BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

CACHAR :: SILCHAR

Con. Case No. 23 of 2017

1. Sri Tushar Kanti Dey,

S/O- Sri Narayan Chandra Dey,

Resident of Suprava Apartment, Flat No. 3^rd Floor.

A.3 Durgasankar Lane, Ambikapatty, Silchar…………………..  Complainants.           

                                                                        -V/S-

                 1.    Sri Pran Krishna Das, S/o Lt. Phanindra Kumar Das,

                        Resident of Kamala Road, Silchar-5,

                        Proprietor of M/S D.L. Construction. Having its

                        Registered office at Shillongpatty, Silchar-1 ………………        Opp. party

Present: -                                Sri Bishnu Debnath,                                       President,

District Consumer Forum,

                                                Cachar, Silchar.                                            

                                                            Sri Kamal Kumar Sarda,                             Member,

                                                            District Consumer Forum,

                                                            Cachar, Silchar.       

            Appeared: -                Ms. Sarmistha Paul (Bhartia), Advocate for the complainant.

                                                Ms. Tuhina Sarma Advocate for the O.P

                                                  Date of Evidence                                          07-12-2017, 20-02-2018

                         Date of written argument                             29-03-2018

                         Date of oral argument                                  24-09-2018, 06-10-2018

                         Date of judgment                                          31-10-2018

JUDGMENT AND ORDER

                               Sri Bishnu Debnath

1. The complainant purchased a flat No.A3 on 05-11-2011 vide sale Deed No. 2989 in the Suprava Apartment, Durgasankar Lane, Ambicapatty, Silchar following with sale agreement dated 18-01-2011 The complainant took possession on the flat on the date of registration of the flat. But the O.P/builder though took extra proportionate amount of Rs. 20,000/- for installation of transformer and Rs. 3,000/- for installation of C.T. Meter but installed a low capacity transformer. Not only that the O.P took Rs.1,00,000/- for allotment of Car Parking and accordingly executed one Allotment Deed dated 10/03/2016 duly notarized. Which mentioned that car parking No.9 has been allotted to the Complainant but in practice the said car parking space has been occupied by Biplab Paul and Complainant is deprived to give possession of any car parking space. However, the O.P took proportionate amount of Rs. 30,000/- from the complainant for installation of a lift but installed a lift having capacity of 3 (Three) persons only. Not only that but also as per agreement, the O.P not yet hand over possession certificate and also failed to install common electric connection for lift, stair-case etc.  The O.P also did not provide gate security and yet to completed the painting of the building.
2. For the above, the complainant is facing inconvenience. Hence, brought this case for award of compensation for disservice and for direction to install proper lift, transformer, common electric connection and to hand over   possession certificate and to complete the painting as well as to allot car parking space.
3. In this case the complainant also brought a fact that the O.P is unauthorizedly constructed building on the rooftop of the Apartment and rented to unsocial person who are continuously disturbing the complainants and other in dwellers of the said apartment.
4. The O.P Sri Pran Krishna Das, the builder has submitted W/S. In the W/S he admitted the fact of taking extra money as stated in the complaint. But he took plea that the transformer, C.T. Meter and lift already installed. But stated nothing regarding allotment of car parking or did not specifically deny the execution of deed of allotment of car parking or receiving considerated money of Rs.1,00,000/-.

5. So far as allegation regarding painting of the building is concern he admitted that painting of the building is not yet completed but work is going on and as soon as work will be completed the occupation certification will be obtained and hand over to the complainant. However, for common electric connection and maintaining the gate security he pleaded that it is the responsibility of the flat owners. However, to justify the alleged unauthorize construction on rooftop, he stated the matter is pending before the Silchar Municipality Board.
6. During hearing the complainant submitted deposition supporting affidavit and exhibited some documents. The O.P also submitted his deposition. After closing evidence both sides’ counsels submitted written argument.
7. I have perused the material on record, written argument and evidence as well as oral argument of the Ld. Advocate of the Complainant
8. In this case so far as allegation regarding installation of low power transformer I do not find any iota of evidence to conclude what is the exact power of the transformer which has been installed and it is also not available from the evidence on record as what is the required  connected load on the aforesaid Apartment. However, it is a fact in view of evidence on record the transformer has been installed but at the same time I do not find any fact in this case as how and in what manner the complainants are facing inconvenience for installation of the transformer. Moreover, in the agreement I do not find any specified Kilo watt of transformer to be installed. Hence, the allegation regarding low powered transformer and C.T. Meter are not established in favour of the complainant.
9. It is also admitted fact that lift has been installed but the complainant is trying to establish a fact that the lift was installed by violating agreement. But in the agreement, I do not find specific sized and capacity of lift. Moreover there is no Govt. rule regarding standard, size, power of lift available before me. That is why, the plea taken by the complainant regarding narrower lift is not tenable in the eye of law.
10. So far as car parking is concerned, the O.P stated that the car parking has been allotted. But the Complainant denied the same and exhibited deed of allotment of car parking vide Ext.2 to establish the fact that the O.P took Rs.1,00,00/- to allot car parking space of 90 Sq. ft. but no space is handed over to him. The O.P. did not specifically deny the receipt of Rs.1,00,000/- for car parking space but also unable to establish any material fact that the Complainant is now possessing a car par space. Moreover, noting revealed from the evidence on record that the O.P made alternative arrangement for car parking in favour of the Complainant. It is also not pleaded by the O.P that the amount received for car parking has been returned to the Complainant. Hence, it is concluded that the O.P. did not hand over car parking space to the Complainant.
11. The allegation of not installing common electric connection and gate security are not admitted by the O.P. The O.P took plea that to install common electricity connection is a responsibility of the flat owner. In that aspect, I have gone through the agreement for self. No such clause is available in the agreement to say that the O.P is to take responsibility to install common electric connection for lift, stair case light, water pump etc. Hence, in my considered view the flat owner must form a society to maintain the common electricity as well as maintaining the security in the common gate.
12. However, it is admitted by the O.P that painting of the building is not yet completed and occupation certificate is not yet handed over. So here I find laces or negligence of the O.P to complete the painting work. Not only that the O.P is also responsible to complete the work within 4 (Four) years from the date of entering into agreement. But without any justified caused delayed the completion of the said work, for which it is causing more delayed to hand over possession certified/occupation certificate.
13. Hence, O.P is directed to expedite the painting works to complete within 30 days from today. Moreover, the O.P is asked to provide parking space to the Complainant as per the terms & condition of Ext. 2 within 30 days. If fail to do so, the O.P. is liable to refund the amount of Rs.1,00,000/- i.e the consideration money of car parking with interest at the rate of 10% per annum from the date of execution of the Ext.2. The O.P. is also liable to pay compensation for harassment, mental agony and disservice to the Complainant for not handing over possession of a parking space and causing inconvenience for not completing the painting works in time to the tune of Rs.50,000/- together. He is also liable to pay cost of the proceeding of Rs.5,000/- (Rupees Five Thousand) only.
14. So far as unauthorized construction on the rooftop of the apartment is concern, it is the matter between the O.P and Silchar Municipality Board. But in this case from agreement for sale I do not find any restrictive clause regarding further construction at the rooftop because as per agreement 50% of the rooftop is kept as property of the builder. Of course, the builder is not allowed to construct further on the 50% of the rooftop which has been kept as per agreement for the flat owner for common use without disturbing each other.
15. With the above, the O.P is directed to satisfy award within 45 days from today. In default, interest @ 10% P.A. to be added to the total awarded amount.
16. Thus, this case is disposed of on contest. Supply free certified copy of judgment to the parties. Given under may hand and seal of this District Forum on this the 31^st day of October, 2018.