This is a case U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Gobinda Krishna Chakraborty.
The fact of the complainant in a nutshell is that the complainant is a bonafide customer under opposite party. The opposite party is a partnership firm and it runs its business through its partners for gain by way of making multistoried building on the land of others.
The complainant contends that his father Late Dhirendralal Chakraborty was the owner of the case property and he died on 22.2.1983 leaving behind his wife Bijonbala Devi and five sons and one daughter and thereafter Bijonbala Devi died and according to Hindu Succession Act, the five sons and one daughter of Late Dhirendralal Chakraborty inherited the case property having their undivided 1/6th share each thereon of the case property and the legal heirs of Dhirendralal Chakraborty and Bijonbala Devi filed a suit for declaration and partition and as per decree passed in connection with the said suit the complainant and the brother and sister become the absolute owner and possession of the said schedule property. The complainant states and contends that the brothers and sister of the complainant jointly entered into a development agreement along with the opposite party for development over their property and subsequently a development agreement was made with opposite parties under certain terms and conditions and further induced him narrating the advantage of raising multistoried building over the schedule property. Then the complainant decided to make new multistoried construction over the schedule property with the opposite parties. Thereafter the complainant entered into an agreement on 5.9.2014 towards the development. The property of the complainant along with the property of brothers and sister jointly by way of G+4 construction on certain terms and condition. It was agreed between the parties that within 30 days from the date of development agreement the complainant would give up the possession of said schedule land in favour of the opposite party. It was also settled that the complainant would live elsewhere and the O.P. would pay Rs.36,000/- per year in favour of the complainant at the time of signing development agreement towards rent for the temporary alternative accommodation of the complainant. It was further settled that if the opposite party is unable to deliver the possession to the complainant within one year from the date of execution of the development agreement dated 5.9.2014. The opposite party would pay further sum of Rs.3000/- only per month towards rent totaling Rs.36,000/- only to the complainant. It is also agreed by the O.P. that they will deliver a complete flat to the complainant. The complainant further states that the O.P. will submit the building plan to the complainant within two months from the date of execution of agreement and it is also agreed by the O.P. that they will supply a copy of master plan to the complainant. The complainant contends that thereafter the O.P. installed several hoarding regarding the said project and several intending purchaser enquired the matter and entered into an agreement with the opposite party for the purpose of purchased their respective flats. The complainant states that without having any building plan from the concerned municipality and moreover without the consent of the complainant the opposite parties surreptitiously cut down several valuable mango tree of schedule property and also misappropriate all the usufruct tree of amounting to Rs.50,000/- or more and violated the terms and conditions of the complainant.
The complainant further contend that the opposite party started raising construction with substandard quality of bricks and cement. The complainant personally ventilated his grievance towards the interior quality of materials for making construction but the opposite party paid no heed to the request. The complainant contends that it was specifically mentioned in the agreement that after completion of construction work, the owner allocation will be given to the complainant and thereafter the opposite party would hand over the possession of different flats to the intending purchaser. But without given the owner allocation the opposite parties to different purchasers and violated the terms and conditions of the agreement executed by the complainant and opposite party. Again with a view to sell one flat to one adjacent neighbour of the schedule property the opposite party without considering privacy and security of the flat owners, the opposite party kept a open portion in the boundary wall of the said multistoried building and by such way the opposite parties have jeopardized the security of the flat owners which should not done by the opposite parties and thereby caused violation of the agreement.
The complainant states that he immediately raised objection for keeping open space for entering into the compound for multistoried building. The complainant further states that the complainant requested several times verbally and also ventilated his grievance by sending letters regarding the violation of terms and condition of the agreement dated 5.9.2014, but the opposite parties did not pay any heed to the request of the complainant.
The complainant further contends that since execution two years have been elapsed, the opposite parties handed over some flat to the intending purchaser but did not allot the owners share within the stipulated time. The complainant contends and dispute that the opposite parties have failed and neglect to complete the construction work as per agreement. The complainant states that it is crystal clear that opposite parties are doing illegal trade practice with the intending purchaser and also with the complainant and the complainant further contends that act and behaviour of the O.ps. tantamount to gross negligence on the part of the O.ps. and due to such violence the complainants being a bonafide consumers entitled to get relief as prayed for and complainant is also entitled to get a sum of Rs.50,000/- towards misappropriation of sale value of mango tree Rs.5,00,000/- towards compensation from the O.Ps. for causing severe bodily pain, mental agony and harassment upon the complainant regarding non-compliance of terms and conditions of the agreement and as well as non-payment of rental charges and Rs.20,000/- towards litigation cost.
The opposite parties despite receiving the notice did not appear before the Forum and time was given to the opposite parties to file written version but they are very much reluctant to appear before the Forum and to comply the order of the Ld. Forum. Thus this Forum has no other alternative but to hear the case exparte against the O.Ps.
Decision with reason
The complainant stated that the complainant requested the opposite parties for several times verbally and also ventilated his grievance by sending letter regarding violation of the terms and conditions of the agreement dated 5.9.2014 but the opposite parties turned deaf ear to the same while the deficiencies had been pointed out to the opposite parties in the month of March, 2016 regarding the short fall of the construction work by sending Lawyer’s notice dated 3.3.2016. The opposite party verbally stated to rectify all those defects but did not pay any heed to the request of the complainant and did not made any reply of the said legal notice to the complainant. Moreover, with a view to selling one flat to one adjacent neighbour of the schedule property, the Opposite Parties without considering the privacy and security of the flat owners and other purchasers of the flats a open portion in the boundary of the said multistoried building besides the house of the said neighbor and by such way the opposite parties have jeopardized the security of the flat owners and thereby caused violation of the said agreement.
It is therefore hold that the complainant has proved the deficiency of service against the O.Ps. In this connection to prove this case some documents have been filed by the complainant such as affidavit of evidence and brief notes of argument. The complainant also files Xerox copies of Advocate’s letter, development agreement, letter to the Sub-divisional Officer, Serampore, Hooghly, declaration cum affidavit for amalgamation of two holding application form for mutation and Xerox copy of letter to the developer (promoter).
From the above documents it is transpires that in the complaint case the O.P. though appeared but did not file written version. In the complaint case as per material in the record has not been challenged by this O.P. Thus the case succeeds exparte and as such the complainant do get the relief as prayed for. There is nothing to disbelieve the complaint of the complainant. Hence, it is
Ordered
that the complaint case be and the same is allowed exparte against the O.Ps. with litigation cost of Rs.5,000/-. The O.Ps. are directed to pay a sum of Rs.35000/- towards compensation for severe pain, mental agony and harassment for non-compliance of the terms and conditions of the agreement to the complainant. The O.Ps. are also directed to pay a sum of Rs.36,000/- per year for payment of rental charges for temporary alternative accommodation of the complainant and his family members till handing over the possession of the owners allocation. The O.Ps. are further directed to complete the rest accommodation work of the multistoried building within 3 months from the date of this order, in default the O.ps. are to pay another Rs.50,000/- for non-completion of work to the complainant. At the event of failure to comply with the order, O.Ps. shall pay cost of Rs.50/- for each day delay, if caused on expiry of 45 days by depositing the amount in the Consumer Legal Aid Account.
