Order-14.

Date-18/06/2015.

This is an application u/s.12 of the C.P. Act, 1986.

          Complainants the flat owners of Kheya Apartment situated at Premises No.13A, Ganguly Para Lane, P.S. Chitpur, Kolkata – 700 002 represented by Secretary, Mrs. Bhakti Chakraborty by filing this complaint has submitted that OP being the promoter and developer constructed the building G+4 at the said premises being no. Premises No.13A, Ganguly Para Lane, P.S. Chitpur, Kolkata – 700 002 and the members of the complaint association have individually purchased individual self-contained flat-unit in the said premises for valuable considerations mentioned in their respective title deeds and presently nothing is due and payable from them to the OP.  Practically at the time of handing over the possession the entire building was not fully completed but as per the request of the OP respective flat owners accepted the possession of the respective flat units from the OP on payment of full consideration which included the costing of various construction jobs and/or expenses for issuance and/or regularizing of several documents and fact remains the completion certificate are mandatorily required by the complainant the flat owners association but OP promised and/or give commitments to complete the same within 6 months from the date of handing over the possession to the complainant the flat owners but after lapse of the period the OP failed to do so and has not handed over the building to the complainant due to absence of several papers and documents and concerned department of the KMC has also not connected the appropriate and required diameter of the drainage and sewerage connection pipe to the said premises for which there is drainage and sewerage water locking in and around the said premises and said occurrences are creating unhealthy and unhygienic atmosphere for the present owners.  At the same time there is scarcity of drinking water for not procuring the completion certificate by the OP.

          Finding no other alternatives the complainant was compelled to issue written requisition on 23-09-2014 for taking legal action and in spite of due service of the same the OP reluctantly ignored such demand and that said illegal acts of the OP amounts to breach of entrustment and the members of the complainant are suffering tremendous difficulties and hardships in using their property and in fact, OP deliberately and desperately failed to discharge his services and duties to the respective flat owners in spite of several requests and demands made by them and it is no doubt a deficiency of service.  Further OP has failed to complete the incomplete job including construction work of the entire building and documentations of the KMC and also failed to complete incomplete works and thereby they have caused mental pain and agony and also failed to give proper service and for which the present complainant prayed for compensation etc. and for completion certificate etc..

          On the other hand OP by filing written statement submitted that it is bad in law and so far as the question of completion certificate of the said building concerned, it is stated that after completion of entire work OP made an application dated 09-03-2010 before the Kolkata Municipal Corporation for regularizing the changes in the construction and the concerned authority, after considering such prayer asked the OP to submit the deviation plan under Rule 25 for the aforesaid premises and OP is ready and willing to make all the necessary arrangements for the issuance of such completion certificate by the corporation and since the said dispute regarding completion certificate is not disputed by the OP.  So, there is no consumer dispute and in fact the process for regularization of building is stopped and it is an undertaking on the part of OP that he will took all the possible steps for obtaining completion certificate of the said building subject to fulfillment of all other related conditions by the respective member of the complainant.  It is further submitted that from the end of 2010 the OP has been suffering from chronic kidney disease and after the prolonged process of dialysis on 09-01-2013 the concerned physician advised to undergo renal transplantation and on 05-03-2014 such transplantation was made, and since then he is completly restricted to attend any social gathering and in spite of knowing all these facts complainant has filed this complaint falsely.  But denied all other allegations regarding quality of work etc. but it is all afterthough and complainant’s claim is completely baseless and without any foundation and the present complaint should be dismissed.

Decision with Reasons

On proper appreciation of the complaint and the written version and also considering the documents including the argument as advanced by both the parties it is gathered that it is undisputed fact that flat owners association Kheya Apartment situated at Premises No.13A, Ganguly Para Lane, P.S. Chitpur, Kolkata – 700 002 have been occupying the entire premises.  Admitted fact is that OP constructed the said building and handed over possession to the land owners and also the respective sellers to whom OP sold away the flat from the developer’s allocation.  Admitted fact is that the construction was started as per sanctioned plan of the municipality and as per municipal rule after completion of the entire construction as per sanctioned plan if completion certificate is not issued by the municipal corporation or municipality in that case the construction shall not be treated as a valid construction so, for that purpose the present complainant the flat owners association Kheya Apartment are entitled to get a completion certificate issued by the KMC and that shall be delivered by the OP and OP has admitted that during construction he changed the construction work deviating previous sanctioned plan for which OP submitted an application for completion certificate on 09-03-2010 for regularizing the changes in the construction and OP has admitted that the concerned authority upon considering such prayer asked the OP to submit the deviation plan under Rule 25 of the KMC Rules Building Rule 1990 but most interesting factor is that OP has admitted that he constructed the building after deviation from the earlier sanctioned plan when that has been done then illegality has been done by the OP and so earlier sanctioned plan is not valid.  So, OP prayed for regularizing the changes of construction and deviation as made by the OP for construction of the said premises violating the plan sanctioned by the KMC authority.  So, in the eye of law in fact, there is no valid sanctioned plan when deviation has been made and five years already expired from the date of sanctioned plan.

          It is settled principle of law that without a sanctioned plan and without a completion certificate any construction of any premises is not valid and relying upon that principle of law it is found that up to this stage the construction as made by the OP and what have been sold by the OP in favour of the complainants and possession had been delivered to the complainant is not a valid construction in the eye of law.  So, it is the legal duty on the part of the OP to handover the sanctioned plan and also a completion certificate to the flat owners association the present complainant and OP is legally bound to do that.  So, as per KMC Building Rule it is found that OP has acted illegally and till now, there is no valid sanctioned plan and there is no completion certificate issued by the KMC which is undisputed.

          Most interesting factor is that OP admitted that he constructed the present construction after deviation from the earlier sanction plan by KMC and to regularize the matter he filed n application for regularize the present construction on 09-03-2010.  Thereafter, he did nothing and fact remains OP was directed by KMC to submit deviation plan under Rule 25 of the Kolkata Municipal Corporation Building Rule 1990 that was also not submitted, then as per provision of Kolkata Municipal Rules and Regulation the application filed 09-03-2010 is not valid after lapse of three months that means OP is sitting idle and did not take any such step to regularize the sanctioned plan of the present premises including the completion certificate invariably purposely and fact remains the present flat owners and land-owners who are occupying the flat are actually occupying without any valid sanctioned plan and completion certificate.

          In so many Fora we have observed that they are passing such orders rejecting the prayer for supplying completion certificate in respect of the premises or flats or in respect of the sanctioned plan but truth is that invariably they are not aware of the rules.  Principle of law is that sanctioned plan is valid after construction if completion certificate is issued and if completion certificate is not collected after completion of the entire building even on the basis of the sanctioned plan this plan cannot be treated as valid.  Validity starts after issuance of the completion certificate.  In the present case entire construction as made by the OP practically there is no validity and validity is not there which is proved from the OP’s own admission that he constructed the present building deviating the sanctioned plan that means the sanctioned plan which was granted by the KMC is not in force until and unless OP files deviated plan for sanction and for completion certificate and on the basis of that revised sanctioned plan if completion certificate is not issued in that case the entire construction shall be treated as an invalid construction but no doubt it is found that such prayer is being rejected practically by the State Commission but principle of law is that completion certificate validates the construction on the basis of the sanctioned plan and if completion certificate is not issued the said sanctioned plan after expiry of period as noted in the sanctioned plan shall be treated as invalid.  Structural formation of the building maintaining the rules and regulation of the municipal building rules is drawn in the Sanctioned Plan and it is a picture kept in the custody of the municipality to verify after completion that as per such structural picture whether construction has been completed or not that means the building has been constructed as per rules and regulations of the municipality housing building rules.  So, completion certificate is always must for any construction and it is highly required by all flat owners on the ground that shall give them a right to mutate their name as flat owners (legal right) and if it is not produced then the mutation will not be made in the name of the flat owners as owner and in the present case that is the position of the flat owners of the present complaint only for the negative attitude of the OP the developer who has not follow the sanctioned plan but deviated from the sanctioned plan he has not submitted revised sanctioned plan as yet and for which he has failed to collect the completion certificate and for the fault of the OP the present complainant flat owners are facing much problem and in fact legally they shall have to face several problems in future if revised plan will not be sanctioned and completion certificate shall not be issued by the KMC         but as per development agreement in between the landowners and the OP it was must and as purchaser the flat owners have their legal right to get their completion certificate for mutating their name as legal owner of the flat but their names have not been mutated as flat owners as ownership flat.

          In this case on behalf of the OP Lawyer argued that the flat owners are possessing the flats but he is not aware of the fact whether mutation is made in respect of occupational ground or not.  In fact the mutation is not made as occupational right to assess tax which is applicable in respect of the lease holder and the tenant also as per KMC Rules.

          But after proper consideration of the materials we are confirmed that till today the entire construction in the eye of law is an invalid construction because deviation of construction has already admitted by the OP that means sanctioned plan has been deviated so that sanctioned plan is invalid.  OP has asked to submit revised plan that has not been submitted, no completion certificate has yet been secured by the OP and that has not been handed over to the flat owners association and in the eye of law OP has acted illegally and for his negligent and deficient manner of service to entire flat owners association including flat owners and landowners they are facing several problems so, the conduct of the OP is no doubt negligent and deficient manner of service are rendered by the OP which is completely uncalled for.  So, legally complainant has filed this complaint for such completion certificate etc. and legally OPs are bound to handover the same but it has not been done though possession has been delivered in the year 2008.

          In many cases we have gathered and in almost all the cases developers and promoters are handing over flats but they are not handing over the constructed building up to the mark to the flat owners.  But as per law and rule the promoter or developer are bound to deliver the entire premises including complete flat and delivered construction along with sanctioned plan and completion certificate and complainant as flat owners association are entitled to get it and OP is legally bound to handover the entire possession of the premises including completion certificate and after completing all incomplete work.  Fact remains at the time of handover the possession there are certain incomplete construction works which has been admitted by the OP but that has not yet been done.  Change has been made and sold away some vacant portion by forming a room on the ground floor etc. deviating plan so, it is an illegal construction so, to regularize it OP must have to submit revised plan and to collect completion certificate and to handover it to the complainant.

          In most of the cases it is found that when cheat and dishonest promoters have failed to face the order of the Fora they take one plea either renal failure or heart failure or financial failure for which they failed to complete it but Fora is not here and there to consider their health condition, financial condition or their family condition because they have squeezed money from different families by placing them on the street and in West Bengal almost all the promoters and developers are cheat and dishonest and in the present case also the dishonesty of the OP as developer is proved well.  In view of the above facts and circumstances, we are convinced to hold that the present OP is legally bound to complete incomplete work, handover completion certificate of building after submitting revised plan to the KMC and such sort of work can be completed even lying on the bed of the house of the OP if he is unable to move because his youthful son is conducting his case and through him, application etc.  may be filed with the help of LBS who will prepare the sanctioned plan but since 2010 it is not completed and it is no doubt unfair trade practice on the part of the OP and OP must have to complete it and handover sanctioned plan along with the completion certificate in respect of the premises and to handover the entire premises to the complainant within 60 days and if it is not completed with the said period  in that case OP shall have to pay penal damages  at the rateRs.30,000/- per month till completion of the decree and order and if it is collected it shall be deposited to this Forum.

          Regarding other allegation we are not considering in view of the fact already 5 years completed but incomplete work must be completed and in this regard the complainant association to report to the KMC and KMC shall have to inspect the premises and building at the time of giving completion certificate but OP shall comply the order. 

In the result, the case succeeds in part.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OP.

          OP is hereby directed to complete the incomplete work and to secure sanctioned plan after submitting revised plan to the KMC and to collect the completion certificate and hand over completion certificate, sanctioned plan, original sanctioned plan to the complainant and also to handover entire premises as per development agreement and it must be completed within 60 days and if OP fails to do that in that case for non-compliance of the Forum’s order and decree OP shall have to pay penal damages  at the rateRs.30,000/- per month to this Forum and till full satisfaction of the decree and on collection 56 percent of the penal damages shall be disbursed to complainant. 

          OP is further directed to clear up the matter on the day to day basis with the help of his youthful son who appeared before all the forums daily but we are asking the OP to take rest in his bed for his illness but depute his son and his LBS and complete the matter because negative attitude of the OP is found in view of the fact within last 5 years he has been loitering here and there only after he is booked by this Forum then OP expressed his illness and tried to convince that KMC has not passed but dishonest attitude of the OP is proved that he did nothing only filed the application for completion certificate after deviating from the previous sanctioned plan which is not the valid at present.

          Even if OP is found reluctant to comply this decree penal action shall be started against him for which he shall be further imposed fine and penalty.