Date of Filing             :    19 June. 2019.

Date of Order            :    16 October, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Smt. Gayatri Banerjee, hereinafter called the Complainant , filed a complaint under Section 12 of the Consumer Protection Act, 1986  (the Act), against Shri Basudew Ram, hereinafter called the Opposite Party or OP, alleging deficiency in service occurred from the part of the OP arising out of non-completion of the scheduled flats allotted to the complainant as per agreement and not receiving possession of the said flats from the OP.

            The material facts arising out of the complaint petition and the annexed documents attached with it are that the complainant, being a Lessee through a Lease Deed executed on 23/10/2003, signed and executed a Development Agreement on 10/07/2009, which was later revised/modified and notarised on 16/12/2011, with the OP, Shri Basudew Ram, to develop a Bastu land with an RCC structure thereon lying and situated at 51, Khagendra Nath Ganguly Lane, P. S. – Golabari, Howrah, measuring about more or less 2 Cottahs 4 Chittacks and 0 sq. ft. which was in her possession through the Lease Deed. There was a structure on this land and tenants were occupying the structure.  According to the revised Development Agreement it was agreed that the OP would construct at first a two storied building and the complainant, being the owner, would get a flat of area about 600 sq. ft. on the first floor and a room of 200 sq. ft. on the ground floor or a flat of 450 sq. ft. flat on the second floor in place of the ground floor room if the second floor would be constructed subject to the approval of building plan by the authority.  Complainant stated that the OP got the building plan sanctioned by the authority in terms of the said agreement coupled with the Power assigned in favour of the OP vide Plan No. 44/AE/BRII/BLDG/11-12, dated 27/08/2011.  She also stated that the OP completed the G+1 building somewhere in the month of December, 2017.  But, according to the allegation made in the complaint petition, the OP could not hand  over possession of the 600 sq. ft. flat on the first floor to the complainant, rather the OP allowed some stranger/third party to take possession of her designated flat.  When she claimed her allocation the OP assured her that it was a temporary arrangement and after a few months she would get possession of her allocation. She then found that the OP has constructed another floor over the first floor for which she expected that a 450 sq. ft. flat on the second floor would be handed over to her.  But to her utter surprise the complainant found that the OP was trying to construct another floor over the second floor which she objected strongly.  She found in dismay that neither the first floor flat nor the second floor flat handed over to her.  no other way she came before this Forum/Commission and filed the instant complaint praying to direct the OP to (i) complete the construction and handover the ‘B’ scheduled allocation as per agreement for immediate possession after removing all persons from that allocation, (ii) to pay compensation of Rs.5,00,000/- for damages caused due to unfair trade practice and deficiency of service and litigation cost and other relief for which she is entitled to.

             Complainant filed copies of (i) Lease Deed dated 23/10/2003, (ii) Development Agreement dated 16/12/2011, (iii) some copies of receipts of property tax issued by the Howrah Municipal Corporation and (iv) a letter issued by the Advocate on behalf of the complainant to the OP dated 15/12/2018 as annexure to the complaint petition.  

            Notice was served upon the OP, after admission, to appear and contest the case by filing written version.  OP appeared through Ld. Advocate and filed written version. Then the complainant filed Evidence on Affidavit. Later, OP failed to file any questionnaire and Evidence.  The case then proceeded for argument.  OP did not participate in the argument.  Argument on behalf of the complainant was heard in full and the complainant filed Brief Notes on Argument.  We are now in a position to deliver the Final Order/Judgment.  We have to decide whether the OP failed to comply with the terms and conditions of the Development Agreement and whether any deficiency in service has been occurred from the part of the OP for which the complainant shold get relief as prayed for.

DECISION WITH REASONS

1.        Succinctly put, complainant’s case is that the complainant is a Lessee of a landed property at 51, Khagendra Nath Ganguly Lane, P. S. – Golabari, Dist Howrah.  She has got possession of this property through a registered Deed of Lease executed on 23/10/2003 for 99 years.  In order to develop the said property she entered into a development agreement, first on 10/07/2009 and then through a revised/modified development agreement dated 16/12/2011 with the OP.  According to this modified agreement the OP would construct at first a G+1 storied building and the owner/Lessee/complainant would get a 600 sq ft flat on the first floor and a 200 sq ft room on the ground floor.  It was also stated in the revised agreement that it the OP would be able to construct the second floor then the complainant would get the 600 sq ft first floor flat and a 450 sq ft flat on the second floor in place of the 200 sq ft room on the ground floor.  But, according the complaint, the complainant failed to get possession of her allocation, even the OP tried to construct another floor over the second floor on which she has the absolute right.

2.        While going through the complaint and the annexed document some questions are arising in our mind.  First, the development agreement dated 16/12/2011 has never mentioned that there was a previous development agreement and this agreement is a modified or revised agreement to the previous one.  Second,   this agreement was executed on 16/12/2011 and the building plan was sanctioned, according to the complaint petition, by the Howrah Municipal Corporation on 27/08/2011.  But this has not been mentioned in the agreement dated 16/12/2021.  Third, no copy of the sanctioned plan has been provided, though the complainant stated in her Evidence on Affidavit that she was tendering it’s copy with the Evidence, from which this can be ascertained that there was a scope of constructing the second floor.

3.        In  the  written  version,  the  OP categorically denied all the allegations made in the

complaint  petition.  In  this  written  version it is stated that though the landed property has

been  described  as  of area of  2 Cottahs 4 Chittacks but the physical measurement revealed

that  its  area  was  3  Cottahs  1  Chittacks  23 sq  ft.   However  as  per  agreement,  he  has

completed the G+1 building and was ready to hand over the first floor flat.  According to the

written version the OP has obliged all the terms and conditions of the agreement dated

16/12/2021 and he has not inducted any third party in the said flat.  After the complainant’s

persisting  objection  further construction  was  stopped which  was resumed after executing

another agreement between the complainant and the OP which was notarised on 18/07/2013. 

As  per  this  agreement  it  was  settled  that  the  OP  would  pay  Rs.12,00,000/-  to  the

complainant in instalment for further construction and the OP paid Rs.1,00,000/- on that

date of agreement.  Later the complainant sent a legal notice through her advocate for which

the OP stopped further construction and for such halt in further construction he was facing

huge financial losses.  In the end the OP confessed that he was always ready to comply with

all the terms and conditions of the agreement.

4.        The complainant, in her Examination In Chief / Evidence on Affidavit, denied that there was any agreement executed on 18/07/2013. She also denied that the OP had paid her Rs.1,00,000/- during the agreement dated 18/07/2013. Under such statement and counter statement we are confused about who are saying the truth.  Both have not provided any copy of the agreement dated 10/07/2009.  OP has not provided a copy of the agreement for resumption of construction which was notarised on 18/07/2013. In this position we have to rely on the agreement dated 21/06/2011. In this agreement it was decided that the complainant would get a 600 sq ft flat on the first floor and a 200 sq ft room on the ground floor.  It was stated in this agreement that if the OP would be able to construct the second floor then the complainant/Lessee would get a 600 sq ft flat on the first floor and a 450 sq ft flat on the second floor in place of the 200 sq ft room on the ground floor, together with roof top and terrace as owner’s share (Para – 6 in Pages – 8 & 9 of the agreement).  According to the complaint petition the complainant sent a legal notice to the OP on 15/12/2018 and she made a vehement objection to stop further construction for which the OP stopped the construction work.

5.        There is an array of judgements like, in Soumen Maity Vs. Subhas Das (CC/129/2016)  the Hon’ble State Commission, West Bengal, and in Bharti Knitting Co. -Vs.- DHL World Wide Express Courier Division of Airfreight Ltd. (Civil Appeal No. 9057 of 1996; AIR 1996 SC 2508) the Hon’ble Supreme Court strongly directed that we cannot go beyond the agreement made between the parties and if any dispute arises over the agreement Civil Court is the competent authority to try such dispute.  Here the complainant provided us only one agreement where construction of only a G+1 storied building was affirmed. The building plan was sanctioned before this agreement, no mention about the revised sanctioned building plan is found.  The complainant was reluctant in providing the first agreement, reluctant in providing information about the revised sanctioned plan, though she prayed, in Schedule-B,  for a 600 sq ft flat on the first floor, a 450 sq ft flat on the second floor together with a 150 sq ft open space immediate top of the first floor flat and the entire roof right of the building.  

6.         Considering all the above-noted discussions we are of the view that we are not going beyond the agreement dated 16/12/2011.  Hence the complainant is entitled  to get a 600 sq ft flat on the first floor and a 200 sq ft room on the ground floor together with all other facilities as stated in this agreement as the owners allocation.  No compensation is allowed as the complainant has not come before this Forum/Commission with clean hands but she is eligible to get a litigation cost of Rs.8,000/- from the OP.    

              Hence,  it is

ORDERED

            that the Complaint Case No. CC/177/2019  be and the same is allowed in part against the Opposite Party.

            The Opposite Party is directed to hand over possession of the schedule mentioned owner’s allocation as per agreement dated 16/12/2011 in complete habitable condition with other common facilities as per this agreement within 60 days from the date of this order.  The Opposite Party is also directed to pay Rs.8,000/- as litigation to the complainant within this stipulated time period.

            Let a copy of this order be issued to both the parties free of cost. 

Dictated and corrected by me

            Member.