Date of Filing : 16/10/2020
Date of Judgement : 09/10/2023
Sri Sudip Niyogi, Hon’ble President
Brief Facts
The complainants who became the owners by way of inheritance of the plot of land measuring about 6 kottahs, 1 chattak more or less with structures thereon at premises No. 222B Rajpur Road, Kolkata-700092 as specifically mentioned in paragraph No. 3 in the petition of complaint had entered into a development agreement with the OPs, which was duly registered on 3/1/2018 in respect of the said property. As per the development agreement, the complainants as owners would get 40% of the total F.A.R. and 40% of the car parking space on the ground floor. The OPs would pay cash of Rs.2 lakh to the owners as refundable or adjustable amount at the time of registration of the development agreement. It was also agreed that the developer would provide alternative accommodation to the owners and also bear the entire cost of shifting and/alternative accommodation till the delivery of possession of the owner’s allocation in the new building. The stipulated period for completion of construction was 24 months from the date of signing of the development agreement. But unfortunately, after the expiry of the said period, the OPs did not take any steps to deliver vacant physical possession of the owner’s allocation and the developers also stopped making payment for alternative accommodation on and from Jan, 2019. Subsequently, complainants and the OPs made a mutual declaration on 20/9/2020 specifying their respective allocations. It is alleged that OPs are trying to sell out the flat out of owner’s allocation and they were threatened by the OPs when they requested to complete the remaining work and deliver the same with possession letter and completion certificate, for which they were compelled to lodge a written complaint with the concerned P.S. So, alleging deficiency in service against the OPs, complainants filed this case praying for several reliefs, including a direction upon the OPs to complete the construction of the owner’s allocation, to pay Rs.15,000/- per month for alternative accommodation from Jan, 2019, compensation, cost of litigation etc.
OP contested the case by filing a written version denying all the allegations of the complainant. According to them, the building plan was sanctioned on 5/7/2018 and the building ought to be completed by June, 2020. But the pandemic delayed the matter. However, they claimed 95% of the work completed. Both parties filed their evidences, respective questionnaires and also replies. Complainant also filed written argument.
Points for consideration is, whether the complainants are entitled to any relief(s)?
FINDINGS
We have gone through the entire materials on record, including the evidence and also the documents filed by the parties. Admittedly, one development agreement was made between the parties on 03/01/2018. One registered power of attorney was also executed in favour of the OPs. It was also agreed that the owner’s allocation would be 40% of the total F.A.R., has to be sanctioned by the municipal authority and developer’s allocation would be 60% of the far. As per development agreement, the construction of the proposed building would be completed within 24 months from the date of signing of the agreement.
Ld. Advocte appearing for the complainant submitted that OPs executed the deed of conveyance in respect of several flats in the building out of their allocation without completing the owner’s allocation. In support of their contention, they produced copies of a few deed of conveyance. However, Ld. Advocate appearing for the OPs submitted that 95% of the construction work was already completed and the remaining work of 5% would be completed very soon.
So far as the allegation of the complainant as to the nonpayment of shifting charges is concerned, we find the development agreement is absolutely silent as to the amount of shifting charge to be paid to the complainants. OPs claimed that they are paying Rs.15,000/- to the complainant, out of this – Rs.6,000/- for rent and Rs.9,000/- for financial support which the complainant was supposed to adjust against one flat measuring about 700 sq. ft. super built up area on the 2nd floor. According to OP, they paid Rs.15,000/- per month from Jan, 2017 till Dec, 2019.
However, complainants claimed, since Jan, 2018 onwards OPs stopped payment for alternative accommodation and that is why they prayed for Rs.15,000/- per month from the OPs. But what we find that, not a single document in this regard is forthcoming from either of the parties.
Now, on consideration of the entire materials on record, we find that complainant is entitled to relief(s) in this case in the form of a direction upon the OPs to complete the remaining construction of the owners’ allocation and hand over the same to the complainants, to pay the shifting charges as agreed upon between the parties to the complainant till the physical possession of the owners’ allocation is handed over. Complainant is also to provide completion certificate and cost of litigation.
Accordingly, it is
ORDERED
That the instant complaint case stands allowed on contest against the OPs.
The OPs are directed to complete the entire construction work of the owners’ allocation in terms of the registered development agreement dt. 3/1/2018 and deliver the same to the complainants by issuing possession letter.
OPs are also directed to continue to pay the shifting charges to the complainants till the owners’ allocation is handed over.
OPs are also to supply the completion certificate or a copy thereof to the complainants within 30 days from the date of receipt of the same from the concerned authority.
OPs are directed to comply with the aforesaid directions, barring the supply of completion certificate, within 60 days from the date of this order, failing which, the complainant shall be at liberty to proceed in accordance with law.
Dictated and corrected by me
President
