Order-29.
Date-03/06/2015.
Complainant Sudipto Lodh by filing this complaint submitted that op Developers developed a residential tower and one commercial complex and sanctioned was obtained vide No. 01.05.2009 dated 24.04.2009 and the Housing Project has been named as Destination.
It is specifically mentioned that construction of the said Housing Project was not up to the mark and building materials were used for the purpose of construction with low quality and complainant as one of the flat owners repeatedly intimated the ops for repairing the dampened portions of the walls by necessary dampened lock treatment to guard the damp and ops’ contractors M/s. Alliance Construction in spite of complainant’s repeated complaints they did not take any action and in fact the complainant’s flat is in al respect unfinished one and in such a manner op Developers that is Peerless Finance Products Distribution Ltd. ( Peerless developers Ltd.) indirectly delivered possession the low quality flat and in fact even after executing the Deed of Conveyance, op Developer company without completing the pending work and intentionally has not completed the entire work and it is further alleged that op Developers received Rs. 54,000/- for repairing the unfinished flat No. E-01, Block-3 as per schedule and also prayed for proper relief and redressal.
On the other hand op Developers Peerless Financial Products Distribution Ltd. (formerly known as Peerless Developers Ltd.) by filing written statement that possession of the flat was takenby the complainant long back after appropriate explanation and satisfaction and expressed at the time of taking the policy.So, such allegation is false nut only to extract this money this complaint is filed and fact remains that the Deed of Sale was executed on 07.11.2013, complainant took possession and fully satisfied the quality etc. and so the complainant cannot claim at this stage that quality of the said construction is below of standard and in support of that there is no expert opinion also.
It is specifically mentioned that VAT is temporary element movable VAT box and it is place as per the present owners association decision who are controlling and managing the total premises and complainant should resolve the dispute of VAT among the other co-owners and the association and the Ld. Forum is not appropriate Forum to adjudicate because it is not appropriate place to adjudicate the same.
Further it is submitted that VAT was no in illegal place and it is a permanent constructed VAT.But it is a movable trailer VAT having wheels. So the matter may be solved by the complainant with the flat owners association.It is further submitted that Sale Deed in respect of flat executed on 07.11.2013 and 30.12.2013 and letter of possession was delivered by the op and complainant being satisfied accepted the possession and has been possessing after numerous inspections and verifications and in the possession letter there is no remark made by the complainant about low quality of the flat and the said movable VAT is maintained by the owners association of that complex not by the present op.So, in the above circumstances, the present complaint should be dismissed.
On the other hand Konnagar Municipality by filing written statement submitted by flat owners are dampening their wastage household materials and garbage in the subject VAT which is admittedly situated in front of the complainant’s window since long and the same was arranged by the op nos. 1 & 2 during their housing scheme and Municipality has no involvement in making VAT there \in save and except sanction of building plan as submitted by the op nos. 1 & 2.
It is specifically mentioned that VAT may be shifted by the op nos. 1 & 2 and Forum can direct for shifting the area movable of the VAT and necessary service as body corporate.Municipality has no business or involvement save and except cleaning of dustbin and/or VAT situated in the premises and Municipality has no objection that the Forum may direct the op nos. 1 & 2 for shifting and removal of the VAT anywhere within the premises and being the separate body and willing to provide service as envisaged in Section 63 of the West Bengal Municipal Act, 1993 and prayed for dismissal of this case.
Decision with reasons
On an in depth study of the complaint and written version and also considering the entire materials on record, it is found that in fact the main grievance of the complainant is that a movable VAT is always kept in front of the complainant’s window since long and it is admitted by the Municiplaity that it was arranged by the op nos. 1 & 2 during their housing scheme and further considering the sanctioned plan in respect of the said complex as submitted by the Municipality, it is found that as per sanctioned plan, in front of the window of the complainant or the flat of the complainant, there is no provision for keeping any VAT and Municipal Authority at the time of advancement of argument has submitted that there is no provision for construction of any VAT in front of the complainant’s house.
But after considering the entire materials, argument and further the written version of the op, it is clear that op has not stated anywhere that as per sanctioned plan, there is one refuse area which is far from the complainant’s flat.But same is not used as placing trailer VAT regularly.But in place of that it is being place in front of the window of the complainant that is admitted by the Municipality.
So, considering that fact, we find that the matter can easily be decided by passing such proper order, so that trailer VAT shall not be kept always in front of the window of the complainant and in fact that area is not refused area as per sanctioned plan.Further Municipal Authority has also submitted in the written statement that if op nos. 1 & 2 is directed by the Forum, invariably that trailer VAT or Vat shall be replaced by the Municipality.
So, we find that this matter can be disposed of by passing such final order as per admission of the Konnagar Municipal Authority.Regarding damage, no doubt as per op Developer nos. 1 & 2 it is clear that the Deed of Sale was executed on 07.11.2013, possession was delivered on 30.12.2013 and the present complaint was filed on 18.06.2014, that is within 6 months from the date of taking possession of the flat by the complainant it is evident from the different photocopies of the walls etc. of the said complainant that there are so many damages and no doubt within six months from the date of delivery or possession, such sort of damages inside the flat cannot be expected and invariably for not taking such proper care and not using such proper materials, such sort of damages were caused and no doubt op nos. 1 & 2 received money and it is their duty to handover/possession of a flat of quality which may be used properly at least for 2 or 3 years.
In the present case it is proved that damages are there and op nos. 1 & 2 have not challenged that inside the flat of the complainant such damages are not in existence.At the same time op being a M/s. Peerless Developers Ltd. previously and at present Peerless Financial Products Distribution Ltd. w.e.f. 11.01.2014 has not challenged the allegation in so many words.But only stated that at the time of taking the possession, there was no such allegation about such damage as found in the photocopy.But it must be kept in our mind that such sort of damages are generally found after use of the room.
If it is found that the materials are not used with such quality.But in so many words, op has not denied the factual aspect of damage as found at present within 6 months from the date of taking possession in respect of the complex and no doubt a flat owner cannot expect after taking possession within 6 months inside the walls of the room, several damages shall be exposed and truth is that it is common exposure of different flats sold by the op company and their fame is here and there about selling such sort of flats to the purchasers like the present complainant.
In the present complaint so many photo snaps prove that damages inside walls are very much in existence.Ops’ Ld. Lawyer and other at the time of argument saw the same but their only defence is possession was delivered and same were not there.But it must be kept in our mind that the damages are generally found after use and it is peculiar that Peerless Developers a big company at different places, have constructed such tower and sold away to the flat owners.But they have no maintained the quality of the flat in so many cases and their only defence is at the time of taking possession no such damages were found and no doubt such sort of defence is baseless and without any foundation.
Op nos. 1 & 2 have their scope to defend and accept the challenge of the complainant and to submit an expert report, but that has not been done.There is no allegation that flat is misused by the complainant within 6 months.So, considering all the above fact and circumstances, we are convinced to hold that no doubt op nos. 1 & 2 are bound to repair the said flat at their own cost immediately when they used sub-standard materials for which within 6 months from the date of taking the possession by the complainant, the present damages were exposed on the walls and other places of the flat.Then it is the liability of the op nos. 1 & 2 to remove it and to repair it and to make it as before, that is the contention of the complainant and from that liability, op nos. 1 & 2 cannot be discharged in view of the fact that the said damages are found within 6 months from the date of taking possession and within 6 months from the date of possession forthwith this complaint is filed and when op nos. 1 & 2 did not take any step.
Considering all the above fact and circumstances and materials we are convinced to hold that to some extent the allegation of the complainant is well proved and no doubt in this regard deficiency in service on the part of the op nos. 1 & 2 is well proved.At the same time it is proved that there is no ground to keep trailer VAT or any permanent VAT in front of the window of the complainant as per sanctioned plan and Municipal Authority has admitted in the written version that they are willing to replace the same if the Forum directs the op nos. 1 & 2 to remove it.
Further it is found that one cannot believe that in front of the window of the complainant 24 hours one trailer VAT or any permanent VAT shall be there.When as per sanctioned plan that area is not the refused areas.But it is mandatory provision of law as per Municipal Law/Regulations VAT shall be kept or placed in any tower as per Municipal plan.
In the result, the complaint succeeds in part.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against the op nos. 1 & 2 with cost of Rs. 5,000/- and same is allowed contest against op no.3 but without any cost.
Op nos. 1 & 2 are hereby directed to make the flat of the complainant free from all damages after making all such necessary repairing at the cost of the op nos. 1 & 2 within two months from the date of this order and further shall have to remove either permanent VAT or trailer VAT from the front of the window of the complainant as it is found that place is not refused or as per sanctioned plan and such a VAT whether movable or permanent shall be placed at refused area as shown as per sanctioned plan and in this regard op no.3 the Konnagar Municipality shall take such step and op nos. 1 & 2 shall have to take such positive step to remove the VAT from the front of the window of the complainant’s flat immediately.
Op nos. 1, 2 & 3 are hereby directed to comply the order within 2 months from the date of this order failing which for non-compliance of the Forum’s order, op nos. 1 & 2 shall have to pay penal damages of Rs. 50,000/- to the complainant and same shall be paid within one month after expiry of the first two months as per order and even after that if it is found that op nos. 1 & 2 are reluctant to comply the order, in that case, penal action shall be started against op nos. 1 & 2 as per provision/s 27 of C.P. Act 1986.
Op no.3 Municipal Authority is hereby directed to comply the order when op nos. 1 & 2 are also directed to remove the VAT permanent or movable and Municipal Authority shall have to report what steps have been taken in this regard to comply this order within two months from the date of this order.
