DATE OF FILING : 27-05-2011.
DATE OF S/R : 29-06-2011.
DATE OF FINAL ORDER : 11-04-2012.
Sri Aloke Chakraborty,
son of late Japen Krishna Chakraborty,
residing at flat no. 3D, 3rd floor, Uttarayan,
P.S. Domjur, Howrah,
PIN 7111302. COMPLAINANT.
Versus -
1. Sri Kaushik Saha,
son of late Dr. Loknath Saha, residing at Mohiary,
P.S. Domjur, District Howrah,
PIN 7111302.
2. Smt. Monalisa Banerjee,
wife of Sri Sudip Banerjee,
residing at Mohiary Daspara, P.S. Domjur,
District Howrah,
PIN 7111302.
3. Smt. Arundhuti Chowdhury,
wife of Kaushik Chowdhury,
residing at Andul Chowdhury Para, P.S. Sankrail,
District – Howrah, Sun Developer
having its office at Mohiary Rathtala,
P.S. Domjur, P.O. Andul Mouri,
District – Howrah,
PIN – 7111302 OPPOSITE PARTIES.
P R E S E N T
1. President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
2. Member : Smt. Samiksha Bhattacharya.
F I N A L O R D E R
The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the O.Ps. to award a compensation of Rs. 1,00,000/- for denial of service and mental suffering and harassment, with further direction for enforcing the terms of the deed of sale to carry out necessary execution in respect of the construction as per terms of the original sanctioned plan dated 28-02-2008 and for cost of litigation.
The case of the complainant stands as follows :
After necessary execution and registration of the sale deed with respect to the flat as mentioned in the schedule of the deed of conveyance dated 26-06-2009 the complainant was put in the possession of the respective flat. Subsequently it was noticed that the o.ps. have deviated from the sanctioned plan and the apartment was not complete in terms of the said plan as displayed to the complainant before purchase. All the contractual commitments made out by the o.ps. in the deed of sale and sanctioned plan, the construction of the apartment have fell far short of the require and proposed standard and parameters in construction. After taking possession of the flat on 28-05-2009 the complainant noticed that the purchased flat fell short of 36 sq. ft. from the agreed 1541 sq. ft. To be precise the complainant detected the deviation and breach in the matter of construction of various diverse and integral part of the multi storied building resulting serious inconvenience, annoyance, discomfort and danger to the complainant. Hence the case.
3. The O.P. nos. 1 to 3 in the written version contended interalia that the complainant with full satisfaction purchased the flat measuring 779 sq. ft. as depicted in the concerned deed of conveyance ; that the complainant in connivance with other occupants of the building have filed this misconceived complaint for unlawful gain. So the complaint is liable to be rejected.
4. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps.
Whether the complainant is entitled to get any relief as prayed for
DECISION WITH REASONS :
5. Both the points are taken up together for consideration. Honble High Court Calcutta in F.M.A. 1287 of 2010 preferred by O.P. no. 1 of this compliant was pleased to direct the appellant to submit revised plan within three weeks and further directed the Howrah Zilla Parishad to examine and consider the same after complying with all formalities. Honble Court in no uncertain terms directed that while disposing of the afresh plan for the building, the concern authority will strictly go by the requirements of building bye-laws and other rules and regulations and shall not permit any deviation from the requirements of law.
6. Consequent upon such direction Howrah Zilla Parishad Authority and District Engineer conducted special enquiry on the score of deviation etc. The report dated 02-03-2010 reveals the truth of the allegations raised by the complainant.
7. It is the persistent allegation of the complainant that building was not constructed as per the sanctioned plan specially in respect of the car parking place, pump, generator, electric room, stair case, safety tank and fire fighting machinery etc. These allegations have practically been confirmed by the District Engineer. The Zilla Parishad and the District Engineer are the competent Government Authority. Since in the enquiry report the alleged deficiency have been confirmed, the o.ps. cannot have any respite from the rigours of law. Honble Supreme Court in a decision reported in 2008 (5) Supreme page 76 has been pleased to opine any default in construction activity would be denial of comfort and service to a consumer. If a builder uses sub-standard material in construction of a building and makes misleading representation, then it is denial of the facility or benefit of which a consumer is entitled to claim value under the C.P. Act.
8. Therefore, in our considered opinion the deficiency as alleged stands established. Even the competent authority has pointed out that the construction of the back side stair case still remains unfinished and becomes unworthy of use. Since the allegations are established, the complainant is entitled to the compensation as prayed for. Both the points are accordingly disposed of.
Hence,
O r d e r e d
That the C. C. Case No. 38 of 2011 ( HDF 38 of 2011 ) be allowed on contest with costs against all the O.Ps.
The O.Ps. be directed to pay a compensation of Rs. 1,00,000/- to the complainant for deficiency and denial of service, mental suffering and harassment.
The O.Ps. be further directed to carry out the necessary construction as per terms of the original sanctioned plan dated 28-02-2008 within one month from the date of this order.
The complainant is entitled to the litigation cost of Rs. 5,000/- from the o.ps.
The o.ps. be directed to pay the total amount aggregating Rs. 1,05,000/- within one month from the date of this order failing the amount shall carry interest at 10 percent per annum.
The complainants are at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
