepore Road, Bijoynagar, P. S. Madhyamgram, Dist-North 24 Parganas, Kolkata-700129 being represented by its director 2. Sri Samir kumar Bose, S/o. Sri Sudhir Kr. Bose, residing At Village- Basunagar, Hemanta Bose Sarani, P.O. Madhyamgram, P.S. Madhyamgram, Dist- North 24 Pgs, Kolkata-700129. Smt. Chhaya Rani Chakraborty, (Land Owner) W/o. Late Manindra Narayan Chakraborty, now deceased leaving behind :- 3. Sri Samir Chakraborty. 4. Sri Prabir Chakraborty 5. Sri Sisir chakbraborty. 3 to 5 are sons of Manindra Narayan Chakraborty, Vill- Basunagar, 103, Sodepore Road, Basunagar, P.O. and P.S . Madhyamgram, Dist- North 24 Parganas, Kolkata-700129. |
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P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT /FINAL ORDER
The complainant filed this case under Section 35 of the C.P. Act, 2019 as amended up today against the opposite parties. Complainant prays for directing the opposite parties jointly or severally to deliver the occupation/ possession certificate as per municipal rule to this petitioner in respect of the flat No.2/A, Second floor), Chhayanir Apartment Madhyamgram, Kolkata700129, and also for delivery the completion certificate of the said flat and compensation for harassment and physical and mental agony etc. It is mentioned that complainant filed a case being No.20/18 before D.C.D.R.F being C.C. 20/2018.
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After passing the order dated 19.02.2019 of case No. 20/2018 the O.P filed on Revision petition being No.RP/33/2019 before Hon’ble S.C.D.R.C, West Bengal on 30.09.2019 Hon’ble S.C.D.R.C, West Bengal passed an order that ‘In the deed of conveyance dated 30.05.2008 it was mentioned that all lat owners had to take the membership of the flat owners society and that society would maintain the common facilities. After executing and registering the deed of conveyance O.P. No.1 gave the possession of the flat to the complainant. Complainant filed the instant case after the lapse of 10 years alleging that the O.Ps are not providing some common facilities. After 10 years of execution of execution and registration of the deed of conveyance, the complainant has alleged that O.Ps have not provided certain facilities as per agreement. We cannot reopen the case at this stage. Complainant had to agitate about the alleged deficiencies within 2years after getting the possession of the flat. Complainant has prayed for registration of garage space also. But document speaks that the garage space is commercial in nature. That cannot be entertained before the Consumer Forum.Therefore the case is hopelessly barred by limitation. Since the case is not maintainable, there is no need of appointment of Engineer Commissioner.
However, the complainant is at liberty to agitate his grievance for obtaining the completion certificate only by filing a fresh petition of complaint before the appropriate Forum.
In view of above we allow the Revision petition, setting aside the order No.7dated 19.02.2019 passed by Ld. DCDRF, North 24 Parganas.
With this observation this revisional application is allowed and disposed of’. Annexure – 16’.
Thereafter complainant filed this case being No.85/2020 as per direction of Hon’ble S.C.D R.C. West Bengal. Complainant filed this case and after admit the case this commission sent notices to the opposite parties. O.P appeared.
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The brief facts of the case of C.C. 85/2020 is complainant entered into an unregistered agreement for sale on 6th against 2005 for purchase a residential flat at 2/1Chhyanir Apartment, Second Floor, Baranagar, Madhyamgram, 103, Sodepore Road, Dist- North 24 Parganas. Thereafter on 30th May, 2008 one deed of conveyance was made between the complainant and O.P. No.1 and 2 and the mother of O.P. Nos. 3 to 5 which was registered before ADSR, Barasat, North 24 Parganas with consideration money and the market value of Rs. 6,36,000/- vide Deed.No.2787/2008. Thereafter the said O.P. delivered the physical possession of the said flat without issuing in occupation/ possession certificate and completion certificate. The opposite parties promised to hand over to the occupation /possession certificate and completion certificate as early as possible to the complainant regarding the said flat. On several occasions the complainant demanded the said possession certificate / occupation certificate and/or completion certificate . But in vain.
Compelling circumstances the complainant was filed this case regarding with said grievances. However, complainant filed this case as per direction of Hon’ble S.C.D.R.C.
Opposite parties appeared and filed written version. In his written version the opposite party admitted that the complainant purchased the said flat from the O.P. Nos.1-2 and the mother of the O.P. Nos. 3 to 5 on 30.05.2008 who is presently deceased). The matter of O.P.Nos. 3 to 5 is presently deceased.
It is also mentioned that the O.P admitted the said registered documents and O.Ps also admitted that they O.P. 1- 2 and mother of O.P. Nos.3 -5 given the physical possession certificate to the complainant. The opposite parites state in their written version that there was no contract with the complainant to give him the possession certificate, occupation certificate or completion certificate in any point of time.
Though it is settled law that when a purchaser and developer and landlord execute any agreement for sale in that event the
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developer/ landlord is compelled to issue possession certificate and completion certificate.
In this regard both the parties mentioned order of the Hon’ble SCDRC West Bengal to the effect.
Trial
During trial the complainant filed affidavit –in-chief and the opposite parties filed questionnaires and complainant gave answer.
The opposite parties praying for treating the written version as affidavit-in-chief and said petition was allowed.
Complainant filed questionnaire and O.Ps filed reply.
Documents
1.Photo copy of agreement dated 6th August, 2005.
2. Photo copy of the order of Hon’ble SCDRC, West Bengal dated 30.09.2019………
3. Photo copy of convenience dated 30.05.2000 being Deed No. 2787/2008 registered before Barasat ADSR
4. Track report
BNA
BNA filed by both the parties.
Issue framed for the purpose of decision.
- Whether the case is maintainable or not?
- Whether the complainant is entitled to get relief or reliefs in this case or not?
Decision with reasons
Considering the facts and circumstances as well as the nature and character of this case all the points are interlinked with each other and as such all the points are considered and taken up together for the sake of brevity and convenience. We perused all the submitted photo copy of documents along with complaint of affidavit relating documents. The case within the territorial and pecuniary jurisdiction of this commission. Hence this commission has ample power to try this case.
In the instance case complainant paid the entire consideration money to the opposite party.
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So in the instance case complainant is a consumer and opposite parties are the service provider but the O.Ps failed to provide their service, which would be treated as deficiency in service so the complainant is entitled to get reliefs.
The O.P. Nos. 1-2 are the developer and O.P. Nos. 3-5 are the land owners of the suit property which was mentioned in the schedule of the deed of conveyance. O.P. Nos. 1-2 and the mother of O.P. No.3-5 namely Chhaya Rani Chakraborty was sold the flat at second floor measuring about 908 sq.ft at premises No. 2/A, Chhayanir Appartment at Mouza – Chand Nagar, Madhyamgram Dist- North 24 Pgs with all common facilities and common utilities which are mentioned in the said deed.
The Advocate of complainant cited a decision of Hon’ble
‘ Supreme Court of India
Debashis Sinha vs M/s. R.N.R Enterprise on 9 February , 2023
Civil Appeal No.3343of 2020 before the Bench of Hon’ble Justice Dipankar Dutta and Hon’ble Justice S. Ravindra Bhat.
In said judgment it was held that 'it is the obligation of the person intending to erect building or to execute works to apply for completion certificate in terms of the rules framed thereunder.
‘It is no part of the flat owner’s duty to apply for a completion certificate. When the respondents had applied for permission / sanction to erect, the Calcutta Municipal Corporation Buildings Rules, 1990(hereafter’1990 Rules’ for short) were in force, Rule 26 of the 1990 Rules happens to be the relevant rule. In terms of sub-rules (1) to (3)of the rule 26 thereof, the obligation as cast was required to be discharged by the respondents. Evidently, the respondents observed the statutory provisions in the breach.’ Two Judges Bench of Hon’ble Supreme Court observed that the builder ought to provide the completion certificate even when the possession is already taken by the owner.
We find that the complainant fulfil on his part and paid full consideration money as agreed between them and the opposite parties made registered deed of conveyance and thereafter delivered physical possession. But the opposite parties did not provide the possession certificate / occupation certificate and/ completion certificate.
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We are in view it is the duty of the developer and land owner to apply before proper authority of the Municipality for obtaining completion certificate of entire premises. The completion certificate is not issue only for one flat, always the completion certificate is issued by the authority concern for a complete building. So the developer and land owner are liable to collect the completion certificate from the authority concern. We also same opinion that when the developer and the land owner delivery the physical possession of the flat at that moment it is duty of the developer and land owner to issue the possession certificate to the complainant and it is also the duty of the developer to handed over the completion certificate to the complainant also. It is mentioned that in the said Revisional case being No. R.P-33/2019.
The Hon’ble SCDRC also given liberty to the complainant to agitate his grievance of obtaining the completion certificate only by filing fresh petition of complaint before proper Forum. Hence the complainant ha liberty to file this case for obtaining the completion certificate before this commission as the flat in question is within the jurisdiction of this commission and the pecuniary jurisdiction is also within the jurisdiction of this commission, hence the commission has ample power to try this case.
So the instance case complainant is a consumer and opposite party are the service provider but the O.Ps failed to provide their service, so the complainant is entitled to get relief.
we are in view that the complainant fulfill his part and prove his case. As such he is entitled to get relief. As O.P did not provide possession certificate and completion certificate which would be treated as deficiency in service on the part of the opposite parties.
Hence,
it is ordered,
that case 85/20 be and the same is allowed on contest of both parties.
The opposite parties jointly and severally are directed to issue the possession certificate to the complainant and also hand over or delivered the completion certificate to the complainant within 45 days from the date of this judgment , failing which the complainant has liberty to file this execution case as per law.
Let a copy of this order be supplied to both the parties free of cost as per CPR, 2005.
Dictated and Corrected by me.
Member
Member President
