FACTS The complaint case, in short, is that the complainants along with their brother, Shri Mukul Banerjee are the absolute owners of the land measuring about 01 Cottah 11 Chittaks 01 sq. ft. together with structure vide C.S Dag No. 807, C.S Khatian No. 1123, J.L No. 13, Kolkata Municipal Corporation Ward No. 91, being Municipal Premises No. 58, R.K Ghoshal Road, Kolkata- 700042, within P.S- Kasba. The complainants along with their said brother had entered into a development agreement with the Opposite Parties on 07/08/2014 for developing their said land for construction of a 3-storied building thereon. One registered General Power of Attorney in favour of Opposite Party No. 2 being one of the partners of Opposite Party No. 1, firm was executed on 28/11/2014 which was duly registered. The stipulated time of completion of the said construction work was 18 months from the date of sanctioned building plan. It is alleged that the Opposite Parties did not complete the portion of the owners’ allocation but completed their portion and sold some flats from their portion before giving possession to the owners of their allocation. That apart, the Opposite Parties raised another floor over the said 3- storied building illegally and sold out flats to other purchasers. As per the agreement, the owners are entitled to 50 % of the total FAR of the building. Another supplementary agreement also was executed between them on 08/09/2018 for purchasing extra FAR apart from the owners’ allocation @ Rs.2000/- per sq. ft. from the Opposite Parties. It was mutually settled among the owners that out of the total owners allocation of 77.41 sq. mt. complainant No. 1 would get 30 sq. mt. The remaining area would be divided equally among the three other brothers including Shri Mukul Banerjee @ 15.80 sq. mt. (approx.) each. Following the supplementary agreement, the Opposite Parties to provide 12.16 sq. mt. extra space/FAR to complainant No. 1 and 5.04 sq. mt. to each of complainant No. 2, 3 and their other brother. Accordingly, complainant No. 1 already gave Rs.2,60,000/- and complainant No. 2 gave Rs.1,00,000/- to the Opposite Parties for their extra FAR. It is alleged that the Opposite Parties demanded more amount of money from them. It is also alleged that the Opposite Parties are not giving the owners’ allocation in accordance with the agreements made between them. So, by filing the instant complaint, they prayed for peaceful possession of the owners’ allocation in accordance with the agreements, for measurement of the respective allocations between the owners and the developer and for adjustment of extra FAR with 50 % of the 4th floor flat which was sold without their knowledge and also compensation and cost of litigation. Opposite Parties contested the case by filing a Written Version and also adducing documents. Their allegation is that the complainants failed to make full payment for the extra space/FAR from the developer’s allocation. They denied all the allegations of the complainants. So, they prayed for dismissal of the instant case. POINTS FOR CONSIDERATION - Is the instant complaint maintainable?
- Are the complainants entitled to the relief (s) as prayed for?
- To what other reliefs, if any, complainants are entitled ?
FINDINGS Both parties adduced their respective evidence and also filed documents. They also exchanged questionnaires and replies thereto. We have carefully gone through all these materials on record. Point No. 1: The instant case was filed claiming several reliefs by the complainants who had made a development agreement with the Opposite Parties for raising a structure on their land on certain terms and conditions but as the Opposite Parties did not comply with the said agreement they filed this complaint. During argument on behalf of the Opposite Parties, it was submitted that the complainants have another brother, Shri Mukul Banerjee, by name and he is also an owner of the land and a signatory to the development agreement but he was not made a party in this case. So, it was argued that the instant complaint is bad for non-joinder of necessary parties. On behalf of the complainants, it is said that complainants’ said brother already got possession in the newly raised building and as he has no grievance, he was not made a party. Be it noted here that as per Consumer Protection Act, the cases before the Consumer Commission are conducted on a summary procedure. So, non-inclusion of the said brother of the complainants in the category of the complainant or as proforma defendant cannot make the complaint as bad for non-joinder of necessary parties. Considering the facts and circumstances, the complaint is found to be quite maintainable. Points Nos. 2 and 3: - Both the points are taken up together for convenience. Admittedly, in the development agreement dated 07/08/2014 entered into by the complainants and their said brother Shri Mukul Banerjee and the Opposite Parties, it was agreed that one 3-storied building would be constructed on the land of the complainants and their said brother as per building plan sanctioned by the Kolkata Municipal Corporation. It was agreed therein that the FAR allocation would be @ 50 % each between the land owners and the developer. It was also admitted that subsequently, one supplementary development agreement was made on 08/09/2018 between them after they could realize that the extra space is required by the owners and as per said supplementary agreement, extra/FAR of the flats of the owners allocation would be provided by the developer beyond the FAR of the flats mentioned in the sanctioned building plan and the rate of such extra space/FAR would be Rs.2000/- per sq. ft. to be given to the developer. It is admitted as we find from the evidence and the replies to the questionnaires of the complainants that complainant No. 1, Shri Maloy Banerjee paid Rs.2,60,000/- and complainant No. 2, Shri Monobir Banerjee paid Rs.1,00,000/- towards their respective extra space/FAR. Though, there is contradictory evidence as to whether Shri Maloy Banerjee, complainant No. 1 had actually got possession or not but it is admitted that Shri Mukul Banerjee, the other brother of the complainants who is not made a party already got his possession. It is alleged by the Opposite Parties that as the actual price for developer’s allocation was not paid, they were not in a position to deliver the possession. In their written argument complainants claimed that the said Developer/Opposite Parties extended FAR in floor wise of the said building, not only from the Developer/ Opposite Parties’ portion but also from the allocated portion of the owners/Complainants, which the Developer/Opposite Parties had constructed beyond the building sanction plan of KMC. The Developer/Opposite Parties had taken the extra FAR from the extra allocated portion of the Owners/Complainants for which the Supplementary Agreement clearly states that the Owners/Complainants will give Rs.2000/- per sq. ft. for extra FAR and since the Developer/ Opposite Parties had given the extra FAR to the Owners/Complainants from their own entitled allocations of the Owners/Complainants, the aforesaid amount already received by the Developer/ Opposite Parties from the Owners/Complainants need to be refunded. It is to be noted that as admitted by the complainants that said floor wise extension was made to create extra space for the flats and that was with the consent of the parties but that extension is not as per sanctioned plan. That is why, we find curiously, in the supplementary agreement dated 08/09/2018 a provision has been made in Para No. 5 that after taking over the space surrounding the building for extra space, the developer has to face or deal with any hazard like political, police, local people and the KMC and any cost for that purpose would be borne by the developer only. Admittedly, as per development agreement, the complainants are entitled to 50 % of the total FAR in the building which would be raised as per sanctioned plan. If the extra space was created by way of extension beyond the said sanctioned plan, complainants cannot claim 50 % ratio in such extension, as of right. Another thing which is pointed out on behalf of the complainants is that the extra floor was constructed over the said 3-storied building illegally and sold the same to other purchasers by the Opposite Parties. In this connection, we do not have any hesitation to hold, given the facts and circumstances of this particular case that the said construction over the 3-storied building, if there by any, could not have been made by the developer without the knowledge and consent of the land owners as, if it was not so, the complainants/owners would have taken necessary steps to restrain the developers from raising such construction illegally. No evidence is forthcoming about any such objection being raised by the complainants/owners. However, be it made clear that this Commission is not going to pass any order on the prayer of the complainants regarding such construction over the said 3-storied building which they claimed to be illegal. So, on going through the entire materials on record and following the discussion as made hereinabove, we are of the opinion that the complainants are entitled to get peaceful possession of their respective shares from the owners’ allocation as per agreement and if required they can take the help of any expert /LBS for that purpose. They are also to get cost of litigation. But, no award for payment of compensation is made considering the facts and circumstances of the case. With this, all points are disposed of. Accordingly, it is ORDERED That the instant complaint case be and same is allowed on contest. Complainants are entitled to peaceful possession of their respective shares out of owners’ allocation as per development agreement in the light of our observations as made in the body of this judgment. If required, an expert/LBS may be engaged for that purpose. Opposite Parties are directed to deliver peaceful possession of the respective allocation/share of the complainants as stated above within 60 days from the date of this order. Opposite Parties also to pay Rs.3,000/- (Rupees Three Thousand Only) towards cost of litigation to the complainants. Both the OPs are jointly and severally liable to comply with this order. If the aforesaid order is not complied within the stipulated date, complainants shall be at liberty to proceed in accordance with law. | 
