HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 15 of the Consumer Protection Act, 1986 (in short, ‘the Act’) challenging the order dated 30.04.2019 passed by the Learned District Consumer Disputes Redressal    Forum, Hooghly ( in short, ‘the District Forum, now ‘the District Commission’) in connection with consumer case No. CC/197/2014.

2. The appellant and respondent No. 2 being the complainant filed the instant complaint case being No. CC/197/2014 against the respondent / opposite party Sibnath Dutta praying for the following reliefs :-

“a) pass an order directing the respondent to provide for the facilities of lift and lift room, two-wheeler parking space, underground water reservoir, pump and pump room, complete marble flooring of he staircase, perfect drainage facility for water on the roof, paint with primer of the exterior wall surfaces, coating of the interior wall common surfaces with ‘plaster of paris’, the second staircase and accounts for transformer fees charged;

b) pass an order of compensation of Rs.6,00,000/- (Rupees Six Lakh) only or otherwise Rs.1,20,000/- (Rupees one lakh and twenty thousand) only in respect of each household for mental harassment and agony perpetrated on the petitioner due to the unfair trade practices of the respondent and for the deficiency of the services provided by him;

c) pass an order of permanent injunction against the respondent restraining him from erecting the mobile / internet transmission tower or any permanent structure in the roof or any common usage areas of the apartment;

C1) pass an order directing the respondent to provide for a community hall as per the original Sanction Plan No.B/496 dated 16/02/2010 as mentioned in the registered sale deed executed between the petitioners and the respondent.

C2) pass an order directing the respondent to provide for a second staircase, as it is imperative under the building rules and fire safety;

C3) pass an order directing the respondent to furnish the expenses incurred for installation of the alleged transformer;

C4) pass an order directing the respondent to furnish the petitioners herein with ‘Completion Certificate’ after all the services and amenities in accordance with the sanction plan No. B/496 dated 16/02/2010 and thereafter provide ‘Occupancy Certificate’ to all the petitioners;

d) Cost of the present proceedings;

e) Further and other reliefs as the petitioners are entitled to;

f) And the petitioners / complainants as in duty bound shall ever pray.”

3. Notice was duly served upon the respondent No. 1 and he contested the case by filing written version denying the material averments of the petition of complaint.

4. Both the parties adduced their evidence in support of their case.

5. After hearing both sides and on perusal of the evidence and materials available on record, the Learned District Forum dismissed the petition of complaint being No. CC/197/2014 and passed the order which is reproduced as under :-

“Hence it is ordered that the complaint case being No. 197 of 2014 be and the same is dismissed on contest.

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.”

6. Being aggrieved by and dissatisfied with the said order the appellants have preferred this appeal.

7. Heard the Learned Advocate appearing for the appellants and the respondent No. 1 at length and in full.

8. Learned Advocate appearing for the appellants has urged that the Learned District Forum passed the impugned order dated 30.04.2019 on assumption and presumption basis and completely ignoring the facts and law of this matter which would be evident from the documents filed with record. The document speaks with construction of common area and facilities which was not built as per sanction plan being No. B/496 dated 16.02.2010 and building was deviated.

9. He has further urged that the expert engineer who made the plan being No. B/496 of the flat of the subject of the case, did not disclose in his report that on which sanction plan he made inspection of the building and he earmarked only one construction work made in to to of the sanctioned building plan though there are two sanctioned plans.

10. He has further urged that the expert engineer was silent about the occupation certificate, community hall, lifts license, roof etc.

11. He has further urged that the Learned District Forum cannot blindly rely on the expert report or evidence.

12. He has further urged that the expert engineer and respondent cannot deny or override the statutory and contractual obligation made in the Sale Agreement, Sale Deed and sanction plan.

13. He has further urged that the respondent cannot take the benefit of the revision sanction plan B/60 of 2014.

14. He has further urged that the respondent No. 1/ developer did not disclose any single word about the expert evidence or report in his affidavit in chief. The Learned District Forum has believed the expert report but the expert report does not go into evidence automatically.

15. He has further urged that the said expert report has not been appointed by the Commission and / or Forum.

16. He has further urged that the evidence of the expert report is vague and does not at all believable and acceptable. As such, he has prayed for setting aside the impugned judgment.

17. On the contrary, Learned Advocate appearing for the respondent No. 1 has argued that the grounds as mentioned in the Memo of Appeal are not tenable and justified.

18. He has further urged that the reasons for dismissing the complaint case ought to be accepted by this Commission and at the same time this Commission ought not to interfere with the findings and the observations made out in the impugned order passed by the Learned District Forum.

19. He has further urged that the Learned District Forum, Hooghly had given decisions of reasons in all issues and points raised by the complainants / appellants in the final order dated 30.04.2019. The observations and decisions as passed by the Learned District Forum are all correct. This Commission has no opportunity to disbelieve the evidence filed by the independent Engineer Commissioner. As such, the appellant / respondent No. 1 has prayed for dismissal of the appeal with an exemplary cost.

20. Upon hearing both sides and on perusal of the record and the documents it appears to me that it is an admitted position that the complainants are all the residents ‘Sristi Apartment’ and the complainants have purchased their flats in the said apartment from the promoter and developer.

21. It is also an admitted position that the complainants cumulatively purchased five flats in the said apartment by execution of Agreement for Sale and thereafter Sale Deeds in the name of the complainants.

22. It is also an admitted position that the said apartment in question is a five-storied building consisting of apartments on each floor.

23. It is also an admitted position that after purchasing the flats the complainants became absolute owners and possessors of their respective flats.

24. It is also an admitted position that the complainants became the owners of their respective flats since the date of execution of the Sale Deed in the year 2012.  The complainants / appellants have alleged that the opposite party / respondent did not complete the construction in accordance with the said sanctioned plan and the opposite parties did not provide the facilities of lift and lift room, two wheeler parking space, underground water reservoir, pump and pump room, complete marble flooring of the staircase, perfect drainage facility for water on the roof, paint with primer of the exterior wall surface, coating of the interior wall, common surfaces with plaster of Paris. The respondent / opposite party has denied the complaints as made by the complainants.

25. Upon hearing both sides and on perusal of the record it appears to me that this Commission has been pleased to hold that it is open to the respondent / opposite party to establish his case before the District Forum by leading evidence of affidavit of expert including civil engineer as provided under section 13(4)(iii) of the Consumer Protection Act, 1986 in connection with RP case being No. RP/32/2017. In this case, this Commission also directed all the parties to appear before the Learned District Forum concerned on 15.09.2017 and the respondent / opposite party was directed to file evidence on affidavit by expert including a civil engineer as provided under section 13(4)(iii) of the Consumer Protection Act, 1986, if any there.

26. In view of the above order Learned District Forum vide its order No. 30 dated 15.09.2017 directed the opposite party to file evidence on affidavit by the expert including a civil engineer in accordance with the order of the Hon’ble Commission on 10.10.2017.

27. It also appears to me that on 22.11.2017 one Tamal Kumar Neogi, B.Arch (Cal) MCA, registered architect & planner filed affidavit in chief under order 18, Rule 4 of the Code of Procedure in which he solemnly affirmed and declared that he visited the premises of building of ‘Sristi Apartment’, 189/152, Mahendra Mitra Road, Barodwari, Kapasdanga, P.S. Chinsurah, P.O. & Dist. Hooghly, Pin code No. 712103 dated 7^th September, 2017 at 09.30 A.M.

28. During inspection / visit the said expert engineer  found that there is a lift M/C room and he inspected and travelled upstairs by the said lift and the said lift was running well. So, there is no question of disorder. The Engineer Commissioner in his evidence has clearly and categorically stated that there is a two wheeler garage located at the north-east corner of the ground floor, in addition, there is a toilet for public use. In the said ‘Sristi Apartment’ the engineer also observed that there is an underground water reservoir situated at the East side of the apartment. The expert engineer also clearly and categorically stated in his evidence that there is a pump for the purpose of lifting and supplying water in the said apartment and there are drainage facilities at the eastern side and are connected to municipal drain at the south-east side and is found clean and hygienic. The said expert engineer in his evidence in affidavit has clearly and categorically stated that there are water pipe at the said apartment and the construction of the ‘Sristi Apartment’ has been made in to to in accordance with the sanctioned building plan.  The expert engineer has also clearly and categorically stated that outside of the flat and inside of the common portion are nicely painted and there is a staircase made with marble at the said apartment. The said expert engineer also found that there is a common path in accordance with the sanctioned building plan.

29. From the above evidence of the expert including the civil engineer it appears to me that the said engineer is a B.Arch (Cal) MCA, registered architect & planner.

30. It is evident from his evidence that the evidence of the expert engineer is believable and acceptable.

31. It also appears to me that the copy of evidence on affidavit filed by the said expert engineer was served to the complainants but the complainants did not put any objection in this regard.

32. Under this facts and circumstances, I hold that the evidence produced by the expert engineer is acceptable.

33. It is also clear from the above evidence of the expert engineer that the respondent / opposite party finished the construction work as per the sanctioned plan and he is in no way deficient in providing service to these complainants.

34. Since the case was filed by the complainant(s), the complainant(s) has /have the duty to prove his / their case by cogent and corroborative evidence. But in this case I find that the complainant(s) has / have failed to prove deficiency in service on the part of the opposite party by any cogent and corroborative evidence.

35. The Learned Advocate appearing for the appellants in support of his argument has relied on the judgment reported in four judgments viz. i) II (2015) CPJ 5A (CN) (WB) passed by WBSCDRC, Kolkata in Janpragati Vintrade Pvt. Ltd. & Ors. Vs. Rupali Apartment Flat Owners Association & Anr., ii) FA No. 1382 of 2017 of NCDRC, New Delhi in Amrit Raj (Minor), Vs. Dhawan Surgicary Care and Multi Specialty Hospital & Anr., iii) RP No. 1647 of 2014 passed by NCDRC in M/s. G.G. Associates & 2 Ors. Vs. Commodore Ravindra Kumar Narad & Anr. and iv) 1999 Supp(2) SCR 318 JUDGMENT D.P. Mohapatra, J. However, reliance of these four judgments in the adjudication of this appeal, facts being at variance, would be misplaced.

36. Under this facts and circumstances, it is evident that the respondent / opposite party did not deviate from the agreed terms and conditions of the agreement executed by and between the parties. The Learned District Forum rightly held that there is no deficiency of service on the part of the opposite party.

37. In the foregoing discussion I find that there is no reason to interfere with the order passed by the Learned District Forum.

38. In the result, the appeal fails.

39. Hence, it is ordered that the appeal be and the same is dismissed on contest without cost.

40. The impugned judgment is affirmed.

41. The appeal is disposed of accordingly.