SAMIKSHA BHATTACHARYA, MEMBER
The instant Appeal has been directed by the Appellants under Section 41 of the Consumer Protection Act, 2019 against the Respondents arising out of order dated 07.12.2021 in Case No. CC/374/2021 passed by the Ld. Additional Consumer Disputes Redressal Commission (in short District Commission), Rajarhat, (New Town).
The facts of the case, in brief, are that the Appellant/Complainants (hereinafter referred to as ‘Complainants’) filed a complaint petition being No. CC/374/2021 against the Respondents/OPs (hereinafter referred to as ‘OPs’) alleging deficiency in service.
The Respondents/OPs No. 1 to 4 are the land-owners and the OP/Respondent No. 5 is the developer and all the OPs under the joint-venture scheme developed a housing complex consisting of several flats along with car parking space. At the time of booking it was told that the car parking space would be allotted on lottery basis who would opt for parking space. Accordingly, complainants paid the entire amount and got the possession of the flat and the property was registered. After registration, the complainants were allotted the car parking space being No. 39/3F on random basis without prior intimation to the complainants and was intimated to the complainants later. After allotment of the car parking space, complainants noticed that the area of the car parking space is not enough to park a small four wheeler even. Both sides of the car parking space (right & left side) are covered by wall and the front and back space have been allotted to some other persons which means the parking is not independent and on each and every time the complainants have to depend upon other car owners for their ingress and egress. Furthermore, at the said allotted parking space the gate of the car cannot be opened due to the presence of the wall on both sides. Moreover, it is alleged by the complainants that in that car parking space even smallest size four wheeler cannot be parked. The complainants talked with the OPs but it went in vain. Thereafter, the complainants verified the deed of sale and they became astonished to look into the schedule where it is mentioned that the area of the car parking space is 100 sq. ft. But in the query for registration, the area of the parking space is mentioned as 135 sq. ft. since as per Municipal Law, the minimum area for any parking space should be 135 sq. ft. or 2.5 metres x 5.0 metres (clear size). The complainants cannot imagine that the OPs would allot a parking space in violation of the prevailing Municipal Rules and suppressing the same. Therefore, the complainants have mentioned in the petition of complaint that they are entitled to get an independent car parking space in conformity with the prevailing Municipal Laws such that they can park a four wheeler car. Hence, the petition of complaint praying for allotment of independence four wheeler car parking space of 135 sq. ft. i.e., 2.5 metre x 5.0 metres (clear size) at the same housing complex where the complainants purchased the flat vide Deed No. 190410167 of 2019 (in the Office of the A.R.A.-IV Kolkata) instead of car parking space No. 39/3F along with compensation of Rs.10,00,000/-.
The Ld. District Commission dismissed the complaint at admission stage.
Being aggrieved by and dissatisfied with the above order, the complainants have filed the instant Appeal praying for setting aside the order dated 07.12.2021 passed by the Ld. Commission and to pass an order admitting the complaint of the complainants and to remand back the matter to the Ld. District Commission to proceed with the complaint case as per provision of law.
In course of argument, Ld. Advocate for the complainants has stated that the car parking space being No. 39/3F, which was allotted to the complainants, is not enough to park a small wheeler. Since both the sides of the parking space is covered by the wall, the complainants cannot park their car. Moreover, the allotment of the car parking space is of 100 sq. ft. area which is in violation with the Municipal Laws. As per Municipal Laws, the minimum area of any parking space should be 135 sq. ft. Hence, he has prayed for remanding the case back to the Ld. Commission after admitting the complaint case.
Ld. Advocate Mr. Siddharta Bhattacharya has appeared and argued on behalf of the Ops. He has argued that the car parking space was allotted as per Deed. The main allegation of the complainants is that they are entitled to get a car parking space of 135 sq. ft. instead of 100 sq. ft. He has further argued that the Ld. Commission has justified by following the principle of Consumer Protection Act and thus accepted the complaint but on admisison hearing found that there is no admissibility of the petition and thus following the law rejected the complaint at the initial stage which the District Commission empowers to do. The complainants have instituted the instant case to get wrongful gain suppressing the material fact. The complainants have paid the amount for the flat measuring 1376 sq. ft. and for car parking space measuring about 100 sq. ft. and the OPs received the amount for the consideration and there is no excess payment received by the OPs being the developer. The OPs have not violated any terms and conditions of the sale agreement dated 16.12.2014 and therefore, complainants cannot get any relief as prayed for.
Upon hearing the parties and on meticulous perusal of the record it appears from the record that complainants have instituted the complaint case praying for allotment of an independent four wheeler car parking space of 135 sq. ft. i.e., the 2.5 metre x 5 metre (clear size) at the same housing complex. Where the complainants purchased the flat. But the complainants have alleged in the petition of complaint that the covered car parking space is surrounded by wall on both sides. Therefore, they do not park the car properly. But it is astonishing that complainants have not prayed for removal of the walls or for providing alternative car parking area of 100 sq. ft. in the same housing complex. The complainants have prayed for car parking space of 135 sq. ft. instead of 100 sq. ft. which was provided to him. As per Deed of Sale, the OPs have executed and registered the deed of conveyance in respect of car parking space measuring about 100 sq. ft. The agreement for sale dated 16.12.2014 also mentions that the car parking space measuring 100 sq. ft. shall be provided to the complainants. As per agreement for sale dated 16.12.2014 the deed of conveyance of the car parking space has been executed and registered in the name of the complainants. The complainants cannot claim a car parking space of larger size beyond the deed of sale.
Therefore, the Ld. Commission has rightly observed that the subsequent statement that 135 sq. ft. was agreed to be transferred as car parking space is hit by the principle of estoppels. The Ld. Commission has rightly observed that the the sale deed which was executed and registered in favour of the complainants in 2019 relate to 100 sq. ft. only as the car parking space to which the complainants were entitled.
The District Commission has rightly observed that the parties to the deed made some correspondence regarding the said car parking space does not ruin or debilitate the force of the sale deed of 2019.
We are also of the considered view that the allegation of the complainants are otherwise than the prayer of the complaint petition. In the petition of complaint, the complainants have prayed for 135 sq. ft.car parking space which is beyond the agreement for sale as well as deed of sale. The parties cannot go beyond the deed of sale. Moreover, the complainants have themselves admitted that the car parking space was provided on lottery basis. We find no illegality or infirmity in the impugned order. Therefore, it does not require any interference in the order passed by the Ld. Commission.
As a result, the order dated 07.12.2021 passed by the Ld. District Commisison is hereby affirmed.
Accordingly, the Appeal is dismissed on contest.
The Appeal is, thus, disposed of, accordingly.
