The present case is filed by one Dr. Dalia Chatterjee and Sri Asutosh Chatterjee against Smt. Prativa Roychowdhury & Sri Ambar Roychowdhury, and also against Commissioner and Executive Engineer (Building), K.M.C., praying for a direction upon the OP Builders to supply the completion certificate or occupancy certificate in respect of the 897 sq. ft. flat at Premises No. 108, D. H. Road, P.O. Barisha, P.S. Thakurpukur, Kolkata – 8 and compensation for a sum of Rs. 15,00,000/-.
Facts, in brief, are that Complainants purchased a 897 sq. ft. flat situated at Municipal Premises No. 108, D.H. Road, P.O. Barisha, P.S. Thakurpukur, Kolkata – 700 008 from the OP builders with the legal condition that latter would supply “occupancy certificate” to the purchasers within 18 months from the date of transfer of the aforesaid property to the Complainants. It is the further case of the Complainants that since the date of purchase of the aforesaid property, they have been continuously demanding the requisite certificate from the OP Builders, but the latter is paying no heed to such requests. Even a letter dated 13-01-2016, issued by the Complainants to the OP Builders made no impact. It is stated that in absence of “occupancy certificate” they are facing lot of inconvenience related to basic civic amenities. Hence, the present case.
On notice, OP Nos. 1&2 turned up and contested the case by filing WV denying inter alia all the material allegations of the complaint. It is further stated that in their capacity as owners of the plot of land concerned, they erected a G+3-storied building out of their own funds in consonance with the Building Plan in question. Subsequently, an Indenture for Sale was executed in between the Complainants and these OPs on 16-05-2012. In this context, it is alleged by these OPs that out of the total consideration amount of Rs. 65,00,000/-, the Complainants are yet to pay Rs. 16,00,000/-. Further allegation of these OPs is that the Complainants have also not paid the price of one car parking space amounting to Rs. 5,00,000/-. It is stated that believing in the word of the Complainants that they would repay the balance consideration amount of the flat as well as the car parking space later on, these OPs accomplished the execution and registration of Sale Deeds to bestow right, title and interest in respect of the said unit and the car parking space in favour of the Complainants, but till today, Complainants have not paid a single farthing to clear the outstanding dues. It is asserted by these OPs that they are not responsible for providing occupancy certificate to the Complainants. Thus, the question of handing over the occupancy certificate in favour of the Complainants in respect of the said unit and/or building does not arise at all. These OPs denied that they are either the developer or service provider. They also accused the Complainants of suppressing material fact over non-disclosure of the fact that two title suits are pending in two different Courts at Alipore being T.S. No. 20764/2014 and T.S. No. 24/2015. Terming the present complaint case baseless, vexatious and harassing, these OPs prayed for dismissal of the case.
W.V. is filed from the side of OP Nos. 3&4 as well. By such WV, it is stated by these OPs that they sanctioned necessary building plan in respect of the premises in question vide no. 2007103221 and the said plan is sanctioned in the name of one Benimadhab Roychowdhury, the predecessor-in-interest of the OP Nos. 1&2. It is further stated that they have not received any application praying for granting completion certificate/occupancy certificate and unless such application is made, after maintaining all formalities along with relevant documents, they can do little in this regard. Denying any laches on their part, these OPs prayed for dismissal of the case against them.
Point for consideration is whether the Complainants are entitled to the reliefs sought for by them.
Decision with reasons
The first prayer sought for by the Complainants is for having a copy of the “Completion Certificate/Occupancy Certificate”. In this regard, it is asserted by the OP Nos. 1&2 that they have no responsibility to oblige the Complainants with the requisite certificate, rather the same has to be procured by the Complainants themselves.
We find the die in this regard is cast by the Hon’ble Supreme Court vide its authority dated 10-07-2008 in the matter of Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr, where the Hon’ble Court has been pleased to held that, “Even if such a provision for providing completion certificate is not found in the agreement, the builder cannot escape the liability for securing the Completion Certificate and providing a copy thereof to the owner. The law requires the builder to obtain completion certificate of such a building.”
For more insight into this aspect, relevant portion of the concerned judgment, passed by the Hon’ble Supreme Court in the aforesaid case, is appended below:-
“1.1 Builders violate with impunity the sanctioned building plans and indulge deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop, some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time in order to secure vigilant performance of duties, responsibility should be fixed on the officials whose duty was to prevent unauthorised construction, but who failed in doing so either by negligence or connivance.
1.2. “If the construction is part of a building which in law requires a completion certificate or C&D forms (relating to assessment), the builder is bound to provide the completion certificate or C&D forms. He is also bound to provide amenities and facilities like water, electricity and drainage in terms of the agreement. If the completion certificate and C&D forms are not being issued by the Corporation because the builder has made deviations/violations in construction, it is his duty to rectify those deviations or bring the deviations within permissible limits and secure a completion certificate and C&D forms from MCD. The builder can not say that he has constructed a ground floor and delivered it and therefore fulfilled his obligations. Nor can the builder contend that he is not bound to produce the completion certificate, but only bound to apply for completion certificate. He cannot say that he is not concerned whether the building is in accordance with the sanction plan or not, whether it fulfills the requirements of the municipal bye-laws or not, or whether there are violations or deviations. The builder cannot be permitted to avoid or escape the consequences of his illegal acts. The obligation on the part of the builder to secure a sanctioned plan and construct a building, carries with it an implied obligation to comply with the requirements of municipal and building laws and secure the mandatory permissions/certificates.”
1.3 “A prayer for completion certificate and C&D Forms cannot be brushed aside by stating that the builder has already applied for the completion certificate or C&D Forms. If it is not issued, the builder owes a duty to make necessary application and obtain it. If it is wrongly withheld, he may have to approach the appropriate court or other forum to secure it.
If it is justifiably withheld or refused, necessarily the builder will have to do whatever that is required to be done to bring the building in consonance with the sanctioned plan so that the municipal authorities can inspect and issue the completion certificate and also assess the property to tax. If the builder fails to do so, he will be liable to compensate the complainant for all loss/damage. Therefore, the assumption of the State Commission and National Commission that the obligation of the builder was discharged when he merely applied for a completion certificate is incorrect.”
Reading between the lines of aforesaid judgment makes no bones of the fact that the ultimate responsibility of procuring completion certificate entirely rests with the builder and nobody else. It is admitted by the OP Nos. 1&2 that the building in question has been built by none other than themselves. Against this backdrop, in our considered opinion, they cannot escape their liability to provide a copy of the completion/occupancy certificate to the Complainants.
Coming to the issue of non-payment of Rs. 21,00,000/- by the Complainants, it is indeed strange that the OPs have not furnished even a scrap of paper in support of their contention. It seems indeed strange that although the Complainants allegedly did not cough up a substantial portion of the consideration money, yet the OP Nos. 1&2 registered the property in favour of the Complainant duo. Also unusual is the fact that OP Nos. 1&2 did not petition the Complainants even once seeking payment of the residual consideration money. Be that as it may, in absence of cogent documentary proof to establish such allegation, we are not inclined to deprive the Complainants of their legitimate rights.
Similarly, although OP Nos. 1&2 have stated that they are engaged in civil suits with the Complainants, no material worth consideration is filed from the side of these OPs to show that the same deals on self same matter. Accordingly, this can also not be treated as a valid ground to stay aloof into the present dispute.
Complainants have claimed a whooping compensation of Rs. 15,00,000/- without making any concerted effort to justify such demand. Accordingly, we are not inclined to accede to such demand.
Hence,
O R D E R E D
that CC/63/2016 be and the same is allowed in part on contest against the OP Nos. 1&2 and dismissed on contest against OP Nos. 3&4. OP Nos. 1&2 are directed to provide “Completion Certificate/.Occupancy Certificate” to the Complainants within two months hence.
