West Bengal

Paschim Midnapore

CC/188/2016

Sri Chinmoy Roy - Complainant(s)

Versus

Sri Sandip Bandyopadhyay - Opp.Party(s)

06 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

   Bibekananda Pramanik, President,

and

Sagarika Sarkar, Member. 

 

Complaint Case No.188/2016

 

Sri Chinmoy Roy, S/o Satyenda Mohan Roy, a permanent resident of Vill- Gobindapur, P.O. Jagannathpur, P.S. Beliatore, District – Bankura, PIN-722203, at present residing at Flat no. C-4, Fourth Floor, North West Side, R-12, Saratpally, Dukbunglow Road, P.O. Medinipur, P.S. Kotwali, District Paschim Medinipur, PIN-721101..   

                                                                                                                    ………..……Complainant.

                                                                              Vs.

1. Sri Sandip Bandyopadhyay, S/o late Bidhu Bhusan Bandyopadhyay, a resident of R-12, Saratpally, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
2. Sri Pradip Kumar Bandyopadhyay, S/o late Bidhu Bhusan Bandyopadhyay, a resident of R-12, Saratpally, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
3. Sri Sudip Kumar Bandyopadhyay,  S/o late Bidhu Bhusan Bandyopadhyay, a resident of R-12, Saratpally, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
4. Smt. Sima Bandyopadhyay, D/o late Bidhu Bhusan Bandyopadhyay, a resident of R-12, Saratpally, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
5. Sk. Anwar Hussain, S/o Sk. Ahemed Hussain, Resident of Station Road, P.O. Medinipur, P.S. Kotwali, District Paschim Medinipur, PIN-721101, Proprietor Aman construction,
6. Aman Construction, Proprieted by Sk. Anwar Hussain, Station Road, P.O. Medinipur, P.S. Kotwali, Disterict Paschim Medinipur, PIN-721101.

                                                                                                 .....……….….Opp. Parties.

Contd…………………..P/2

 

           ( 2 )                                                    

              For the Complainant: Mr.  Diptendu Ghosh, Advocate.

              For the O.P.               : Mr. Bidyut Kumar Pratihar, Advocate.

                                                  : Mr. Swapan Bhattacharya

                                                         

                                                                                         Date of filing:30/11/2016

Decided on: - 06 /04/2018

                               

ORDER

                          Sagarika Sarkar, Member –This consumer complaint u/s 12 of the C.P. Act has been filed by the complainant Sri Chinmoy Roy, against the above named O.Ps, alleging deficiency in service on their part.

               Complainant’s case, in brief, is as follows:-

                        O.P. nos. 1 to 4 are the owners of the land in plot no 8 of R.S. Khatian no.1/22 of mouza Narampur, P.S. Medinipur in the district of Paschim Medinipur and they being the owners entered into a joint venture agreement with the O.P. no.5 for construction of a G+4 storied building on the said plot of land.  O.P. no.1 to 4 also executed a Power of Attorney in favour of O.P. no.6 Aman construction, being represented by it’s sole proprietor Sk. Anwar Hossain, the O.P. no.5.  Being a developer under the said joint venture agreement, O.P. no.5 constructed a G+4 building  on the said plot of land comprising of four self- contained flat in each floor of the building and the ground floor of the building was kept set aside for parking of vehicles.  O.P. no.6 duly represented by O.P. no.5 thereafter entered into an agreement for sale with the complainant of a flat being no. C-4 on the 4^th floor of the said apartment named Chandrava Niloy priced at Rs.10,50,000/- and in terms of said agreement,  a deed of conveyance was executed by O.P. nos.1 to 4, duly represented by their constituted attorney being the O.P. nos.5 & 6 and sold, transferred and conveyed the entire flat covering an area of 500 square feet having super built up area of 600 square feet in the said flat  with a two wheeler parking space in the ground floor of the building.  After taking possession of the said flat it was found by the complainant that the flat did not match with the dimension as mentioned in the said deed of sale executed and registered in favour of the complainant on 8.12.2015.  It is stated that the parking space is only for the purpose of parking vehicles of the flat owners of the building and the said space cannot be sold to any other third party but the O.Ps have illegally, arbitrarily and with mala- fide intention constructed walls in the parking space and thereby creating a room in the said parking space.  The O.Ps have allowed other third parties, who do not have any flat in the apartment, to park their vehicles in the said building.  It is stated that the entire land measuring 7.90 decimals of the said apartment is

Contd…………………..P/3

 

( 3 )

allocated land for construction of G+4 building but the O.Ps have constructed a room on the south west corner measuring 150 square feet approximately and the said room has been sold to one Niranjan Kutty though the O.Ps do not have any right to do so as because the entire 7.90 decimals of land is proportionately owned by the owners of the flat in the said G+4 apartment.  The promoters have no right to sell any portion of the building which is not a flat to any other parties.  Thus the act of the O.Ps in occupying a portion of parking space by construction of wall in the ground floor of the building is illegal, arbitrary and the O.Ps have no right to do so.  All such acts of the O.Ps tantamount to deficiency in service.  The complainant by a letter addressed to the O.Ps demanded that the unfinished work in the said building be completed forthwith.  The boundary wall of that apartment is yet to be constructed and no stair case has been provided for reaching the tank mounted on the stair case roof, no soak-pit has been constructed and the parking area has not been identified to the flat owners causing inconvenience to them.  It is stated that no fire fighting arrangements, no lightening arrestor arrangement, no municipal water connection and many other miscellaneous work have not yet been done in the said apartment.  The complainant further demanded by sending a letter to the O.Ps that the certain documents be handed over to the flat owners including the complainant, details of which have been mentioned in paragraph 20 of the petition of complaint.  Despite receipt of the said notice, the O.Ps have not responded to the said letter in any manner.  On the other hand, O.P. no.5 Sk. Anwar Hossain has started threatening the flat owners with dire consequences.  It is further stated by the complainant that on physical measurement of the flat, it was found that the carpet area of the flat is less than what has been stated in the said deed of sale.  Hence the complaint, praying for directing the O.Ps to demolish illegally constructed wall and room in the parking area to pay Rs.1,37,000/- for shortage in the super built up area along with 15% interest pay a sum of Rs.1,38,753.60/- being the amount for shortage in super built up area of the flat with 15 % interest p.a. and to pay compensation of Rs.1,00,000/- and litigation cost of Rs.20,000/- and for certain directions upon the O.Ps for completion of the unfinished work in the said apartment.  

                   O.P. nos. 1 to 4 have contested this case by filling a joint written version.  

                   Denying and disputing the case of the complainant, it is the specific case of the O.P. nos. 1 to 4 that they are owners of the land on which the flat in dispute has been constructed.  For construction of the apartment in question on their said land,  O.P. nos. 1 to 4 entered into an agreement with O.P. no.5, the sole proprietor of Aman Consturction, the O.P. no.6 and accordingly a registered power of attorney was executed by them in favour of O.P. no.5 on 15.03.2013 with certain terms and conditions.  It was specifically

Contd…………………..P/4

 

( 4 )

mentioned in the power of attorney that these O.Ps only will get their owners’ allocation of flats and in any case they will not be liable for any act of the O.P. no.5.  O.P. no.5 did total construction of the project and O.P. nos. 1 to 4 have received their owners’ allocation of

flats with full and final satisfaction.  It is stated that no flat owners have any grievance against the O.Ps as the total construction work of the flat has been constructed with lift and water facilities as per sanction plan of Medinipur Municipality.  The allegations in the complaint are not true and therefore the petition of complaint is liable to be dismissed.

                    O.P. nos. 5 & 6 have contested this case by filing a separate w/o.  Denying and disputing the case of the complainant it is the case of  these O.Ps that the complaint is not maintainable,  that there is no cause of action for filing the complaint and the complainant has filed this case with a view to harass the O.Ps.    It is the specific case of the O.P. nos. 5 & 6 that after getting all xerox copies of title deeds, power of attorney, sanction plan etc. from the O.P. no.5 and after being satisfied regarding the papers of the flat, the complainant and O.P. no.5 entered into an agreement for sale on 29.08.2013.  The complainant and other flat owners inspected their flats time to time and being satisfied regarding the construction of the flat and all formalities, final registration of deed of sale was executed on 7.08.2015 and registered on 8.12.2015 in favour of the complainant by the O.P. no.5.  Since the date of purchasing of the flat, the complainant has been possessing the same for more than two years and he has filed this case with some mala- fide intention for causing pressure upon the O.Ps.  In such circumstances, O.P. nos.5 & 6 claim dismissal of the complaint.

               To prove his case, the complainant Sri Chinmoy Roy, has examined himself as PW-1, one Apurba Kumar Nandi as PW-2 and one Debojyoti Sanyal as PW-3. During the evidence of PW-1 & 2, documents were marked as exbt. 1 to 4 respectively.  The documents, relied upon by the complainant, have been marked as exbt.2 to6 respectively.

               On the other hand O.P. no.1 to 4 did not adduce any evidence, either oral  or documentary . On behalf of rest O.Ps. , O.P. no.5 S.K. Anwar Hossain has been examined as OPW-1. During his evidence few documents were marked as exhibit A to D respectively and another document has been marked as Y for identification. During the cross-examination of OPW-1 one document has been marked as exhibit E.

                                                                 Points for decision

1. Is the complainant a consumer under the provision of C.P. Act?
2. Is there any deficiency in service on the part of the opposite parties?
3. Is the complainant entitled to get the reliefs, as sought for?

Contd…………………..P/5

 

                                                                                             ( 5 )                   

Decision with reasons

Point no.1

    Admittedly  the complainant entered into an agreement for sale in respect of a flat no.C-4 on 4^th floor, north-west side of a G+4 building situated at R-12, Saratpally, P.O. Paschim Medinipur at a consideration of Rs.10,50,000/-( in respect of sale deed the consideration amount is Rs.12,50,000/- with the O.P. no.5 and thus became consumer under the O.P. no.5.

   Point no.1 is decided accordingly in favour of the complainant.

              Point no.2

                             The complainant has alleged that the O.P.-developer in violation of the deed of sale (exbt.4) did not complete construction work in respect of the boundary wall all along the peripheral area.  It is also alleged by the complainant that no stair case has been constructed for reaching to the tank, no soak- pit has been constructed, the car parking area has not been allotted in favour of individual flat owners, no fire fighting measure has been provided, no municipal water connection has been provided in the building alongwith underground reservoir.  The O.P. developer, in course of his cross-examination has admitted  that the construction work of reservoir soak- pit and inspection chamber, water connection of municipality in the said building, supply of fire extinguisher have not been done.  Since facts admitted need not be proved we hold that the said work have not been done.  Deviation in respect of the terms of agreed work regarding construction of reservoir, soak-pit, inspection chamber, providing of water connection from Municipality and fire extinguisher amounts to deficiency in service on the part of the O.P.-developer.

                                 As regards the allegation of short fall of flat area, no expert opinion has been adduced to ascertain such claim.  Complainant further alleged that unauthorized construction in car parking space including unauthorized sale of one space to a third party but it is evident from clause 5 of agreement portion of deed of sale that  if any garage portion/portions remain unsold the seller will have every right for selling, using, distributing or rental basis at their will.  But in that case outsider who use garage portion will be bound to obey the rules or instruction of the committee formed by flat owners.  Therefore it is further evident that the O.P.-developer is empowered to sell the same.                                   

                                Therefore such allegations have not been sustained.

                                 Point no.2 is decided.

              Point no.3

                                 In view of the above findings we are inclined to allow the prayer as made by the complainant to that effect in respect of which the allegation has been proved.  Since the

Contd…………………..P/6

 

                                                                                         ( 6 )                   

              O.P.-developer admitted non-completion of construction work of reservoir, soak-pit inspection chamber, non supply of water connection from Municipality and fire extinguisher so he is liable to complete such work.

                                Since the non-completion of said work caused harassment to the complainant, so the O.P.-developer is liable to compensate the complainant.  We think Rs.25,000/- will be just and proper for that.

                               Since the O.P.-developer compelled the complainant to file this instant case so he is liable to pay Rs.7500/- cost of litigation.

                               Point no.3 is decided accordingly.

                               In the result the complaint case succeeds in part.

                                                    Hence, it is,

                                                     Ordered,

                                   that the complaint case no.188/2016 is allowed in part on contest with cost against the O.P. nos. 5 & 6 and dismissed  without cost on contest against rest O.Ps.

O.P. no.5 &6 are directed to complete the work of reservoir, soak-pit,  inspection chamber supply of water connection from Municipality and supply of fire extinguisher within one month from this date of order.  O.P. no.5 & 6 are further directed to pay Rs.25,000/- as compensation and Rs.7500/- as litigation cost to the complainant within one month from this date of order failing which entire amount shall carry interest @ 10% p.a. from filing this case till realization.

                               Let plain copy of this order be given to the parties free of cost.

                 Dictated & corrected by me

                    

                                Member                                                                                President 

                                                                                                                         District Forum

                                                                                                                     Paschim Medinipur