Date of Filing – 23.06.2015
Date of Hearing – 03.11.2016
PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Parties to impeach the Judgement and Final Order dated 29.05.2015 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no. 666/2014 whereby the consumer complaint initiated by the Respondent Sri Manas Brahma under Section 12 of the Act was allowed on contest with directions upon the Appellants to deliver possession certificate and completion certificate, to pay compensation of Rs.5,000/- in default to pay a sum of Rs.200/- per day as punitive damages.
The Respondent herein being Complainant lodged the complaint asserting that he is one of the owners in respect fof 1/4th share in of the land lying and situated at Mouza Banamalipur, P.O. & P.S.- Barasat, and he along with other owners being desirous to construct a new building comprising several self-contained apartments but due to extringency of fund approached the Opposite Parties/developers for construction. The said construction was completed in the year 2008. However, the developers are not providing him the possession certificate or completion certificate etc., for which the Respondent approached the Ld. District Forum against the developer/OPs on the allegation of deficiency in services.
The Appellants being OPs by filing written version disputed the contention of the Complainant by stating that the owners have authorised him by a Power of Attorney but the same being not a registered one, he is facing serious difficulties to sell out the flats from their own allocations and in this regard, all the requests and reminders went in vain.
After assessing the materials on record, the Ld. District Forum by the impugned judgement and final order allowed the complaint with certain directions, as indicated above, which prompted the OPs to prefer this appeal.
We have considered the submission advanced by the Ld. Advocates appearing for the parties and also scrutinised the materials on record including the brief notes of argument filed on behalf of the parties.
Having heard the Ld. Advocates appearing for the parties and on going through the materials on record, it would reveal that the Respondent was one of the co-owners of a piece of land measuring about 4 cottahs lying and situated at Mouja Banamalipur, P.S. & P.O.- Barasat, Dist- North 24 Parganas. On 11.10.2006 the Respondent as one of the co-owners of the said property along with other co-owners had entered into an agreement to develop the said landed property by constructing a multi-storied building with the Appellants. On 26.10.2006, the Respondent along with other co-owners executed a General Power of Attorney in favour of the Appellant to facilitate the said construction job and other related job. After authorisation, the Appellants/developers obtained sanctioned building plan from the Municipality and started construction. By the year 2008, the Appellants/developer completed the construction of the said building.
Now, as per terms of the agreement, the Respondent is entitled to get a self-contained flat measuring about 750 sq. ft. carpet area on the 2nd floor as his share out of owners’ allocation. Admittedly, the Appellants/developers handed over the possession of the said flat being Flat no.C2 on the 2nd floor to the Respondent.
The entire dispute cropped up for non-execution of Registered Power of Attorney by the landowners for which the Appellants/developer is unable to sell out two flats of their allocation to the prospective buyers. However, this cannot be a ground to deprive a landowner from obtaining possession certificate or completion certificate.
Ld. Advocate for the Appellants has submitted that the Ld. District Forum has failed to appreciate that the Complainant cannot be categorised as ‘consumer’ in real sense and the responsibility of construction being a joint venture, the Appellants/developers cannot be blamed alone. We are not convinced with the said submission. In this regard, the decision of the Hon’ble Supreme Court in the case of Faqir Chand Gulati – vs. – Uppal Agencies Pvt. Ltd. & Anr. reported in III (2008) CPJ 48 is relevant. In Para-23 of the said judgement, it has been observed –
“We may notice here that if there is a breach by the landowner of his obligation, the builder will have to approach a Civil Court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under the Consumer Protection Act, for relief as ‘consumer’, against the builder as a service provider. Section 3 of the Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the Complainant”.
Relying upon the authority mentioned above, we are in agreement with the Ld. District Forum that the Respondent is a ‘consumer’ as embodied in Section 2(1)(d) of the Act and as such being a landowner, the Respondent did not commit any wrong by approaching a Consumer Forum against the developer. Similarly for redressal of their grievances, the developer/Appellants may approach a competent Civil Court but in any case a developer cannot absolve his liability on account of fault on the part of the landowner for non-execution of registered Power of Attorney.
Therefore, after giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, we find that the appeal has no merit and as such it deserves dismissal. In other words, we do not find any infirmity in the impugned order. However, the order of punitive damage is not sustainable because there was no specific claim on that head and as such in view of the decision of the Hon’ble Apex Court reported in (2015) 1 SCC 429 (General Motors (India) Pvt. Ltd. – vs. – Asoke Ramnik Lal Tolat & Anr.) the order in respect of imposition of punitive damages of Rs.200/- per day is liable to be set aside.
Consequently, the appeal is allowed on contest in part but without any order as to costs.
The impugned judgement and final order are modified to the extent as that the Appellants must handover the Possession Certificate and Completion Certificate and to pay compensation of Rs.5,000/- in favour of Respondent within 30 days positively.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information and guidance.
