HON’BLE MR. SUDIP NIYOGI PRESIDENT FACTS In brief, the case of the Complainant is that he and his mother- Smt. Radha Rani Das are the absolute owners of the land as mentioned in Schedule- A to the petition of complaint. Their neighbour Shubhankar Bose is the owner of land of 1 cottah 9 chittaks more or less at Premises No. 72, Picnic Gardent, 1st Lane, P.S.- Tiljala. The Opposite Parties being the developers wanted to build one G+3 storied building taking the entire land of both the premises of the Complainant and his neighbour said Shubhankar Bose. Accordingly, Complainant entered into development agreements dated 30/11/2018 separately with certain terms and conditions as contained therein. To facilitate the construction work, Complainant shifted his residence and handed over his plot to the Opposite Parties. One unregistered General Power of Attorney was also executed on 11/11/2019 in favour of the Opposite Parties. As per agreement, Complainant would get his owners’ allocation of 1250 sq. ft. on the 3rd floor of the proposed new building which is mentioned in Schedule- B. The parties also agreed that Complainant would buy the rest area of the 3rd floor in addition to his owner’s allocation, including 25 % super built-up area which is more or less 437 sq. ft. at the rate of 2600/- per sq. ft. and the consideration amount settled was Rs.13,36,200/-. This apart, Complainant also to get one covered garage measuring about 110 sq. ft. The descriptions of the said covered garage and the rest area of 3rd floor have been mentioned in Schedule-C. He paid Rs.7,00,000/- by cheque towards earnest money. Though the project was to be completed within 24 months but even after the said period elapsed, the building is yet to be completed. The lift assured in the building was also not installed. Further allegation is that the Opposite Parties did not pay the shifting charges for alternative accommodations as agreed upon at the rate of Rs.14,000/- per month since December 2018 till February, 2022 for which Rs.5,46,000/- is lying due. It is also alleged that on 03/03/2021 opposite parties stopped the labourers employed by the complainant for doing some interior work in his flat and forcefully locked the entrance door. This apart, Opposite Parties are also liable to pay Rs.4,50,000/- which he spent in his portion on their behalf. He issued a legal notice on 07/06/2021 requiring the Opposite Parties to hand over the peaceful possession of the entire 3rd floor and the covered garage to him within 10 days from the date of receipt of the notice. He received a reply to the said notice but the Opposite Parties refused to address his grievances. It is further alleged that in violation of terms and conditions, the developer sold out one flat in the building prior to giving possession of the owner’s allocation. So, by filing the instant complaint, he prays for the relief namely, delivery of possession of the B and C scheduled property on obtaining the balance consideration, registration of deed and payment of shifting charges. Both the Opposite Parties have contested the complaint by filing one written version denying all the allegations made against them. They have alleged that Complainant refused to take possession of his allocation by paying the balance consideration as a result they were forced to continue paying shifting charges for him. They have also alleged that the complainant avoided to make a registered power of attorney in their favour. So, they prayed for dismissal of the instant complaint. Both parties have adduced their evidence, exchanged questionnaires and replies thereto. The point for consideration is whether the complainant is entitled to get relief (s) as prayed for. Be it mentioned here that one petition for appointment of Civil Engineer or Survey Commissioner was filed on behalf of the Opposite Parties against which written objection was also filed on behalf of the Complainant. That petition was also kept for hearing at the time argument. Accordingly, the said petition was also taken up along with the argument of the case. FINDINGS The development agreement dated 30.11.2018 produced on behalf of the Complainant reveals that the said agreement was made between the complainant who is said to be the landowner and both the OPs as developers. According the complainant, he obtained one general Power of Attorney executed and registered in his favour by his mother on 22/11/2018 as stated in his supplementary affidavit. As per agreement one G+3 storied building would be constructed and landowner’s allocation would be 1250 sq. ft. covered area with staircase on entire 3rd floor. The rest of area except landowner’s allocation would be the developers’ allocation. This agreement is found to be silent about the agreement between the landowner and the OPs that Complainant would buy the rest area of 437 sq. ft. of the 3rd floor (@2600 per sq. ft.) and a covered garage measuring about (110 sq. ft.) at a consideration of Rs.13,36,200/- in total which includes Rs.2,00,000/- for the covered garage. But we find that the OPs have not denied that agreement between them. Now, Complainant has claimed to have paid Rs.7,00,000/- by cheque on 22/07/2020 towards the said consideration and balance of Rs.6,36,200/- is required to be paid by the complainant and this is also found to be admitted by the opposite parties. The construction work would be completed within 24 months from the date of agreement as per the said agreement. The agreement also includes the shifting charge would be provided by the developers. The Complainant has claimed that OPs have not completed the construction and delivered possession of his allocation within the stipulated time. We find the claim of the complainant for payment of shifting charges remaining due is a highly debatable matter between the parties in this case. Though in the development agreement, it has been noted that the shifting charges would be provided by the developer but, no specific amount is found to be mentioned there. However, from the evidence and other materials on record, it is found admitted that opposite parties to pay shifting charges @ Rs.14,000/- per month to the complainant for the period during which possession of owner’s allocation is not delivered. According to complainant, the payment of shifting charges remained due from December 2018. So, at the time of filing of the instant complaint, there was due of Rs.5,46,000/- in total, but the opposite parties have denied the same and claimed to have paid entire shifting charges till April 2020 i.e. when the owner(s)’ allocation was made ready and they requested the complainant to take physical possession of his allocation but the complainant due to some mala fide intention refused to take possession of his allocation. But they have not produced any paper in writing to show when the owner’s allocation was completed and/or also to show that they had informed the complainant to take his allocation. They even have not stated any specific date when complainant was requested to take owner(s)’ allocation. In this connection, it is found, complainant has alleged that on 03/03/2021, he had employed carpenters and labourers for doing some interior works in his flat but at that time, opposite parties came there and forcefully stopped the work driving out the labourers and locked the flat from outside and the incident was duly informed to Tiljala Police Station. With regard to this, to a query of the complainant, opposite parties have claimed in their reply (point No. 7) that the complainant without paying balance amount of Rs.6,36,200/- started the interior work and they apprehended that complainant would not pay the said outstanding amount and forcibly take the possession of the said flat and car parking space and therefore, they were compelled to stop the interior work. Apart from this, we find that the complainant through his learned Advocate issued a letter on 7th June, 2021 to the opposite parties requesting, inter alia, them to hand over peaceful possession of the entire 3rd floor flat and garage space to him within 10 days from the date of receipt of the said notice after unlocking the entrance door. We find opposite parties issued a letter of reply through their learned Advocate claiming that they requested the complainant to take over possession of his flat and car parking space but he refused to take possession of his allocation and also to pay the balance amount of Rs.6,36,200/- and forced them to continue paying shifting charges. In the said letter of reply also, nowhere it has been mentioned any particular date when they had requested the complainant to take his allocation. In fact, it is the bounden duty of the opposite parties/developers for their own sake to inform the land owners as to the date when they are going to hand over the possession of owner(s)’ allocation and it is highly expected so, when the opposite parties i.e. the developers are under obligation to pay monthly shifting charges for the land owner and on such intimation if the land owner refused to take possession without valid reason, they may claim relief from paying further shifting charge. But curiously, in this case, no such intimation, in writing, for taking delivery of the land owner(s)’ allocation to the complainant is forthcoming from the side of the opposite parties, nor even, as we have observed above, any date has been cited by them when they had requested the complainant to take possession of their allocation. In these circumstances, allowing the landowner to do some interior work in his portion by the landowner cannot be construed that the possession was delivered to the landowner. Here so far as the owner(s)’ allocation is concerned which is 1250 sq. ft. on the 3rd floor, the opposite parties are liable to pay shifting charges and once the owner’s allocation i.e. 1250 sq. ft. on the 3rd floor is delivered or intended to deliver, the opposite parties cannot be made liable to pay shifting charges for subsequent months. But in respect of the rest portion of the 3rd floor and the car parking space which the complainant agreed to purchase and made advance of Rs.7,00,000/-, the opposite parties cannot be forced to deliver the possession of that portion or to make a deed of conveyance in respect of that unless they get the amount of balance consideration therefor. We find the opposite parties have claimed Rs.27,272/- for extra 15 sq. ft covered garage. In this regard, we think the complainant cannot be compelled to pay the said extra amount for extra 15 sq. ft. area in the covered garage as the agreement was for only 110 sq. ft. and it is the discretion of the complainant to pay extra for extra area. Here as regards the claim of complainant of Rs.4,50,000/- allegedly spent by him on behalf of the opposite parties, complainant has not filed any document to show that. So, this claim of the complainant cannot be entertained. Now coming up to the application being registered as MA/52/2023 for commission by a civil engineer filed on behalf of the opposite parties, it is found that opposite parties have pointed out several points on which inspection has been sought. - To measure the owner(s)’ allocation which is 1250 sq. ft. more or less along with the rest portion on the 3rd floor of the building and a sketch map thereof.
- Whether the flat on the 3rd floor is ready for habitation and residence.
- To measure the covered area under the agreement between the parties.
- Whether the said flat has the excess area than under the agreement and local features.
As against the said application, complainant is found to have filed one written objection and has prayed for dismissal of that application. Further it is found that the complainant seems to have admitted that the construction of the said building has already been completed and that is why, he has prayed for possession of the entire 3rd floor and covered garage of 110 sq. ft. on the ground floor in the newly constructed building. Apart from this, complainant is also found to have raised no question as to the area of the owner(s)’ allocation of 1250 sq. ft. on the 3rd floor or as to the rest area of the said floor and the covered parking garage on 110 sq. ft. which he agreed to purchase. The extra garage space measuring 15 sq. ft. for which opposite parties claimed extra money, the complainant has not demanded any extra area in the garage space as he has restricted his claim to 110 sq. ft. garage regarding which we have observed hereinabove that complainant cannot be compelled to take extra area by making extra payment. So, in absence of any dispute, we do not find any reason to allow the prayer for inspection as there is absolutely no necessity of holding any such inspection for disposal of the instant case. Thus, having considered the materials on record, we find complainant is entitled to the relief(s) regarding his prayer for execution and registration of a deed of conveyance in respect of “C” schedule property and delivery of possession of both “B” and “C” schedule property, shifting charges, compensation and cost of litigation as stated hereunder. Accordingly, it is ORDERED That the instant complaint case is allowed against the opposite parties on contest. The application for inspection by a civil engineer as filed by the opposite parties (MA/52/2023), however, is rejected. Opposite parties are directed to deliver the peaceful possession of the allocation of the land owner(s) of 1250 sq. ft. on the 3rd floor as agreed upon between the parties in the newly constructed building at premises No. 7/H, Picnic Garden, 1st Lane, P.S- Tiljala, Kolkata- 700039 as mentioned in Schedule “B” to the petition of complaint. Opposite parties are also to pay shifting charges at the agreed rate to the complainant till the possession of owner(s)’ allocation is delivered. Opposite parties are also directed to get a deed of conveyance executed and registered in favour of the complainant in respect of the rest area of the 3rd floor and one 110 sq. ft covered garage on the ground floor in the said building as stated in Schedule “C” on payment of balance consideration of Rs.6,36,200/- (Rupees Six Lakh Thirty-six Thousand Two Hundred Only) by the complainant. The cost of such deed of conveyance shall be borne by the complainant. Be it noted here, Complainant shall perform his duty, if any, on his part in order to enable the opposite parties to execute and register the deed of conveyance by them. Opposite parties are also to pay compensation of Rs.20,000/- (Rupees Twenty Thousand Only) and Rs.5,000/- (Rupees Five Thousand Only) for cost of litigation to the complainant. Opposite Parties are jointly or severally liable to comply with the aforesaid order within 45 days from the date of this order. If the aforesaid order is not complied with by the Opposite Parties within the stipulated time as stated, the complainant shall be at liberty to proceed in accordance with law. Dictated and corrected by me President | 
