The Complainants have filed this case under Section 35 of the Consumer Protection Act 2019 against the O.P’s. and praying for following Order/ Relief :-

1. Admit this complaint.
2. Direction for issuing notices upon the O.P’s for their appearance.
3. Direction against the O.P’s. for arrangement of setting up electric connection into the flat by the O.P’s or give the no-objection in writing to the electricity board.
4. Direction against the O.P’s to pay a sum of Rs. 5,00,000/- (Rupees Five Lakh) Only due to physical harassment, mental agony and financial loss coupled with loss of dignity in the society.
5. Direction against the O.P’s to pay a sum of Rs. 20,000/- (Rupees Twenty Thousand) Only towards cost of legal proceedings.
6. Any other order or orders to which the Complainant’s are entitled as per law.

BRIEF FACTS OF THE COMPLAINT

1. Complainants are the peace loving and law-abiding citizen of India and they are resident of the flat “ THE UNIVERSE”, Flat No-4-D, Fourth Floor, Block No-4, Block Name- Mars situated at Salugara under P.S. Bhaktinagar, District: Jalpaiguri. That the complainants No- 1 to 3 authorized the Complainant No. 4 to file this case against the O.P’s.
2. That the complainant purchased Flat No- 4D in Complex of the O.P’s namely “ The Universe” Vide Deed No. 1-0711-05425/2016 dated 16^th of September, 2016 which was registered in the office of ADSR, Bhaktinagar, District- Jalpaiguri. That the Complainant along with the 3 (Three) other owners had paid a sum of Rs. 37,30,600/- (Rupees Thirty Seven Lakhs Thirty Thousand and Six Hundred) Only to the O.P’s. as consideration amount which they have acknowledged.
3. That when the Complainant applied to the WBSEDCL  for reissuing of electricity service connection in the said residential flat, Via Application No. 4002817120 dt. 18.09.2021 it was rejected by the WBSEDCL stating “THEFT CASE FOUND DURING INVESTIGATION” and the report was generated on 16.12.2021.
4. That after the registration of the said Flat the O.P. had provided temporary eclectic connection to the tenant of the Complainant who were staying on rent and O.P’s had charged Rs. 10/- per unit for electric connection but in due course of time it was found that the O.P’s have not taken the electric line legally and therefore the WBSEDCL imposed a fine upon the O.P’s and taking that plea the O.P’s have been forcing the Complainants for making payment of penalty amount for illegal activity done by the O.P’s which the Complainants were not liable to pay.
5. That in Clause No 6 of the Registered Deed of the said Flat states about electricity and which states that the purchasers will obtain his / her / their / its own independent Electric Connection / Connection Meter in his / her / their / its own name from WBSEDCL, Siliguri or from the Concerned Department, by paying the requisite fee / charges / Security Deposit Amount as required. The vendors and the Developers shall not be liable to provide and arrange for the same at all.”

6. That the Complainant had deposited the requisite fees of WBSEDCL for new connection of the electricity line and when the Electric Department personnel came to visit for installing the electricity line the O.P’s had raised objection stating that the Complainant is liable to pay the fine imposed upon Mr. Ajay Kumar Agarwal, Partner of “Siyaram Developers”, one of the O.P’s by WBSEDCL for illegal electric connection during the rental period which was provided by the O.P’s taking Rs. 10/- per unit.
7. That despite the fact the fine was already paid by the O.P’s to WBSEDCL for illegal connection, the O.P’s. were forcing the Complainant to pay the fine amount by way of coercion which was not only amounts to extortion but  also criminal breach of trust.
8. That when the personnel of the Electricity Department came to install the electricity connection in the flat of the Complainant it was found that the O.P’s were raising objection illegal and gross negligence on the part of the O.P’s and therefore, liable to be compensated for post-sale deficiency of service as the Complainants are the bona-fide consumer under the Consumer Protection Act.

9. That , the act done by the O.P’s. during the course of time hindering the Complainants legal rights and therefore, the O.P’s have not only acted beyond the terms and conditions of the Registered Deed but also had committed extortion, criminal breach of trust and post-sale deficiency of service.

10. That finding no other alternative, the Complainant issued a legal notice to the O.P’s by his Advocate on 22.07.2022 and notice were duly received by all the O.P’s on 23.07.2022 , 25.07.2022 & 27.07.2022 but despite receiving the notice no result was yielded.

11. That , the cause of action of this case arose on 18.09.2021 when the application for reissuing of electric connection was made by the complainant and when the electricity personnel went to install the electricity connection in the flat of the Complainant on 16.12.2021 and the said cause of action is still continuing.

In Schedule-A the Complainant has stated the description of the flat which was purchased by the Complainants.

In support of the Complaint the Complainants have filed the following documents:-

1. Photocopy of Aadhar Card of the Petitioner. (Page-1)
2. Photocopy of Provisional Assessment Bill. (Page-2 to 3)
3. Photocopy of letter dated 16.12.2021, from W.B.S.E.D.C.L. (Page-4)
4. Photocopy of Legal Notice dated 22.07.2022 along with Postal Receipt. (Page-5 to 8)
5. Photocopy of What’s app chat messages . (Page-9 to 12)
6. Photocopy of rent payment Transaction by NEFT mode (Page-13 to 15)
7. Photocopy of Deed of Conveyance dated 16.09.2016 . (Page-16 to 69)
8. Photocopy of special power of Attorney Dated 10.03.21. (Page-70 to 74)
9. Original Demand Draft of Rs. 500/- dated 17.10.2022.

Notice was issued from this Commission. On receipt of notice all the O.P’s have appeared before this Commission through Vokalatnama, filed their Written Version, denied all the allegations of the Complainant. By filing Written Version, the O.P’s have stated that the case is not maintainable both in law and facts / the case is barred by Law of limitation/ the case is barred by law of resjudicata / the case is bad for mis joinder and non-joinder of necessary parties / the case is barred by law of estoppels and waiver. The O.P’s have also stated in the Written Version that the statement made in Paragraph No. 1, 5, 6, 8to 15 are not at all correct and the O.P’s have denied those statements. O.P’s have also stated in the Written Version that the statement made in Paragraph 2 to 4 are matter of record and they also stated that after purchasing the said flat the Complainant had installed electric connection in the said flat through their own electrician illegally from the direct Electric Box of the W B S E D C L , without informing the O.Ps and they played a fraud upon the O.Ps as well as the W B S E D C L. It is also stated that when the personnel of W B S E D C L went to the flat of the Complainant to install separate electric connection in their name, they found that an illegal electric connection was there and they started a specific case, issued notice under section 41 A of CrPC to the O.P. No. 4. It is further stated in the Written Version that the Complainant let out the flat to the tenant on the basis of the monthly rent so it can be safety presumed that the Complainants were using the said flat for commercial purpose / the O.P’s never provide any electric connection in the flat of the Complainant by taking Rs.10/- per unit and on 07.01.2022 the residents of the Universe Apartment and Sri Bijay Agarwal lodged a written complainant to the I.C. Bhaktinagar Police Station against the Complainant No. 4 regarding said illegal taking of electricity connection. The O.P’s. have also stated that they were compelled to pay a sum of Rs. 3,92,789/- as penalty / provisional assessment bill imposed by the W B S E D C L for said illegal connection of the Complainants and without informing the O.P’s. or the residents of the Universe Society, a criminal case being No. Bhaktinagar P.S. 1575 / 2021 under Section 135 (1) (b) / of the Electricity Act 2003 was started against the O.P. No. 4 and that’s why the O.P. No. 4 was compelled to pay a provisional assessment bill imposed by the W B S E D C L.

The O.P’s. have also stated in the Written Version that after receiving the legal notice dt. 22.07.2022, the O.P. No. 4 sent a reply on 26.08.2022 to the Advocate of the Complainant by the Registered Post but the reply was returned to the Lawyer of the O.P. with an endorsement “incomplete address”. They also stated in the Written Version that they never threatened personnel of the W B S E D C L when they went to give electricity connection but the actual fact is that when the electricity personnel went to the flat of the Complainant they found illegal electricity connection in the said flat and they denied to install new electricity connection and theft case was initiated and that’s why there was no deficiency in service as well as unfair trade practice by the O.P’s.

O.P’s have further stated that the W B S E D C L is the only authority to install electricity connection and the O.P’s. are not proper authority to arrange the electricity connection in the flat of the Complainant so the W B S E D C L is a necessary party for proper adjudication of this case. The O.P’s. have also stated that the Complainants are not a Consumer as per Law and the Complainants have filed this case on some false allegations by suppressing the actual fact.

In the Written version the OP’s have also stated that the W B S E D C L has already given electric connection in the flat of the Complainants on 26.04.2023 i.e. during pendency of this case , being Consumer I.D. No- 402724739 and Meter No- LG0370153 against the previous application Vide No. 4002817120. By filling Written Versions, the OP’s have prayed for dismissal of this case.

The O.P’s have filed following documents in support of their Written Version :-

1.  Money Receipt dated 13.01.2022 issued by the WBSEDCL.
2. Money Receipt dated 08.03.2022 issued by the WBSEDCL.
3. Money Receipt dated 16.03.2022 issued by the WBSEDCL.
4. Provisional Assessment Bill dated 15.12.2021 issued by the WBSEDCL.
5. Notice U/s 41 (A) Cr.P.C.
6. Written Complaint ( Mass Petition) dated 07.01.2022.
7. Petition dated 17.01.2022 to the appellate authority Jalpaiguri area, WBSEDCL.
8. Reply Notice dated 26.08.2022 to Biswajit Deb (Advocate)
9. Postal Receipts dated 26.08.2022 (Two Copies)
10. Track Report (Two copies)
11. Envelop (Return to Sandip Das Advocate).

Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, Written Version, Documents filed by the parties, following points are taken to be consideration by this Commission.

Points for consideration :-

1. Whether the Complainant is a Consumer?
2. Whether the case is maintainable under the Consumer Protection Act 2019?
3. Whether there is any deficiency in service on the part of the O.P’s. as alleged by the Complainant?
4. Whether the Complainant is entitled to get the relief as prayed for?                                 

 Decision with reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

Complainants were given liberty to file their evidence in support of their complaints. In order to prove the case Suresh Kumar Mittal has filed Written Deposition in the form of an Affidavit. In the Written Deposition the witness of the Complainant has specifically corroborated the contents of the Complaints. It is further stated in the Evidence that they have purchased the flat  which was registered on 16^th September 2016 which was duly registered after paying total consideration amount of Rs. 37,30,600/- (Rupees Thirty Seven Lakhs Thirty Thousand Six Hundred) Only to the O.P’s. It is further stated in the Written Evidence that they applied for getting electric connection in their flat on 18.09.2021 Vide Application No. 4002817120 to the WBSEDCL which was rejected by them stating “theft case found during investigation” and the report was generated on 16.12.2021. It is also claimed by the witness of the Complainants that the said flat was initially induct tenant when the O.P’s had provide temporary electric connection but they charged Rs.10 per unit. But subsequently, they found that the O.P’s. had not taken the electric connection legally and therefore imposed fine upon the O.P’s. and therefore the O.P’s. forced the complainant to give the penalty money for the illegal activity done by them which the complainant was not liable to pay. It is further stated by the witness of the Complainant that in Clause No. 6 of the Registered Deed it was stated that the “Electricity- that the purchaser will obtain his or her or their / its own independent electric connection / connection meter in his / her / their / its own name from the WBSEDCL, Siliguri or from the concern Department. By paying the requisite fee / charges / security deposit amount as required. The vendors and developers shall not be liable to provide and arrange for the same at all.” It is also stated in the  evidence of the witness of the Complainant who stated that when the Electricity Department Personnel went to installed electric connection for the flat of the Complainant the O.P. has raised objection and therefore they are liable to pay compensation for deficiency of service and on 22.07.2022  the Complainant issued a legal notice which was received by the O.P’s. on 23.07.2022, 25.07.2022 & 27.07.2022 and despite receiving said notices but no result yielded so far for  installing of electric connection in the flat by the obstruction of the O.P’s.

At the time of hearing of argument Ld. Advocate of the Complainant submits that they have already filed Brief Notes of Arguments and stated everything in support of the case of the Complainant. He further argued that the Complainants have been able to prove the case against the O.P’s. and there was deficiency in service on the part of the O.P’s. who raised obstruction when the personnel of the electricity went to install the electric connection in the flat of the Complainants.  It is further argument of the Complainants that for getting electric connection in the flat of the Complainant they already sent legal notice to the O.P’s. which were duly received by them but they did not assists the Complainant for getting electric connection in their flat. Ld. Advocate of the Complainant further argued that after 24.03.2021, when the Complainants tried to take electric connection from the WBSEDCL, the O.Ps had obstructed the personnel of the electricity to provide electric connection in the flat of the Complainant No-4D of the building namely Universe and subsequently the WBSEDCL lodged the case under Section 135 of the Electricity Act and the O.P’s. were compelled to pay more than Rs.4,00,000/-, so it is clear that the electric connection was connected by the OPs illegally from their own meter. It is also argument of the Complainants that the Complainants had inducted tenant in the said flat on rent for 11 Months from 01.06.2019 and therefore, the flat was vacant and no such commercial transaction was going on.

Ld. Advocate of the Complainant during argument submits that they had cross-examine the witness of the O.P’s. by putting questionnaires in which the answer given by the O.P’s. were positive / in favour of the Complainants and thereby the Complainants have been able to prove the case against the O.P’s and entitled to get the relief as prayed for.

To falsify the case of the Complainants the O.P’s. have adduced Evidence in the form of an Affidavit through Ajoy Kumar Agarwal as O.P.W- 1 and Aditya Kumar Jha as O.P.W-2.

In the Written Evidence the O.P. –W-1 Ajoy Kumar Agarwal on oath as stated and corroborated the contains of the Written Version which was filed on behalf of them. On oath the O.P.-W-1 has further stated that after purchasing the said flat the Complainants had installed electric connection in the said flat through their own electrician illegally from direct Basbar / Electricity Box of the WBSEDCL without informing the O.P’s. by practicing fraud and when the personnel of the WBSEDCL went to the flat of the Complainant to installed the electric connection in their names, the persons of the Electricity Department found that an illegal electric connection was already there and a specific case was started and issued notice u/s 41-A of the CrPC to the O.P. No. 4 as the common electric connection of the said apartment was in the name of Siyaram Developers. The O.P-W- 1 in his Evidence has also stated that it is admitted by the Complainant that they let out the flat to tenant on the basis of monthly rent which are safely be presumed that the Complainant were using the flat for commercial purpose and it is also stated that in Clause No. 6 of the Registered Deed being No. 5425 of 2016 dt. 16.09.2016 it was clearly stated that the purchaser will obtained their own electric connection from the WBSEDCL and Vendors and Developers i.e. the O.P’s. shall not be liable to provide and arrange for the same and that’s why the O.P’s. never provide any electric connection in the flat of the Complainants so the allegations of providing temporary electric connection of the said flat of the Complainant by the O.P’s. and charging Rs. 10/- per unit is absolutely false.

O.P.- W- 2 Aditya Kumar Jha in his Written Evidence has stated that after purchasing flat No. 4-D the Complainant had installed electric connection in the said flat through their own electrician illegally from the direct Basbar of the Electricity Box of the WBSEDCL without informing the O.P’s. by practicing fraud and subsequently when the persons of the WBSEDCL went to the said flat of the Complainant for installing the electric connection they found an illegal electric connection was already there and thereby started a case and sent notice u/s 41-A of the CrPC to the O.P. No. 4 as the common electric connection of the said apartment was lying in the name of Siyaram Developers.

At the time of hearing of the argument Ld. Advocate of the O.P’s. argued that they have already filed Written Notes of Argument in support of their case and stated everything in the Written Notes of Argument. They also argued that they cross-examine the witness of the Complainant by putting questionnaires and they replied which was forthcoming stands in favour of the O.P’s. It is also argument of the O.P’s that they never resist the persons of the Electricity Department when they went to the flat of the Complainants to install the electric connection and there were no deficiency in service on the part of the O.P’s.

At the time of argument Ld. Advocate of the O.P’s draws attention of this Commission to the answer given by the Complainant for Question No. 10 of their Questionnaires where the Complainant was asked as to whether they preferred any application before the Appellate Authority within time limit after rejection of their application by the letter generated on 16.12.2021 issued by the WBSEDCL and also asked whether they filed the document before this Commission and also asked to mention the documents number. In reply to the Question No. 10 of the O.P’s. the Complainants have replied that- No , but after gap of time the WBSEDCL has provided new connection to them. Ld. Advocate of the O.P’s. also draws the attention of this Commission to their Question No. 11 where they asked the Complainants whether the Complainants submits any documents  to show that the O.P’s. had provided temporary electric connection to the tenant of the Complainant but the Complainant replied that – Not within their knowledge. It also draws the attention of this Commission by referring the Question No. 12 where they asked the Complainants whether they submits any documents particularly to show that the O.P’s. had charged Rs. 10/- per unit and in reply to that Question the Complainants stated that – Not within their knowledge. Ld. Advocate of the O.P’s. also draws the attention of this Commission by referring the Question No. 16 of their Questionnaires, where they asked the Complainants whether they lodge any written complaint to any authority against the O.P’s. stating that when the persons of the electric department went to visit and install the electricity line, the O.P’s had raised objection and obstructed them to act for connection of electricity. But in reply to Question No- 16 the Complainants replied – No. Ld. Advocate of the O.P’s. also referred another Question being No- 17 of their Questionnaires, where they asked the Complainants whether they lodged any written complaint to any authority against the O.P’s. stating that the O.P’s. were  forcing the Complainants to pay a fine money by way of coercion and which not only amounts to extortion but also criminal breach of trust. In reply to that Question the Complainants have stated that – No. It is also draws attention of this Commission who referred another Question being No- 18 where the O.P’s. have asked the Complainants as on which date the Electricity Department Personnel went to install the electricity connection to their flat and whether they mentioned the date in their case ? In reply to that Question the Complainant answered on 26.04.2023, it was the date when the WBSEDCL provided them the new electricity connection. Ld. Advocate  of the O.P’s. further argued that the Complainants have failed to prove their case against the OP’s  and praying for dismissal of this case .

Having, heard, the Ld. Advocate of both the side and on perusal of the entire record including the Complaints, Written Version of the O.P’s, Evidence of the parties, Documents filed by them, Question and Answer of the parties and other material in the record, it admitted fact that the Complainant had purchased one flat being No. 4-D, 4^th Floor of the Flat “Universe” by making payment of Rs. 37,30,600/- (Rupees Thirty Seven Lakhs Thirty Thousand and Six Hundred). It is also admitted fact that a Sale Deed was registered on 16.09.2016 in the Office of the ADSR, Bhaktinagar, Dist- Jalpaiguri.

In the Evidence of the Complainants as well as in their Written Complaint and Written Notes of Argument they claims that when the persons of the Electricity Department went to their flat for installation of new connection, the O.P’s. had raised objection and for which they were not getting new electricity connection and thereby the O.P’s. were liable to compensate the Complainants for post-sale deficiency in service by them. It is also claim of the Complainants that they issued Legal Notice to the O.P’s. through Advocate on 22.07.2022 which was received by the O.P’s. on 23.07.2022, 25.07.2022 and 27.07.2022 but of no result yielded so far for installing new electric connection in the said flat of the Complainants and the cause of action arose on 18.09.2021 when the application for re-issuing electricity connection was made by the Complainants and on 16.12.2021 when the persons of the Electricity Department went to the flat of the complainant to install the electricity connection and the said cause of action is still continuing. The Complainant also claims that, there was deficiency in service on the part of the O.P’s.

Now let us see how far the Complainants have been able to prove its case against the O.P’s. and whether the Complainants are entitled to get relief as prays for? In the Complaint Para No. 07 and Clause 6 of the Registered Deed being No. 1-0711-05425 / 2016 dt. 16.09.2016 it clearly states that, the purchaser will obtain his own electric connection from the WBSEDCL and the venders and developers shall not be liable to provide and arrange for the same at all. Accordingly, as per statement of the said Clause the Opposite Parties never provide any electric connection in the said flat of the Complainant and thereby the allegations of the Complaints for providing temporary electricity connection in the said flat of the Complainants by the O.P’s. and charging Rs. 10 per unit are not tenable and the Complainants have failed to substantiate their claim in this regard.

The Complainants by filing the instant Complaint case under section 35 of the Consumer Protection Act 2019 praying for necessary direction against the O.P’s to forthwith arrangement of setting up electric connection in the flat by the O.P’s  or give no objection in writing to the Electricity Board.

But from the record it reveals that the WBSEDCL has already given new electric connection in the flat of the Complainants on 26.04.2023 i.e. during pendency of this case being Consumer I.D. No. 402724739 and Meter No. LG0370153 against the previous application Vide No. 4002817120. The Complainants did not intimate the said installation of electric connection in their flat to this Consumer Commission and thereby it can safely be presumed that the Complainants have deliberately suppressed the said fact of  installation of new electric connection in their flat.

Moreover, from the Answer given by the Complainants in response to the Questionnaires of the O.P’s, the Complainants have admits that they did not lodged any Written Complaint to any Authority to the effect that, the persons of the W B S E D C L were resisted by the O.P’s. when they went to install the electric connection in the flat of the Complainant.

From the reply given by the Complainants in response to the Questionnaires of the O.P’s where the Complainants have stated that the O.P’s. had forced them to pay money by way of coercion. But the complainant neither files any documents to substantiate their allegations nor they lodged any case against the OPs.

From the statement made in Paragraph No. 07 of the Complaint Petition as well as from Clause 06 of the Deed of Registration of Flat of the Complainants, it reveals that there was no stipulation that the O.P’s will arrange for installation of electric connection in the flat of the Complainants but it is specifically mentioned that the Complainants ( Purchaser) will obtain his own independent electric connection from the WBSEDCL and the Question of giving no objection certificate from the side of the vendors and the developers does not arise at all.

Moreover, it was not  look out of the O.P’s as to why the WBSEDCL did not install new electricity connection in the flat of the Complainants despite receiving application for installation of connection. It is also not the case of the Complainants that immediately after Registration of the said Flat in the year 2016 they applied for getting new electric connection in their Flat. On the other hand the Complainants had applied for installing new electric connection in their flat on 18.09.2021.

Considering all we are of the view that the Complainants have not been able to prove their case against the O.P’s and the grounds stated in the Complaint Petition as well as Evidence of the Complainants are not convincing.

Hence it is therefore,

                                          O R D E R E D

That the instant Consumer Case being in No. 85/2022 be and the same is dismissed on contest but without any cost.

Let a copy of this Order / Judgement be given to the parties free of cost.