F I N A L O R D E R
This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for direction upon O.P to open the entrance of the building from its Northern side so that the complainant can enter into his flat in the building , not to disturb the enjoyment of common portion of the apartment, to repair the damaged wall of the flat due to percolation of water, to hand over duplicate key of meter room, to complete entire constructional work and also for compensation of Rs 5,00,000/- for unnecessary harassment and mental pain and Rs.5,000/- for litigation cost.
The case of the complainant in short is that the A schedule property is owned and possessed by O.P which was developed and G+III building was constructed and flats sold out to prospective buyers . The petitioner purchased a flat B schedule property at Rs 9,00,000/- vide registered sale deed No.1179 in the year 2012. The complainant took possession of the flat. While residing there he found that building materials, door, window are of low qualities and also the materials used in construction and rain water seepage through the wall caused dampness and damaged to the wall. That, the stare case roof was not completed and remained open and rain water causing trouble inside the flat area. That the O.P kept the meter room under lock and key and did not handed over the duplicate key to the complainant. That the main entrance and exit of the flat from the Northern side is illegally closed and complainant is compelled to use alternative four feet space at the Western side. That, O.P did not complete entire construction work of the apartment and illegally constructed a pukka godown at the ground floor of the common area and not allowing the petitioner to keep cycle, motor cycle at the ground floor.
The complainant requested the O.P to settle the dispute and complete construction work and lastly on 26.01.14 asked to settle the dispute but O.P did not pay any heed. That, for such negligent act of the O.P petitioner has to face financial loss, harassment and mental pain and files this case in the Forum for redressal with above mentioned prayer.
O.P appeared and contested the case by filing written version, wherein they categorically denied the allegations of the complainant. O.P. made a very elaborate written statement assailing the complaint. O.P admitted that ‘ A’ schedule property belong to her and in the adjacent Northern side of A schedule property the residential house of the O.P exist which is in the name of her husband Amal Kumar Das. That, in the Southern side of the A schedule property there is an asbestos shed room of O.P. and thereafter boundary wall 10 feet exist which protects Eastern and Western side including 18 feet wide iron gate installed in the Western side. Thus both the A schedule property and the re4sidention house of the O.P. are well protected by boundary walls. O.P denied that petitioner was ever provided any way of ingress and egress from the Northern side or from main road leading from East-West directly to the apartment for ingress and egress to the flat from North to South. That, after full satisfaction and observing all aspects petitioner took possession of her flat. The materials used in construction, door and windows are not below quality. That, it is false that water seepage causing damage to the walls. That, petitioner after three years filed this case on false and fabricated allegations. That, there is is provision for entrance and exit from Northern side to the flat. That, as per approved Municipality plan there is open and wide passage in the Western side of the A schedule property which connect 13 feet Municipality road in Western side leading to Municipality road named Dr. S.N.Roy Sarani. That, 18 feet wide Iron Gate is fixed for entrance and exit for residence of the flats. That, petitioner illegally claimed to use this space in the Northern side of A schedule property which falls open in the Eastern side of personal property of O.P where he resides and falls in residential house zone and not at all allotted by O.P to petitioner for egress and ingress. That, petitioner and others illegally keep their cycle and motor cycle in the stare case room causing congestion to the meter room. That, there was no agreement to provide space for keeping this motor cycle. On humanitarian ground O.P provides a portion of her garage space. O.P admits that she could not complete the stare roof as her plan was sanction for G + III and she completed up to G + II. But the stare case is well covered by corrugated iron sheets. She denied construction of a pukka godown in the ground floor of the flat but for maintaining main Iron Gate and collapsible gate by care taker O.P constructed two small rooms for the family of the care taker. The unsold car parking area is not at all a common area of the flat owner and she constructed the said two rooms exclusively in her property and submitted a revised plan to the municipality for approval. That, the flat owners are enjoying their flats and common portion of the apartment which clearly mentioned in agreement for sale (article I Sl. No.7) executed between the parties clearly mentioned the common area including stare ways, landing, passage ways, water pump etc. That, the petitioner filed this case after lapse of three years with some false allegations and for illegal gains and she prays for dismissal of this case with cost. .
DECISION WITH REASONS
Petitioner has been examined as P.W.1and one Sujit Kr. Das, Engineer examined as P.W.2. P.W.1 deposed as per statement of complaint petition. P.W.2 deposed that the building is not constructed following approved plan. But he did not disclose anything as to how the building deviated from the approved plan. P.W.2 further deposed that no boundary wall was found and outsider can enter easily. Interesting to note if there is no boundary wall then why did the petitioner pray for direction to open the entrance from the Northern side so that he can directly have access to the municipal road from his flat?
Anirban Das , s/o. O.P is examined as O.P.W.1. O.P filed surveyor report and complainant filed petition praying for cross examination of Surveyor. Subsequently petitioner filed objection petition against the physical inspection report of surveyor Gokul Ch. Karmakar. But thereafter both parties filed petition that they wanted to settle the matter in dispute by effecting an amicable settlement. However, they failed to settle the matter amicably and on prayer of the parties case was fixed for arguments. Ld. Lawyer of both sides made an elaborate argument. To prove the case petitioner has filed documents like copy of agreement of sale and Xerox copy of sale deed duly registered. O.P filed surveyor’s report of physical inspection.
After giving due consideration of the evidence on record and the document filed by the parties,
this Forum has come to the findings as follows:
This petitioner entered into an agreement with O.P to purchase the flat and accordingly paid Rs.9,00,000/- and took possession of her respective flat. The sale deed was registered on 02.03.2012. The copy of the same is also filed and is mentioned as schedule property in this petition. In this petition she prays for a direction upon the O.P to open the entrance of the flat room from its Northern side. But from the document of agreement of sale deed we do not find any such specific provision of making of entrance from the Northern side. Para 7 of the agreement regarding the common facilities and amenities includes stare ways, passages , side spaces, ways etc. are for common enjoyment of all occupants of the building . In the sale deed it is clearly stated that from the building/apartments the occupants of the flats having the ‘existing’ entrance passage and the passage leads to the municipal road at the Northern side of the premises is the only way being the only common passage to come to the municipal road. There is no mention in the sale deed or the agreement for sale specifically that “there is sufficient space from the main road which leading from East- West directly to the apartment for ingress and egress to the flat from North to South”. In answer to the questionnaires petitioner admitted that the Iron Gate exists at the Western side and one has to go to Eastern side, then turn left to avail the stare case. Petitioner prays for direction for opening the Northern side of municipal road entrance passage directly leading to stare case. Therefore, the petitioner’s prayer for direction upon O.P to open the entrance of the Flat from its Northern side as of right, which the petitioner cannot prove by sufficient evidence is not tenable. Moreover, from the evidence of P.W.2 who inspected the building, deposed in cross examination that he entered in the building from the Western side Iron Gate. In his evidence he did not mention that there is a space for ingress and egress directly at the Northern side or that O.P illegally closed the main way of entrance and exit of the Flat from the Northern side etc. The report of the engineer/surveyor/P.W.2 also never mentions any such facts.
It is admitted fact that in the adjacent Northern side of the schedule property there is residential house of O.P and at the Southern side of the suit property an asbestos shed room of O.P exists and thereafter the boundary wall of 10 feet. Thus, both the flat premises and the residential house of the O.P are well protected by boundary wall. The complainant and other flat owners are enjoying their respective apartments since 2012.
A person who is allotted a flat would be a Consumer. If, however the flat is sold but the sale deed is not accompanied by further development such as providing another passage directly from the Northern side to the main road, augmenting infrastructural facilities like sewerage, passage, roads etc. The purchaser shall not be a Consumer within Sec.2(1)(d) and cannot make a claim for such order of direction by this Forum ( As reported in 2015(1) C.P.C page 454(N.C.).
The report of the Engineer/Surveyor Gokul Ch. Karmakar mentioned ‘ a thin hair crack on the panel wall of one room of complainant, damp in the wall, rain water pipe choked, railing of stare case incomplete etc.’ Such damages would have been avoided by cleaning the exterior surface periodically and by application of weather coat. But till date nothing has been applied for maintenance of exterior wall. The report mentioned that the building is in completer. The 3rd floor is yet to be constructed and wall of the stare case room of 2nd floor is not plastered for that reason. That, the G.C.I. roof covering of the stare case was found well installed and with no water percolation. Entering into the premises he found 10 feet boundary wall at East and North and 20 feet Iron Gate installed at the Western side and the Southern side there is asbestos room after that 10 feet boundary wall and therefore flat premises are well protected by boundary walls. The damages in the wall and cracks are very normal and common in occurrence, awaits maintenance periodically. As per the sale deed the owners of the flat forming a Society will have to take the liability of maintenance of the apartments for its protection and peaceful enjoyment. The meter room was found very congested and it was suggested by the Engineer/Surveyor that the meters be shifted to the common area of the flat owners to ensure comfort and safety.
From the evidence on record we find that complainant fails to prove the alleged defects and deficiency in construction, construction with substandard quality of materials etc. by sufficient and cogent evidence from Architecture engineer ( 2016(1) C.P.R 765 (NC). The damages found due to natural wear and tear without proper plastering and coating of colour. The maintenance of which as per the agreement, are vested with the flat owners and not with the O.P. Therefore, petitioner cannot pray for any direction of this Forum in this regard.
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Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, argument advanced by the lawyers of both sides, the Ld. Forum has come to the conclusion in the light of our above discussion, that the petitioner has not been able to prove by oral and sufficient documentary evidence that she is entitled to get any relief as prayed for.
Fees paid is correct. Hence, it is
ORDERED,
That the consumer complaint being No. CC-16/2014 be and the same is dismissed on contest but without cost
Let copies of this order be supplied to the parties free of cost.
