In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/31/2021

Date of filing: 15/02/2021.                     Date of Final Order: 15/12/2023.

1. Samiran Nandi,

s/o Shri Madan Mohan Nandi,

r/o Village: Rajbalhat (Mansatala),

Post: Rajbalhat, P.S. Jangipara,

Dist. Hooghly, West Bengal: 712408.

2. Kuntal Nandi,

s/o Shri Madan Mohan Nandi,

r/o Village: Gopalpur,

Post: Noley, P.S. Madhabdihi,

Dist. Burdwan, West Bengal: 713424.

3. Aparna Gupta,

w/o Shri Tapas Gupta,

r/o 27, Nilmoni Som Street, Post-Bhadrakali,

P.S-Uttarpara Dist-Hooghly West Bengal:712232.

4. Falguni Kumar Golui,

s/o Late Sanat Kumar Golui,

r/o Kulti Birla Road, Post % P.S. Kulti,

Dist. West Burdwan, West Bengal: 713343.

5. Koushik Koner,

s/o Shri Jagabandhu Koner,

r/o Village: Debogram, Post: Kurmum,

P.S. Bardhaman Sadar, Dist: Burdwan

West Bengal: 713102.

6. Sandip Kumar Sadhu,

s/o Late Ananda Kumar Sadhu,

r/o 8/15, Arya Bhatta Road,

Post: B-Zone, P.S. Aurobinda,

Dist. Burdwan, West Bengal: 713205.

7. Tandrima Chakraborty,

w/o Shri Sandip Kumar Sadhu,

r/o Joydol Apartment, Flat no. 403,

Bishnu Rabha Path, Post: Beltola,

P.S. Basistha, Dist. Kamrup (Metro),

Assam: 781028.

8. Abha Mondal,

w/o Late Bablu Mondal,

r/o Chandrakole-6, Flat no. C-103,

Post: Bhadrakali, P.S. Uttarpara,

Dist: Hooghly, West Bengal: 712232.

9. Shubhankar Das,

s/o Shri Uttam Das,

r/o 21, Pan Para Lane,

Post: Bhadrakali, P.S. Uttarpara,

Dist: Hooghly, West Bengal: 712232.Complainants.

Vs

1. M/S R.B.M Construction

Office-96/2, Nilmoni Some Street, Post-Bhadrakali,

P.S-Uttarpara Dist-Hooghly Pin-712232.

Represented by one of its partner

Bablu Roychowdhury,

s/o Late PhaniBhuson Roychowdhury,

r/o 96/2, Nilmoni Some Street, Post-Bhadrakali,

P.S-Uttarpara Dist-Hooghly Pin-712232.

2. Sushil Kumar Singh

S/o Sri Raghubansh Kumar Singh,

38, Benepukur Dhar, Post-Makhla,

P.S-Uttarpara Dist-Hooghly Pin-712245.

3. The Chairman

Uttarpara-Kotrung Municipality

Office-New G.T. Road, Post & P.S-Uttarpara,

Dist-Hooghly, Pin-712258.

                                                                                   Opposite Parties.

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                           Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35(1) (a) of the Consumer Protection Act, 2019 by the complainant stating that on 24.05.2016  the OP-2 being the landlord entered into and executed a registered development agreement cum general power of Attorney with the OP-1 that was registered in the office of the Additional District Sub-Registrar, Uttarpara and recorded in Book no.1 volume no.0621-2016, pages from 47457 to 47496, being no.062101867 for the year 2016 in relation tone viti land measuring about 12 cottahs 10 chitaks 02 sq. ft. more or less comprised in R.S Dag no.2549 appertaining to R.S Khatian no.1433 corresponding to L.R. Dag no. 4394 appertaining to L.R. Khatian no. 10159 under Mouza bhadrakali, J.L no.9 within the ambit of Uttarpara Kotrung Municipality ward no.9 Holding no.35 on Pan para lane under police Station : Uttarpara Dist-Hooghly.

After the execution of the said development agreement dated 24.5.2016 the OP-1 applied before the competent authority in relation to sanction of building construction plan and the Uttarpara Kotrung Municipality i.e. OP-3 was pleased enough to sanction the plan vide registration no.339 dated 25.3.2017. It appears from the said sanctioned plan, Chandraloke-6 has two residential towers, namely Block A&B Block :B at a distance of 39 feet from each other, to be constructed over the viti land measuring about 12 cottahs 10 chittaks 02 sq. ft. more or less comprised in R.S Dag no.2549 appertaining to RS Khatian no.1433 corresponding to L.R Dag no.4394 appertaining to L.R Khatian no.10159 under Mouza-Bhadrakali J.L no.9 within the ambit of Uttarpara kotrung municipality ward no.9 Holding no.35 on Pan para lane under police station-Uttarpara Dist-Hooghly.

*On 12.07.2019,15.2.2020, April,2018, May 2018,September,2018, March, 2018, March,2018, the OP-1 entered into agreement for sale with complainant nos.1,2,3,4,5,6,and 7 respectively vide Notarial Agreement dated 16.7.2019,20.2.2020,30.4.2018,16.5.2018,22.10.2018,29.3.2018 and 29.3.2018.

After receiving the entire consideration amount of Rs.3367750/- only from the complainant-1 in connection with flat being no.B-103 measuring about 1061 sq. ft super built up area on the first floor of Block-A with one open car parking space of 170 sq.ft. super built up area constructed on the Viti land measuring about 12 Cottahs 10 Chittaks 02 sq. ft. more or less comprised in R.S Dag no.2549 appertaining to R.S Khatian no.1433 corresponding to L.R Dag no.4394 appertaining to L.R Khatian no.10159 under Mouza Bhadrakali, J.L no 9 within the ambit of Uttarpara kotrung Municipality ward no.9, Holding no.35 on Pan para Lane under police station Uttarpara, Dist-Hooghly the Op-1 executed one deed of sale on 2.9.2019 in the office of Additional District Sub-Registrar, Uttarpara and recorded in Book no.1, Volume No.0621-2019, pages from 113694-113737, being no.062103547 for the year 2019.

After receiving the entire consideration amount of Rs.2578500/- only from the complainant no. 2 in connection with flat being no.B-102 measuring about 955 sq.ft super built up area on the 1^st  floor of Block:A constructed on the Viti land measuring about 12 Cottahs 10 chittaks  02 sq.ft. more or less comprised  in R.S Dag no.2549 appertaining to R.S Khatian no.1433 corresponding to L.R dag no.4394 appertaining to L.R Khatian no.10159 under Mouza Bhadrakali, J.L no.9 within the ambit of Uttarpara kotrung municipality ward no.9 Holding no.35 on Pan Para Lane under police station Utarpara, Dist-Hooghly, the OP-1 executed one deed of sale on 15.10.2020 in the office of  Additional District Sub-Registrar, Uttarpara and recorded in Book no. I, Voumeno.0621-202 pages from 134008-134053 being no.062103299 for the year 2020.

*After receiving the entire consideration amount of Rs.1875000/-  only from the complainant no.3 in connection with flat being no.C-104 measuring about 750 sq. ft. super built up area on the second floor of block A  constructed on the Viti and measuring about 12 cottahs 10 chitaks 02 sq ft. fore or less comprised in R.S dag no.2549 appertaining to R.S Khatian no.1433 corresponding to L.R dag no.4394 appertaining to L.R khatian no.10159 under Mouza Bhadrakali, J.L no.9 within the ambit of UttarparaKotrung Municipality ward no.9 Holding no.35 on Panpara lane under police station Uttarpara Dist-Hooghly the OP-1 executed one deed of sale on 21.11.2019 in the office of Additional District Sub-Registrar, Uttarpara and recorded in Book no. I, Volume no.0621-2019 pages from 154016 to 154058 being no.062104603 for the year 2019.

After receiving the entire consideration amount of Rs.2652500/- only from the complainant no-4 in connection with flat being D-103 measuring about 1061 sq.ft. super built up area on the 3^rd floor of Block-A constructed on the viti land measuring about 12 Cottahs 10 Chittaks 02 sq. ft more or less comprised in R.S Dag no.2549 appertaining to R.S.Khatian no.1433 corresponding to L.R. dag no.4394 appertaining to L.R Khatian no.10159 undedr Mouza Bhadrakali, J.L no.9 within the ambit of UttarparaKotrung Municipality Ward no.9, Holding No.35 on Panpara Lane under police station-Uttarpara, Dist-Hooghly the OP-1 executed one deed  of sale on 07.08.2019 in the office of Additional District Sub-Registrar, Uttarpara and recorded in Book No.I, Volume no.0621-2019, pages from 102240 to 102279, being no-062103101 for the year 2019.

After receiving the entire consideration amount of Rs.19,50,000/- only from the complainant no-5 in connection with flat being B-104 measuring about 750 sq.ft. super built up area on the 1^st  floor of Block-A constructed on the viti land measuring about 12 Cottahs 10 Chittaks 02 sq. ft more or less comprised in R.S Dag no.2549 appertaining to R.S. Khatian no.1433 corresponding to L.R. dag no.4394 appertaining to L.R Khatian no.10159 undedr Mouza Bhadrakali, J.L no.9 within the ambit of UttarparaKotrung Municipality Ward no.9, Holding No.35 on Panpara Lane under police station-Uttarpara, Dist-Hooghly the OP-1 executed one deed  of sale on 26.7.2019 in the office of Additional District Sub-Registrar, Uttarpara and recorded in Book No. I, Volume no.0621-2019, pages from 96403to 96443 being no-062102908 for the year 2019.

After receiving the entire consideration amount of Rs.27,39,750/- only from the complainant no-6 in connection with flat being C-102 measuring about 955 sq.ft. super built up area on the 2^nd  floor of Block-A  with one open car parking space of 170 sq.ft. super built area constructed on the viti land measuring about 12 Cottahs 10 Chittaks 02 sq. ft more or less comprised in R.S Dag no.2549 appertaining to R.S. Khatian no.1433 corresponding to L.R. dag no.4394 appertaining to L.R Khatian no.10159 undedr Mouza Bhadrakali, J.L no.9 within the ambit of UttarparaKotrung Municipality Ward no.9, Holding No.35 on Panpara Lane under police station-Uttarpara, Dist-Hooghly the OP-1 executed one deed  of sale on 26.7.2019 in the office of Additional District Sub-Registrar, Uttarpara and recorded in Book No. I, Volume no.0621-2019, pages from 93618-29658, being no-062102905 for the year 2019.

After receiving the entire consideration amount of Rs.2421250/- only from the complainant no-7 in connection with flat being C-101 measuring about 825 sq.ft. super built up area on the 2^nd floor of Block-A with one open car parking space of 170 sq.ft. super built area constructed on the viti land measuring about 12 Cottahs 10 Chittaks 02 sq. ft more or less comprised in R.S Dag no.2549 appertaining to R.S. Khatian no.1433 corresponding to L.R. dag no.4394 appertaining to L.R Khatian no.10159 undedr Mouza Bhadrakali, J.L no.9 within the ambit of UttarparaKotrung Municipality Ward no.9, Holding No.35 on Panpara Lane under police station-Uttarpara, Dist-Hooghly the OP-1 executed one deed  of sale on 26.7.2019 in the office of Additional District Sub-Registrar, Uttarpara and recorded in Book No. I, Volume no.0621-2019, pages from 93551-93591, being no-062102909 for the year 2019.

After receiving the entire consideration amount of Rs.28,75,864/- only from the complainant no-8 in connection with flat being C-103 measuring about 1061 sq.ft. super built up area on the 2^nd floor of Block-A with one open car parking space of 170 sq.ft. super built area constructed on the viti land measuring about 12 Cottahs 10 Chittaks 02 sq. ft more or less comprised in R.S Dag no.2549 appertaining to R.S. Khatian no.1433 corresponding to L.R. dag no.4394 appertaining to L.R Khatian no.10159 undedr Mouza Bhadrakali, J.L no.9 within the ambit of UttarparaKotrung Municipality Ward no.9, Holding No.35 on Panpara Lane under police station-Uttarpara, Dist-Hooghly the OP-1 executed one deed  of sale on 26.6.2020 in the office of Additional District Sub-Registrar, Uttarpara and recorded in Book No. I, Volume no.0621-2019, pages from 62657-62698, being no-062101764 for the year 2020.

After receiving the entire consideration amount of Rs.46,0000/- only from the complainant no-9 in connection with flat being A-101 measuring about 490 sq.ft. super built up area on the ground floor of Block-A constructed on the viti land measuring about 12 Cottahs 10 Chittaks 02 sq. ft more or less comprised in R.S Dag no.2549 appertaining to R.S. Khatian no.1433 corresponding to L.R. dag no.4394 appertaining to L.R Khatian no.10159 undedr Mouza Bhadrakali, J.L no.9 within the ambit of UttarparaKotrung Municipality Ward no.9, Holding No.35 on Panpara Lane under police station-Uttarpara, Dist-Hooghly the OP-1 executed one deed  of sale on 26.6.2020 in the office of Additional District Sub-Registrar, Uttarpara and recorded in Book No. I, Volume no.0621-2020, pages from 62699-62739, being no-062101766 for the year 2020.

After purchasing the aforesaid units from the OP-1 the complainants started living there and difference of opinions cropped up in between the complainants in respect of respective car/scooter parking.  After heated arguments and altercations with each other, the complainants came to understand that the OP-1 had made them fool by selling the open parking space without demarcations and numberings.  The complainants came to know the illegalities and irregularities of the OP-1.  As mentioned earlier Chandraloke-6 has two residential towers, namely Block-A & Block B at a distance of 39 feet from each other but in actual practice the difference between two blocks is 12 feet only.  That extra vacant space has been utilized by the Op-1 by way of extension of the floor area of Block-A & Block :B beyond the permissible limits in order to fetch more money from the buyers.  This is nothing but a gross violation of sanctioned Plan.

It is evident that entire ground floor of Block-A & Block-B consists of several open car parking space but all of a sudden the OP-1 converted the area of 4 open car parking space into 4 covered garage on the ground floors commercial space on the eastern side of block-B facing Municipal Road for its excess monetary gain.  The complainants vehemently objected such illegal and unauthorized activities of the Op-1 but all were in vain.

The complainants lastly approached the Op-1 in connection with the mutation of their respective residential unit alongwith respective open car parking space, in Uttarpra kotrung municipality i.e. OP-3 but the Op-1 refused to hand over the copies relating to building completion certificate to be issued by the Utarpara kotrung municipality in favour of the OP-1.

The complainant -1 filed an application under section 6(1) of the right to information act, 2005 through his advocate on 21.12.2020 before the competent authority of the OP-3 and the said application was duly acknowledged by the said op-3 and the complainant-1 received a response from the competent authority to the effect that there is neither any completion certificate with regard to the above mentioned project nor any revised plan has been sanctioned till today.

Complainant filed the complaint petition praying direction upon the opposite parties to hand over the copies relating to building completion certificate to be issued by op no. 3 in favour of the op no. 1 and to remove the nuisance created by way of converting the area of 4 open car parking spaces into 4 covered garage/ shop/ godown(s) on the ground floor as commercial spaces on the eastern side of block B and pay a sum of Rs. 4,00,000/- with interest @ 18% with effect from 15.12.2020 as compensation on account of mental agony, pain, anxiety and unnecessary harassment and to pay a sum of Rs. 35,000/- as litigation cost.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the municipality ought to have prevented the OP-1 from completion of the building.  The OP-1 further states that in the agreement for sale there was no whisper that the op-1 has registered itself under the said “HIRA ACT” nor they have given any notice for registering the name of the OP-1 under the said act, rather choose to get their properties registered in their names.  The complainants are not deprived in any manner for non-registration oftheOP-1 under the said act.  Accordingly the complainant’s allegation of non-registration under the said act does not came under the preview of the consumer protection act as in no way the complainants could establish that they have been deprived from peaceful enjoyment of their flat.   In no way the complainants are able to proof that they are being deprived by the developer  from enjoying their respective flats and garages.  The minor differences and disputes between the complainants and the OP-1 can be solved mutually.  As such the instant complaint be dismissed in-limini with cost in favour of theOP-1.   

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

All the points of consideration and / or issues adopted in this complaint case are interlinked and / or inter-connected with one another and for that reason and also for the interest of conveyance of discussion all the above noted points of consideration are clubbed together and taken up for discussion jointly.

Over this issue this District Commission after going through the material of this case record finds that this complaint case has been filed by more than one complainants and this case has been filed under section 35(1) (a) of the Consumer Protection Act, 2019 but fact remains that no permission petition for filing this case jointly has been filed by the complainants.  This District Commission has also not granted any permission to the complainants to file this case jointly.  For all these reasons this case has been filed in defective way and so this case is not maintainable.

More so in this complaint case nine complainants have filed the complaint case in respective of nine flats of Chandraloke-Six Appartment situated at ward no.9, Holding No.35 at Panpara Lane, P.S-Uttarpara, Dist-Hooghly and total value of the said flats is of Rs.20920614/-.  This matter is clearly indicating that this District Commission has no pecuniary jurisdiction to try this case.  So this case is also not maintainable.

After making scrutiny of the material of this case record it is reflected that the complainants adopted the plea that the OPs have made illegal construction by violating the sanction plan which has been issued from Uttarpara and Kotrong Municipality.  But in this regard it is vital to note that the complainants for the purpose of proving this issue have not submitted any prayer for conducting local inspection commission or local investigation commission.  Thus it is crystal clear that the complainants have failed to prove their case of illegal construction.

A cumulative consideration of the above noted discussion goes to show that this case is not maintainable; this District Commission has no jurisdiction to try this case and the complainants have also failed to prove their case.

In the result it is accordingly,

ordered

that the complaint case be and the same is dismissed on contest.

No order is passed as to cost.

Let a copy of this judgment be handed over to the parties of this case at free of cost as early as possible.

Let this judgment / final order be uploaded in the official website in the DCDRC, Hooghly.