This order is arising out the Miscellaneous Application being no 79/2021 filed by the complainant praying for appointment of an Engineer Commissioner with a view to ascertain the defects of the questioned flat on the points as made out in the MA for local inspection.

It is stated by the complainant that the property purchased by the complainant suffers from several defects, which cannot be ascertained without the local inspection by an Engineer Commissioner.

The complainant has stated that this Ld. Commission has every Jurisdiction to appoint an Engineer Commissioner for the purpose of holding local inspection in respect of the property as described in the schedule, particularly when expert opinion is required considering the nature of the case. The complainant is ready to bear the cost of the commission work. The scheduled property is at a distance of 15 kilometres from the premises of the Ld. Commission and the Ld. Engineer Commission may reach the locale by Bus or Taxi and only one hour may be required to complete the commission work. According to the complainant if this application is not allowed, he will suffer irreparable loss and injury and prayer is made by the complainant for allowing this application.

The MA have been contested by the Ops i.e. Op 1(a), (b), (c) by filing written objection contending that the complainant is not at all interest to dispose of the complaint as at the stage of argument, the complainant has filed this application, which is at a very belated stage and Ld. Commission cannot entertain or encourage the same. With a view to drag the matter, the complainant has filed the application inspite of knowing that the building has already been completed long before ago on the strength of the sanctioned building plan and accordingly the concerned authority had issued the completion certification of the said building on 09.07.2014. The building of the suit flat was construction as per the Rules and Regulation of the BM Act and all the flats of the building have been possessing and enjoying by the respective owners since long.

The complainant was also requested to take possession in his flat and accordingly he inspected the flat on several occasions, took measurement which will be evident in his documents annexed with the complaint petition. Surprisingly after completion of the building as well as the suit flat the complainant denied to take possession on several false pretexts and started to raise various objections. The complainant has filed the instant application with a view to fillip the lacuna of his case which cannot be permitted by statute. Prayer has been made by the Ops for rejection of the application.

We have carefully perused the content of the MA and objection thereto filed by the Op 1(a), (b), (c) and heard argument advanced by the Ld. Counsels of the parties.

In our view as the complainant has raised allegation regarding defectiveness in the suit property on several points, in view of the Consumer Protection Act, 2019 to ascertain the said defects and coming to a conclusive conclusion, expert opinion is necessary, which can only be given by an Engineer Commissioner. Therefore for proper adjudication of this complaint, appointment of an Engineer Commissioner is required, otherwise we cannot dispose of the petition of complaint in a proper manner. Therefore, in our considered opinion, the prayer as made out by the complaint in the MA being no 79/2021, should be allowed.

Hence it is ordered that the MA 79/2021 is hereby allowed on contest without any cost.

As the prayer of the complainant is allowed, the complainant is directed to submit the necessary writ for remittance of the same to the Ld. Engineer Commissioner.

Mr. Dipankar Bose is hereby appointed as the Ld. Engineer Commissioner who will inspect the questioned property on the points as made out by the complainant in the application. Before starting inspection the Ld. Engineer Commissioner is requested to intimate both the party in writing well ahead to be present at the inspection site on the scheduled date and time.

The parties are directed to be present at the time of holding inspection and to extent extreme co-operation to the Ld. Engineer Commissioner.

The complainant is further directed to deposit a sum of Rs. 5,000/- towards the remuneration of the Ld. Engineer Commissioner for holding inspection before the Registrar-in-Charge of this Ld. Commission and the Registrar-in-Charge is also directed to intimate the Ld. Engineer Commissioner to obtain the necessary writ along with remuneration on a scheduled date. At the time of holding inspection the Ld. Engineer Commissioner is requested to prepare a field note and submit the same along with his expert opinion either before the Registrar-in-Charge of this Ld. Commission or before  the Ld. Bench.

Fix 31.03.2022 for submitting expert opinion by the Ld. Engineer Commissioner under sealed envelope.

Let plain copy be given to the parties free of cost, as per CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER