Facts of the complaint case in brief are that the OP Nos.1 & 2 constructed/developed one residential apartment complex and named it as “Siddhi Vinayak Residency” at Udham Shing Sarani, Ashrampara, Siliguri-734001 (under Ward No.XIII of Siliguri Municipal Corporation) consisting of a parking at the ground floor plus four storeyed residential building.  For the above purpose the OP No.1 & 2 got their building plan sanctioned by Siliguri Municipal Corporation vide Plan No.100 dated 17.02.2010 (Annexure-1).  OP Nos.1 & 2 transferred the above named residential apartment to the complainants on various dates through Registered Deeds of Conveyance after receiving the full consideration value and the complainants took possession of their respective flat on various dates.  The OP Nos.1 & 2 did not take any step for formation of apartment owners’ Association or Cooperative Society even after transferring all the flats in the above mentioned apartment complex as specifically required under Section 10 of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993.  The OP Nos.1 & 2 deviated from the sanctioned building plan referred to above and made several unauthorised and unlawful changes in the construction of the building, and also used the residential building for commercial purposes without prior permission of the sanctioning authority and without any consent of the complainants and thus violated the provisions of the West Bengal Municipal Act, 1993 and West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993.  The OP

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Nos.1 & 2 covered the parking area in the ground floor adjoining the front entrance and installed a shutter door there and started using the same as godown/storage, storing inflammable items like spirits, paints etc., therefore, keeping the complainants at the constant threat of a fire break out and not only use the residential building for commercial activities but also created nuisance to the complainants.  The OP Nos.1 & 2 did not provide the two ‘electric rooms’ and one ‘generator room’ which they were obliged to provide under the sanctioned building plan referred to above and instead converted those places into parking and placed the electric boards, meters and wires under the stairs as a result the lives of playing kids have been put at high risk.  Moreover, it may also cause accidental short circuit any time.  On the other hand the generator has been placed under the open roof.  The OP Nos.1 & 2 provided a lower capacity septic tank than as contemplated in the original sanctioned plan referred to above.  Moreover, because of some defects in the construction or in the material used, septic tank capacity got exhausted before its provided capacity and because of which the complainants had to pump the septic tank just after a few months from the date of possession.  The OPs also did not provide any vent system/gas pipe in the septic tank which is continuously causing environmental pollutions and public nuisance and have been making the complainants as well as the neighbours suffer.  The OP Nos.1 & 2 did not carry out the construction of the building as per the specification approved by the Siliguri Municipal Corporation as laid down in the sanctioned building plan either by not providing the arrangement for proper drainage of the rain water from the roof or due to some defect in the construction of the roof and this has resulted in frequent water logging on the roof causing harassment to the complainants.  The defects as enumerated above are substantial in nature and not minor or cosmetic, and had been caused due to some defect in the construction activity and/or because of the use of substandard material in the construction.  The complainants made the OP Nos.1 & 2 aware of the above stated deviation and defects and requested to correct the deviations and rectify the defects through several telephonic calls and personal visits and made an application dated 09.02.2013 sent through Registered Post with AD to the OP No.1 requesting him to rectify the above stated defects but the OP Nos.1 & 2 completely ignored the complainants’ repeated request for correction of the deviations and rectification of the defects and not even gave reply to the letter of the

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complainants.  The complainants’ issued a legal notice dated 03.07.3013 to the OP No.1 asking the OP No.1 to correct the deviations and rectify the defects within 30 days from the date of its receipt failing which the complainants would be constrained to file a complaint under the Provisions of the Act, but the notice was returned as “unclaimed”.  The complainants then issued the legal notice again on 07.08.2013 to the OP No.1 but the said notice was “refused” by him.  However, a copy of the notice was duly served to the OP No.1 at his Registered address as exist on the ROC records.  The OP Nos.1 & 2 did not pay any heed and neither replied to the legal notice nor corrected the deviations and rectified the defects.  The complainants purchased their flat after paying the full consideration value from their hard earned money and such major deviations and defects as well as the OP Nos.1 & 2’s continual neglect to the complainants’ request for correction of the deviations and rectification of the defects and also their unsympathetic attitude have caused the complainants harassment, mental torture and agony and is continuing to cause the same.  Said deviations from the sanctioned building plan and defects in the construction activity and/or use of substandard material in construction have denied the facility or benefit which the complainants as consumers are entitled to, and therefore, there has been deficiency of service on the part of the OP Nos.1 & 2 as defined in Section 2 (1)(g) of the Act.  The OP Nos.1 & 2 have also resorted to unfair trade practice as defined in sub-clause (ii) of Clause (r) of Section 2 by falsely representing the proposed buyers of the flat that the above stated residential apartment would meet certain standard by showing them the sanctioned building plan.  In these compelling circumstances, the complainants have been constrained to file the present complaint for the redressal of their legitimate grievances. 

OP No.1 & 2 entered appearance and contested the case by filing a written version wherein the material averments made in the complaint have been denied and it has been contended inter-alia that the instant case is not maintainable.  It has been contended by OP No.1 & 2 that the complainants are not consumer as per C.P. Act and this Forum has no jurisdiction to try the present case and there was no negligency and deficiency in service and unfair trade practice on the part of the OPs.  It has been denied by the OP Nos.1 & 2 that they have deviated from sanctioned building plan or made any unlawful changes in the building construction or they are using the residential building for commercial purpose without prior permission of the

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sanctioning authority.  On the other hand OPs claimed that complainant Nos.5, 7, 11 and 13 are using the parking space for keeping the electrical business goods, plywood, shop room and chamber for commercial purpose.  It has been stated by OP Nos.1 & 2 that they never converted any parking space of the building in any way and not installed a shutter door there and on the request of some of the complainant, the OP Nos.1 & 2 provided the mosaic cheeps over the top roof so that no rain water be accumulated over the roof and they made proper arrangement for drainage of the rainwater in the building.  It has been further denied by the OP Nos.1 & 2 that they have used substandard materials in construction of the building.  It has been further denied by the OP Nos.1 & 2 that they covered the parking area of the ground floor adjoining the front entrance and installed a shutter door there and started using the same as godown/storing the inflammable items like spirits, paints etc. keeping the complainants at the constant threat of a fire break out or that they did not provide two electric rooms and one generator room which they were obliged to provide under the sanctioned building plan or converted those places into parking and placed the electric metres and wires under the stairs.  It has been further denied by the OP Nos.1 & 2 that the generator has been placed outside under the open roof and they provided the lower capacity septic tank than as contemplated in the original sanctioned plan or because of some defects in construction the septic tank capacity got exhausted even before its provided capacity.  It has been submitted by the OP Nos.1 & 2 that there was/is no negligence or deficiency in service or unfair trade practice on the part of the OP Nos.1 & 2 in any way and accordingly the instant case is liable to be dismissed with costs.                                                                                                                                                     

The OP No.3 Siliguri Municipal Corporation neither appeared nor contested the case by filing written version and accordingly the case proceeded exparte against OP No.3. 

To prove the case, the complainant has filed the following documents:-

1.       Copy of the sanctioned building plan no.100 dated 17.02.2010- Annexure I.

2.       Photographs of the godown/storage in 2 numbers – Annexure II. 

3.       Photographs of the electric boards and wires and the generator in 3 numbers – Annexure III. 

4.       Copy of the letter dated 09/02/2013 sent to the OP No.1 by the complainants together with the Postal receipt – Annexure IV.

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5.       Copy of the Legal Notice dated 03/07/2013 sent to the OP No.1 on behalf of the complainants – Annexure V. 

6.       Copy of the envelope showing refusal of the Notice by the OP No.1 – Annexure VI.

7.       Copy of the estimate for providing the septic tank as per the sanctioned plan by the Contractor of Civil Work – Annexure VII.

          Complainants have filed examination-in-chief supported by affidavit.

Complainants have filed written notes of argument.

OP Nos.1 & 2 have filed examination-in-chief.

          OP Nos.1 & 2 have filed Written Notes of Argument.

Points for determination

1.       Whether the OP Nos.1 & 2 by deviating from the sanctioned building plan made unauthorised an unlawful changes in the construction of the building and using the residential building for commercial purpose? 

2.       Whether there is any deficiency in service on the part of the OPs ?

3.       Whether the complainants entitled to get relief as prayed for ?

Decision with reason

          All the three issues are taken up together for the brevity and convenience of discussion.

In the instant case the complainants have submitted their examination-in-chief supported by affidavit as PW 1 to PW 13 respectively and certain documents which have been marked Annexure 1 to Annexure 7 respectively.

The OP Nos.1 & 2 also submitted their evidence by way of affidavit and certain documents.  In this case the OP Nos.1 & 2 have raised a point in course of argument that the complainants are not consumers and they have no locus standi to file this case.  On perusal of the case record, we find that both the points have already been discussed vide Order No.09, dated 21.05.2014 by this Forum and both the points were decided in favour of the complainant.  So, at this stage we do not find it necessary to discuss these points once again.    

The complainants have instituted the present case against the OP Nos.1 & 2 i.e., the promoter/builders alleging that the OP Nos.1 & 2 deviated from the sanctioned building plan sanctioned by the OP No.3 Siliguri Munitipal Corporation and made several unauthorised and unlawful changes in the

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building construction by opening a godown with inflammable items not providing the electricity room, generator room, parking place etc.  It should be mentioned here that the present complaint has been filed jointly by a body of individual consumers bound together by a common purpose acting jointly in pursuance of the said common purpose and have a common cause of action and relief prayed therein is common in respect of all the complainants.

In order to establish their case, the complainants have made a prayer before this Forum for appointing a Government Civil Engineer or Technical Officer of the Siliguri Municipal Corporation as Commissioner for physical inspection of the building in question to ascertain as to whether and to what extend the deviations from the building plan being Plan No.100 dated 17.02.2010 sanctioned by the Siliguri Municipal Corporation have taken place in the construction of the Siddhi Vinayak Residency and the Commissioner, Siliguri Municipal Corporation after inspection submitted his report dated 04.04.2014 which has been accepted by this Forum vide order dated 21.05.2014.

On perusal of the report dated 04.04.2014 submitted by the Commissioner, Siliguri Municipal Corporation we find that the Point No.1 is whether the residential apartment complex named as Siddhi Vinayak Residency at Udham Singh Sarani, Ashrampara, Siliguri-734 001 has been constructed as per the building plan being Plan No.100 dated 17.02.2010 sanctioned by the Siliguri Municipal Corporation ? 

The Answer of Commissioner is ‘yes’, but the side open space of 1.5 metre has been kept open with the side SMC road. 

The Point No.2 : Whether as per the sanctioned building plan, the parking area in the ground floor adjoining the front entrance has been covered and shutter door has been installed there and the same is being used as godown/storage ?   

The answer of the Commissioner is as follows : – That the front entrance which is 10.00 metre in length as per plan, 6.50 metre length has been covered with brick wall and the remaining 3.5 metre length is covered with rolling shutter.  After inspection some materials have been stacked.

The Point No.3 : Whether the residential building is being used for commercial activities and whether the Siliguri Municipal Corporation has approved such action, and if so, from which date and on what basis ?  The Answer of the Commissioner is during inspection it has been found that there exist a shop at rare side of the building at ground floor covering at least 20%

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of the area of the generator room and which is not as per sanctioned plan.

The Point No.4 : Whether the two electric rooms and one generator room as per the sanctioned building plan have been provided in the apartment complex ?  The answer of the Commissioner is ‘no’.

The Point No.5 : Whether the electric boards and metres and wires have been placed under the stairs instead of the electric room?  The Answer of the Commissioner is ‘yes’.

The Point No.6 : Whether the septic tank provided in the apartment complex meet all the requirements of the sanctioned building plan ?  The answer of Commissioner is two no. of hundred users septic tank have been provided as per approved building plan.

Point No.7 : Whether a proper vent system/gas pipe in the septic tank has been provided ?

The reply of the Commissioner is ‘yes’ provided but not straightway.

Point No.8 : Whether arrangement for proper drainage of rainwater from the room has been provided, and whether the roof has been constructed free from any defect so as to avoid water lodging?

Ans.:- The reply of Commissioner is apparently ‘yes’ however it needs to be checked during rainy season.

In this case, the complainants have submitted certain documents i.e., photograph of godown/storage and photograph of electric boards, copy of letter dated 09.02.2013 and the copy of the envelop refused by the OP No.1.  The photographs submitted on the side of the complainant also corroborated the facts that the electric metres and wires are installed under the staircase and the generator is situated at an open place instead of generator room and parking area in the ground floor adjoining the front entrance, there installed a shutter door and the same is used as godown/storage.  In this case the OPs only denied the allegations brought against them and claimed that whatever changes were made in the building constructions, those were done by the complainants themselves.  But here we find that the complainants issued notice upon the OPs on 09.02.2013 and by virtue of that notice the complainants have brought the alleged deviations as well as using of the ground floor parking space as storage for keeping the inflammable articles to the knowledge of the OPs.  But the OPs did not think it necessary to reply against the said notice.  OPs though claimed that all deviations and addition alteration of the building in question were done by the complainants themselves but the OPs did not take any initiative to appoint an engineer

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commissioner/technician for inspection of the building to bring the actual picture before this Forum.  Save and except denial of the allegations brought against OP Nos.1 & 2 by the complainants, the OPs did not take any step to bring the actual state of affairs before this Forum.  On the contrary on perusal of the Commissioner’s report as well as the coloured photographs submitted on the side of the complainants, it is clear that the OP Nos.1 & 2 deviated from the building plan as sanctioned by the Siliguri Municipal Corporation and made several unauthorised and unlawful changes in the construction and used the building for commercial purpose without prior permission of the sanctioning authority and they covered the parking area in the ground floor adjoining the front entrance and installed a shutter door there and started using the same as godown and they did not provide two electric rooms and one generator room which they were obliged to provide under the sanctioned building plan and instead converted those place into parking and placed the electric boards, metres and wires under the stairs.  If a builder or contractor of a house provides defective service or it is not that what was represented then it would be unfair trade practice as defined in the Act and any defect in construction activity would be denial of comfort and service to a consumer. 

Upon hearing the ld advocates of both sides and considering the materials and evidence of the parties on record and also considering the reported decisions cited on the side of the parties, we are of the view that OP Nos.1 & 2 deviated from the building plan as sanctioned by the Siliguri Municipal Corporation and made several unauthorised and unlawful changes in the construction of the building and covered the parking area in the ground floor adjoining the front entrance and installed a shutter door there and started using the same as godown and they did not provide two electric rooms and one generator room which they were obliged to provide under the sanctioned plan and placed the electric boards and metres and wires under the stairs and instead of providing a generator room the generator was placed outside under the open sky and OP Nos.1 & 2 did not carry out the construction of the building as per specification approved by the Siliguri Municipal Corporation as laid down in the sanctioned building plan being no. 100 dated 17.02.2010.  Under such circumstances the OP Nos.1 & 2 are directed to correct the deviation by closing the godown/storage after removing all the items kept inside the godown and restore the same for parking purpose and to provide two electric rooms and one generator room after correcting the deviation and by shifting all electric boards, metres, wires from under the

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stairs to the electric rooms and the generator to the generator room.  The OP Nos.1 & 2 are further directed to pay a sum of Rs.75,000/- to the complainants on account of compensation for deficiency in service and resorting to unfair trade practices as well as harassment, mental torture and agony caused to the complainants and OP Nos.1 & 2 are further directed to pay a sum of Rs.8,000/- being the legal expenses and cost of the proceedings to the complainants. 

In the result, the case succeeds in part.        

Hence, it is

                     O R D E R E D

that the Consumer Case No.160/S/2013 is allowed on contest in part against the OP Nos.1 & 2 with cost.

OP Nos.1 & 2, who are jointly and severally liable, are directed to correct the deviation by closing the godown/storage after removing all the items kept inside the godown and restore the same for parking purpose and to provide two electric rooms and one generator room after correcting the deviation and by shifting all electric boards, metres, wires from under the stairs to the electric rooms and the generator to the generator room within 45 days from the date of this order.   

OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay a sum of Rs.75,000/- by issuing an A/C payee cheque in the name of the complainants towards compensation for deficiency in service and resorting to unfair trade practices as well as harassment, mental torture and agony caused to the complainants within 45 days from the date of this order.

OP Nos.1 & 2, who are jointly and severally liable, are further directed to pay sum of Rs.8,000/- by issuing an A/C payee cheque in the name of the complainants being legal expenses and cost of the proceedings within 45 days from the date of this order.

Failing which the amount will carry interest @ 9% per annum on the awarded sum of Rs.75,000/- from the date of this order till full realization. 

In case of default, the complainants are at liberty to execute this order through this Forum as per law. 

Let copies of this judgment be supplied to the parties free of cost.