Minakshi Chakraborty, Presiding Member
Brief facts of the case: This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the complainant along with the proforma opposite party no. 7 have purchased a flat having a super built up area 810 sq.ft. including proportionate share of the common portions of the building known as “Gita Apartment” being flat no. B1 on the first floor (which was registered before the office of the A.D.S.R, Chandannagore and at the time of registration of the deed of sale the complainant came to learn about the existence of opposite party nos. 2 to 4, the alleged developers and though the developers are not the owners of the properties they have entered into an agreement with “WIRELESS TT INFO SERVICES LIMITED” and the said company has installed a mobile tower over the roof of the above mentioned building without any sanction or site clearance from Ministry of Communication and Information Technology and IT Department of Tele Communications, Government of India and without taking any structural stability certificate from any recognized engineering Institution of Government of India or Government of West Bengal as per statutory circular dt. 6.9.2010 as issued by the State Board of West Bengal Pollution Control Board and the complainant on several occasions lodged complaints before the Chandannagore Municipal Corporation regarding the illegal addition, alteration by the opposite party no. 1 with the direct instigation and help of the opposite party nos. 2 to 4 and the complainant has collected the information according to the Right to Information Act, 2005 from the Chandannagore Municipal Corporation wherefrom it has been revealed that “No Site clearance was obtained from the Ministry of Communications and Information Technology and IT Department of Tele Communications Govt. of India” and “Structural Stability Certificate was obtained by from recognized engineer” as such the guide line of the circular of the State Board dt. 6.9.2010 has not been complied at the time of installation of Mobile Tower over the roof of the said building.
The proforma opposite party no. 6 has issued tower permit no. B-2/CB/164/08-09 dt. 4.4.2009 and from the copy of letter as issued by the Chandannagore Municipal Corporation in favour of the complainant according to right to information Act, 2005 dt. 24.11.2011 it is detected that “There is no copy of No objection certificate from the flat owners of Gita Apartment” and there is no copy of No Objection Certificate from the neighbors of Gita Apartment” and the complainant has filed objection against the renewal of Tower permit after its expiry and which the Chandannagore Municipal Corporation received on 3.4.2012 and the complainant also informed the Sub Divisional Officer, Chandannagore and the opposite party nos. 1 to 4 threatened the complainant and proforma opposite party no. 7 as they have raised their voice against their illegal activities as well as removal of the water tank by demolishing the same and installation of mobile tower in place of water tank.
The mobile company using diesel generator set in order to run the mobile tower over the rooftop of the said building which is creating a lot of vibration as well as pollution which is very harmful and painful to the normal livelihood of the human being and the men and agents of the mobile tower company are entering into the residential units of the building at all the time of a day even in the dead night with a pretext of maintenance of mobile tower which affects their safety and security as no security guard has been appointed in the building.
Complainant filed the complaint petition praying direction upon the opposite party nos. 1 to 4 to construct Water Tank over the roof of the said building after removing the mobile tower and to clear the cycle garage and to make deep tube well as per terms and conditions of the deed of sale and to pay a sum of Rs. 30,000/- for mental agony and to pay a sum of Rs. 40,000/- for harassment and to pay cost of the case and to give any other relief/ reliefs as per law and equity.
The opposite party nos. 3 and 4 contest the case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties submit that the opposite party no. 1 entered into a memorandum of agreement on 28.9.2005 with opposite party nos. 3 and 4 and by virtue of such memorandum of development agreement the land owner authorized the opposite party nos. 3 and 4 to develop the schedule mentioned property and to enter into agreement or sale with intending purchaser, receive money from them as consideration price and sell and transfer all the flats and portions of the building to be constructed except the owner allocation. So it is crystal clear that the opposite party nos. 3 and 4 had right, title, interest in all the flats and portions of the said building save and except the portion allocated to the land owner and after acquiring possession of the land the opposite party nos. 3 and 4 obtained a sanction plan for construction of the building from the Chandannagore Municipal Corporation vide plan no. RB/B/2/172/05-06 on 8.3.2006 and thereafter the opposite party nos. 3 and 4 started to make the construction of the building as per building plan accorded to them by the concerned authority and in the year 2008 the opposite party nos. 3 and 4 entered into one leave and license agreement with wireless TT Info Services Ltd. for installation of a mobile tower on the building and for the said purpose, relevant permissions and grants were obtained from all the concerned departments and the mobile tower was installed in the building premises in the year 2008 and from the month of January 20009 the mobile network tower started operating in the building premises (the entire roof of the building belongs to the developers) and on 7.12.2010 the complainant entered into one agreement with the opposite party nos. 3 and 4 having agreed to purchase a flat being no. B1 in first floor of the said building and thereafter on 31.12.2010 the complainant purchased the said flat from the opposite party nos. 1 and 4 by virtue of a registered deed of sale being no. 126 dt. 31.12.2010.
It has been stated in the deed of sale that the opposite party nos. 3 and 4 (developers) has completed the construction of the building as per building plan sanctioned by the Chandannagore Municipal Corporation and the developer is the original owner of the Gita Apartment and a telephone tower has been installed on the top roof of the said flat and maintained by the reputed companies and as such the staff of the companies are authorized to use the staircase of the flat and also use the ladder of the tower and the flat owners/ holders have no right to use the tower area and they never raised any objection over the same and the flat owners only use the rest portion of the roof of the apartment if required but they have no right/ interest/ demand over it and the roof is not enlisted in the schedule of common parts, portion and facilities, therefore the flat owners have no claim over the same. So far as the question of garage is concerned, the provision of garage is available on additional payment and as the complainant did not tender any excess amount he has no right to enjoy the garage and it is not a portion or facility sold to the complainant by the deed of sale and the deep tube well has already been installed in the premises of the building and the complainant has been enjoying that facility and the operation of the mobile tower does not create any vibration or noise and the tower operators follow all the norms and conditions cast upon them by the concerned authority. So, the opposite party nos. 3 and 4 pray for dismissal the case with costs as the complainant is not entitled to any relief claimed.
Proforma opposite party no. 7 by filing written version virtually admitted the case of the complainant.
It appears from the record that O.P no. 8 Wireless TT Info Services Ltd. Having its Kolkata office at 1/18 C.I.T Scheme VSNL Bhavan, Kol 54 has been impleaded as O.P no 8 in the instant proceeding vide order no. 31 dt 16/01/18 in view of order of the Hon’ble State Consumer Disputes Redressal Commission, W.B in its order no. 7 dt. 13/07/16.
Inspite of allowing several opportunities O.P no. 8 failed to file any written version giving rise to ex parte hearing against O.P no. 8 as is evident from order no. 41 dt 01/03/2021.
O.P no. 1 in his written version has challenged the maintainability of the case denying therein the material allegations that he entered into an agreement with O.P no. 2 which is represented by O.P nos. 3 & 4 has further alleged raising objection against installation of the mobile tower. Permission for such installation has not been given by him and as such prays for dismissal of the instant proceeding.
The case has been heard ex parte against O.P nos. 5 & 6 even after service of notice upon them.
Evidence:
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in and has also filed written notes of argument. The evidence on affidavit and written notes of argument of complainant are taken into consideration for passing final order.
O.P nos. 5, 6 & 7 are pro forma O.Ps and in fact there are no allegations against them.
Argument advanced on behalf of the complainant heard at length.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled to get any relief?
DECISION WITH REASONS
Issue no.1:
In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.
Issue no.2:
Both the complainant and the opposite party are residents/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs. 20,00,000/- limit of this Commission.So,this Commission has territorial/pecuniary jurisdiction to entertain the instant proceeding.
Issue nos. 3 & 4:
Both the issues are taken up simultaneously for the sake of convenience.
Admittedly, the flat in question has been purchased by the complainant on the basis of an agreement for sale on payment of total consideration to the O.P nos. 3 & 4 through a registered deed of purchase.
There appears an admission by the O.P nos. 3 & 4 about installation of a mobile tower on the roof top of the said apartment. The sale deed indicates about construction of one deep tube well for the flat owners but it is apparent on the face of the record that the O.P nos. 2 & 3have failed to discharge their duty in this regard.
Admittedly there exists one telephone tower at the roof top of the apartment and there cannot be any denial of the fact that existing of such a tower cannot but be a glaring example of deficiency in service to the complainant.
Construction of one deep tube well in a case like the present one deems to essential for the residents of the said building and hence absence of such deep tube well is a glaring deficiency.
A question has been raised about one cycle garage but in absence of such construction in the deed of sale the same does not appear to be entertainable.
Having regard to the facts and circumstances discussed hereinabove this Commission feels it necessary to hold that O.P nos. 2 to 4 have committed deficiency in service and as such the complainant has suffered mental agony and harassment for which these O.P nos. 2,3 4 are liable to pay compensation to the complainant in this regard.
Hence,
Ordered
that the Complaint Case No. 58 of 2012 be and the same is allowed ex parte against all the O.P nos. 1 to 8.
O.P nos. 2 to 4 are directed to remove the mobile tower from the roof top of the apartment within 45 days from date failing which the complainant is at liberty to take recourse to law.
O.P nos. 2 to 4 are directed to construct a deep tube well within 45 days from date within the premises as per agreement of sale deed dt. 31/12/2010 failing which the complainant is at liberty to take recourse to law.
O.P nos. 2 to 4 are hereby directed to pay Rs. 20000/ for mental agony of the petitioner and Rs. 20000/ for harassment and Rs. 10000/ as litigation cost within 45 days from date failing which the complainant be at liberty to take recourse to law.
The opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
