West Bengal

Bankura

cc/95/2014

Sunil Barman Mandal - Complainant(s)

Versus

Sri Dibyendu Adhurjya and others - Opp.Party(s)

Jayanta Kr. Mukherjee

24 Jan 2024

ORDER

 IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

                                                                 

Before:                                        

1. Samiran Dutta                            Ld. President.      

2. Siddhartha Sankar Bhui            Ld. Member.                                    

 

(1) Consumer Complaint No. 92/2014 [Date of Filing: 21/07/2014]

Complainant 

Sri Sumanto Bhuin, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4.Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(2) Consumer Complaint No. 93/2014 [Date of Filing: 21/07/2014]

Complainant 

Sri Atanu Bandopadhyay, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

 

(3) Consumer Complaint No. 94/2014   [Date of Filing: 21/07/2014]

Complainant 

Smt. Tapati Mahanty, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

 

(4) Consumer Complaint No. 95/2014   [Date of Filing: 21/07/2014]

Complainant 

Sunil Baran Mondal & Smt. Uma Mondal, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

                                                                                                                                        Contd……p/2

Page:2

with

(5) Consumer Complaint No. 96/2014   [Date of Filing: 21/07/2014]

Complainant 

Sri Debdas Das, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(6) Consumer Complaint No. 97/2014   [Date of Filing: 21/07/2014]

Complainant 

Smt. Sarala Panda, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(7) Consumer Complaint No. 98/2014   [Date of Filing: 22/07/2014]

Complainant 

Sri Tarun Kumar Ghosh, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

 

(8) Consumer Complaint No. 99/2014   [Date of Filing: 22/07/2014]

Complainant 

Smt. Juin Chatterjee (Singha Mahapatra), Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

 

(9) Consumer Complaint No. 100/2014   [Date of Filing: 22/07/2014]

Complainant 

Sri Tarun Kumar Mukherjee, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

                                                                                                                                                               Contd….p/3

Page: 3

with

(10) Consumer Complaint No. 101/2014   [Date of Filing: 22/07/2014]

Complainant 

Smt. Krishna Sinha Babu, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(11) Consumer Complaint No. 102/2014   [Date of Filing: 22/07/2014]

Complainant 

Dr. Shyamal Kr. Dey & Smt. Bipasa De, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(12) Consumer Complaint No. 103/2014   [Date of Filing: 22/07/2014]

Complainant 

Sri Ganesh Chandra Karmakar & Smt. Mitu Karmakar, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

 (13) Consumer Complaint No. 104/2014   [Date of Filing: 23/07/2014]

Complainant 

Sri Sandip Ghosh & Smt. Barnali Ghosh, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

                                                                                                                                            Contd….p/4

Page:4

with

(14) Consumer Complaint No. 107/2014   [Date of Filing: 28/07/2014]

Complainant 

Sri Dolgobinda Kundu & Smt. Rina Kundu, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(15) Consumer Complaint No. 116/2014   [Date of Filing: 11/08/2014]

Complainant 

Smt. Usha Rani Mahapatra, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(16) Consumer Complaint No. 117/2014   [Date of Filing: 11/08/2014]

Complainant 

Sri Partha Sarathi Dutta, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(17) Consumer Complaint No. 118/2014   [Date of Filing: 12/08/2014]

Complainant 

Smt Manasi Metia (Dutta), Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

                                                                                                                                                 Contd….P/5

Page: 5

with

(18) Consumer Complaint No. 119/2014   [Date of Filing: 13/08/2014]

Complainant 

Sri Tapash Pratihar, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(19) Consumer Complaint No. 122/2014   [Date of Filing: 20/08/2014]

Complainant 

Sri Saryajit Mondal, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

with

(20) Consumer Complaint No. 124/2014   [Date of Filing: 21/08/2014]

Complainant 

Sri Saryajit Mondal, Mallabhum Apartment, Nutanchati, Bankura

           Vs

Opposite Party

1.Sri Dibyendu Adhurjya

2.Sri Rajesh Adhurjya

3.Sri Swapan Pal

4. Bastu Nirman Consultancy, Nutanchati, Bankura, a Partnership Firm, represented by O.P.1,2&3

5.Bankura Municipality

 

 

For all the Complainants:  Ld. Advocate Jayanta Kumar Mukhopadhyay

For the O.P. (Builders)1 to 4: Ld. Advocate Md. Mahiuddin

For the O.P.5/Bankura Municipality: Ld. Advocate Sandip Banerjee

                                                                                                                                                                                   Contd….p/6

Page: 6

 

                                          JUDGEMENT                                                                                                                                                           

Dated:24-01-2024

All the above mentioned cases are taken up together for delivery of Judgement as they involve the common question of law and fact and are disposed of by this common judgement which shall govern all the aforesaid cases.

Facts common to all the cases are that the Complainants are different flat owners in respect of twenty (20) Flats in G+4 Multi-storied complex known as Mallabhum Apartment as described in Schedule-A to the respective complaint having entered into Agreement for sale and deed of Conveyance on different dates during the Year-2011-12 with the O.P./Builders and have been possessing their respective Flats accordingly.

The grievance of all the Flat owners is that the ground floor was meant to be kept uncovered all along for the purpose of using a part of it as the site for eight (8) nos. of open garage space / parking area, a part of it for the installation of the lift and a part of it for affixation of electrical meters of the Flats and the starting of a stair case leading up to the top floor and the remaining portion thereof as open space / area for the Flat owners. But in deviation of that arrangement two (2) units of unauthorized and illegally constructed flats                    adjacent to each other have been raised as described in Schedule-C of the respective complaints and are subsequently disposed of in favour of stranger purchasers during the pendency of these cases despite a restraint order passed by this Commission without the permission and consent of the existing Flat owners notwithstanding the fact that the Flat owners have each 1/24^th undivided share and interest in the ground floor space. All the Complainants have therefore approached this Commission with the prayer for compensation and removal of the Schedule-C unauthorized construction by keeping the space thereof for common use and enjoyment of the flat owners.

O.P./Builders are the same in all the above mentioned cases and they separately filed same and common written version to contest the case contending inter alia that the Schedule-C flats in the ground floor are not unauthorized as the same has been raised on the unsold parking area with due revised sanction plan and approval of the Bankura Municipality Authority (O.P. 5) vide Application No.150/B-G of 2013-14, dated: 22/07/2014 and none of the Flat owners have any right and interest whatsoever in such ground floor space. O.P. / Builders have filed the above application for getting the certified copy of the said revised building plan which is reported to be destroyed. The O.P.s have therefore prayed for dismissal of the cases. 

O.P.5 / Bankura Muncipality  has not filed any written version.      

                                                                                                                                           Contd……p/7

Page: 7

Be it mentioned here that all the cases were so pending for long time awaiting final order from the Hon’ble High Court, Calcutta in Civil Revision No.292 of 2015  which were filed by the O.P. / Builders against the impugned order of this Commission dated: 24/12/2014 upholding the maintainability of all the cases before this Commission and the  Hon’ble High Court, Calcutta by a decision of the Special Bench dated: 18/02/2019 has disposed of the said Civil Revision along with other Civil Revisions and Writ Petitions by answering the reference to the effect that the district Commission has jurisdiction to entertain such complaint and Section 12 A of West Bengal Buildings  Regulation of Promotion of Construction and Transfer by Promoters Act, 1993 since repealed  is not a bar to filing of such complaint between Home Buyer & Promoter. Accordingly the Commission proceeds to dispose of the case on merit.

                                                                                  -: Decision with reasons: -

Having regard to the facts of the case, submission, contention and documents from both sides the Commission finds that admittedly the Complainants being the Flat owners are in possession and enjoyment of their respective flats with garage space facility to some of them. None of the Flat owners hereinabove has any complaint against the O.P.s with regard to their respective allotment of flats and common facilities save and except the unsold parking space to which they stake their claim of common use and enjoyment but the O.P./Builders have denied the same by raising the unauthorized construction therein.

Now the question is whether any of the Flat owners have any common right and interest in the unsold parking space in the ground floor of the apartment. There is no provision of such common use and enjoyment in the unsold parking area either in the Agreement for sale or in the deed of Conveyance of any of the Flat owners. It is a trite law that the Flat owners will enjoy the facilities of the flats with common space according to the terms and condition of the Agreement for sale or the deed of Conveyance but sorry to say that none of the Flat owners have been  given no such common right and enjoyment of ground floor space. The  claim of the Flat owners  that they have 1/24^th undivided shares and interest in the common uncovered space area of the ground floor is somewhat mis-conceived as what they are entitled to is the undivided share in the vacant land only and not in the constructed open space and that too on happening of unnatural calamities like earthquake or any act of God or any act of acquisition by the Government where there will be no existence of the constructed building on the land and till the happening of that event the Complainants / Flat Owners have no existing vestige of common right to use the disputed ground floor space for their own benefit nor can they assert any sort of common right therein.

                                                                                                                                                                                    Contd……p/8

Page: 8

In this case transfer of the respective Flats took place by execution of deed of Conveyance long back and in terms of Section 11 (4)(a) of the Real Estate (Regulation & Development Act, 2016) the liabilities and responsibilities of the promoter exists as per the Agreement for sale till the execution of the deed of Conveyance and with respect to any structural defect or any other defect in workmanship or any other obligation of the promoter as per the Agreement for sale is rectifiable within the period of five years from the date of delivery of possession in terms of Section 14(3) of the said Act but the case of any of the Complainant is not covered under the said proviso. It is therefore evident from the above provision of law which is now applicable and enforceable to the present case that after execution of the deed of Conveyance and delivery of possession the O.P. / Promoters have no liability and responsibility for redressal of any of the relief and grievance as ventilated in the petition of complaint.

Ld. Advocate for the Complainants has contended that the O.P.5/Bankura Municipality has no authority to approve such sanction for unauthorized construction in the ground floor space but this Commission will not go into the question of validity of the sanction which will be decided by the competent authority and the Complainants may seek relief before the appropriate authority for the same. 

Belated submission of written version as contended by the Complainant should not be viewed seriously as all the cases were so long pending before the Hon’ble High Court in connection with C.O. No.292 of 2015.                                                                                       

Considering the entire facts and circumstances of the case and the legal issue involved thereto the Commission is of the view that none of the Complainants is entitled to get any relief in this case as prayed for.                                                                                                                                                                                                                                                       

Hence it is ordered……..

That all the above mentioned cases be and the same are dismissed on contest but without cost.

Both parties be supplied copy of this order free of cost.

 

 ____________________                _________________         

HON’BLE   PRESIDENT           HON’BLE MEMBER