Tripura

StateCommission

A/11/2017

Sri Biswajit Roy. - Complainant(s)

Versus

Sunjuti Flat Owners Welfare Society. - Opp.Party(s)

Mr.Kushal Deb, Mr.Dhrubajyoti Saha, Mr. Soumendu Roy.

24 Aug 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.11.2017

 

 

 

1. Sri Biswajit Roy,

S/o Late Binoy Bhushan Roy,
Flat No.3032,
Prestige Wellington Park Apartments,
Gangamaa Circle, P.O. Jalahalli,
Bangalore- 560013.

… … … … … Appellant/Opposite Party.

Vs

 

1. Senjuti Flat Owners Welfare Society,

Registration No.6842,
C/o Flat No. 101, Roy Heritage Apartment,
30 Gedu Miah Maszid Road,
Shibnagar, Agartala, 
[Represented by the President of the Society].

… … … … … Respondent/Complainant.

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

For the Appellant:                                          Mr. Kushal Deb, Adv.

For the Respondent:                                      Miss Leena Sarkar, Adv.

Date of Hearing:                                             27.06.2018.

Date of Delivery of Judgment:                       24.08.2018

 

 

 

J U D G M E N T

U.B. Saha, J,

The instant appeal is directed against the judgment and order dated 06.02.2017 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.58 of 2016 whereby and whereunder the learned District Forum allowed the complaint petition filed by the respondent (hereinafter referred to as complainant/Society) directing the appellant (hereinafter referred to as opposite party/Builder) to take step for handing over all documents, papers, plan of the flat to the society owned by the flat owners and their spouses and also to take steps for getting permission for G+3 flat from the Agartala Municipality Council and to remove the illegal construction and room made by him over the roof of the flat. The learned District Forum further directed the opposite party, the appellant herein, to pay compensation amounting to Rs.4 lacs to the complainant-Society for deficiency of service. The amount is to be paid within one month and if not paid, it will carry interest @9% per annum.  

2. Heard Mr. Kushal Deb, Ld. Counsel appearing on behalf of the opposite party-Builder as well as Miss Leena Sarkar, Ld. Counsel appearing for the complainant-Society.
3. Brief facts needed to be discussed are as follows:-

A complaint petition was filed under Section 12 of the Consumer Protection Act, 1986 by one Senjuti Flat Owners Welfare Society, represented by its President, namely, Sri Haradhan Debnath against one Sri Biswajit Roy, seller of the flat. Complainant's case in short is that, he along with other purchasers and the members of the association/society purchased flats with car parking facilities and convenient facilities. On May 2014, responsibility for the maintenance of the flats was taken over by the flat owners and a registered Society, namely, 'Senjuti Flat Owners Welfare Society' was formed under Society Registration Act. Many inconveniences were detected. Generator service was not provided and even papers relating to lift was also not handed over. Drawing of concealed electric wiring of the building was also not provided. Separate electric meter was not installed. The opposite party owner-cum-developer of the flat informed that the building plan is obtained for G+3 storied RCC and permission for such construction was given by Agartala Municipal Council. Complainants-flat owners came to learn with shock that actually Agartala Municipal Council given permission for construction of a G+2 storied building, not G+3. Without permission, G+3 building was constructed and sold out to the complainants. But in the Sale Deed, it is written that permission was given for G+3 storied building. In such a position, the flat owners are under anxiety as Agartala Municipal Council may take action for such illegal construction by the opposite party. It is nothing but deficiency of service and unfair trade practice on the part of the opposite party. Complainant-flat owners suffered a lot and prayed for direction and compensation.

4. Opposite party-Biswajit Roy appeared and filed his written statement denying the claim wherein it is stated that the complaint petition filed by the complainant is not maintainable being the ‘Senjuti Flat Owners Welfare Society’ was not formed under ‘The Tripura Apartment Ownership Act, 1986’, rather under the Society Registration Act by the owners and non-owners of the flats. It is further stated that since the Flat Owners Association was not formed by the registered owners with full consent of all the six flat owners, the management of the alleged ‘Senjuti Flat Owners Welfare Society’ is held formed by non-owners and as a builder of ‘Roy Heritage Apartment’ is not obligated to hand over the charge of the properties of Apartment to the complainant-Society which is formed illegally and the management key post like president, secretary and treasurer etc. are held by non-owners of the flat, according to the documents. More so, the said illegal society is formed against the spirits of the ‘Tripura Apartment Ownership Act, 1986’. It is further stated that G+3 storied building was constructed by him as permitted by the Agartala Municipal Council. Thus, the complainants are not entitled to get any compensation as there is no deficiency of service on his part and he is also not supposed to hand over the papers to the complainant-Society managed by the non-owners.
5.  The learned District Forum considering the pleadings of the parties framed the following points to decide the case:-

1. Whether the facilities as advertised by the O.P. was not provided to the petitioner or not?
2. Whether the petitioners were entitled to get compensation as claimed?

6. Complainant side produced photocopy of five Deeds, copy of Registration Certificate of the Society and copy of Building Plan. Complainant also produced the statement on affidavit of one Haradhan Debnath, president of the complainant-Society.
7. Opposite party, on the other hand, produced original copy of e-mail by the Builder/Developer, Biswajit Roy, photocopy of attachment letter, Photocopy of Roy Heritage Flat Owners Welfare Society, photocopies of other letters, advocate's notice etc. He also submitted his affidavit-in-chief.
8. The learned District Forum considering the pleadings of the parties as well as evidence on records passed the impugned judgment.
9. Mr. Deb, Ld. Counsel appearing for the appellant-builder while urging for setting aside the impugned judgment would contend that the learned District Forum failed to consider the basic question as to whether a complaint petition filed by a society formed by the flat owners and non-owners is maintainable or not when such society is formed under the Society Registration Act, 1860 instead of the Act, namely, The Tripura Apartment Ownership Act, 1986 which applies to the sole owner of the property or all owners. He has further submitted that whether the complainants alleged society can form a society of owners even a society of owners excluding one of the owners i.e. the builder himself, if so, then what would be the effect. He has again submitted that on the one hand, the learned District Forum held that the opposite party builder was aware that permission for construction of building was given by the Agartala Municipal Corporation for G+2 storied building and on the other hand, directed the builder for taking step to get the permission of G+3 though the builder in his initial plan submitted to the Municipal Corporation was for G+3 storied building and ultimately, the Municipal Corporation also clarified that permission was given for G+3 storied building in the Memorandum dated 01.03.2017 while responding to the letter of the builder. He has further contended that though the Clause 13 of the agreement specifically stated that the office-cum-maintenance room for the builder on the terraced floor can be utilized by the builder, who was/is also a owner of one of the flat as well as by the security guards and the maid servant working in the apartment, but the learned District Forum in its observation in the impugned judgment stated that after sale of the flats, the flat owner is not supposed to stay inside the flat occupying an extra room in the roof which is beyond the plan preferred by the Municipality and also beyond the terms of agreements. He has finally contended that the learned District Forum failed to consider the aspect that the builder who is one of the owner of the flat is not in a position to hand over the documents like building plan, drawing relating to internal electric wiring and other necessary records regarding the land and also contract paper relating to Otis elevator and electric transformer to a society formed illegally by the non-owners along with some of the owners. Thus the impugned judgment is liable to be set aside and the complaint is to be dismissed allowing the appeal preferred by the appellant.
10. Per contra, Miss Sarkar, Ld. Counsel for the complainant-Society while supporting the impugned judgment would contend that the learned District Forum did not commit any wrong as the complainant-Society is a lawful society even if the society is constituted by the non-owners and owners of the flat. She has again submitted that the opposite party-Builder violates all the terms and conditions of the agreement and more so, he has not handed over all the papers relating to lift and drawings of the concealed electric wiring of the building to the Society. She has also submitted that the president of the Society Sri Haradhan Debnath, the P.W.1 is the husband of the registered owner of Flat No.301 Smt. Bakul Debnath. According to her, whether president of the Society is the owner of the flat is a technical point which cannot be a bar in giving relief to the consumers. She has further submitted that an attempt was made to settle the disputes amicably between the parties outside the Commission, but as the complainant-Society, owners of the flats did not agree to the proposal, it failed. She has finally submitted that as the appellant-opposite party has raised the question of maintainability of the complaint petition, it would be proper to set aside the impugned judgment and remand the matter to the learned District Forum for deciding the case afresh including the question of maintainability and also a liberty to the individual flat owners to be a party in the proceeding.
11. It is also appeared from the record of the learned District Forum that none of the flat owners was examined by the complainant-Society to establish its case, rather admittedly the P.W.1 who was examined by the complainant-Society is a non-owner of the flat and there was no agreement with him with the opposite party-Builder. However, we are not expressing any opinion regarding the merit of the complaint.
12. This Commission has gone through the impugned judgment from which it appears that though the opposite party-Builder of the flats raised the question of the maintainability of the complaint petition on the ground that the complainant-Society is formed by owners and non-owners of the flat and the society is managed by the non-owners, the learned District Forum while deciding the case did not frame any issue/points regarding the question of maintainability of the complaint petition though admittedly, in the written statement, the opposite party raised the question of maintainability. It is also admitted position that the complainant-Society is managed by non-owners of the flat and almost all the communications on behalf of the Society was done by the non-owners with the opposite party-Builder of the flat, the appellant herein. In view of the direction of the learned District Forum when the opposite party-Builder took steps though he submitted his initial plan to the Agartala Municipal Corporation for G+3 storied building, ultimately, the Agartala Municipal Corporation clarified that permission was given for G+3 storied building in the Memorandum dated 01.03.2017 while responding to the letter of the opposite party-Builder, meaning thereby, the plea of the complainant so far the alleged illegal construction of G+3 storied building is not correct.

Considering the entire facts and circumstances we are of the considered opinion that it is a fit case where the impugned judgment should be interfered with as the learned District Forum did not decide the question of maintainability of the complaint petition when admittedly the complainant-Society is managed by the non-owners of the flat. Accordingly, the impugned judgment is interfered with and in consequent thereto set aside the same and the case is remanded back to the learned District Forum to decide afresh including the maintainability as raised by the appellant-opposite party in his written statement. The complainant is also at liberty to rectify its petition in accordance with law, if so advised.

In the result, the appeal is allowed to the extent as indicated above. No order as to costs.

Send down the records to the learned District Forum, West Tripura, Agartala.

 

 

 

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura