Hon’ble Mr. Ajeya Matilal, Presiding Member

          This is a case filed u/s 17 of the C.P. Act 1986 praying for a direction upon OP no. 1 and 2 for refund of the entire consideration amount.

The fact of the case is in short like that the complainant entered into an agreement for sale dt. 24.07.2013 for purchasing a flat no. 3A on the 3^rd floor of the building named ‘Mata Rani’ apartment under P.S Baguiati for consideration of Rs. 19,81,533/-.

The deed of conveyance in respect of the flat was registered on 22.09.2014 after payment of agreed consideration and the developers/ OP 1 and 2 assured the complainant that the consideration money would be utilised for speedy completion of the flat and providing building amenities. According to the complainant some works viz. plastering of boundary works, colouring of gates, handing over the original sanctioned plan, completion certificates, mutation certificates etc were pending.

The complainant inquired about the scheme of things and sought for formal information from Bidhannagar Municipal Corporation under the R.T.I Act on 28.08.2017 then it came to light that a completion certificate for 2 storied building was issued on 13.01.2014. The said information also revealed that the relevant building plan of Mata Rani Apartment vide S.L. No. 1098/12-13, dt. 06.05.2013 was upto 3 storied. The information from the municipal corporation implied that the OP 1 and 2 have no permission to raise any building beyond two storied building and completion certificate was granted in respect of the suit property as mentioned in the schedule.

The OP no. 3 initially contested the case by filing W.V stating that they are not necessary parties to the proceeding and they did not have any objection against the case of the complainant. Subsequently it proceeded ex pate against him. The case is also proceeding ex parte against the OP no. 4 and 5.

The OP no. 1 and 2 also contested the case by filing W.V denying the material allegations of the claim petition along with the technical pleas. According to them as per full satisfaction as regards completion of the flat in question i.e. flat no. 3A on the 3^rd floor of the building namely Mata Rani Apartment under P.S Baguiati Ward No. 34 erstwhile Rajarhat Gopalpur Municipality Presently under Bidhanangar Municipal Corporation Ward No. 25, the complainant purchased the flat and the deed of conveyance was registered on 22.09.2014, thereafter possession of the flat was given to her and a possession certificate dt. 15.12.2014 was given to her. The complainant on 20.04.2015 mutated her name in the said Rajarhat Gopalpur Municipality. Subsequently, it was renamed as Bidhannagar Municipal Corporation. The complainant paid taxed regularly in the office of the Bidhannagar Municipal Corporation in respect of flat no. 3A at 3^rd floor of the building at AB295 Krishnapur Samarpally Kolkata 700102. After getting 3 years of possession, the complainant filed the present complaint on 24.07.2017 and raised some points for completion of unfinished works as regards as top roof work, boundary wall plastering of entire building and covering gates etc.  As per the allegation of the complainant the OP no. 1 and 2 failed to handover original sanctioned plan, completion certificate, mutation certificate etc. It is further submitted that there were 19 flats in the said building and apart from the owner of the flat no. 3A being the complainant, no flat owners raised any objection. According to the contesting OPs they have appropriate sanctioned building plan to sell the flat no. 3 A of the building to the complainant as per certificate issued by Rajarhat Gopalpur Municipality on 31.12.2013.

Both parties adduced evidence and they were cross examined within the periphery of C.P. Act, 1986.

The point for consideration is that

• Whether the complainant is a consumer?
• Whether there is any deficiency in service on the part of the OP nos. 1 and 2?
• Whether the complainant is entitled to relief as prayed for?

For the sake of convenience all this points are taken together for discussion.

Decision with reasons:

The matter of agreement for sale between the parties, execution and registration of deed of conveyance, putting the complainant into physical possession of the said flat and payment of municipal taxes by the complainants are not disputed by the OPs.

Our attention was drawn to the occupancy certificate issued by the Rajarhat Gopalpur Municipality dt. 31.12.2013 wherefrom it appears that the building under occupation was 4 storied.

Our attention was drawn to continuing page no. 116 which is a reply to the application under R.T.I Act filed by the complainant that document is annexed as annexure ‘M’. It appears from the point no. 5 of the same “Building plan sanctioned vide S.L. No. 1098 /12-13, dt. 16.05.2013 up to 3 storied and the road width found 8’- 0” as per sanctioned plan”.

 As per point no. 3 of the same “as per our office register C.C. issued up to 2 storied on 13.01.2014” and that reply was issued on 12.10.2017.

The deed of conveyance was executed on 22.09.2014.

The main grievance of the Ld. Advocate for the complainant is that no legal possession was given to him and the OP no. 1 and 2 are squarely responsible for that. According to him the limitation for filing the case shall not run till legal possession of the flat is given to the complainant.

In this context he referred to a decision of Supreme Court in Civil Appeal No. 4000 of 2019 wherein the Hon’ble Apex Court observed in para 21 “It is further submitted that no legal possession can be offered without full completion certificate, the developer ought to compensate for the delay in handing over of possession. In the instant case the OP’s did not have completion certificate when possession was offered to the complainant.”  

In this context the Ld. Advocate for the complainant referred to a decision of Hon’ble NCDRC in A/ 557/2003 NCDRC. In the aforesaid decision the Hon’ble NCDRC observed “This Commission in Brig. (Retd.) Kamal Sood vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.”

The facts remains that at the time of execution of the agreement for sale as well as the deed of conveyance, there was a valid occupancy certificate issued by the Rajarhat Gopalpur Municipality on 31.12.2013 which we have discussed earlier. But it can be safely held at that time the OP no. 1 and 2 developer acted in good faith made the construction work on the basis of a valid sanctioned plan for a 4 storied building. The flat of the complainant is situated on the 3^rd floor of the building. So, it can be safely concluded that at that point of time the OP no. 1 and 2 in good faith delivered legal possession of the flat in question to the complainant. But subsequently, it revealed from page 116 at annexure ‘M’ of the complaint that as per office register the completion certificate was issued up to 2 storied on 13.01.2014 and building plan sanction vide S.L. No. 1098/12-13 dt. 16.05.2013 was up to 3 storied building as per sanctioned plan.

However, we are of the view that the OP no. 1 and 2 acted in good faith. They delivered the possession of the flat in question to the complainant as per occupancy certificate dt. 31.12.2013 which was valid for that time. So, considering the factual scenario and possession of law cited above of the case we are of the view that although the complainant is a consumer but there is no deficiency of service on the part of the OPs and the complainant is not entitled to relief as prayed for.

          Accordingly CC/63/2018 is dismissed on contest against the OP no. 1 and 2 and ex parte against the rest. There shall be no order as to the costs.