| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM CACHAR :: SILCHAR Con. Case No. 20 of 2017 Smti. Mira Raha W/o Lt. Dr. Gangesh Ch. Raha, of Pratisruti Apartment Flat No. 401, G.C. College Road, Silchar ………………………………………… Complainant. -V/S- - Sri Anup Kumar Deb,
S/o Lt. Ajoy Kumar Deb, of Kalimohan Road, Tarapur, Silchar-3 ………………………………………………………………………O.P No.1 - Sri Rajat Choudhury,
S/o Lt. Rabindra Kumar Chodhury, G. C. College Road, Silchar…………………………………………………………O.P No.2 Present: - Sri Bishnu Debnath, President, District Consumer Forum, Cachar, Silchar. Sri Kamal Kumar Sarda, Member, District Consumer Forum, Cachar, Silchar. Appeared: - Mr. Arijit Kumar Deb, Advocate for the complainant. Mr. Debabrata Deb, Advocate for the O.Ps. Date of Evidence 01-12-17, 21-12-17, 06-03-18, 15-03-19 Date of written argument 05-04-2019 Date of oral argument 30-04-2019 Date of judgment 14-05-2019 JUDGMENT AND ORDER Sri Bishnu Debnath, - The complaint originally brought by Kamal Kumar Roy alleging inter-alia as below:-
He purchased incomplete super structure of a Flat No.401 in the Pratisruti Apartment, Silchar along with all common right over the roof, lift, staircases, passage drainage, generator, transformer, electrical supply etc. for consideration of Rs.3,00,000/- from Anup Kumar Deb, the lawful Power of Attorney holder of land owner Sri Rajat Choudhury vide Registered Sale Deed No. 2454 dated 06-05-2015. The description of that Flat is given in the schedule II of the Sale Deed on the date of execution of the sale deed the possession of that flat handed over to the complainant Sri Kamal Kumer Roy. But the O.P builder i.e. the Power of Attorney holder not yet provided proper drainage facilities and common generator. Further there is no proper ventilation system available in the car parking space allotted to the complainant and also the concealed pipe line in the flat of the complainant is unfinished and unprotected resulting of which water is continuously seeping from the pipe line. - The O.P No.1 (builder) in his W/S denied all the allegations. He stated inter-alia that a super structure in 4th floor of Pratisruti Apartment was sold to the complainant Mr. Kamal Kuram Roy for Rs.6,00,000/- with common right of drainage system, rooftop, staircase, left, generator etc. So, O.P No.1 is not liable for repairing of any water leakage problem in the concealed water pipe line as alleged. Moreover, he stated that lift and transformer have already installed in the premises for common use. He stated that the car parking problem in not within the lookout of the O.P No.1 and same may be solved by the occupants of the Pratisruti Apartment by forming their association. However, in his W/S he stated unequivocally that he constructed drainage system by laying PVC pipe line under the earth but owner of the land faced conflict with the PWD and for which drainage through the PVC pipe line has been discontinued to use. However, he opined and suggested that the land owner, i.e. O.P No.2, occupant of the Pratisruti Apartment and society of the Pratisruti Apartment may take necessary step for a arranging for drain and in this aspect O.P No.1.i.e., the builder is not liable as the O.P No.1has already installed PVC pipe line for passing water of the Apartment by investing huge amount of money.
- The O.P No.2 stated inter-alia that the complainant Mr. Kamal Kumar Roy purchased super structure measuring 600 Sq. ft. and took possession of incomplete flat. So, completion of flat, fittings, furnishing etc. are the responsibility of the complainant and for any defect, the O.P No.2 is not responsible. Moreover, the promoter has already installed PVC pipe line for passing water of the Apartment.
- With the knowledge of above alleged inconvenience/disservice Smti Mira Raha purchased the said flat from Mr. Kamal Kumar Roy on 09-07-2018 during pending of the instant case. Accordingly with her prayer and consent of Kamal Kumar Roy, her name has been entered into this case as complaint and Kamal Kumar Roy has been transpositioned as proforma O.P. Accordingly, the O.P No.1 in his addl. W/S stated inter-alia that there is not cause of action of the complaint against the O.P No.1. However, the O.P No.2 did not submit any addl. W/S.
- During hearing Mr. Kamal Kumar Roy submitted his deposition supporting affidavit. The present complainant Smti. Mira Raha also submitted her deposition supporting affidavit and exhibited her Sale Deed. Mr. Kamal Kumar Roy also exhibited his sale Deed and other relevant documents. The O.P No.1 submitted deposition supporting affidavit and exhibited some documents including Power of Attorney. The O.P No.2 submitted his deposition along with addl. Deposition of the O.P No.1. After closing evidence both sides’ counsels submitted their written argument.
- I have heard both sides; counsels and perused evidence on record including written argument.
- It is a fact from the evidence on record that during the pending of the proceeding the O.P No.1 installed transformer and lift to the Apartment for common use of the occupanst of the Pratisruti Apartment including the O.P No.2 because the O.P No.2 is also residing in a flat of the said Apartment.
- However, from the evidence on record it is crystal clear that Mr. Kamal Kumar Roy purchased super structure for Rs. 3,00,000/- by Regd. Sale Deed vide Ext-1. Now, it is required to establish by the complainant as whether the builder installed water pipe line to the flat of Kamal Kurmar Roy installed the same without supervision and control of the O.P No.1. The evidence in that aspect is silent in the record. That is why,, in my considered view, it is to be concluded that no disservice is noticed against the O.P No.1 and 2 regarding allegation of leakage of concealed water pipe line.
- So far as ventilation of the car parking is concern, I do not find any evidence on record to disbelieve the aforesaid allegations brought by the complainant as well as Kamal Kumar Roy. As per Sale Deed of Kamal Kurar Roy he purchased super structure of the flat from the O.P No.1 and the car parking space from the O.P.No.1. So, it is the duty of the O.P No.1 to provide proper ventilation in the car parking space in as much as proper ventilation is the integral part of the super structure.
- However, the problem regarding obstruction of other to the complainant for using car parking is the matter of internal management between the occupants of the Pratisruti Apartment. Thus, the O.P No.1 or O.P No.2 is not solely liable to solve the aforesaid problem.
- For common use of generator, the O.P No.1 stated inter-alia that the generator may be installed with the contribution of the occupant of the Pratisruti Apartment. But no evidence is adduced to support the fact regarding agreement for contribution. If I read the Sale Deed of Kamal Kumar Roy carefully, I do not find any separate footing for installation of generator then installation of transformer because nothing separately mentioned in the Sale Deed regarding installation of generator with contribution.
- Thus, keeping both the transformer and generator in same footing, I am of view that like the transformer, the generator purchasing and installation expenditure must be bear by the builder/O/P No.1. As such O.P No.1 is liable to install generator within the stipulated time and may collect contribution or adjust subsequently. If here is any express agreement between the O.P.No.1 and Kamal Kumar Roy.
- However, the complainant raised allegation as well as Kamal Kumar Roy raised same voice with the complainant that there is not drainage system in the premises. The O.P No.1 tried to establish a fact that at the initial stage of sale of the flat, there was a drainage system with PVC pipe toward eastern side of the premises but the said pipe line drain has been closed due to conflict between O.P No.2 and PWD for which he is not responsible.
- In that aspect, going through the evidence on record, I am to say that it is responsibility of the builder to construct drainage system of the premises by observing all legal formalities and procedure because without drainage system in the long ran the premises of Pratisruti Apartment may became inhabitable for human living and resulting of which occupant of the Apartment may face irreparable losses.
- As such when the O.P No.1 constructed pipe line drainage system under the earth, he ought to look into all legal impediments before construction and in fit case he had to approach for permission from concern authority to construct drain on the land of other. But evidence on record it is crystal clear that he acted callously with a focus only to convince the prospective purchaser and also to the lawful occupant of the building that all necessary and basic requirement for occupant in the building has been provided, whereas it is in his knowledge that he construction PVC pipe line drainage system illegally on the land of other person other than the O.P No.2.
- Therefore, the O.P No.1 is liable for deficiency in service for non-providing proper drainage system in the premises of Pratisruti Apartment.
- In this case the O.P No.1 raised objection that the present complainant purchase the flat from Kamal Kumar Roy for which she is neither a consumer nor any disservice was done to her and as such there is no cause of action against the O.P.
- To this aspect, it is crystal clear that during pending of this case the present complainant purchased the flat from Kamal Kumar Roy vide Ext-6 Sale Deed. So it is presumed that she purchased the flat with full knowledge of disservice as raised by Mr. Kamal Kumar Roy.
- But in view of the provision of Sec. 3 of the Consumer Protection Act 1986, the aggrieved person may approach before this District Forum for additional relief. So, door of the Civil Court is not shut down for the complainant as well as for the O.P for adjudication of any disputed issue in that aspect.
- Hence, in this case, I am to see as whether the right derived from the original complainant to the present complainant by means of Regd. Sale Deed vide Ext-6. After hearing both sides’ counsels I am of opinion that the inconvenience which was facing by the original complainant Mr. Kamal Kumar Roy is appeared to be facing by the complainant and that inconvenience regarding common use of drainage system, common use of generator etc is not restricted to her by application of any terms and conditions or any express law and procedure. As such in my opinion the complainant is entitled the relief which supposed to get by her vendor i.e, Kamal Kumar Roy.
- With the above, the O.P No.1 is directed to make alternative arrangement for construction of drainage system of the premises of Pratisruti Apartment within 45 days from today alongwith arrangement for proper ventilation of the car parking space of the complainant as well as arrangement for installation of generator for common use. If fail, the O.P No.1 is liable to pay compensation of Rs.50,000/- for each defaulted works stated above. The O.P. No.1 is also liable to pay cost of the proceeding of Rs. 5,000/-only. If the O.P.No.1 is failed to provide the above service and compel to pay awarded amount aforesaid, he is to pay interest at the rate of 10% per annum of the awarded amount from the date of defaulter.
- With the above, this case is disposed of on contest. Supply free certified copy of judgment to the parties. Given under my hand and seal of this District Forum on this the 14th day of May,2019.
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