West Bengal

South 24 Parganas

CC/503/2014

Sri Satish Kumar Nambiar,S/O Late K.K. N. Nambiar. - Complainant(s)

Versus

M/S. Chatterjee Construction a proprietor ship Firm. - Opp.Party(s)

21 Jul 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _503_ OF ___2014_

 

DATE OF FILING : 29.9.2014                     DATE OF PASSING JUDGEMENT:  21/07/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu 

                                                                             

COMPLAINANT             :    Smt. Minakshi Dutta Gupta,w/o Sri Abhijit Dutta Gupta of Flat no.A-4, Fourth floor, Menoka Garden, 534A, Diamond Harbour Road, Ward no.124 of KMC, P.S. Thakurpukur, Kolkata -

 

-VERSUS  -

 

O.P/O.Ps                            :  M/s Chatterjee Construction at 14, Shahid Purnendu Nagar, Dar Para, P.S. Thakurpukur, Kolkata – 63,represented by its Sole proprietor- Sri Sujay Chatterjee and presently converted into a Private Limited Company namely Chatterjee Civil Construction Private Limited represented by one of its Director Sri Sujay Chatterjee having its registered office at “Durga Apartment”, Ground Floor, 59, Daspara Road, P.S. Thakurpukur, Kolkata – 63.

 

Proforma O.P                     :    The Director General Building (II), Kolkata Municipal Corporation, 5, S.N. Banerjee Road, Kolkata – 13.

_______________________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P. Act, 1986 .

The contention of the complainant is that he has purchased one flat being no.A-4 on the Fourth floor south east side, measuring a super built up area 625 sq.ft consisting of two bed rooms, one drawing/dining, one kitchen, together with undivided proportionate share and interest of the land and the building namely Menoka Garden and the deed of conveyance was executed on 27.9.2010 ,wherein the total consideration money was Rs.5,00,000/-. The said deed was registered before the ADSR, Behala, South 24-Parganas. The allegation of the complainant is ;

1. Firstly O.P violated the construction norms as per sanctioned plan ,
2. The O.P constructed illegal construction by converting the garage in the southern west corner of the building into a shop room as well as unauthorized construction of the shop room on the said North east side for illegal gain.
3. The O.P did not complete the construction of the boundary wall of the said building which was agreed between the developer and the purchaser of the different flats of the said building in terms of the development agreement as well as in the deed of conveyance between them.
4. Lastly complainant has claimed that due to this unauthorized construction developer failed to obtain completion certificate from the KMC.

All these acts of the developer/O.P are amount to gross deficiency in service and unfair trade practice. Hence, this case since inspite of several reminders through the Manoka Garden Property owners Association no action was taken by the developer/O.P. Accordingly complainant has prayed for directing the O.P to make necessary arrangement for obtaining completion certificate from the KMC and also direct to remove the illegal construction and raise the boundary wall . It has further claimed to pay compensation of Rs.15000/- for such harassment and cost of Rs.10,000/- from the O.P.

            The proforma O.P is contesting the case by filing written objection. It is the contention of the proforma O.P that D.G Building (II) KMC has  been made a party unnecessary with a view to harass and the complaint petition is malafide, baseless, harassive, frivolous ,vaxartious etc. The positive case of the Proforma O.P is that complainant prayed for obtaining completion certificate from the KMC but the KMC cannot issue the same unless the promoter/developer constructs the building as per Building Rules and Regulations and sanctioned plan. It has further stated that so far as the illegal construction of the shop room is concerned it is the version of the KMC that the garage in the south west corner and north eastern side of the building cannot be converted into shop room and there cannot be any deviation from the sanctioned plan in respect of this garage in accordance with the law. The further positive case of the proforrma O.P is that during inspection  it has been found that three numbers of car parking spaces have been covered by masonry walls and out of which two numbers are presently used as shop by deviating the sanctioned plan. That apart one toilet and one store room have been constructed within the mandatory open space and no wall has been found at the southern and eastern side of the building and the constructions have been made without any approval from KMC,for which proceedings have been started against the illegal construction. It has further stated that neither the owner nor the developer has applied for completion certificate till date but the respective flat owners are in possession of their respective flats without obtaining the completion certificate which is illegal. Accordingly there is no deficiency in service on the part of the proforma O.P for not issuing completion certificate and complainant was not harassed in any way by the KMC and the case is liable to be dismissed against the proforma O.P.

            The O.P-1 against whom the entire allegation lies did not file any written version and only filed one application for maintainability of the case on 6.1.2015. Thereafter, the said application was disposed of by this Bench on 21.1.2015 and in terms of the order no.9 dated 21.1.2015 that maintainability petition was rejected with cost and it was observed in that order by this Bench that statutory period is over and there is no scope to grant time to the O.P for  filing written version for which maintainability petition was rejected and fixed 30.1.2015 for exparte evidence and argument. The O.P -1 has challenged this order before the Hon’ble State Commission, wherein the Hon’ble State Commission disposed of the Revision petition no.RP13 of 2015 on 29.2.2016 and in terms of the order of Revision Petition which was preferred by the O.P-1 was dismissed on contest with cost of Rs.5000/- to be paid by the revisionist in favour of the complainant and the order no.9 dated 21.1.2015  passed by this Bench is hereby affirmed. Thus the case was fixed for argument and we have heard the same . Since, O.P-1 failed to submit the written version case is proceeding against him in exparte and the said order was upheld by the Hon’ble State Commission.

            Points for determination in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.

                                                            Decision with reasons

It is fortune of the complainant that the complainant made Proforma O.P namely Director General Building II KMC and from the written objection of proforma O.P it has clearly come out that during their inspection three numbers of car parking spaces have been covered by masonry walls and out of which two numbers are presently used as shop by deviating the sanction plan. That apart  one toilet and one store room have been constructed within the mandatory open space.No wall has been found at the southern and eastern side of the building. All these constructions have been made without any approval from KMC, for which proceedings has already been started against such illegal and unauthorized construction.

            Thus from the written objection of the proforma O.P it is crystal clear that O.P-1/developer constructed illegal construction as stated above which are violating the sanctioned plan, for which proceedings have already been started against such illegal and unauthorized construction, that is why, the contention of the complainant is totally correct . It has also mentioned in the written objection of the Proforma O.P that in so far as the illegal construction of the shop room is concerned the view of the KMC is that the garage in the south west corner and north eastern side of the building cannot be converted into shop room and there cannot be any deviation from the sanctioned plan in respect of this garage in accordance with law.

            But fact remains O.P-1 did all these illegal construction for which O.P-1 has to face the consequence and we are looking forward regarding the action taken by the Building Department promptly, so that the bonafide purchaser will get peace as well as safety and security in the said building namely Manoka Garden Apartment.

            It may be mentioned here that KMC Building Department have already mislead since complainant made them party. But it should be borne in mind to the KMC Department as well as his ld. Advocate that Proforma O.P means there is no relief against the said Proforma O.P , but unfortunately the ld. Advocate of the KMC failed to understand all these legal propositions. It should not be out of record at this stage that there is an admitted deviation from the sanctioned plan and converting of garage space into a shop room ,which has also been reflected in the written objection of the Building Department, KMC.  KMC is a necessary proforma O.P in this case, otherwise it would be very difficult to the complainant to prove that there is any deviation of the construction in terms of the sanctioned plan. So, D.G Building II KMC should remember that this complainant has no allegation against the Proforma O.P Building Department, KMC but this complainant wanted to give notice to the KMC regarding the illegal construction deviating the sanctioned plan by the O.P-1/developer. So, we appreciate the complainant for making the DG Building II KMC  as a Proforma O.P in this case. It also should not be out of record that it is the duty of the Building Department of KMC to see and remove all the illegal works deviating the sanctioned plan but inevitable did not happen, for which complainant compels to make the KMC as party being a bonafide peace loving citizen. But on the contrary it has claimed by the proforma O.P that complaint is malafide, baseless, harassive, vexatious and liable to be dismissed. But in our considered view this contention cannot be accepted because  para 5.,6,7 and 8 clearly suggest that O.P-1 did illegal construction by deviating the sanctioned plan. So, the Ld. Advocate of the KMC failed to understand the legal proposition of a Proforma O.P. Proforma O.P is a party in whose presence a proceeding will run, otherwise, proforma O.P will be in dark regarding the proceedings and when it is the duty of the Building Department KMC to remove the illegal construction, complainant’s application cannot be treated as vexatious, frivolous, baseless and harassive. On the contrary complainant being a peaceful law abiding citizen pointed out the Proforma O.P to see all these illegal acts of the O.P-1 ,for which we direct the proforma O.P to remove all these unauthorized construction when they have started proceedings against the illegal and unauthorized construction and the same should be completed within  one month from this date.

            It is true that Proforma O.P has no deficiency in service but if they failed to perform their duty by not removing all these illegal construction, then and then they will act deficiency of service, otherwise not, but at this stage we did not find any deficiency of service against the Proforma O.P when they have inspected the premises and started proceedings. But it should be completed within a month, otherwise it will be very much difficult to the complainant to get the completion certificate since without removing the illegal construction KMC authority will not issue any completion certificate which is mandatory and complainant compelled to live in their flat after paying the good money and obtaining the deed of conveyance without completion certificate that is the fault of the O.P-1 and all these acts of illegal construction and non-supply of completion certificate amounts to deficiency in service and unfair trade practice on the prt of the O.P-1, that is why inspite of knowing the fact by O.P-1 challenged the case before the Hon’ble State Commission but failed to do the same and exparte order against O.P-1 has been affirmed by the Hon’ble State Commission.

            With that observation, we find that complainant has been able to prove the deficiency of service against the O.P-1.

 

            Hence,

                                                                        Ordered

That the application under section 12 of the C.P Act, 1986 is allowed in exparte against O.P-1 .

and contested against proforma O.P.

 

 

The O.P-1 is hereby directed to take positive steps and assist Building Department of KMC namely Proforma O.P to remove the illegal construction as noticed by the Proforma O.P  and to hand over the completion certificate to the complainant within 30 days from the date of this order.

The O.P-1 is further directed to pay compensation to the tune of Rs.10,000/- and litigation cost of Rs.5000/- plus further Rs.5000/- as directed by the Hon’ble State Commission in terms of the order in R.P no. 13 of 2015(if not paid) to the complainant within the stipulated period.

The Proforma O.P KMC is directed to remove all the illegal construction so that the bonafide purchaser ,herein the complainant, should get the completion certificate without fail when they have intention to do the same wherein the complainant has no fault.

The Thakurpukur P.S. is hereby directed to give all assistance to the Proforma O.P KMC, if they so desire by producing copy of this judgment , at the time of removal of illegal construction ,failing which O.P-1 has to pay interest @9% p.a on the awarded amount from the date of this order till realization and complainant is at liberty to execute the order through execution case.

Let a plain copy of this order be handed over to the complainant , O.P-1 and KMC Building Department for strict compliance .

           

                                                                        Member                                               President

Dictated and corrected by me                

 

 

                                       President

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

           

 

                                                                        Ordered

That the application under section 12 of the C.P Act, 1986 is allowed in exparte against O.P-1 .

and contested against proforma O.P.

 

The O.P-1 is hereby directed to take positive steps and assist Building Department of KMC namely Proforma O.P to remove the illegal construction as noticed by the Proforma O.P  and to hand over the completion certificate to the complainant within 30 days from the date of this order.

The O.P-1 is further directed to pay compensation to the tune of Rs.10,000/- and litigation cost of Rs.5000/- plus further Rs.5000/- as directed by the Hon’ble State Commission in terms of the order in R.P no. 13 of 2015(if not paid) to the complainant within the stipulated period.

The Proforma O.P KMC is directed to remove all the illegal construction so that the bonafide purchaser ,herein the complainant, should get the completion certificate without fail when they have intention to do the same wherein the complainant has no fault.

The Thakurpukur P.S. is hereby directed to give all assistance to the Proforma O.P KMC, if they so desire by producing copy of this judgment , at the time of removal of illegal construction ,failing which O.P-1 has to pay interest @9% p.a on the awarded amount from the date of this order till realization and complainant is at liberty to execute the order through execution case.

Let a plain copy of this order be handed over to the complainant , O.P-1 and KMC Building Department for strict compliance .

 

                                                                        Member                                               President