This is a complaint filed by one Sri Shankar Chatterjee & Dr. Dalia Chatterjee against Smt. Pravita Roychowdhury & Sri Ambar Roychowdhury, and also against Commissioner and Executive Engineer (Building), Kolkata Municipal Corporation, praying for a direction upon the OP builders to supply the completion certificate or occupancy certificate issued by Commissioner, KMC in respect of 1105 sq. ft. super built area on the first floor of the rear side of Municipal Premises No. 108, D. H. Road, P.O. Barisha, P.S. Thakurpukur, Kolkata – 8 and to make payment of damages to the tune of Rs. 15,00,000/-.
To narrate in brief, case of the Complainants’, is that, they are the purchasers of rear portion of a first floor flat measuring super built area of about 1105 sq. ft. area in Municipal Premises No. 108, D. H. Road, P.O. Barisha, P.S. Thakurpukur, Kolkata – 700 008. The Complainants purchased the said flat with a legal condition that OP builders would supply occupancy certificate” within 18 months from the date of transfer of said property to the Complainants. It is stated that Complainants, time and again, sought for the said certificate from the OP builders, but to no avail. So, the Complainants wrote a letter to the OP builders on 13-01-2016 demanding the requisite certificate, but without any result. Hence, this case.
OP Nos. 1&2 contested the case by filing WV, denying all the material allegations of the complaint. It is further stated that they are the owners of the concerned plot of land over which they constructed a G+3-storied building at their own cost. Subsequently, they entered into an Agreement for Sale with the Complainants on 16-05-2012 for the purpose of selling the concerned flat and subsequently, they completed the said flat and made it habitable in all respects. It is alleged that out of the total consideration money of Rs. 65,00,000/- of the flat in question, Complainants are yet to pay Rs. 16,00,000/-. It is the further case of these OPs that Complainants also owe an amount of Rs. 5,00,000/- towards the price of a car parking space. It is also stated that occupancy certificate and/or completion certificate can be obtained from the KMC and OPs have no right/authority to supply the same to the Complainants and more so, it is admitted by the Complainants that they have applied for the requisite certificate before the KMC authority. It is alleged by these OPs that Complainants have not approached this Forum with clean hands – they have intentionally avoided disclosing the fact that they filed a Civil Suit before the Ld. 7th Court of Civil Judge (Sr. Division) at Alipore. Accordingly, they prayed for dismissal of the case.
OP Nos. 3&4 also filed WV and denied each and every allegation made in the complaint. It is not denied by these OPs that they are the competent authority to issue Completion Certificate/Occupancy Certificate. It is further stated that they sanctioned the building plan in the name of one Benimadhab Roychowdhury, the predecessor-in-interest of the OP Nos. 1&2 on 06-09-2007 being plan no. 2007103221 for a four storied building. Having said that, it is stated by these OPs that, as per their records, no application has been made praying for granting Completion Certificate/Occupancy Certificate and unless such an application is made maintaining all formalities together with all necessary documents as per the KMC Building Rules, 2009, no Completion Certificate/Occupancy Certificate can be granted and if any such application is made as per building rules, the KMC authorities, after making enquiry and verifying all the documents, may issue the requisite certificate. Thus, they prayed for dismissal of this case.
Decision with reasons
The primary relief sought for by the Complainants is to direct the OP Builders to provide the Completion Certificate/Occupancy Certificate. OP Nos. 1&2, however, has sought to pass the buck upon the Complainants stating inter alia that they have got nothing to do in this regard and the same is to be arranged by the Complainants themselves.
In the wake of such claim and counter claims, we are to decide whether the OP Nos. 1&2 are at all responsible to provide the requisite certificate to the Complainants, or not. It is not in dispute that an Agreement for Sale has been entered into in between the parties. There is also no dispute as to the fact that the Complainants are in occupation of the concerned Flat. Admittedly, OP Nos. 1&2 constructed the building in question. Thus, notwithstanding the denial of the OP Nos. 1&2, they are virtually the de facto builders of the Building concerned.
The Hon’ble Supreme Court has given a judgement in Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr on 10th July, 2008 (Civil Appeal No. 3302 of 2005), 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, 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.”
Such crystal clear observation from the highest Court of the land, leaves nothing to imagination as to where the buck ultimately stops. Admittedly, the building in question has been developed by the OP Nos. 1&2. As such, being developer of the said building, they cannot escape their responsibility to procure the competition certificate from the authority concerned and provide a copy thereof to the Complainants.
As regards the issue of outstanding dues of Rs. 21,00,000/-, as articulated by the OP Nos. 1&2 in their WV, we do not come across any scrap of paper on record wherefrom it can be ascertained that they ever courted the Complainants to clear the alleged dues. It is unbelievable that any person of reasonable prudence would swallow the bitter pill so easily.
Now, coming to the issue of pendency of alleged Civil Suits in between the parties, most surprisingly, OP Nos. 1&2 have not submitted copies thereof to show that the same deals on self same matter. From what we gather from the submission of OP Nos. 1&2 in their WV, it appears that the same have been filed over a completely different issue. Thus, pendency of such civil suits cannot be a cogent ground to refrain from adjudicating the present case.
However, insofar as Complainants have not justified their whooping claim of Rs. 15,00,000/- towards compensation, we are not inclined to award any amount on this score.
Hence,
O R D E R E D
that CC/64/2016 be and the same is allowed in part on contest against the OP Nos. 1&2 and dismissed against OP Nos. 3&4. OP Nos. 1&2 are directed to provide “Completion Certificate/.Occupancy Certificate” to the Complainants within two months hence.
