This is a case under Section 12 of Consumer Protection Act, 1986.                                                                                                                                    

Brief facts of the complainants case is that, the complainants on seeing the advertisement of O.P. No. 1 and being interested in purchasing an apartment, in the advertised property approached O.P. No. 2. On 19.05.2014 and an Agreement To Sale, was executed between the complainants and the Proforma O.P. No. 5, with regard to the sale of Flat No. 307, 3^rd Floor, Block-A in ‘Ganga’ measuring about 661 sq. ft., Grade-’Luxury’, including Super Built-up area and common proportionate share of land for consideration of Rs. 9,40,000/-( Rupee Nine Lakh Forty Thousand Only). O.P. No. 2 in the Executed Agreement, affirmed to deliver position of the completed flat within 18-24 months from the date of approval of Map/ Sanction of Building Flat. The O.P’s. thereafter, demanded Rs. 80648/- (Rupees Eighty Thousand Six Hundred Forty Eight Only) for the Registration of the Deed of Conveyance, which was paid by the complainant on 11.06.2015. Even though, the brochure indicated ‘lift’ in the Grade-’Luxury’, the complainants had to pay Rs. 25,000/- (Rupees Twenty Five Thousand Only) on 11.06.2015, on being demanded by the O.P’s. The complainants had honoured all the installments and the final installment had been paid on 29.06.2017.

Even though the construction was incomplete, the O.P.s through O.P. No. 3 executed and Registered Deed of Conveyance on 03.08.2015, for the above mentioned flat. Even after the payment of Rs. 11,49,352/- ( Rupees  Eleven Lakh Forty Nine Thousand Three Hundred Fifty Two Only) the flat of the complainants remained incomplete and the complainants could gather from the web site vastubihar.org that the Registration Charges and charges for fixing lift had already been collected, but the O.Ps’ had deceitfully collected Rs.  80648/- (Rupees Eighty Thousand Six Hundred Forty Eight Only) for the Registration of the Deed of Conveyance and Rs. 25,000/- (Rupees Twenty Five Thousand Only) for fixing lift, on 11.06.2015.  On 23.07.2017 a meeting was called by one Shree P.K. Sinha in the name and style ‘development meeting’ and discussion was held with regard to the following:

a. Construction of Main Road and Main Gate: for ingress and egress to Vastu Vihar from the public road.

b.  Internal Roads: for movement within the boundary of Vastu Vihar.

c.  Street Light: every 100 meters apart within the boundary of Vastu Vihar.

d.  Electricity: separate connection for each and every flat owner of Vastu vihar.

e.  Water Supply: separate connection with storage tank for each and every flat owner of Vastu Vihar.

f.  Mandir: within the boundary of Vastu Vihar.

g.  Documentation: Panchayat Tax and Holding Tax.

h.  Boundary Wall: to be constructed along the periphery of Vastu Vihar.

i.  Swimming Pool:within the boundary of Vastu Vihar.

j.  Children Swimming: within the boundary of Vastu Vihar.

k.  Sanitation: sewage line and night soil tanks.

The O.P.s thereafter issued Possession Certificate and delivered possession to the complainants on 29.07.2017, with an assurance to complete the residual work. Thereafter, the complainants and other flat owners moved in to their respective flats reposing faith on the assurances, but nothing was actually done, inspite of repeated requests.

On 07.09.2018 the complainants including the other flat owners issued a notice to the managing director, Technoculture Building Centre (P) Ltd., as the O.P.s had used substandard materials and far from the specifications, as mentioned below:-

a.  Floor Finish: poor quality tiles are fixed in place of Ivory Vitrified tiles.

b.  Wall paint: poor quality paint has been used in place of POP with Weather Shield.

c.  Door Frame: poor quality has wood been used in place of Hard Wood.

d.  Electric Fittings: poor quality wires and fitments have been used in place of branded materials both inside and outside.

e.  Sewage Fittings: poor quality plastic pipes have been used in place of C.I. pipes.

                   Apart from the above the complainants’ further, allegation is that the electric connection is not domestic as the same was supplied by a temporary wire from the O.P.s, which is a commercial connection and again being made to pay the commercial rates instead of the domestic rate. Moreover, the lift also was not installed and the stair case being not properly covered, compelled the complainants to use umbrellas during the rainy season. Furthermore, rain water entered in the complainants flat through the chimney duct and the front door on the stairs.

In this regard, the complainants had issued legal notices dt. 20.07.2017 and 19.08.2017, but no response, had been received from the O.Ps. Finding no alternative the complainants filed this instant case. Hence this case.

The O.Ps. No. 1 to 4 have entered appearance and filed Written Version, wherein they have denied and admitted certain facts. The main contention raised by the O.Ps., is that the complainant was liable to pay all the legal charges including Registration Fees as mentioned in Clause-8 of the ‘Agreement to Sale’. Moreover, they have stated that the provision of the lift as mentioned in the Brochure is ‘according to requirement’. That apart the Clause-21 in the ‘Agreement to Sale’ and Clause-9 of the Deed of Conveyance clearly mentioned that the purchaser would have to obtain their own independent connection from W.B.S.E.D.C.L., Siliguri for their electric requirements. They therefore, pray for the dismissal of this case.

Proforma O.P. No. 5, has entered appearance and he filed the Written Version, wherein he has stated that he had purchase the said land and O.P. No. 1 had constructed for sale and the O.P. No. 5 had no connection with the construction and therefore, had no responsibility for fittings and fixtures, nor was he responsible for the electric connection.

Allegation raised by the complainant against the O.P.s is the following:-

a.  Overcharging by the O.P.s with regard to Rs.  80648/- (Rupees Eighty Thousand Six Hundred Forty Eight Only) as Registration Fees.

b.  Non-installing of lift as prescribed in the brochure and further illegally demanding Rs. 25,000/- (Rupees Twenty Five Thousand Only) for the installation of the same.

             c.  Non-supply of electricity at domestic rates but charging commercial rates.

d.  Non-compliance with regard to the problems highlighted vide sub-para of Para-11.

e.  Complaints highlighted in Para-15 & 16.

With regard to point ‘a’ the complainants have stated that, they had been forcibly made to pay Rs.  80648/- (Rupees Eighty Thousand Six Hundred Forty Eight Only) as expenses for Registration of Deed of Conveyance, but from the web site vastubihar.org, the Registration Charges and charges for fixing lift had already been collected. But in this regard, the complainants have not been able to back up their bald statements, with any form of evidence. On the contrary the O.P.s have pointed out, that the Clause-8 of the Agreement dated 19^th May of 2014 and Clause- 10 & 11 of the Deed of Conveyance dated 24^th July of 2015. On perusal of the above Clauses it becomes clear, that the complainants were required to make the necessary payment in respect of expenditure for Registration Charges. Under the circumstance this allegation of the complainants against the O.P.s cannot be sustained.

In respect of point ‘b’, the complainants have alleged that, as per the Brochure for ‘Luxury’ Grade, the O.Ps. were required to install lift which was included in the payment amounting to Rs. 9,40,000/-( Rupee Nine Lakh Forty Thousand Only) and  the web site vastubihar.org also mentioned the including of lift in the cost of the flat. On perusal of the copy of the Brochure, there is mention in the ‘Luxury’ Grade ‘provision of the ‘lift is according to requirement’. Hence when there is provision for lift in the ‘Luxury’ Grade apartment, the O.P.s should have installed the same, rather as from their pleadings, they have tried to absolve themselves by pointing to the technicalities, but they have neither tried to explain the technicalities, nor have they provided any form of evidence to support their contention, that the lift was unnecessary or superfluous. On the contrary, they have received, rather forcibly Rs. 25,000/- (Rupees Twenty Five Thousand Only) Annexure-4 for the lift, which tantamount to ‘unfair trade practice’. Therefore, the contention of the complainant with regard to this point is accepted and the O.P.s are not only liable to refund the Rs. 25,000/- (Rupees Twenty Five Thousand Only) received from the complainants, but also install the lift in the building Block-A in Ganga, housing the complainants apartment.

With regard to point ‘c’ it can be stated that as per the Clause-8 of the ‘Agreement to Sale’ as well as the Clause-9 of Deed of Conveyance, it has been unambiguously laid down that the complainants would have to apply themselves for the domestic electric connection from W.B.S.E.D.C.L, Siliguri. Commonsense, also provides that the project owners would never be able to supply electricity and the residents themselves had to apply for electric connection. Therefore, this contention of the complainants cannot be entertained and thus, rejected.

Points ‘d’ & ‘e’ are taken up together as the same arguments would dispose them. In this respect the allegations in Para-11, 15 & 16 are produced below.:-

11.(a)  Construction of Main Road and Main Gate: for ingress and egress to Vastu Vihar from the public road.

(b) Internal Roads: for movement within the boundary of Vastu Vihar.

(c) Street Light: every 100 meters apart within the boundary of Vastu Vihar.

(d)  Electricity: separate connection for each and every flat owner of Vastu vihar.

(e) Water Supply: separate connection with storage tank for each and every flat owner of Vastu Vihar.

(f)  Mandir: within the boundary of Vastu Vihar.

(g) Documentation: Panchayat Tax and Holding Tax.

(h) Boundary Wall: to be constructed along the periphery of Vastu Vihar.

(i) Swimming Pool:within the boundary of Vastu Vihar.

(j) Children Swimming: within the boundary of Vastu Vihar.

(k) Sanitation: sewage line and night soil tanks.

15.             (a)  Floor Finish: poor quality tiles are fixed in place of Ivory Vitrified tiles.                                      

(b)  Wall paint: poor quality paint has been used in place of POP with Weather Sheild.

(c)   Door Frame: poor quality has wood been used in place of Hard Wood.

(d)  Electric Fittings: poor quality wires and fitments have been used in place of branded materials both inside and outside.

(e)   Sewage Fittings: poor quality plastic pipes have been used in place of C.I. pipes.

16. Apart from the above the complainants’ further, allegation is that the electric connection is not domestic as the same was supplied by a temporary wire from the O.P.s, which is a commercial connection and again being made to pay the commercial rates instead of the domestic rate. Moreover, the lift also was not installed and the stair case being not properly covered, compelling the complainants to use umbrellas during the rainy season. Furthermore, rain water entered in the complainants, flat through the chimney duct and the front door on the stairs.

The nature of complaint in the Para-11, 15 & 16 have not been incorporated in any of the ‘Agreement to Sale’ and ‘Deed of Conveyance’, on which basis the complaints can claim the same as a matter of right. The complainants have simply filed one Annexure-7, which is nothing, but request made to be authorities, the implementations of which have no legal support. Furthermore with regard to the implementation of the complaints made in Para 15 & 16 is simply a statement with no support of better evidence like expert opinion, local inspection etc. Therefore, merely on basis of the statements the O.P’s. cannot be held liable. As a result these two points are decided against the complainants.

It is therefore, 

O R D E R E D

That the case be and the same is allowed in part on contest against O.P.s No. 1,2 3 & 4 with cost of Rs. 5,000/- (Rupees Five Thousand Only).

   The O.P.s No. 1, 2 ,3 & 4 are jointly and severally liable to refund Rs. 25,000/- (Rupees Twenty Five Thousand Only) with interest @ 9% from the date of receipt till the date of payment and are also directed to install lift in the building housing the apartment of the complainants, within one month from the date of this order. The above O.P.s No. 1,2, 3 & 4 are also directed to pay jointly and severally the amount of Rs. 10,000/- ( Rupees Ten Thousand Only) towards mental pain and agony and Rs. 10,000/- ( Rupees Ten Thousand Only) towards litigation cost from the date of this order failing which interest @ 9% would be attracted for the above amounts.

Copies of the Judgement be delivered free of costs to the parties.