FINAL ORDER
Saaresh Kumar Mitra, Member:
The case of the complainant is that the complainant purchased the above flat from the OP as developer/ Promoter at a consideration money of Rs. 6,87,750/-. The agreement as well as deed of conveyance states that the OP after the completion of sale of the flats makes arrangement for formation of the association by the flat owners and the flat owners are entitled to know whether all the flats of the apartment have been sold out or not. Until formation of the Association the OP as Developer/ Promoter would manage everything regarding common services and the flat owner would pay for that as per rate considered by the promoter i.e. OP. After taking possession the petitioner noticed that the place of Meter Box of flat owners selected by the promoter is in a dangerous position and it is located by the lift side of the stair case wherefrom there is a passage for ingress and egress to and fro the ground floor which is earmarked for commercial purpose. The present occupier of the ground floor used to load and unload his cargo through the said passage. Since 2008 no flat owners association has been lawfully formed. Only a person has been entrusted to realize electric bill from the flat owners. The petitioner times without number requested the OP to furnish the names of the flat owner and convene a meeting but the OP turned a deaf year. The common service of the apartment is badly hampered like the car shed has been dilapidated but no one look after, meter box place need to be replaced/ changed, swearing service is absent and the electric meter at present in the name of Landowner but not changed in the name of flat owners. The formation of the flat owners association is a must and it is the duty of the OP to Form that Association with due notice to all the flat owners. The above deeds or acts of the OP are intentional and to harass the petitioner and others and the petitioner is suffering from mental agony so the complainant filed the instant complaint case praying for a direction upon the OP to form flat owners association within a given time, a decree of direction to the OP to shift the meter boxes of the flat to any other safety place, a direction to repair the carshed and a compensation to the tune of Rs.10,000/-.
The OP filed written version denying the allegations leveled against him and averred that as per agreement he has completed his obligation and discharged his duties according to the terms and condition and formed ownership association. The petitioner on various ways creates disturbances in the peaceful work of the association and ignored that association. The complainant creates various disturbances in a flat and also ignored the secretary of the association and without appearing the meeting always shouting that there is no association. The Op already formed the association and handed over his obligation and responsibility to maintain common space, stair and other thing to the association and the association discharged that function but the petitioner never cooperate with the association. The petitioner ignored the association and creates disturbances to the other flat owner’s peaceful possession. The meter box safely fixed and there is no scope for create in disturbance of ingress and egress of the flat owners. The persons who are in the ground floor are also the owner of the same. They possess their own flat as an owner. This OP calling a meeting of all flat owners formed an association and this OP handed over the charge of management of the flat and their association lawfully discharged their duty. This petitioner always creates disturbance in the smooth running of the work of the association and petitioner is an aged person so the members of the association failed to say any word against his whimsical work. The said association discharged all sorts of work for the maintenance of the all flats. The petitioner in several times tried to damage the common equipment and the common space of the said building. After formation of the association this opposite party has no duty in regard to the management of the flat. After installation of electric transformer it is the duty of the flat owners to get separate electric connection in their name. The flat owners who applied for electric connection, the electric department provided separate meter to them and the flat owners association tried their best to keep the swearing system okay. But in many occasions the petitioner himself by throwing article and other substances creates disturbance in the swearing system. The meter boxes of the flat fixed in a safe place like other complex. This OP never did any act to harass the petitioner so there is no question of suffering of petitioner due to mental agony.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant. The OP also filed evidence on affidavit which is also the replica of written version.
Both sides filed written notes of argument which are taken into consideration while passing final order.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant ‘Arup Chandra Sana’ ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
- Whether the Complainant Arup Chandra Sana is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant being a purchaser of a flat paid money to the OP and the OP received the same and registered the flat in favour of the complainant admitted in his written version, so this complainant purchased the flat owned by the OP and the complainant possessing for a long time but alleged that the OP is not providing service properly, so he is entitled to get service from the OP.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/carrying on business within the district of Hooghly and cause of action took place within the district. The complainant prayed for a direction upon the OP to form flat owners association within a given time, a decree of direction to the OP to shift the meter boxes of the flat to any other safety place, a direction to repair the carshed and a compensation to the tune of Rs.10,000/- ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that the complainant purchased a flat from the opposite party with a consideration money of Rs.687,450/- and after taking the possession of the flat noticed that the place of meter box selected by the promoter is in dangerous position and located by the left side of the stair case wherefrom there is passage for ingress and egress of the ground floor. Since 2008 no flat owners association has been lawfully formed. Only a person has been entrusted to realize electric bill from the flat owners. The petitioner times without number requested the OP to furnish the names of the flat owners and convene a meeting but the OP turned a deaf year. The common service of the apartment is badly hampered like the car shed has been dilapidated but no one look after, meter box place need to be replaced/ changed, swearing service is absent and the electric meter at present in the name of Landowner but not changed in the name of flat owners. The formation of the flat owners association is a must and it is the duty of the OP to form that Association with due notice to all the flat owners. The above deeds or acts of the OP are intentional and to harass the petitioner and others and the petitioner is suffering from mental agony so the complainant filed the instant complaint. The answering opposite party by filing written version, evidence on affidavit and written notes of argument assailed that as per agreement he has completed his obligation and discharged his duties according to the terms and condition and formed ownership association. The petitioner on various ways creates disturbances in the peaceful work of the association and ignored that association. The complainant creates various disturbances in a flat and also ignored the secretary of the association and without appearing the meeting always shouting that there is no association.
But from the averments of the complainant it is well established that it is the duty of the opposite party to form association of flat owners to look after the maintenance as well as common affairs of the flat owners but according to him there is no association of flat owners since 2008. At the same time no one from other flat owners except this complainant leveled such allegation against the OP. On the other hand the OP assailed that he has formed the association and the said association is in operation but he failed to produce any document which depicts the name of the association as well as office bearers. There is no evidence in the case record from which we can infer that there is no association of the flat owners and the complainant failed to conduct local inspection commission by an advocate to put the points in dispute before this Forum.
Opposite party also failed to show good gesture upon the consumer for which he compelled to seek the recourse of this Forum alleging the deficiency of service and prayed reliefs as prayed in the prayer portion of the complaint petition.
Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non formation of association of the flat owners by adducing cogent document/evidence and other reliefs as prayed by the complainant has no leg to stand, so the prayer of the complainant is allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of formation of association of flat owners.
ORDER
Hence, ordered that the complaint case being No.114/2016 be and the same is allowed in part on contest against the opposite party, with no order as to cost.
The Opposite Party is directed to form the association of flat owners after discussing with the complainant and others for proper maintenance of the flats after calling a meeting within 45 days from the date of this order.
The opposite party is further directed to look after the maintenance of the flat so that the residents should not face any problem.
No other reliefs are awarded to this complainant.
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 & necessary action.
