Date of Filing: 9.7.2018
Date of Judgment: 19.4.2022
Mrs. Sashi Kala Basu, Hon’ble President
This is a complaint filed by the complainant , Smt. Arati Ghosh Jha, under section 12 of the C.P Act, 1986 against the O.Ps namely 1) M/s Beas Construction, 2) The Respected Mayor of Kolkata, 3) The Executive Engineer, Building Dept. 4) The Assessor-Collector, and 5) The Addl. District Registrar, Behala Unit, Industrial Estate, alleging deficiency in service on the part of the O.Ps.
The case of the complainant, in short, is that she, her mother and sister being the owners in respect of the A Schedule property entered into a Development Agreement for construction of a building on the said land for residential purpose and accordingly an Agreement was entered into between them and the O.P no1., developer, on 2.6.2015. Towards the owners’ allocation complainant was allotted a top floor flat measuring 480 sq.ft and valuation of the said flat was around Rs.15,36,000/- along with a car parking space. Due to ill-health of the complainant , she proposed to the developer to exchange the said top floor flat and she be allotted a flat on the second floor for which the developer allotted the complainant a second floor flat in his other project. Value of the same was Rs. 11 lac and a car parking space. At the time of development work the developer had paid the complainant an amount of Rs. 2,30,000/- which was refundable to him. After the flat was handed over to her, she shifted along with her husband to the said second floor flat. The deed was also executed in her favour. But she failed to mutate her name in the Municipal Corporation and learnt that the construction in the said project was illegal. So, she lodged a complaint before the police and also a complaint before the KMC. According to the complainant the flat which was allotted to her being owner of their land valued at Rs.15,36,000/-, whereas the flat allotted to her in another project valued only Rs. 11 lac. However, the registration fees has also been paid by the developer of Rs. 1,21,000/-. Complainant by filing the present complaint has prayed for directing the developer to submit sanctioned building plan, site plan for the purpose of mutation of her flat, to remove the illegal construction raised by him in the said building, to give car parking space in the present building where her flat is located, to pay compensation of Rs. 1,50,000/- and for directing the O.P not to create any disturbance or threat upon the complainant and also to pay compensation of Rs.5 lac.
Complainant has filed the documents i.e the complaint lodged before the Haridevpur Police Station, copy of letter sent to the developer on 16.1.2018 and also the application to the Executive Engineer and some other letters written to the different authorities including GD entry. She also filed copy of possession letter dated 3.11.2017. A copy of deed of conveyance executed in her favour in respect of her flat has also been filed by the complainant.
Written objection is filed by the O.P no.1, denying and disputing the allegations leveled against him by the complainant. It is the specific contention of the O.P that the schedule flat was allotted to the complainant in exchange of flat allotted to her on the land belonging to her and other co owners due to her health problem and it was mutually agreed that to minimize income tax problem of the complainant, the set forth value of the said flat will be shown as Rs. 11 lac. In effect the market value of the said flat in question is Rs. 17,32,400/-. O.P has already handed over possession of the flat to the complainant and also the deed of conveyance has been registered in her favour. O.P no.1 has also contended that he has borne the registration cost and had also paid an amount of Rs.2,30,000/- to the complainant which was refundable to him. So, the complaint is not maintainable . O.P no.1 has prayed for dismissal of the case with exemplary cost.
O.P nos. 2 to 4 are also contesting the case by filing written version. It has been contended by them that on receipt of an intimation about the unauthorized construction being made in the building in question being premises no. 2960, it was found that entire work was carried out in deviation of the sanctioned plan dated 28.9.2015 which was only for G+3 storied building. The developer had also converted portion of the garage at the ground floor to a shop. So, proforma O.P no.3 had issued a stop work notice under section 401 of KMC Act, 1980, requesting further to the Haridevpur P.S for follow-up action for prevention of the unauthorized construction at the said premises. On inspection by the Assistant Engineer of the KMC it revealed that RCC framed structure was raised up to 5 storied level which was being erected illegally. So, FIR was lodged by the proforma O.P no.3 on 18.1.2018 under Section 201(A) of the KMC Act, 1980 and the said case is pending before the Municipal Metropolitan Magistrate. So, O.P nos. 2 to 4 have prayed for dismissal of the case against proforma O.P nos. 2 to 4.
No step is taken by O.P no.5. So, case has been heard exparte against O.P no.5.
During the course of the evidence parties have filed their respective evidences followed by questionnaire and reply and ultimately argument has been advanced. BNA has been filed by the complainant and O.P no.1 and Ld. Advocate appearing for O.P nos. 2 to 4 has been heard verbally.
So, the following points required determination:
- Whether there has been any deficiency in service on the part of the O.Ps?
- Whether the complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for consideration in order to avoid repetition.
From the complaint and the written version filed by the O.P no.1, there does not appear any dispute that a Development Agreement was executed between the complainant, her mother and other co-owners with the O.P no.1 to develop their property and to raise the building. However, the complainant was allotted a top floor flat but due to her ill-health and on her proposal to the O.P no.1, the developer, she was allotted the flat in question by the developer in the second floor of his another project and she has been in possession of the said flat and the deed has also been executed in her favour.
However, the moot claim which has been made by the complainant is that she is unable to mutate her name in the KMC Assessment Registrar due to non-submission of the sanctioned plan in respect of the building or for non-obtaining the completion certificate. Complainant has filed the documents which also include the copy of the judgment passed by the Ld. Sr. Municipal Magistrate Court, Calcutta, in case no. 119 of 2018, wherefrom it appears that the present O.P no.1 who is a developer has been found guilty and has been convicted for commission of offence punishable under section 401A of the KMC Act, 1980 and also found guilty and sentenced for the offence under section 618 of the KMC Act, 1980. On perusal of the judgment it appears that it has been found that the O.P no.1 violated the sanctioned plan which was only to raise G+3 storied building and has raised additional floor and has also converted the garage space to a shop. This is also the case of the O.P nos. 2 to 4 in their written version that O.P no.1 violated the sanctioned plan and raised illegal construction.
So, apparently the reason behind the complainant not getting her name mutated in the KMC Assessment Registrar is because of illegal construction made by the O.P no.1 and violating the sanctioned plan of G+3 storied building. For such act of the O.P no.1 complainant cannot be made to suffer, when it was admitted case of the parties i.e the complainant and O.P no.1 that there was a development agreement and due to the allotment of top floor flat, O.P no.1 proposed to the flat in the second floor of his other project and accordingly deed has also been executed in her favour. So, the O.P no.1 is under the obligation and duty bound for getting the completion certificate of the building enabling the complainant to mutate her name.
So far as the claim of the complainant regarding the valuation of the present flat which is the subject flat being less valued compared to the flat which was originally allotted to her being owner, we find no basis to say the valuation is less or it is Rs.15,36,000/- as claimed by the complainant in the complaint. On the contrary, complainant herself has admitted that O.P no.1 had paid her Rs.2,30,000/- as refundable sum and also he has borne the registration fees of Rs. 1,21,000/- at the time of execution and registration of the deed in her favour in respect of the subject flat. So, on consideration of the entire situation, even though we find that the complainant is entitled to a direction upon the O.P for obtaining the completion certificate, enabling the complainant to mutate her name and also compensation towards the harassment. In our view Rs. 50,000/- will be sufficient as compensation but we find no justification to allow other reliefs as prayed by the complainant.
It may be pertinent to point out that the deed of conveyance dt. 17.07.2017 entered into between the parties, does not speak of any car parking space. Since the said deed is the very basis of this case, we cannot go beyond the terms or the said deed itself. Thus the prayer of the complainant for direction upon the O.P to give car parking space cannot be allowed.
Hence,
ORDERED
That CC/412/2018 is considered and allowed on contest against the O.P no.1 and dismissed on contest against O.P nos. 2 to 4 and dismissed exparte against O.P no.5.
O.P no.1 is directed to supply copy of the completion certificate to the complainant in respect of the subject flat and the building within 4 months from this date.
He is also directed to pay compensation of Rs.50,000/- and litigation cost of Rs. 8000/- within the aforesaid period of 4 months.
