Judgment : Dt.23.2.2017

            This is a complaint filed by Rajat Saha, Siba Prasad Saha, Deba Prasad Saha, all sons of Late Samarendra Prosad Saha, residing at 87/12/212-D, Raja Subodh Chandra Mullick Road, P.S.- Netaji Nagar, Kolkata-700 047 against (1) M/s Peekay Corporation, OP No.1, (2) Sri Pradip Kar Chaudhuri, OP No.2 and (3) Sri Arabinda Chatterjee, son of Late Kali Charan Chatterjee, both are partners of M/s Peekay Corporation, having office at 23/17, Gariahat Road, P.S.- Lake, Kolkata-700 029, praying for direction upon the OPs to complete the works in terms of the sanctioned plan being permit No.229 and in terms of the agreement dt.23.2.2005 and supplementary agreement dt.30.5.2007 and to pass an ad-interim order upon the OPs to install a lift in terms of the sanctioned plan and to direct the OPs to vacant the pump room as shown in the plan and also a direction to hand over all the papers relating to sanction of sewerage, water supply, amalgamation of two plots and pay compensation of Rs.15,00,000/- and litigation cost of Rs.10,000/-.

            Facts in brief are that Complainants are the joint owners of the landed property and OPs have constructed and developed a building at 87/12/212-D, Raja Subodh Chandra Mullick Road, Kolkata-700 047. OPs entered into a joint venture agreement on 23.2.2005 and supplementary agreement on 30.5.2007 on behalf of OP No.1, M/s Peekay Corporation with the Complainant and other two owners namely Gunendra Prasad Saha and Dipendra Prasad Saha for construction and development of a multi storied building at 87/12/212-D, Raja Subodh Chandra Mullick Road.

            Complainant with two other owners executed a general power of attorney on 23.2.2005. The building plan was sanctioned by the Kolkata Municipal Corporation on 30.11.2017. According to the building plan lift well and lift machine room has been constructed on the roof, but, no lift has been installed in the building. Further, a pump room has been shown in the ground floor near the garage. But, in the building plan the said pump room has been shown as developer’s room. The pump room is within the common area but it is illegally converted to the developer’s room. The papers in connection with sanction of sewerage, water supply and other facilities were not provided to the Complainant. So, Complainant filed this case.

            OPs filed written version and denied the allegations of the complaint petition. Further, OPs have not specifically denied the allegation of the complainant and have prayed for dismissal of this complaint.

Decision with reasons

            Complainant filed evidence on affidavit wherein they have reiterated the facts mentioned in the complaint petition. OPs filed questionnaire against the affidavit-in-chief of the Complainant. Complainant has replied to the questionnaire of the OPs, wherein they have stated that they received the possession of the flat, but, not as per sanctioned plan. They have further stated that the manipulation has been made in the construction of the building and there is discrepancy with the sanctioned plan. OP No.1 filed affidavit-in-chief wherein he has reiterated the facts mentioned in the written version against which Complainant has filed questionnaires to which OP have replied. Written argument have been filed on behalf of both the sides.

            Main point for determination is whether the Complainant is entitled to the reliefs as prayed for.

            On perusal of the prayer portion of the complaint petition, it appears that the first prayer of the complaint is a direction upon the OP to complete the works in terms of the sanctioned plan, being permit No.229 and in terms of the agreement dt.23.2.2005 and supplementary agreement on 30.5.2007. So, the question arises as to what are the works which were to be done by the OPs in terms of two agreements.

            On perusal of the record, it appears that Xerox copies of the agreement has been filed where certain terms are mentioned in respect of these terms and conditions and it is clear that these are subject to the approval of the plan sanctioned by the Kolkata Municipal Corporation. If the terms and conditions are not approved by the Kolkata Municipal Corporation, the question of construction of the building as per the terms of the agreement both original and supplementary agreement does not arise . Complainant has not specifically mentioned in his complaint as to what OPs did not make or completed in terms of the sanctioned plan. As such, in absence of the specific averment this Forum cannot arrive at a decision that OPs did not complete the works in terms of the sanctioned plan and also in terms of the agreement. As such, this prayer cannot be allowed.

            Second prayer of the Complainant is for interim order upon the OP No.2 & 3 to install a lift in terms of the sanctioned plan. OP No.2 & 3 are the competent authority of OP No.1. It is the allegation of that Complainant that lift has not been installed as per sanctioned plan. The Complainant has filed the copy of the sanctioned plan. Further, it is not clear as to why the lift was not installed. Admittedly, there are other occupiers in the building and except the Complainants who are the owners nobody turned up with any such allegation. On the contrary, it has given by the OPs that they constructed the building as per sanctioned plan and, so, the question of not installing lift does not arise. It is a settled principle of law that if a party alleges something, burden of proving that allegation lies upon him. In this respect the prayer submitted that lift has not been installed. But, that is shown in the sanctioned plan. Now the dispute has been raised by the Complainants who are the owners. These Complainants have also stated that there are other owners of the building also. Now, the question is why the other owners of the building did not come forward to show that the lift has not been installed. As such, we are of the view that there is something in between the Complainant and OPs and other owners did not feel aggrieved by such construction. Accordingly, it is clear that Complainants have not laid down their allegations with clean hands and hence this prayer cannot be allowed.

            Third prayer of the Complainant is to handover the papers of sanctioned plan of sewerage, water supply and amalgamation of two plots and also for vacating the pump room. In this respect, it is clear that once owner of a land makes agreement with the developer and the developer gets sanction of the plan he is duty bound to hand over the copy of the plan to all the occupiers, whether they are owners  or not. As such, we are of the view that OPs are liable to handover copy of the sanctioned plan reflecting the sewerage, drainage, water supply and other facilities to the owners, if any.

            Finally, Complainant has prayed for compensation of Rs.15,00,000/- and litigation cost. In this regard, it is stated that neither from questionnaire of the both sides and in the reply made by them, it is not clear as to why Complainants are entitled to compensation of Rs.15,00,000/- and also litigation cost. Here it must be added that as per the averment of the complainant there are other owners also who did not come to pray for compensation and also they did not prepare to file any complaint. Accordingly, this prayer cannot be allowed.

            Hence,

ordered

            CC/284/2016 and the same is allowed in part. OPs are directed to handover copies of the sanctioned plan to the Complainants, reflecting the sanction of drainage, sewerage, water supply, etc. as prayed by the Complainant. In respect of other prayers complaint stands dismissed.