The instant complaint is filed u/s 35 of the Consumer Protection Act, 2019 wherein it is stated that Smt. Padma Rani Das and Sri Bipul Kumar Das are the Complainant no. 1 and Complainant no 2 respectively as landowners against the developer/builder company (OP1) and it’s proprietor (OP2) alleging deficiency in services on the part of the Opposite Parties in a consumer dispute of development of property and construction.
The gist of the case as averred by the complainant in a capsulated form is that the complainants are the landowners as per Schedule A and B of the complaint petition and the OP 1 is the proprietorship firm along with OP 2 being the proprietor. The OPs proposed before the complainants for development of the disputed property by construction of a G+4 multi storied building at their own cost as per sanctioned building plan of local municipality. The development agreement between the parties was executed on 10.07.2015 along with execution of Power of Attorney on 31.08.2015. As per the terms of the development agreement, the OPs are liable to complete the construction and hand over the possession to the complainant cum landowner within 24 months from the date of sanction of the building plan or from the date of getting hand over of the proposed site. The landowners are jointly entitled to get 50% of the construction area of the proposed building including proportionate share of stairs, lift and landing area in the form of flats, shops and garages in the proposed building under the name and style of “Radha Prime” under North Dum Dum Municipality, 24 Parganas North, West Bengal:-
- 50% of the constructed area on the ground floor.
- Entire second floor.
- 50% of the constructed area on the third floor.
- 50% of the constructed area on the fourth floor.
After execution and registration of the Development agreement and POA, the complainants delivered possession of the scheduled property but the OPs took no steps to obtain sanction of building plan for next two years on various pretexts. After several reminders, the OPs got the G+4 building plan sanctioned from municipality only on 15.11.2017 (no 581/2017-18). But the construction of the proposed flat was taken up to a limited extent by a smaller and part construction, in violation of the sanctioned building plan. The complainants sent letter to the local municipal authority apprehending some illegal sanction of further floors in addition to the approved construction of G+4 building plan dated 24.09.2016 but of no avail. The complainants allegedly discovered that the OPs are trying to develop the scheduled A and B Property by amalgamating another adjacent plot of one Amit Shome leading to stalemate condition of the entire construction work and delayed further with intentional move. The complainants brought the matter to the notice of local municipal chairman by a letter dated 29.08.2017 but without result. The complainants sought explanation from the OPs vide letter dated 07.07.2018 to disclose the details of raising further floors in addition to G+4 by producing revised plan and the probable date of completion of entire building and the date of handing over owner’s allocation to which the OPs deliberately avoided. As per averment of the complainant no 2, the proposed construction is in incomplete condition. The Complainant no. 2 claimed that he filed a complaint before the State Consumer Dispute Redressal Commission, West Bengal which was dismissed by Order dated 13/02/2020 being pre-mature and non- maintainable. Being aggrieved with delay in execution of the development agreement, the complainants now files this instant complain petition with a prayer for handover of peaceful and vacant possession of the owner’s allocation in habitable condition from the OPs along with completion certificate and compensation for Rs. 10,00,000/- along with Rs. 50,000/- as litigation cost.
The records and document of this case were scrutinised that are available on record and the submissions advanced by the Ld. Advocate of the OPs were considered. The exhibits namely development agreement, Power of Attorney and annexures / documents as per firisti, filed vide running page no 11A and 12 to 85 were perused. As per terms and conditions of the development agreement between landowner cum complainant and developer, the OPs are under obligation to complete the construction and handover the owners’ allocation.
During progress of the case, as per Order dated 05.05.2022, it appears that the service of notices on the OPs could be duly effected on 25.02.2022 but none of them entered appearance and accordingly the case proceeded ex-parte against the OPs vide order dated 27.05.2022. The Complainants filed the original complaint on affidavit by filing ‘firisti’ comprising 86 pages which includes complaint Petition (page 1-11), photocopy of Development agreement dated 10.07.2015 (page 11A – 46), photocopy of Development Power of Attorney dated 31.08.2015 (page 47-73), photocopy of letter dated 07.12.2016 to developer by complainant no 2 (page 74), photocopy of letter dated 29.08.2017 from both the complainants addressed to the North Dumdum municipality (page 75-77) and petition filed by this complainant before SCDRC,WB (page 78-85) that was disposed of without direction. The complainant no. 2 adduced evidence on affidavit. No BNA was filed and the arguments were heard in full on 18.11.2022. The OPs did not appear at any stage.
Undisputedly, Complainants cum landlords being owner of suit property entered into a development agreement with OP for raising a G+4 multi-storied building over the said property on 10.07.2015 for the purpose of construction and development to enable the OP to promote the project. The Complainants handed over requisite documents to OP and executed one registered General Power of Attorney in favour of OP on 31.08.2015. The sanction of building plan was obtained by OP on 15.11.2017 as averred by complainant. All the above are the admitted positions as per records and remains unchallenged, as per ex-parte hearing. The complainants claimed having sent a letter to the local municipal authority about some illegal sanction of further floors, in addition to approved construction of G+4 building plan vide letter dated 24.09.2016 but of no avail. However, the said letter dated 24.09.2016 is found as not annexed or filed by the complainant as claimed in their petition.
The complainants claimed having sought explanation from the OPs vide letter dated 07.07.2018 to disclose the details of raising further floors in addition to G+4 by producing revised plan, probable date of completion of entire building and the date of handing over owner’s allocation to the complainants. But copy of such letter dated 07.07.2018 has not been annexed by complainant as claimed in complaint petition.
The Complainant no 2 claimed that SCDRC, West Bengal dismissed their petition vide Order dated 13/02/2020 being pre-mature and non- maintainable. The said Order is found not annexed in the firisti or otherwise, as claimed by the Complainant. Being old order, neither it could be downloaded from confonet off hand, to examine the contents.
The sanctioned drawing depicting the building plan and elevation are also not found as filed or annexed to derive whether the sanction exists at all for G+4 building or its validity period thereof, as alleged about anomaly in complaint petition.
The complainant no 2 in Evidence stated on affidavit as follows:-
“ That however when the building plan was sanctioned in respect of G+IV building, we were in hope that certainly the proposed multi-storied building will be completed within reasonable period and with such hope, we being the innocent and simpleminded complainants put our signature in different papers absolutely on good faith and after reposing total trust upon the opposite parties and be it mentioned here that a plot of land measuring 3 chittack 22 Sq.ft on the Southern side of R.S.ROAD was / is in our occupation in view of an unregistered instrument executed by the owners of the said land and coming to know the same, the opposite parties demanded the said plot of land knowing it fully well that we had no right title interest in respect of such piece of land save and except permissive possession and we, under compulsion had to inform the concern Municipality in writing that we are willing to deliver such piece of land in favour of the opposite parties and the opposite parties certainly in collusion and connivance with the Municipal Authority got illegal sanction of further floors in addition to G+IV building and the said letter dated 24/09/2016 is annexed with the petition of complaint and we have to submit that before the Hon’ble commission that the said letter dated 24/09/2016 was procured by the opposite parties simply by misleading us and we time without numbers requested the opposite parties to make us aware of the ultimate fate of the letter dated 24/09/2016 but till this day , we are in dark and we have been passing our days with agony, anxiety and pain …..etc. etc. ”
The fact remains that the Landowner being a 'consumer' within the meaning of Section 2(1)(d) of the Act hired the services of the Developer. It is well settled that after executing an agreement for development, it is bounden duty on the part of developer to fulfil basic obligations, viz. to deliver possession and to obtain completion certificate from the competent authorities. Therefore, the OP is deficient in rendering services to the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Consumer Protection Act. If there is a breach by the builder who undertakes certain obligations towards the landowners, breach of which would furnish a cause of action for specific performance and/or damages. It is undisputed proposition of law that the parties are bound by the terms of agreement. They are certainly bound to follow the terms and conditions as contained in the agreement. Where the builder commits breach of his obligations, the landowner has two options i.e. right to enforce specific performance and/or claim damages by approaching the Civil Court or can approach the Forum under Consumer Protection Act for relief as consumer against the builder as a service provider.
In the original petition as well as in evidence, the complainant has vehemently contested and adduced evidence stating inter alia that the OPs certainly got illegal sanction of further floors, over and above G+4 building (point 11 page 5’ point 12 page 6) having no scope to complete the building within 5 years of sanction period of plan thereby violating the rules. In this case, there is no cogent evidence in the form of sanctioned or approved plan or any other equivalent document filed by the Complainant to prove the bonafide in support of the G+4 building having municipal or local town planning authority’s sanction. In absence of the same, it is next to impossible to assess whether the sanctioned municipal plan of G+4 building is valid on date or has expired due to efflux of time, since more than 5 years have elapsed after sanction. Building rules or Municipal rules are independent under the Law and Rules framed thereunder, granting sanction as a statutory function with powers conferred upon the statutory authorities under the said Act and Rules. Such rules and acts are self-contained, appealable and revisable under the statute. But the inter-se dispute between the landowners and the developer cannot be permitted to be used as a ploy to wriggle out of their obligations under the Laws. As an agreement for development is executed between the landowners and the builder has failed to comply with the same towards the landowners, hence the landowner is entitled for damages for deficiency of services under the scopes and meaning of the Consumer Protection Act.
Thus, based on the facts and circumstances stated above, the complaint petition is allowed ex-parte with cost against OPs.
It is, hence, ordered that:-
OP1 and OP2, jointly and severally are directed hand over the possession of scheduled property in compliance of the development agreement to the complainants after completing construction and making it in habitable condition within 180 days from the date of this order. The OPs are further directed to make payment of Rs.1, 00,000/- to the complainants as compensation for mental pain and harassment since last 3 years along with a litigation cost of Rs.25, 000/- within 60 days from the date of this order in default of which the amount will carry simple interest @ 9% per annum from date of this order till it’s complete realisation.
All the payments are to be made by the OP1 and OP2 @ 50% to each of the complainant no 1 and complainant no 2 separately.
In case of default in making the payments within stipulated period, the Complainants will be at liberty to put the entire order/decree in execution as per provisions of law.
Let a plain copy be given to both parties free of cost as per CPR.
Dictated and Corrected by
[HON'BLE MR. Partha Kumar Basu]
MEMBER
