The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the opposite parties to impeach the judgment/final order dated 26th September, 2016 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (in short ‘Ld. District Forum’) in Consumer Complaint No. 252/2015. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent Smt. Bijoli Chakraborty under Section 12 of the Act on contest with certain directions like –
(i) Complete electric wiring and fittings inside the flat of the complainant which should be run to the common meter board position in the ground floor wherefrom complainant will take electric connection by paying electric charges to the CESC authority;
(ii) Sewerage and drainage pipeline of the flat should be provided which will be fitted with the pit as well as the drain so that outlet of the water can be drained out properly including from the toilet;
(iii) The kitchen has to be arranged providing marble slab, sink as well as up to 3 ft. in the wall of the kitchen area has to be covered by glazed tiles;
(iv) Bathroom windows have to be provided and front door has to be polished with key (latch).
O.P. Nos. 1, 1(a) and 1(b) are also directed jointly and/or severally to pay compensation to the tune of Rs. 2,00,000/- for the mental agony and harassment suffered by the complainant for not using properly the flat in spite of full payment and to pay Rs. 20,000/- towards litigation cost to the complainant.
All the above orders have to be complied with within 45 days from the date of this order.
The O.P. Nos. 1, 1(a) and 1(b) are jointly and severally directed to hand over the Completion Certificate of the building to the complainant within three months from the date of this order, failing which punitive damage will be charged to be tune of Rs. 100/- per day for the failure in compliance of the orders after the stipulated period of three months from this date to till its compliance and that amount has to be deposited in the fund of Consumer Legal Aid Fund to assist the poor consumer at large.
Complainant is at liberty to file execution case mentioning that non-supply of the Completion Certificate and for non-completion of the other orders and the executing Bench will consider the same in accordance with law as to whether O.Ps have taken any initiative for obtaining Completion Certificate within the span of 3 months or not.
The respondent herein being complainant lodged the complaint before the Ld. District Forum asserting that on 14.03.2015 she entered into an agreement for sale with the opposite party nos. 1 to 3 i.e. developer/builder and its two partners to purchase of a self-contained flat measuring about 500 sq. ft. super built-up area on the 1st floor lying and situated at Premises No. 13, Baikuntha Ghosh Road, P.S.- Kasba, Kolkata – 700042 within the local limits of Ward No. 91 of Kolkata Municipal Corporation at a total consideration of Rs. 8,00,000/-. In accordance with the terms of the said agreement, the opposite parties executed a Deed of Conveyance on 24.03.2015 and handed over possession of the flat to the complainant without completing the basic amenities like – (a) electric meter; (b) completion of electric wiring and fittings; (c) water distribution system with fittings in toilet; (d) sewerage and drainage pipelines of the building including providing commode in privy; (e) completion of kitchen including providing marble slab and kitchen sink; (f) completion of the doors and windows of flat; (g) polishing or coloring main entrance door of the flat including providing lock (latch) and (h) building Completion Certificate. In this regard, all the requests and persuasions including legal notice dated 06.05.2015 went in vain. Hence, the respondent approached the Ld. District Forum with prayer for providing the basic amenities and facilities as mentioned above, an order directing the opposite party nos. 2 and 3 to provide free access to the meter board of the premises enabling the complainant to install her new electric meter, an order directing the opposite parties to pay compensation of Rs. 2,00,000/- and litigation cost of Rs. 20,000/- etc.
The appellants being opposite parties by filing a joint written version have stated that on 24th March, 2015 they sold out the flat in question to the complainant as is where is basis and deliver peaceful vacant possession on the self-same date at a price of Rs. 8,00,000/-. The opposite parties have stated that in the registered Deed of Conveyance there was no whisper that they will complete the construction of the flat for sale of the said flat to the complainant. It has also been stated that there was no stipulation that the opposite parties will hand over the Completion Certificate/Occupancy Certificate to the complainant. The opposite parties have stated that the claim of the complainant is beyond the terms and conditions of the registered Deed of Conveyance dated 24.03.2015 and thus, the same is not tenable in the eye of law.
After evaluation of materials on record, the Ld. District Forum by the impugned judgment/final order allowed the complaint with certain directions upon the O.P. Nos. 1, 1(a) and 1(b) i.e. appellant nos. 1 to 3 herein with certain directions as indicated above. To assail the said order, the opposite party nos. 1, 1(a) and 1(b) have come up in this Commission with the present appeal.
Mr. Avijit Bhuina, Ld. Advocate for the appellants has submitted that the complainant/respondent purchased the flat on 24.03.2015 ‘as is where is basis’ and a Deed of Conveyance being executed in favour of the respondent and the respondent got possession of the flat through a possession certificate. Ld. Advocate for the appellants has also submitted that the respondent has suppressed the agreement for sale dated 14.03.2015 before the Ld. District Forum and obtained the order. According to the Ld. Advocate for the appellants, the agreement for sale between the parties dated 14.03.2015 is the basis of the lis and as the order was passed without perusal of the said agreement, the impugned order is bad in law and liable to be set aside.
Per contra, Mr. Barun Prasad, Ld. Advocate being assisted by Mr. Sovanlal Bera, Ld. recorded Advocate has contended that when the Deed of Conveyance has already been executed between the parties and in the said Deed of Conveyance the developer/builder was under obligation to provide the flat of undivided proportionate share in the said land including all fittings, fixtures, structure, right, liberties, privileges, with all easement rights whatsoever there is and all common rights, utilities etc., including KMC water, electricity, the Ld. District Forum was quite justified in passing the order impugned and the said order should not be interfered with.
I have given due consideration to the submission advanced by the Ld. Advocates appearing for the respective parties and travelled through the documents available with the record.
The materials on record indicate that appellant nos. 4 & 5 viz- Shri Gobinda Chandra Pal and Tarak Chandra Pal were the owners of a piece of land measuring about 4 cottahs 5 chittaks 23 sq. ft. more or less with standing structure thereon lying and situated at Premises No. 13, Baikuntha Ghosh Road, P.S.- Kasba, Kolkata – 700042 within the local limits of Ward No. 91 of Kolkata Municipal Corporation. On 10.07.2014 the appellant nos. 4 to 5 had entered into an agreement with appellant no. 1 a construction firm represented by appellant nos. 2 & 3 being partners of the said firm. On that date the appellant nos. 4 & 5 have also executed a General Power of Attorney in favour of the developer for raising construction of multi-storied building thereon.
Accordingly, the developer had obtained a sanctioned plan for construction of a G+3 storied building from the Kolkata Municipal Corporation vide Building Permit No. 176 dated 15.10.2009. It is also evident that on 14.03.2015 the developer had entered into an agreement with the respondent to sell one self-contained flat measuring about 500 sq. ft. super built-up area on the 1st floor in the said premises at a total consideration of Rs. 8,00,000/-. Basing upon the said agreement, the Sale Deed has been executed on 24.03.2015 and possession of the flat was duly delivered to the respondent on that date.
Now, the whole dispute cropped up for non-existence of the required facilities like electricity, water etc. To ascertain the alleged deficiencies, a Commissioner was appointed by the Ld. District Forum. The Ld. Commissioner after holding inspection work in presence of the parties or through their Ld. Advocates has held inspection and submitted a report and the report submitted by the Ld. Commissioner speaks follows:
(i) On left side at the entrance of the building a cage made of iron grill consisting of some meters are found under lock but there is no separate meter room. No meter in the name of Smt. Bejoli Chakraborty complainant has been installed and it has been reported that an application has been made by herself for meter; (ii) Electric wiring and fittings in the flat in question have not been provided and no electric connection exists; (iii) now alter distribution system in the flat has been provided and as such no water is coming in. It is pointed out by the landowner, O.P. No. 2 Gobinda Chandra Paul that water tank and reservoir are of insufficient capacity and one pump machine has been installed for that purpose of supply of water to other flat owners/occupiers; (iv) one commode is found (English type) but without water supply connection and even no other fittings. Only some points are evidence. There is lacking of processing to pass night soil to sewerage and pipes from flat to pit are missing and/or not installed; (v) sewerage and drainage pipe lines of the building including report on plumbing work are poor as reported but the landowners, O.P. No. 2 but there is no sewerage and drainage pipe lines, incomplete plumbering work; (vi) there is no existence of any kitchen in the flat; (vii) door is fitted in the room but no door on the entrance in the bath room/toilet is found, sliding window are there in the flat but no window in the bathroom; (viii) no coloring on the door, only batch is there put by the complainant but there is no lock(latch).
Regarding non-availability of the agreement for sale, the Ld. District Forum has observed-
“Again we turn our eyes on the deed of conveyance and found that the O.Ps have given the right to use and occupy the said flat as on absolute ownership basis along with right to use of common parts and areas of the premises together with undivided proportionate share in the said land including all fittings, fixtures, structures, privilege with all easement right whatsoever therein and all common right, utilities, amenities, paths, main gate, entrance in the common area and common walls whatsoever belonging to the said flat no. G+3 storied building (last part of page no. 9 continued to page no. 10). So, until and unless the said amenities, fittings, fixtures, light, utilities and amenities is being provided and constructed, as the case may be, how the complainant will use the same. This is a pertinent point to be considered in this case, nothing more nothing less.
Apart from that, in page no. 10 it has specifically mentioned that the purchaser will enjoy the undivided uninterrupted supply of electricity and water to be provided in the said flat and in the said building and common electric meter for the purpose of running water pump and lighting the stair case or other common parts in the said building”.
On scrutiny, I find substance in the observation of the Ld. District Forum because when the appellants/developer promised to provide the facilities or amenities like electricity or water etc. they are under obligation to fulfil their promise. Again on going through the recital of the Deed of Conveyance, I do not find any whisper as to sale out the flat on ‘as is where is basis’. Therefore, on a mere surmise or conjecture it cannot be said that the flat in question was sold out as is where is basis at the rate of Rs. 8,00,000/- instead of Rs. 16,00,000/- and to that effect no evidence is forthcoming.
On behalf of the appellants, it has been stated that in the Deed of Conveyance there was no stipulation that the developer will bring Completion Certificate/Occupancy Certificate from the Corporation. Such a submission also does not appear to be acceptable because it is well settled that after accepting the entire consideration amount as per terms of the agreement, the developer is under obligation to – (a) deliver possession; (b) execute and register the Sale Deed and (c) obtain Completion Certificate/Occupancy Certificate from the Kolkata Municipal Corporation. This obligation is a statutory obligation and the developer cannot absolve their responsibility simply on the ground that there is no agreement to that effect. The developer themselves had obtained building sanctioned plan from the Kolkata Municipal Corporation and as such it is there liability to construct the building in accordance with the sanctioned building plan obtained from K.M.C. and thereafter to obtain Completion Certificate/Occupancy Certificate and to hand over an authenticated copy to the buyer in order to enable him/her to mutate his/her name in the Assessment Register of the Corporation.
Considering all the above and having due regard to the submission advanced by the Ld. Advocates appearing for the parties, I find that the Ld. District Forum did not commit any error by allowing the complaint in favour of the respondent. However, only 45 days has given by the Ld. District Forum to complete the entire works may perhaps not be appropriate on the part of the developer and as such I feel at least 90 days should be given to the developer to complete the incomplete works of the flat.
However, there is no reason assigned by the Ld. District Forum as to why a compensation of Rs. 2,00,000/- has been awarded, more particularly when the Deed has already been executed and possession has already been delivered on 24.03.2015. However, as there are so many shortcomings in the construction including non-construction of kitchen and non-providing of basic amenities like electricity or water, it is quite difficult for the respondent to reside in the said property and considering the same I think instead of compensation of Rs. 2,00,000/-, a compensation in the form of simple interest @ 8% p.a. from the date of execution of Deed of Conveyance or delivery of possession i.e. from 24.03.2015 till the date of completion of incomplete works will meet the ends of justice.
Ld. District Forum has also imposed punitive damage @ Rs. 100/- per day for non-compliance with the order. However, I do not find any averment in the petition of complaint or any prayer of punitive damages in the prayer clause of the petition of complaint. Needless to say, fair procedure is the hallmark of natural justice and an affected party must have right to get an opportunity to answer the allegation. Therefore, when there is no averment in the pleadings as to punitive damage, the order of punitive damage of Rs. 100/- per day should be set aside. However, the litigation cost of Rs. 20,000/- imposed by the Ld. District Forum should not be interfered with.
In view of the above discussion, I dispose of the appeal with the following directions:
(i) The appellant Nos. 1 to 3/O.P. Nos. 1, 1(a) & 1(b) to provide all the assured amenities and facilities as stated in Paragraphs- 8(a) to 8(h) of the petition of complaint within 90 days from date and also to provide completion certificate within 30 days therefrom i.e. within 120 days from date.
(ii) The appellants/Opposite Party Nos. 2 & 3 to provide free access to the meter board of the premises enabling the Respondent/Complainant to install her new electric meter;
(iii) The Appellant Nos. 1 to 3/O.P. Nos. 1, 1(a) & 1(b) are directed to pay compensation in the form of simple interest @ 8% p.a. over the amount of Rs. 8,00,000/- from 24.03.2015 till the date of obtaining Completion Certificate from the Kolkata Municipal Corporation.
(iv) However, the amount of litigation cost of Rs. 10,000/- awarded by the Ld. District Forum will remain undisturbed.
(v) In view of the above, IA/101/2017 whereby the Respondent/Complainant has made a prayer for direction upon O.Ps/Appellants to remove the padlock affixed in the grill meter does not call for any separate order and stands disposed of.
The Registrar of the Commission is directed to send a copy of the order to the Ld. the District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur for information.
