This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants that the complainants are the absolute owners of the disputed property by dint of deeds of gift being no. 776 for the year 1972 and being no. 05665 for the year 2004 and for the purpose of development of the scheduled mentioned property by construction of a multistoried building thereon with the help of a financially sound experienced developer as they neither have any experience nor financial capability to raise such multistoried construction, have entered into an agreement with General Power of Attorney has executed on 25/02/2015 by and between the parties at the office of the Additional Dist. Sub-Registrar Serampore, Hooghly as being No. 01634 for the year 2015 and from the aforesaid development agreement dated 25/02/2015 and the original copy of the said document is lying under the possession and custody of the opposite party since the date of registration and that the said Development agreement the owners i.e. the complainants at the last part of December 2016 handed over the possession of the schedule mentioned property within the stipulated time to the Developer for the purpose of construction of multistoried building thereon and accordingly the opposite party being the Developer after getting possession of the property and after obtaining sanctioned plan from the concerned Municipality being Reference No.224/2016-17 dated 26/12/2016 started to raise the multistoried (G+4) building under the name and style Krishna Apartment as its own costs by its appointed architect, masons, laborers etc. and that from the aforesaid development agreement dated 25/02/2015 it will appear that as per the terms of the said agreement the developer, i.e. the opposite party shall bear all the cost of entire construction of the proposed building named Krishna Apartment and for the said investment the developer shall be the exclusive owner of 62% of the constructed area and the owner i.e. the complainants shall get 38% of the constructed area which is entire 2nd floor of the proposed construction of the building to be constructed by the opposite party Developer on the disputed land mentioned in the schedule below with proportionate undivided impart able share of land underneath of the proposed building named Krishna Apartment . It also states here that the schedule mentioned in the schedule A of the aforesaid Development agreement and the area allocated to the complainants as per the said agreement has been specifically mentioned in the schedule of the said Development agreement.
The complainants also state that the opposite party Developer after getting possession of the A schedule mentioned property started to construct multistoried building named Krishna Apartment and in the said registered Development agreement with General Power of Attorney dated 25/02/2015 it has specifically mentioned in clause no. 17 the owners i.e. the present complainants are entitled to get possession of their allocated area i.e. the entire second floor of the constructed area i.e. 38% of the constructed area after handover all relevant original documents to the Developer.
The complainants also state that the owners i.e. the present complainants after completion of the construction of the entire second floor and also after almost completion of the entire construction of the Krishna Apartment asked the Developer i.e. the present opposite party to handover their allocated portion i.e. the present opposite party to hand over their allocated portion i.e. the entire second floor of the multistoried building named Krishna Apartment and handed over all the relevant original documents to the opposite party, but the opposite party Developer flatly refused to hand over the 38% of the total constructed area instead of to handover 38% super built up area and only 15% to 19% of the total construction extra work and for that though he handed over possession of flat no.201, 202, 204 at the second floor of the apartment he most illegally and forcibly kept flat no. 203 under lock and key and did not hand over the possession of the said flat in spite of repeated requests and the aforesaid conducts, acts, activities on the part of the opposite party is nothing but gross violation of the terms of the agreement.
The complainants also state that the opposite party in spite of well aware that the floors of the said flats of the complainant will be made by marble stone slabs but he intentionally made the floors of the flats by ceramic floor tiles instead of marble stone slabs and it also states that he openly threatened the complainants by saying if the complainants do not agree to the terms of opposite party then he will disconnect the water and electric connection of the said flats and also will evict the complainants from the flat under their possession. It also states that presently three flats of the second floor of the apartment are under the possession of the complainants and they are using the same for residential purpose. The opposite party in spite of well aware about the terms of the said Development Agreement intentionally and illegally did not render proper service to the complainants which is nothing but deficiency in service as also unfair trade practice on the part of the opposite party- Developer. It also states that the opposite party declared that he will not issue any possession certificate to the complainants in respect of the aforesaid flats.
The complainants also state that to restrain the opposite party developer from disconnecting the water and electric connection of the flats being Flat No. 201 to 204 at Second Floor of the apartment and from dispossessing the complainants from said flats under the possession of the complainants presently an order of injunction may be passed by the Ld. Forum against the opposite party-Developer.
The complainants also state on several occasions requested the opposite party-developer to hand over the possession of Flat No. 203 as also requested for issuance of possession certificate and to execute and register the deed of conveyance of the said flats but the opposite party remained deaf ear and lastly on 16/12/2017 he declared that unless and until the complaints bend down their heads to his the terms i.e. unless and until the complaints are agreed to receive the 38% super built area instead of 38% of the constructed are and only 15% to 19% of the total construction of extra work he neither will deliver possession of Flat no.203 nor will issue possession certificate of the four flats and will not execute and register the sale deeds of the said flat.
The complainants also state that the unlawful acts, activities and conduct of the opposite party-developer the complainants are passing their days in mental agony and anxiety. The opposite party-developer is bound to comply the terms of the aforesaid development agreement and is bound to hand over the possession of the flats at the second floor i.e. Flat No. 203 including issuance of possession certificate to the said flats i.e. flat no. 201 to 204 to the complainants as also is bound to execute to the complainants as also is bound to execute and register deed of conveyance in respect of the said flats in favour of the complainants and as per the Development agreement the opposite party-developer has no manner of right in respect of the allocated area of the complainants i.e. 38% of the constructed area of the multistoried building named Krishna Apartment and the cause of action of this case first arose on 25/02/2015 and lastly on 16/12/2017.
Complainants filed the complaint petition praying directions upon the opposite party to pass an order to get 38% of the constructed area of the multistoried building named Krishna Apartment within the scheduled mentioned property as their allocation in terms of the registered Development Agreement with General Power of Attorney dated 25/02/2015 and to pass an order directing the opposite party to deliver khas and vacant possession of Flat No.203 of Krishna Apartment in favour of the complainants and also issue/ hand over possession certificates of the Flat Nos. 201 to 204 to the complainants and to pass an order directing the opposite party to pay Rs.50,000/- to the complainants as compensation for mental agony and harassment caused by the opposite party and to pass an order directing the opposite party to pay Rs. 1,00,000/- to the complainants for deficiency in service on the part of the opposite party towards the complainants and to pass an order of injunction restraining the opposite party from creating any disturbance towards the peaceful possession of the Flat No. 201 to 204 including the common areas and common facilities of Krishna Apartment and to pass an order to pay Rs.15,000/- as cost of litigation and to pass an order for any other relief/reliefs which the complainants are entitled in law and equity.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainants in the complaint petition.
Despite receiving notice opposite party did not turn up so the proceeding run ex-parte against him vide order no. 10 dated 06.3.2019.
Complainants filed written notes of argument. The evidence on affidavit and written notes of argument of the complainant are taken into consideration for passing final order.
Argument advanced by the agent of the complainants heard in full.
From the discussion herein above, we find the following issues/points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainants are the ‘Consumers’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the opposite party carried on unfair trade practice/rendered any deficiency in service towards the Complainants?
4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainants are the ‘Consumers’ of the opposite party?
From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainants herein are the consumers of the opposite party, as the complainants being the landowners are possessing the schedule mentioned property and entered into agreement with the opposite party to construct multistoried building and the complainants will get their share as per agreement, so they are entitled to get service from the opposite party as consumers.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainants and opposite parties are residents/having office address within the district of Hooghly. The complaint valued for loss sustained by the complainants and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?
Complainants in their written argument and evidence on affidavit averred that they are the owners of disputed property by dint of gift deed being no.776 of 1972 and being no. 05665 for the year 2004. The complainants during the possession of the said property entered into a development agreement with the opposite party and also executed a general power of attorney on 25.2.2015. As per terms of the said agreement the complainants handed over the possession of the schedule mentioned property to the developer for the purpose of construction of multistoried building thereon and accordingly the opposite party being the developer after getting possession of the property started to raise a multistoried building (G+4) under the name and style Krishna Apartment. As per agreement dt. 25.2.2015 the opposite party shall bear all the cost of entire construction of the proposed building and for the said investment developers shall be exclusive owner of 62% of construction area and the complainants shall get 38% of the construction area which is entire second floor of the proposed construction of the building constructed on the land of the complainants. It is also specifically stated in Clause 17 of the agreement that the owners are entitled to get possession of their allocation area that is the entire second floor of the constructed area after hand over all relevant original documents to the developer. After completion of the construction the opposite party handed over only 15% to 19% of the total construction extra works for that the opposite party handed over the possession of the flats being nos. 201, 202 and 204 at the second floor of the said building. But the opposite party illegally and forcibly kept flat no.203 under lock and key and did not hand over the possession of the said flat inspite of several requests. Apart from that the floors of the flats of the petitioners were constructed by ceramic marble tiles instead of marble stones slab. The opposite party also threatened the petitioners that he will disconnect the water and electric connection of the flats and also will evict the complainants from the possession of the said flats. The petitioners are using three flats for their residential purpose and inhabiting there since delivery of possession. For the above acts of the opposite party the complainants being aggrieved filed the instant complaint before this Forum praying directions as incorporated in the prayer portion of the complaint petition.
Ld. Advocate on behalf of the complainants assailed that the complainants several times requested the opposite party in respect of delivery of possession of flat no.203 on the 2ND floor as per agreement but the opposite party pit no bid at the utterance of the complainant. On the contrary the opposite party threatened the complainants to evict from the possession of the flats already delivered in their favour. This is a case in which the land owner being aggrieved filed the instant complaint against the developer but the developer failed to adhere the terms and condition of the development agreement as well as power of attorney dt. 25.2.2015.
It appears from the development agreement with general power of attorney dt. 25.2.2015 in column 7 of terms and condition it is clear that the entire construction of the proposed building shall be made entirely at the cost of the developer and the developer shall bear all cost, such as soil test, preparation of side plain/building plain, the fittings and shall complete the proposed multistoried (G+4) building and the developer shall be the exclusive owner of 62% constructed area and the owner shall get 38% of constructed area which is entire second floor of the proposed construction of the building. It is also stated in the agreement dt. 25.2.2015 in column, specification of the owners’ allocation area in which it is clearly stated that marbles flooring, glazed tiles dado up to 5’ – 0’ high from floor level on all sides. The complainants in their complaint petition alleged that the opposite party handed over the possession of flat nos. 201, 202 and 204 in which the floors are fitted with ceramic tiles instead of marble although the agreement clearly speaks the fittings of marble titles in the floor so we can infer from the above discussion that the opposite party is deficient in providing service to the complainants. It is also transparent from the development agreement with general power of attorney dt. 25.2.2015 that the opposite party is under liability to transfer the entire second floor to the land owners (complainants herein). The complaint petition is unchallenged one as the opposite party did not contest the case by filing written version, evidence on affidavit and written argument so there is no scope to disbelieve the averments of the complainants. The complainants by filing this complaint petition abled to establish that the opposite party not only failed to provide the entire second floor to the complainants but also deficient in providing the appropriate construction as described in the development agreement with general power of attorney dt. 25.2.2015.
After perusing the complaint petition, evidence on affidavit, written argument and hearing the ex-parte argument advanced by the Ld. Advocate on behalf of the complainants this Forum is in the opinion that the complainants being the owner of land entered into an agreement on 25.2.2015 to develop the plot of land on which the complainants are possessing for a prolonged period. It is crystal clear from the agreement dated 25.2.2015 that opposite party is under obligation to abide by the terms and conditions of the agreement. The prayer of the complainants is in accordance with the terms and conditions of the agreement dated 25.2.2015. So the opposite party cannot raise any question regarding the possession and ownership of the complainants. The complainants tried their level best to get the impugned flat as per agreement from this opposite party but till date the opposite party could not comply the terms of the agreement dated 25.2.2015 to this complainant for which the complainants getting no alternative filed the instant complaint before this Forum praying directions upon the opposite party. After the completion of the multistoried building the opposite party cannot go beyond the agreement in respect of delivery of possession of the flat to these complainants in accordance with the terms and conditions as envisaged in the impugned agreement. It is a bare instance of deficiency of service on the part of the opposite party promoter/ developer.
The Supreme Court has laid the confusion to rest in it’s judgment in Bunga Daniel Babu v. M/s Sri Vasudeva Constructions & Ors. The Supreme Court has held that since the landowners, when they enter into Collaboration Agreement, have no control over construction, do not participate in the business and are only entitled to a share in the constructed area, the landowners are consumers under the Act. This is a welcome decision of the Supreme Court for the victimized landowners, because it will ensure that the landowners are benefitted by the speedy and cost effective justice delivery system of the consumer forums.
Therefore relying upon the materials on record we have no hesitation to hold that the complainants are entitled to an order of getting the delivery of possession of entire second floor of the schedule mentioned construction namely, Krishna Apartment as per agreement and the possession certificates of the flat nos. 201 to 204 to the complainants. Since the developer did not take any appropriate steps for hand over the possession certificates of the flat nos. 201 to 204 in favour of the complainants within the time period as per terms of the agreement, it has caused tremendous mental agony and pain to the complainants. However, since the agreement complainants are waiting for a prolonged period and compelled to prefer the recourse of this Forum for getting the schedule mentioned flats delivered so they suffered pain for indefinite period which they are entitled to compensation from the opposite party.
Going by the foregoing discussion hence it is ordered that the complainants abled to prove the deficiency of service of the opposite party for non delivery of the impugned flat as specified by adducing cogent document/evidence so the prayer of the complainants are allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.
4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove the deficiency of service of the opposite party in respect of delivery of flats as per agreement and also failed to construct the floors as specified in the agreement for which the opposite party is liable to pay compensation.
ORDER
Hence, ordered that the complaint case being No.10/2018 be and the same is allowed ex-parte against the opposite party, with a litigation cost of Rs.10,000/- to be paid by the opposite party.
The Opposite Party is directed to deliver the flat no.203 of the schedule mentioned flat, Krishna Apartment to the complainants, to handover the possession certificate of flat No.201 to 204 to these complainants and to construct the floors in accordance with the terms of the agreement within 45 days from the date of passing this order.
Interim order if any during the pendency of the complaint petition is vacated.
The opposite party is directed to pay compensation amounting to Rs.50,000/- to these complainants for mental agony & harassment within the time framed.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
