KUNDAN KUMAR KUMAI
This is an application under Section 12 of the Consumer Protection Act 1986. Initially this case was filed before the Hon’ble State Commission, West Bengal, Kolkata, on 25/04/2018. The case was, then transferred to this Commission vide order No. 2 dated 31/08/2018.
Brief facts of the complainants’ case is, that the complainant had purchased one flat measuring 1425 sq.ft., including super built area from the OP No. 2, on the 3rd floor of ‘Siddhi Orchid’, vide Deed of Conveyance, being no. 071101574 for the year 2016, (1-1574 of 2016), registered with ADSR, Bhaktinagar, Jalpaiguri on 16/19/03/2016, when the building was under construction, after negotiating with OP No. 1 for Rs. 34,00,000/- (Thirty-four Lakh) only. Before obtaining completion certificate from Siliguri Municipal Corporation, in or about the month of April 2017, the OP No. 1 had been handed over possession of the above mention flat with parking space, even though, the said flat and parking space were not as per sanction plan sale deed or assurance. But as the complainants were in dire need, they had shifted in the flat in question.
From the month of July/ August 2017, the complainants started facing several problems and the complainant no.1 also drew the attention of the OP No. 1 verbally, who assured to look in to the matter and do the needful. But nothing came of it, as he failed and neglected to satisfy the complainants.
As per the above deed, the Ops had charged for 1425 sq.ft., on the 3rd floor of the building ‘ Siddhi Orchid’ including super built area and 120 sq.ft., parking space on the ground floor. From page 22 of the sale deed, it is found that the covered area was 1187.50 sq.ft., instead of the super built area of 1425 sq.ft. But on actual measurement of the flat in possession, the complainants had been handed only 1053 sq.ft which is 134.5 sq.ft less ( 1187.5 -1053 = 134.5). The complainants further noted, that OP had charged the super built area, @ 20% of covered area instead of 10% of the actual covered area which comes to around 105.3 sq.ft and the complainant was therefore liable to pay to the Ops for only 1158.30 sq.ft, whereas the OPs had charged for 1425 sq.ft which is 266.70 sq.ft excess area, which amounts to monetarily, Rs. 6,05,793.05 (Six lakh five thousand seven hundred ninety-three and five paisa) only. The Ops were therefore, liable to refund the above amount, which had been realized, with interest @15% per annum. With regard to the parking space, there was no suitable parking space allotted as the Ops had just shown a space, without demarcation, where no 4-wheel vehicle could be parked. The complainants 4-wheel vehicle could get entry in the said parking space with risk. It is further mentioned that for 16 flats, there should have been 16 parking spaces, that the Ops constructed 8 parking space facing approach road. Since parking space is meant for flat owners only and not for outsiders as per the para 26 of the sale deed. The construction was meant for residential purpose only and not for commercial purpose, but the Ops have sold 8 parking spaces to outsiders, who are not residents of the complex, nor have they purchased any flat in the complex. In the parking space, the persons have converted the space in to shops for their earning. No such shops should be allowed in the complex as the same was meant for residential purpose, with the plan being sanctioned for residential purpose and parking of the vehicle of such residents. Thereafter, the electricity board pole was situated in the main entrance, which the OP No. 1 had assured to shift, but had not done so. The Ops had also installed lift after realizing Rs. 80,000/- (Eighty thousand) only, additionally from each flat owner, even though, the page 22 of the sale deed mentions the lift facility. Since, there was no parking space, but as the Ops had taken Rs. 1,63,200/- (One lakh sixty-three thousand two hundred) only, as mentioned in page 23 of the sale deed, which needed to be refunded with interest @ 15% per annum. It is also mentioned, that there was no intercom facility and no guard quarter for the guards of the apartments. The Ops had also illegally and unauthorizedly covered and allotted parking space and also constructed servant quarters, at the space behind the apartment, which they had sold. Moreover, the inner height of the complainant’s flat was only about 7 ft., which is in violation of the building and sanctioned plans, and there was also seepage of rain water causing discomfort to the complainants.
A legal notice had been issued to the Ops, on 25/10/2017 and a copy of which was also sent to the Siliguri Municipal Corporation on 15/11/2017. But the legal notice could not be served upon the OP no. 2 with the postal remark ‘in sufficient address’. Hence for the above reasons, the complainants filed this case. Hence this case.
Both the Ops have entered appearance and filed the written version, wherein, they have denied the complainants case and have also iterated, that the complainants were relying on the documents, which had been issued by the ADSR, Bhaktinagar, Jalpaiguri for the purpose of stamp calculation, payable by the complainants. They have also stated, that the area mentioned in the Deed of Conveyance including super built area was 1425sq.ft and the open car parking space was 120sq.ft., which had been handed over to the complainants. Therefore, the complainants are not entitled to the prayers as mentioned in the complaint.
In support of their respective cases, the complainant has examined, complainant No. 1 and another as PW- 1 and 2, where as the opposite parties have examined themselves as OPW- 1 and 2.
Decision with reasons
Ld. Advocate for the complainant, at the time of final hearing had submitted, that by virtue of the documents issued by the ADSR, Bhaktinagar, Jalpaiguri, the complainants had been handed over 308.63 sq.ft lesser than the 1425sq.ft mentioned in the Deed of the Conveyance, and therefore , the complainants were entitled to Rs. 7,01,035.53 (Seven lakh one thousand thirty-five and fifty-three paisa) only, even though, the complainants had prayed for only Rs. 605793.05 (Six lakh five thousand seven hundred ninety-three and five paisa) only, for 266.70sq.ft. Moreover, the Ld. Advocate had also led us through the Deed of Conveyance to prove that the building in question, was under construction, when the Deed of Conveyance had been executed. He has further stated, that the car parking space had been sold for commercial purpose, which was in total violation of the provisions of the Siliguri Municipal Corporation Act, 1990 and The W.B. Municipal (Building) Rules 1996. He has also laid reliance in the judgment passed by the Hon’ble Supreme Court in Nahalchand Laloochand P. Ltd Vs. Panchali Co-OP. Hng. Sty. Ltd, delivered on 31/08/2010 in Civil appeal No. 2544 of 2010 and State Consumer Disputes Redressal Commission, West Bengal in Bengal Green Field Housing Development Company Ltd. Vs. Kali Shankar Dutta in FA No. 584/2017 on 26/12/2018.
The Ld. Advocate for the Ops on the other hand had submitted, that the complainants had been wrongly relying on the documents issued by the ADSR, Bhaktinagar, Jalpaiguri, instead of the agreement entered into between the complainant and the Ops and mentioned in the Deed of Conveyance, as 1425sq.ft. Therefore, the complainant’s prayer on this count can not be allowed. Moreover, the complainants had been assured of car parking space on ground floor measuring 120 sq.ft and mentioned in para 24 of the Deed of Conveyance. He had also stated, that the battery backup was not agreed and as per para 22only one common generator had been agreed upon. That apart there was no agreement with regard to the state electricity pole nor Rs. 80,000/- (Eighty thousand) only, had been received for the installation of the lift or was there any agreement with regard to the intercom facilities. He has also submitted, that one site plan prepared by one Mousumi Mondal cannot be look into as, there was no mention of the same in the complaint nor was she tendered as evidence. He therefore, prays for dismissal of the complainant case.
At the very outset, it needs to be ascertained, whether this case falls within the ambit of Consumer Protection Act 1986. In this regard the complainants have admittedly purchased the flat in question from the Ops and have alleged certain discrepancies like lack of car parking space and the space in the flat along with other like battery backup, intercom facilities etc., which fall within the purview of the definition of service and unfair trade practice as mentioned in 2(1)(o) and (r) of the Consumer Protection Act 1986. Therefore, the complainants can be termed consumers within the meaning of the above Act.
Hence from the above arguments, as well as the material of the records, the main dispute between the complainant and the Ops is with regard to the size of the flat, purchased by the complainant from the Ops. In this regard, the complainant has relied on the document, issued at the time of registration by the ADSR, Bhaktinagar, Jalpaiguri, where in the property details, the covered area had been shown as 1187.5 sq.ft with the super built area 1425 sq.ft. In this regard Deed of Conveyance clearly shows, that the agreement between the parties was for super built of area amounting to 1425sq.ft and therefore, their appears to be dispute between the documents relied by the complainant, but as the Deed of Conveyance is the registered document and the agreement between the parties, the same has to be given priority and by that document 1425 sq.ft. with super built area had been agreed. All though there is mention of, the super built up area being 20% more than the actual area, but there is no evidence to that effect, that it was otherwise, that was agreed. Even though, the complainant had written about the site plan by Mousumi Mondal, in the written arguments, but the same can not be considered in view of no averments in the complaint, nor was the said evidence, tested by way of cross-examination. Under the circumstance, there being no evidence to show, that there was less than the super built up area of 1425sq.ft nor is there any evidence, that the agreement was for was 20% of the carpet area and not the super built area of 1425 sq. ft. Hence in this respect, it can be concluded, that the complainant has failed to prove their case.
The complainant’s contention, that the Deed of Conveyance had been registered prior to the completion of the construction in violation of the building Rules mentioned in Siliguri Municipal Corporation Act, 1990 and The W.B. Municipal (Building) Rules 1996 can be stated, that the complainant had participated in the above by completing the transaction and in any case, the above Acts and Rules have been replaced by the West Bengal Municipal Corporation Act 2006. Therefore, this contention of the complainant also fails.
With regard to the allegation regarding the car parking space, it is clearly mentioned in the schedule B of the Deed of Conveyance, where in one car parking space measuring 120.sq. ft had been sold and para 24 of the above Deed of Conveyance clearly defines the parking space, as open parking space and therefore, there remains no anomaly in this regard. The reliance on the judgment passed by the Hon’ble Supreme Court in Nahalchand Laloochand P. Ltd Vs. Panchali Co-OP. Hng. Sty. Ltd, on 31/08/2010 in Civil appeal No. 2544 of 2010 and State Consumer Disputes Redressal Commission, West Bengal in Bengal Green Field Housing Development Company Ltd. Vs. Kali Shankar Dutta in FA No. 584/2017 on 26/12/2018, also do not come to the rescue of the complainants, as firstly the Hon’ble Supreme Court had passed the judgment in a dispute involving, the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963, Maharashtra Ownership Flats(Regulations of the Promotion of the Construction Etc.) Rules 1964, Development Control Regulations for Greater Bombay 1991, Maharashtra Apartment Ownership Act 1970, the Maharashtra Regional and Town Planning Act 1966, and Transfer of Property Act and defined the word ‘garage’ as a space having a roof and wall on three sides. But in the instant case, the word ‘garage’ has nowhere been used and the only phrase used is open car parking space. The latter judgment also does not support, as it is meant for a dispute involving covered car space and therefore, becomes inapplicable to the instant case. Therefore, the contention of the complainant in this regard also cannot be accepted.
Moreover, the best evidence with regard to the car parking space being the driver PW-2, who also has stated that there were problems while parking at night, which is a universal problem and not limited to the car parking space in the instant case. There is no evidence forthcoming to show any unusual risk perception from the witness examined to support the complainants’ case. Moreover, the complainant also failed to highlight the problem when the inspection from the Siliguri Municipal Corporation had been done, as per the inspection report.
With respect to the non-installation of the intercom facilities and the battery backups, there is nothing in the Deed of Conveyance which goes to show, that such items had been agreed upon. On the contrary para 22 of the Deed of Conveyance clearly shows, that one common generator would be provided. Hence on this count also, the complainants’ contention cannot be accepted.
As regards, the complainants’ assertion that the residential complex had been converted in to a commercial one, simply by alleging, that the covered car spaces had been converted in to shops by some people, who were not even residents of the said complex, it can be stated, that in order to prove the above, the complainant did not make the above shop-owners, as parties to the case, so that the true picture could be forthcoming before this Commission. In the absence of such parties and evidence, this contention of this complainants also cannot be accepted.
Hence from the above observations, findings and conclusion, it can be safely stated, that the complainants have not been able to prove their case.
As a result, the case fails.
It is therefore,
ordered
That the instant case be and the same is dismissed on contest, but without costs.
Copy of the order be handed over to the parties, free of costs.
