Per Mrs. M. Shreesha, Member

This Consumer Complaint is filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainant against the Opposite Parties seeking the following reliefs:-

“i. Direct the Respondent No. 1 to complete the Apartment of the Complainants in all respects as per layout and quality standards promised and execute all the necessary and required documents in respect of the said Apartment in favour of the Complainants and refund the excess amount collected from the Complainants with interest @ 12% per annum;

ii. Direct the Respondent No. 1 to complete all common amenities in the project promised at the time of booking;

iii. Direct the Respondent No. 1 to complete all infrastructural work required for provision of electricity connection by NTESCL in Apartments of the project;

iv. Direct the Respondent No. 1 to pay interest @ 12% per annum, on the amount deposited by the Complainants with the Respondent for the period of delay i.e. from 28^th May, 2010 till physical possession as per clauses (i), (ii) & (iii) above is handed over;

v. Direct the Respondent No. 1 to pay compensation amounting to 10% of the paid consideration of the Apartment for unlawful construction of 7^th floor resulting in deprivation of suitable accommodation for domestic help as well as additional pressure on the common facilities of the project.

vi. Direct the Respondent No. 1 to pay ₹5,00,000/- (Rupees Five Lakh), as compensation for disruption to living arrangements, mental torture, agony and harassment caused to the Complainants on account of the deficient and unfair practices of the Respondents;

vii. Direct the Respondents, severally and jointly, to make the disclosures sought in clause 7E of the complaint;

viii. Direct the Respondent No. 1 to pay a sum of ₹3,00,000/- (Rupees Three Lakh) to the Complainants, towards litigation costs.

ix. Direct the Respondent No. 2 authority to ensure the compliance of the Respondent No. 1 with the above stated and take appropriate action against the Respondent No. 1 for any non-compliance.”

2.       The facts, as stated in the Complaint, in brief are that the second Opposite Party namely West Bengal Housing Infrastructure Development Company Ltd. (for short “the Authority) promoted a scheme for development of a housing complex of around 900 dwelling units/self-contained flats, primarily to be allotted to NRIs up to the extent of a minimum of 75% of the total constructed units in such Housing Complex.  It is stated that the land for development of the housing scheme was allotted to Rosedale Developers Pvt. Ltd. (for short “the Developer) by the Authority vide its Memo. No. 3693/HIDCO/Admn.-681/2004 dated 15.09.2005, later on altered by its Memo. No. 4146/Hidco/Admn.-681/2004 dated 22.10.2005.  It was agreed vide memo. dated 22.10.2005 that the Developer will develop the project on the terms and conditions mentioned in the said memo.  It is averred that as per the terms of the memo. dated 22.10.2005, the Developer was to act as “Developer and Agent” of the Authority with regard to the construction of the housing complex and sale and allotment of units.  On 28.05.2007, the Complainants booked an Apartment in the said project titled “Rosedale Garden Complex” situated at AA III/Blk-3, District North 24 Parganas, Kolkata, West Bengal. The total consideration of the Apartment as per the provisional allotment letter was fixed at ₹1,15,93,240/-, out of which the Complainants paid the booking amount of ₹5,74,235/-.  An Allotment letter dated 28.05.2007 was issued to the Complainants and possession was promised within 36 months from the date of letter i.e. by 28.05.2010.  However, the Developer failed to deliver the possession on time and the same was delivered only on 04.05.2015 i.e. after approximate delay of 5 years. It is stated that there has been inordinate delay in handing over possession of the Apartment. As per clause 9.1 of the terms and conditions annexed with the provisional Allotment Letter, the Apartment was to be handed over maximum within 36 months of the provisional allotment i.e. by 28 May, 2010. It was submitted that the Complainants via email have addressed Developer on multiple occasions but same was of no avail.  The Developer offered possession of the Apartment after nearly 5 years of delay, i.e. on 1" May, 2015. Even as on May, 2015, the Complainants Apartment was not ready and the Developer’s claim that the Apartment is ready for possession was only a "sham" aimed at luring the Complainants into paying the balance consideration. It is further submitted that the Apartment's built up area is only a part of the total built up area that was agreed between the Complainants and the Developer & Authority. That the  Complainants' apportioned share of the common areas was still under construction. Therefore, the offer of possession of the Apartment issued by the Developer was pre mature as common areas were completed only in October, 2015 when the Completion Certificate of the building and the other common areas was received.  Despite that inordinate delay the project was not completed by the Developer. Developer never offered any reasonable justification for the inordinate delay of nearly 5 years in completing construction and handing  over possession of the Apartment. It. is submitted that there was no firm commitment by the Respondents towards handing over timely possession of the Apartments and the delay is intentional so that funds collected from allottees of the project can be diverted to Developer’ other commercial gain.  It is stated that there were many irregularities in the flat and in the project. 

3.       It is stated that as per Clause 9.1 of the terms and conditions in the event of delay in handing over of possession of the Apartment, the Developer would be liable to pay compensation in the form of interest @ 6% p.a. for the period of delay. It is submitted that the calculations annexed with the final demand letter for possession had no mention of the compensation promised to be paid to the Complainants in the form of interest @6% per annum. However, as the Complainants had already paid 95% of the total sale consideration and the possession of the Apartment was finally being offered to the Complainants after a delay of 5 years, the Complainants forthwith made the entire payment via Demand Draft attached with a letter dated 4th May, 2015 under the impression that the Apartment and the project is complete, without prejudice to their rights to claim adequate compensation for the inordinate delay in handing over possession of the Apartment.  Complainants made various telephonic requests to the Developer to honour its commitment to pay compensation for delay but of no avail.  Complainants sent letters dated 28.09.2015 and 17.11.2015 to the Developer describing the discrepancies in construction and sought for rectification.  The Developer responded vide letter dated 21.12.2015 but failed to address their concerns and  on the contrary the said letter contained baseless allegations. The Developer also made unlawful changes in layout of the Apartment and the project.

4.       It is averred that the Brochure showed a magnificent housing complex comprising of 6 towards with ground plus 25 floors and a building of ground floor plus 3 floors for servants/domestic help.  However, the Developer constructed a 7th tower with ground plus nine floors named “executive suits” at the south east corner of the project compound.  The said 7^th tower has around 62 new Apartments thereby depriving the Complainants of accommodation for domestic help in the same complex, as promised at the time of booking.  It is submitted that the West Bengal Building Regulation of Promotion of Construction and Transfer by Promoters Act, 1993 clearly prohibits any change or modification in the original plans, unless the same is consented to by the Apartment owners in writing. The construction of the said 7^th tower prejudiced the interest of the Complainant in the following manner:-

i.        Deprivation of common amenities which have been sacrificed to accommodate the additional tower;

ii.       Proportional share of open area to each allottee has been reduced;

iii.      Additional burden on common amenities like the swimming  pool, gym, club, tennis court, as nearly 100 more occupants will now utilise the same.

iv.      The majority of the 7th tower's Apartments are sold to Indian residents which is in violation of the condition to maintain minimum 75% NRI occupancy, imposed by the Authority at the time of allotting the land.

It is stated that as visible from the above, the Developer have constructed/allowed construction of the additional tower to maximise its commercial gain at the expense of the interests of the allottees of the project, including the Complainants. It is submitted that a comparison of the original master plan and the revised master plan, reflects the following additional anomalies in the project:

1. 2 additional pillars have been erected in the living area of the Apartment.

2. The swimming pool is reduced in size from about 990.68 sq mts to 625 sq mts

3. The number of lawn tennis courts has reduced from 2 to 1.

4. The size of retail provisions with ATM Facility, grocery stores and utility shop is drastically reduced.

5. Commercial Complex/Shopping Mall is drastically reduced in size.

6. Parking lot in front of the Commercial Complex has been removed.

7. The badminton court has been removed.

8. The sports hall has been removed.

9. Banquet plus restaurant beside the Commercial Complex hasbeen removed.

5.       It is stated that the Developer failed to provide the necessary infrastructure to enable the Complainants to obtain domestic electric power in their name from New town Electric Supply Company Ltd. (NTESCL). It is further stated that Authority illegally gave an NOC to the Developer allowing them to take advance payment for booking of dwelling units prior to construction; the terms and conditions attached with the allotment letter were one-sided and the Developer  did not provide access of the essential documents pertaining to the project to the Complainants despite their making a specific request for the same.     Aggrieved the Complainants filed the present Complaint.

6.       The Developer filed their Written Version stating therein that the Authority desirous of developing the plot bearing No. AA-III, New Town, Kolkata, decided to appoint them as the Developer for the construction of a housing complex on the said plot.  It was stated that the Developer is not an agent of the Authority.  The construction of the Housing Project was undertaken strictly in accordance with the sanctioned plan after obtaining the requisite approvals from the relevant authorities and/or bodies.  Complainant No. 1, vide a letter dated 28.05.2007, was allotted an Apartment bearing No. 20E, on the 20^th floor at Tower No. IV of the project being developed by the Developer against a total consideration of ₹1,15,93,240/-.  The said Provisional Allotment Letter dated 28.05.2007 contained the terms and conditions which the parties had expressly agreed to adhere to.  As per Clause 9.1 of the terms and conditions which formed part and parcel of the provisional allotment letter, the Developer was required to hand over possession of the Apartment within a period of 33 months with an additional 3 months’ grace period, from the date of the said allotment subject to Force Majeure conditions.  Clause 9.2 describes the said Force Majeure conditions.  In 2008 the construction work was impeded due to reasons beyond the control of the Developer.  Vide its letter dated 18.06.2009, the Developer informed the Complainant that there was a disruption of the construction work due to restriction of movement of raw materials during the first quarter of 2008.  It was stated that there was a shortage of supply of raw materials at all the project sites due to changed political scenario.  In 2010 due to occurrence and clashes and the prevalent political upheaval at Birbhum, West Bengal, which is the main source for supply of stone chips to the site of the Housing Project being developed by the Developer, led to an acute shortage of  stone chips which almost brought the entire construction to halt.  The Developer could not obtain stone chips from other alternate sources such as Rampuhat since the stone chips from the said source did not conform to the requisite standard of materials being used for the construction of the Housing Project.  Developer vide letter dated 15.12.2010, informed the Complainants about the status of the infrastructural facilities e.g. electricity, water, sewerage, drainage, road, telecommunications, transportation, security etc. which the Authority was unable to completely develop due to the said force majeure conditions.

7.       It is stated that despite the efforts to complete the housing project, due to force majeure conditions, the Developer was unable to carry out the construction work at full scale and it could be done in a piecemeal manner. The Developer constructed the housing project after completing all statutory requirements and after obtaining the requisite approval from competent bodies. The housing project initially consisted of 6 Towers and the seventh Tower was under construction. They were constructed as per the rules and regulations of the Authority.  All the changes which have been affected upon by the Developer are in accordance with the rules and regulations of the Authority. Revised sanctioned plan had been submitted to the Authority and Developer was awaiting its approval.  Construction work of the housing project entailed the construction of additional space which had been duly factored from the FAR components by reducing the retail space which had previously been provided for and the value of the residential premises had been enhanced by minimising exposure to the commercial aspect of the Project. It is stated that, there have been no major changes in the master plan and all Towers have been constructed as set out in the initial master plan. The developer on 19.01.2011 received a letter from the  NTESCL whereby clearance was sought for issuance of dispatch instruction of the manufacturer for delivery of the equipment which would facilitate the supply of power to the housing project.  However, Directorate of electricity, Government of West Bengal issued an approval by the letter dated 12.07.2011 to the Developer, for installation of equipment at the housing project site after 6 months from the aforesaid date of clearances provided by NTESCL. The Developer stated that in terms of the partial completion of the housing project, the Developer applied for the partial completion certificate with the New Town Development Authority vide its letter dated 02.11.2011. Developer issued letter to the West Bengal Fire and Emergency services, for grant of a No Objection Certificate in respect of Tower number six in the housing project. Accordingly the West Bengal Fire and Emergency services after conducting the inspection of the premises, issued no objection certificate on 17.11 2011 for the purposes of Occupancy in the premises of the housing project.

8.       It is averred that on 04.09.2012, New Town Development Authority issued a partial Occupancy certificate with respect to Towers number 1 and 2 of the housing project, in pursuance of the letter issued by issued by Developer. On 10.01.2013 the New Town Development Authority issued another partial Occupancy certificate in respect of Tower number 3 and 4 of the housing project. During the month of January 2013 Developer issued a letter to the West Bengal Fire and Emergency services for grant of a No Objection Certificate in respect of Executive Apartment in the housing project. Accordingly, the West Bengal Fire and Emergency services after conducting the inspection of the premises, on 04.02.2013 issued No Objection Certificate for the purpose of occupancy in the said premises of the housing project. By 2014 the Developer had completed a major portion of the housing project. Vide its letter dated 26.03.2014 the Developer informed the West Bengal State Electricity Distribution Company Limited that the Apartment owners had raised objections regarding commercial tariff being imposed. Responding to the aforesaid letter the NTESCL replied on  08.04.2014 requesting the developer to declare by way of an affidavit that the housing project was being constructed entirely for residential purposes, in order to convert the tariff category of the housing project, in its records from bulk commercial to bulk domestic. The developer on 16.04.2014 furnished the Affidavit to the said effect. On 07.05.2014 New Town Development Authority issued two letters to the Developer granting extension of time period of partial Occupancy certificate for Tower Nos. 1 and 2 of the housing project. On 11.07.2014, the officials of the West Bengal State Electricity Distribution Company Limited and NTESCL, conducted an inspection of the housing project site, whereupon it was recorded by the said officials in their report that the installation of the power supply equipment would be taken over by the said officials and any additional work thereto be provided as per the West Bengal Electricity Regulatory Commission Rules.  It was stated that in view of the fact that the NTESCL, for the reasons but best known to it, was unable to address the issues with regard to the power supply raised by Developer, the Developer was compelled to issue a letter dated 02.08.2014 to the grievance redressal officer of the West Bengal Electricity Distribution Company Limited with regard to the said power supply issues. The member Secretary of the grievance redressal forum, West Bengal State Electricity Distribution Company Limited issued notice dated 12.08.2014 to the Developer  to appear before the said forum for hearing on 18.08.2014.

9.       It is averred that the developer continued the construction of the housing project and sought for partial Occupancy Certificate of the towers in the said project from New Town Development Authority from time to time. Accordingly New Town Development Authority granted partial Occupancy Certificate for the housing project on 05.09.2014 and on 25.09.2014. In pursuance of the aforesaid grievance letter submitted by the Developer the Grievance Redressal Form of the West Bengal State Electricity Distribution Company Limited wide a reasoned order dated 29.10.2014, directed NTESCL to provide necessary arrangements which had been requested by the Developer and further directed and NTESCL and the Developer to comply with all necessary formalities pertaining to the correction of the tariff category. Subsequent to the passing of the aforesaid order by the grievance redressal forum several follow-Ups were made by both the West Bengal State Electricity Distribution Company Limited and NTESCL, however the said companies were unable to completely comply with the directions contained in the order of the Forum. Developer after completing the construction of the housing project on 10.02.2015, issued a letter to the New Town Development Authority that is the statutory authority empowered to grant Occupancy Certificate for grant of Occupancy Certificate with respect to constructed Tower numbers 1 to 6 of the housing project. The Feveloper stated that after overcoming the aforesaid force majeure conditions and all the intervening circumstances mentioned heretofore, the Developer was able to complete the construction of the housing project in the year 2015. Developer vide letter dated for 04.05.2015, offered possession of the provisionally allotted Apartment to the Complainants. The said letter was thereafter duly accepted by the First Complainant on behalf of the Complainants. However, in view of the aforesaid failure of the NTESCL, to fully comply with the directions to address the issues with regard to the power supply in the Housing Project, the Developer vide letter dated 14.05.2015 requested NTESCL to comply with the said directions of the Forum in order to enable the Developer to complete the housing project.  It is stated that during the year 2014 to 2016 several correspondences ensued between the Developer, NTESCL and West Bengal State Electricity Distribution Company Limited to address the issues with regard to the power supply to the housing project which were of no avail.

10.     It is stated that the Developer was shocked to receive an e-mail dated 03.09.2015 from the Complainants claiming penalty for the delay in handing over possession even after having duly accepted the aforesaid letter offering possession of the Apartment, at such a belated stage despite having been made well aware of the prevailing conditions in the year 2009. The said email was duly replied by the Developer vide letter dated 08.09.2015 wherein it was clarified by the Developer that it was not liable to make any payments of the claims. Complainants issued another letter dated 28.09.2015 to the authority alleging several defects in the Apartment which had been handed over to the Complainants which was forwarded by the Authority to Developer vide a cover letter dated 07.10.2015. It is stated that the Developer during the year 2015 completed construction of the housing project. Further the New Town Development Authority issued the final Occupancy certificate for Tower numbers 1,2,3,4, 5 and 6 of the housing project on 14.10.2015.  In response to the letter dated 28.09.2015 issued by the Complainants, the Developer issued a response dated 21.12.2015 whereby all necessary factual clarifications were provided to the alleged faults and also reiterated the force majeure conditions which precluded the Developer from completing the project within the scheduled time. The Developer informed the authority vide letter dated 15.01.2016 that the letter dated 07.10.2015 issued by the Complainants had been duly responded to by the Developer. Finally in the year 2017 in furtherance of the aforesaid acts the Complainants herein in order to compel the Developer herein to make good their unwarranted claims preferred the present Complaint against the Developer  despite having handed over possession of the Apartment in question.

11.     In para-wise reply on merits it was denied that the Developer had received in excess of the agreed upon consideration amount. It is stated that paragraph number 6 of the provisional allotment letter clearly provided that the total consideration amount would be “firm and non-escalable.”  In addition to the same Clause 7.1 of the terms and conditions provided that the total consideration would not escalate. It was denied that the  Developer Company in is an agent of the Authority. In fact the construction of the housing project in question was undertaken to be constructed by the Developer as a Developer simpliciter, as the plot of land wherein the said project was constructed had been allotted to the Developer by the Authority. It is denied that the Complainants were led to believe that the housing project in question was a project of the West Bengal Government.  It was denied that the Complainants were lured by the promises made by the Developer in its brochure. It is stated that the Complainants had been made completely aware of the prevalent force majeure  conditions which was impending the construction work of the housing project. It is denied that the Complainants are entitled to compensation in terms of Clause 9.1 of the terms and conditions annexed to the provisional allotment letter as the same would be subject to occurrence of the events mentioned under the said Clause. It was also denied the Complainants made telephonic request to the Developer to make payment of the compensation. The Developer also denied all the contentions raised by the Complainants in their Complaint. It is stated that the Complainants are not entitled for any relief.

12.     The Authority filed its separate Written Statement stating therein that the Complaint is liable to be dismissed on the sole ground the Complainants are not Consumers of the Authority under section 2(d) of Consumer Protection Act 1986. It is stated that neither any amount is paid to the Authority in respect of the subject Flat nor there is any allegation that Authority has promised to provide any services to the complainants. The Authority has not offered for rendered housing or any other services to the Complainants.  There is no privity of contract between the Complainants and the Authority. The Authority is a government company which was constituted with the object of development of a new town. As a part of development of new town Authority invited applications from individuals, companies, developers and from every field for allotment of land.  A request dated 08.11.2004 was received from Dr. Santosh Mukherjee, Chief Promoter of Rosedale Garden NRI Cooperative Housing Society, for allotment of load land in  new town for non-resident Indians. The Authroity decided to allot land in terms of the send request mail. The allotment was made vide letter dated 10.12.2004. That Authority later received an application form Dr Santosh Mukherjee by way of a letter dated 06.10.2005, requesting that in view of the difficulties in forming a Cooperative Society of  NRIs, the allotment may be given in the name of Rosedale Developers Private Limited.  This request was made by him since exemption under section 7(a) of the West Bengal Cooperative Society Act 1983 was not allowed. The said request was considered by the Authority in its 33^rd board meeting held on 06.12.2005. The Managing Director of the Authority was authorised by its board in the said 33^rd board meeting to execute an agreement and power of attorney in favour of Rosedale Developers Private Limited. In accordance therewith, an agreement was executed by the Authority with Rosedale Developers Private Limited on 24.02.2016. The Developer was authorised by the Authority to build and develop a Housing Complex on the allotted plot of land bearing number IIIB/BLK-3 in New Town, Kolkata in accordance with the sanctioned plan and sale and allotted the constructed dwelling units to NRIs and Resident Indians. Authority is not responsible for either construction or sale of the constructed areas to third parties. The authority is neither Promoter under the provisions of West Bengal Building (Regulation of Construction and Transfer by Promoters) Act, 1993 nor concerned with the development of Housing Complex on the said plot of land.  The Authority is not also concerned with the allegation of deficiency or breach of service made by the complainant against the Developer. Neither any service is given by the Authority to the Complainant or to anybody else nor it has entered into any agreement whatsoever with the Complainant or with any other allottee of such dwelling units. It was denied that the Developer was acting as an agent of the Authority. It is stated that the Authority has nothing to do with the development of the project. It is denied that Authority has contravened  provisions of any statute in granting a no objection to the Developer to take advance payment for booking dwelling unit. It was denied that there is any breach in discharge  of its obligations by the Developer. It was stated that it has nothing to do with the deal as alleged  and allegations to the contrary are denied.  It is denied that the Authority is in active concert with the Developer in order to hide details of the layout plans of the project. The Developer was authorised by the Authority to build and develop a Housing Complex on the allotted plot of land in accordance with the sanctioned plan and sale out the constructed dwelling units to NRIs and Resident Indians.  The Authority is not Promoter under the provisions of West Bengal Building (Regulation of Construction and Transfer by Promoters) Act, 1993 nor concerned with the development of the subject Housing Complex on the said plot of land.  The Authority seeks dismissal of the complaint.

13.     The Complainants in support of their case relied upon the following documents: true copy of memo dated 22.10.2005 along with the agreement dated 24.02.2006 executed between the Developer and the Authority pursuant to the memo as made available to the Complainants as annexure C1; True copy of the sales brochure shown to the Complainant as annexure C2; True copy of the provisional allotment letter dated 28.5.2007 as annexure C3; True copy of final demand letter of possession issued by the Developer as annexure C4; E-mail correspondences between the Complainants and the Developer collectively as annexure C5; True copy of letter dated 28.9.2015 addressed by the Complainants to the Authority as annexure  C6; True copy  of letter dated 17.11.2015 addressed by the Complainants as annexure C7; Letter dated 28.9.2015 forwarded to the developer as annexure C8; Letter dated 21.12.2015  addressed to the Complainants by the Developer as annexure C9; Letter dated 04.05.2015 as annexure C10; True copy of the original floor plan promised to the Complainants at the time of booking as annexure C11 and suggestions of additions/alterations of the electrical infrastructure by the officials of NTESCL on 11.07.2014 as annexure C12.

14.     The Developer in support of their case relied upon the following documents: Copy of the provisional allotment letter dated 28.05.2007 as annexure R1; Copy of letter dated 03.11.2007 as annexure R2; Copy of the letter dated 18.06.2009 issued by the Developer to the Complainants as annexure R3; Copy of the article published in the telegraph dated 14.06.2010 as annexure R4; Copy of the minutes of the meeting dated 25.02.2010 as annexure R5; Copy of letter of acceptance dated 22.04.2010 as annexure R6; Copy of the letter dated 15.12.2010 as issued by the Developer to the Complainant as annexure R7; Copy of the letter dated 19.01.2011 issued by annexure R8; Copy of the approval letter dated 12.7.2011 issued by the Directorate of Electricity as annexure R9; Copy of the no objection certificate dated 17.11.2011 as annexure R10; Copy of the partial Occupancy certificate dated 04.09.2012 issued by the New Town Development Authority in favour of the Developer is annexure R11; Copy of the letter dated 08.10.2012 issued by the Developer to NTESCL as annexure R12; Copy of the letter dated for 04.01.2013 issued by the New Town Development Authority to the Developer as annexure R13; Copy of the partial Occupancy certificate dated 10.01.2013 issued by the New Town Development Authority as annexure R14; Copy of the no objection certificate dated 04.02.2013 issued by the West Bengal Fire and Emergency Services as annexure R15; Copy of the letter dated 26.03.2014 issued by the Developer to the Chief Engineer West Bengal State Electricity Distribution Company Limited as annexure R16; Copies of the letter dated 08.04.2014 and 16.04.2014 issued by the New Town Development Authority to the Developer and the affidavit collectively as annexure R17; Copy of the letter dated 07.05.2014 issued by the New Town Development Authority as annexure R18 collectively; Copy of the report of inspection conducted on 11.07.2014 by the officials of WBSEDCL and NTESCL annexure R19; Copy of the letter of grievance dated 02.08.2014 issued by the Developer as annexure R20; Copy of the partial Occupancy certificate dated 05.09.2014 and 25.09.2014 issued by the New Town Kolkata Development Authority as annexure R21 collectively; Copy of order dated 29.10.2014 passed by the Grievance Forum West Bengal Electricity Distribution Company Limited as annexure R22; Copy of the letter of possession dated 04.05.2015 issued by the Developer to the Complainants as annexure R23; Copy of the letter dated 14.05.2015 issued by the Developer to NTESCL as annexure R24; Copies of the correspondence and records of meetings between the Developer, NTESCL and West Bengal State Electricity Distribution Company Limited from 2014 to 2016 as annexure R25 collectively; Copy of the letter dated 08.09.2015 issued by the Developer to the complainant as annexure R26; Copy of the letter dated 07.10.2016 enclosing the letter dated 28.09.2015 as annexure R27 collectively; Copy of the Occupancy certificate dated 14.10.2015 issued by New Town Development Authority as annexure R28; Copy of the letter dated 21.12.2015 issued in reply to the letter of the Complainant as annexure R29 and Copy of the letter dated 15.01.2016 as annexure R30.

15.     The Authority in support of their case relied upon the following documents: Copy of notification dated 27.08.1999 read with notification dated 14.09.1999 as annexure A; Copy of the request letter dated 08.11.2014 as annexure B;  Copy of the letter of allotment dated 10.12.2014 as annexure C; Copy of the extract of the resolution dated 06.12.2005 as annexure D; Agreement executed by the Authority with Developer on 24.02.2006 as annexure E and Power of attorney given pursuant to that agreement which is proved as annexure F.

16.     Heard Learned Counsel for both the sides at length.

17.     The facts not in dispute are that the Complainants have purchased Flat No. 20E in Tower No. 4 of ‘Rosedale Gardens’ project floated by the Developer, comprising of super area of 3866 sq. ft. vide Provisional Allotment Letter dated 28.05.2007, according to which the promised date of possession was 36 months, including grace period of three months from the date of the Provisional Allotment i.e. 28.05.2010.  It is the Complainants’ case that there has been inordinate delay in handing over of possession of the Apartment which is in violation of Clause 9.1 of the terms and conditions and also that though the sale consideration was fixed at ₹1,15,93,240/-, the Developer demanded and received ₹1,16,33,780/- from the Complainants. Learned Counsel appearing for the Complainants submitted that the Developer offered possession of the Apartment only on 01.05.2015 after a delay of 5 years. The material on record shows that the demand letter was issued on 22.01.2015 for payment of ₹5,57,277/- and the letter also stated that the Apartment was ready for possession. The learned Counsel further contended that the Apartment built up area is only a part of the total built up area and that the Complainants’ apportioned share and the common area was still under construction and further that the Completion Certificate of the building and other common areas was received by the Developer only in 29.10.2015.

18.     On a pointed query from the Bench, learned Counsel appearing for the Developer submitted that the final Occupancy Certificate was given on 14.10.2015, which is exhibited as R28. He drew our attention to the various documents which have been filed between the period 25.02.2010 till the date of issuance of Occupancy Certificate in support of his case that it was only because of force majeure  conditions  and also on account of delay by West Bengal State Electricity Distribution Company in issuing NOC.

19.     Learned Counsel appearing for the Developer placed reliance on the decision of the Hon’ble Supreme Court in CCI Projects (P) Ltd. Vs. Vrajendra Jogjivandas Thakkar, 2018 SCC OnLine SS 2564, in which decision the Hon’ble Apex Court observed as follows:

“12. We have gone through the record and considered the rival submissions.  The decision of this Court in the case of Haryana Development Authority (supra) turned on individual facts of the case where the very entitlement of the subsequent allottees to claim damages or compensation for delayed delivery of possession was found to be unsustainable. Said decision of this Court related to cases where the original allottees had transferred the allotment in favour of total strangers with the permission of the authority and as found by this Court, the subsequent allottees were aware that there was delay in delivering the allotted plots on account of time taken in forming the layout or on account of encroachment and yet had purchased the interest of the original allottees. In the present case the transfers were effected within the family where the members had been living together.  The decision of this Court in Haryana Urban Development Authority (supra) cannot be stretched to say that in every case where there is a transfer, the complaint by the subsequent transferee would not be maintainable at all. 

13. At the same time, the appellant is justified in saying that as a result of mandatory requirements to resubmit the plans and get the fresh NOC in respect of fire safety permission, the period between 21.12.2012 to 07.05.2013 stood completely explained.  Thus, out of the period between August, 2014 till 16.11.2016, the appellant would be entitled to have a period of 6 months of extension.  That still leaves us with a period of a year and 8 months.  The Commission has awarded 8% interest on the deposited sum. The deposited sum in either case being Rs.85.86 lakhs, going by the direction issued by the Commission, the interest element in respect of the period of one year and 8 months would be in the region of Rs.11.4 lakhs.  We now consider the second part of the submission.  It is true that there was no complete ban on sand mining.  But as a result of reduced availability of sand in the market, the demand and supply ratio must have been upset. The appellant would therefore be entitled to some benefit on that count.”

20.     The principle laid down in the aforenoted judgement does not apply to the facts of this case as there is no documentary evidence filed by the Developer to establish that they had fulfilled all the mandatory requirements, and that the delay was only on account of the statutory authorities in not giving fresh NOCs and it is pertinent to mention that the there is no evidence to establish the exact date on which all the mandatory requirements were fulfilled, and if they were done as per the provisions of law. 

21.     As per Clause 9.1 the possession ought to have been delivered by 28.05.2010. The force majeure conditions , which the Developer is relying on such as restrictions on movement of construction material, shortage of supply of raw materials, shortage of stone chips, ,  are not supported by any documentary evidence and further they cannot be strictly construed to be force majeure .   It is also relevant to mention here that the Developer has relied on an article published in The Telegraph dated 14.06.2010 stating that the force majeure conditions were widely reported, whereas in the Written Version it is stated that the restriction of movement of raw materials was in the first quarter of the year 2008. It is also significant to state that the Developer issued another letter dated 15.10.2012, once again relying on force majeure, which is seven months subsequent to the article published in the newspaper. Firstly, we are of the considered view that the condition mentioned by the Developer does not fall within the definition of force majeure and secondly there is inconsistency in the time period stated by the Developer.  Hence, we are of the considered view that the contention of the learned Counsel that the delay in completing the construction of the Apartment is on account of force majeure conditions is untenable.

22.     The argument of the learned Counsel appearing for the Developer that the possession was offered way back in January 2015 is without any substance since the Hon’ble Supreme court in a catena of judgments has laid down that legal possession can be offered only with the Occupation Certificate,  which admittedly, in this case was issued only on 14.10.2015. There is also no evidence on record brought forth by the Developer to establish that the Complainants apportioned share of the common areas, was in fact complete.

23.     For better understanding of the case, it is necessary to reproduce Clause 9.1:

“9.1 The Company shall endeavour to give possession of the apartments to the applicants in 33 (thirty three) months from the date of allotment of apartments. Further, there will be a grace period of 3 (three) months at the end of 33 (thirty three) months. If the Company fails to deliver possession of the apartments after the grace period to the applicants (subject to force majeure as stated herein below), then it shall pay compensation to the applicant at the rate of 6% (six percent) or the prevailing bank interest rate of State Bank of India, whichever is lower, of the amount paid by the applicant from the end of the grace period tilt the actual handing over of  the apartments. It is further clarified that part from the interest payable as above the Company would not be liable for any other compensation whatsoever. Notwithstanding anything stated in this clause above, no applicant shall be able to claim any compensation if the applicant has at any point made any delay, and/ or default in payment of allotment money and/ or any instalment and/ or additional charges.”

(Emphasis supplied)

24.     From the aforenoted Clause it is evident that the Developer had to deliver possession within 36 months including the grace period and failure to do so would make the Developer liable to pay compensation to the Apartment purchasers @ 6% p.a. or the prevailing bank interest rate of SBI, whichever is lower of the amount paid by the Apartment purchaser from the end of the grace period till the actual handing over of the Apartment. Since, for the aforenoted reasons, it has already been observed by us that the force majeure conditions do not apply in the present case, we are of the considered view that the Developer has to comply with the compensation, which was promised in Clause 9.1.

25.     We address ourselves to the contention of the Learned Counsel appearing for the Complainant that there are unlawful changes made in the layout of the Apartment and also in the project. A perusal of the Brochure shows that the housing complex comprises of six towers with ground floor plus 25 floors and building of ground plus three floors for domestic help. It  is the Complainant’s case that the project now has seven towers with ground plus 9 floors named ‘executive suites’ at the south east corner and the seventh tower has 62 new Apartments on account of which the accommodation for domestic help in the same complex is not possible.

26.     Learned Counsel appearing for the Developer submitted that the project initially consisted of six towers and the seventh tower being ground plus nine floors has been constructed as per the rules and regulations of the second Opposite Party and the changes which have been affected upon by the Developer are in accordance with the rules and regulations of the second Opposite Party which has also sanctioned the revised plan. The Construction of the project entailed construction of additional space which has been factored from FAR components by reducing the retail space which had previously been provided for and the residential premises space has been enhanced by minimising the exposure to the commercial aspects of the project. It was submitted that there were no major changes in the master plan and that all towers have been constructed as set out in the initial master plan. Servant quarter, which was initially proposed was converted into an executive Apartment and Senior Resident Apartments. The final configuration is reproduced as hereunder:

27.     Learned counsel drew our attention to Clause 15.11 of the Allotment Letter, which states that the Complainant will have the opportunity to inspect the allotted Apartment before taking possession, and complaints if any, shall be brought to the notice of the Developer within 15 days of taking possession of the Apartment. It is the Developer’s case that the Complainant had taken possession on 14.05.2015 and did not lodge any complaint within 15 days and in fact had written subsequently after four months on 28.09.2015, which is in contravention to Clause 15.11.

28.     A perusal of the West Bengal Building (Regulation of Promotion of Construction and Transfer of Promoters) Act 1993, shows that Section 8 deals with alteration or addition without consent of transferee and rectification  of defects. It states as follows:

“8. Alteration or addition without consent of transferee and rectification of defect

(1) No promoter shall, after he has been granted under sub-section (5) of section 3 permission to construct a building and after an agreement under section 7 been entered into by him with any person who intends to purchase a flat, make, without prior consent of such person, (i) any alteration in the structure of such flat; or (ii) make any alteration in the structure of a building or construct any additional structure:

Provided that every alteration in the structure of such flat or building or every construction of such additional structure shall be done with the prior permission of the authority which sanctioned the original plan of such flat or building and with due regard to the detailed specifications of the construction of building as approved by the competent authority under any law for the time being in force.

(2) Subject to the provisions of sub-section (1), a building shall be constructed and completed in accordance with the plan referred to in clause (f), and the specifications referred to in clause (g), of sub-section (2) of section 3. If any defect in the construction of the building or in the material used or if any unauthorised change in the construction of the building is brought to the notice of the promoter by the person or persons taking possession of the building within a period of one year from the date of taking such possession, it shall either be rectified, wherever possible, by the promoter without charge to the person or persons who agreed to purchase any flat or flats or such person or persons shall be paid a reasonable compensation for such defect or change.

(3) Where there is a dispute as respect any defect in the construction of the building or in the material used or any unauthorised change in the construction of the building or the amount of reasonable compensation payable in respect of such defect or change which is not rectified by the promoter or is incapable of being rectified, or where there is a dispute as to whether it is reasonably possible for the promoter to rectify such defect or change, the matter shall, on payment of such fee by the purchaser in such manner as may be prescribed, be referred for a decision to the Chief Engineer in the Housing Directorate under the Housing Department of the State Government or to such other officer of the State Government, not below the rank of Executive Engineer, as the State Government may appoint within a period of two years from the date of taking possession of the building.

(4) The Chief Engineer, either himself or through his nominee, not below the rank of Executive Engineer, or the officer appointed under sub-section (3), as the case may be, shall, after such enquiry as may be deemed necessary, record his decision within one year from the date of payment of the fee referred to in sub-section (3) and inform the parties to the dispute forthwith, and his decision shall be final.

(5) The Chief Engineer or his nominee, not below the rank of Executive Engineer, of the officer appointed under sub-section (3), as the case may be, shall have access to the site of any building under construction by any promoter, whose name has been registered under sub-section (5) of section 3, at any time of the day without prior intimation to him for inspection of the work of construction or for investigation of any complaint from any purchase or other person or from any other source with regard to unlawful or defective construction or use of sub-standard materials, and the decision of the Chief Engineer or his nominee or the office as aforesaid shall be final and binding on the promoter:

Provided that any purchaser or other person making the complaint shall deposit such fee in such manner as may be prescribed;

Provided further that the fee shall be refunded to the purchaser or other person, as the case may be, if the complaint is found correct;

Provided also that the cost of inspection or investigation, as the case may b, shall be borne by the promoter if the complaint is found correct.”

29.     The documentary material on record does not evidence that any such alteration or additional work was done taking the prior permission as stipulated under Section 8 of West Bengal Building (Regulation of Promotion of Construction and Transfer of Promoters) Act 1993. Further it is stated that the partial completion certificate for towers 1 and 2 was issued on 04.09.2012; that New Town Kolkata Development Authority (NTKDA) vide letter dated 04.01.2013 granted the Developer extension of time; that NTKDA issued  another partial Occupancy Certificate in respect of towers 3 and 4 on10.01.2013 and that the West Bengal Fire and Emergency Services issued an NOC in respect of executive apartments on 04.02.2013. The Complainant has nothing to do with the executive apartment  nor with the partial Completion Certificate with respect to towers no. 1 and 2as admittedly Apartment No. 20E, is housed in the fourth tower. As per the documentary evidence the partial Occupancy Certificate for tower no. 3 and 4 was issued only on 10.01.2013, which is three years after the promised date of delivery, there are no substantial reasons given by the Developer for the delay in seeking / applying Occupancy Certificate with respect to the subject tower no. 4 except citing force majeure conditions, which, at the cost of repetition do not fall within the definition of force majeure, and delays by statutory authorities, which delay we are of the view cannot be any deliberate or intentional delay by the statutory authorities. It is an admitted fact that some changes were made in the project, which is in contravention to what was promised in the brochure and also the initial sanction plan and hence, the contention of the learned Counsel appearing for the Developer that there was a delay only on account of the statutory authorities, is untenable. Having regard to the fact that there is a delay of more than five years from the promised date of delivery of possession, there were changes in the sanction plan without informing the Apartment Purchasers, which is in contravention to Section 8 of the of the West Bengal Building (Regulation of Promotion of Construction and Transfer of Promoters) Act 1993, we are of the considered view that there is a deficiency of service on behalf of the Developer and therefore the Complainant is liable to be compensated.

30.     Learned Counsel appearing for the Complainant submitted that though Clause 9.1 stipulates 6% interest or the prevailing bank interest rate of SBI to be paid by the Developer is lower, Clause 8.1states that if the Complainants fails to pay the instalments within 14 days, from the due dates, the amount will attract interest @ 18% p.a. and that such a Clause which does not balance equities amounts to unfair trade practice. At this juncture, we find it a fit case to place reliance on the principle laid down by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2009) CPJ 34 (SC), wherein the Hon’ble Apex Court had examined such Clauses present in the Builder Buyer Agreements and has observed that such one-sided Clauses amount to unfair trade practice.

31.     Keeping in view the recent market trends and the interest rates being awarded by the Hon’ble Supreme Court, we are of the considered view that interest @ 10% p.a. on the deposited amount from 28.05.2010 till 14.10.2015, is to be paid by the Developer to the Complainants within four weeks from the date of receipt of copy of this order, failing which the amount shall attract interest           @ 12% p.a. It is also directed that the Developer completes all the amenities promised in the brochure within 8 weeks from the date of receipt of a copy of this order, we are also of the view that the Complainants are entitled to some compensation as admittedly there was a deviation in the sanction plan, which was intentionally shown to the Complainants and what was subsequently built. We are of the view that the excess amount claimed by the Complainant on account of change in the area cannot be awarded as possession with the excess area has already been offered and accepted. However, keeping in view, all the aforenoted reasons specifically that the Developer has admittedly constructed an additional 7^th tower depriving the Complainants of accommodation for domestic help, which was promised in the brochure and Allotment Letter, we are of the view that compensation of ₹3,00,000/- be paid to the Complainants to balance equities and in the interest of justice.

32.     We find force in the contention of the learned Counsel appearing for the second Opposite Party i.e. West Bengal House Infrastructure Development Co. Ltd. that the Allotment Letter and the Agreement was only between the Apartment Purchasers and the Developer and that there is no documentary evidence to establish that there was any deficiency of service on behalf of the second Opposite Party. The prayer sought against the second Opposite Party is for providing certain documents and also to ensure compliance by the Developer. It is seen from the Exhibits that as per provisions of New Town Kolkata Development Authority Act, 2007 read with New Town (Building) Rules, 2009 framed therein, New Town Kolkata Development Authority was created and is responsible for sanctioning, modifying of the building sanction plan, and issuance of Completion / Occupancy Certificates. We also find force in the contention of the learned Counsel appearing for the second Opposite Party that pursuant to commencement of New Town Kolkata Development Authority Act, 2007 all plans and drawings are handed over to New Town Kolkata Development Authority, which is in possession of all the documents and therefore no deficiency of service can be attributed to them. There is no privity of contract between the Complainant and the second Opposite Party and hence the Complaint is dismissed against second Opposite Party.

33.     In the result, this Complaint is allowed in part against the first Opposite Party with the aforenoted directions and also with costs of ₹25,000/-. The Complaint against the Second Opposite Party is dismissed.