Date of Filing – 13.07.2011
Date of Hearing – 11.04.2017
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of intending purchasers against the developer i.e. Kolkata West International City(KWIC) and its officers on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
In a capsulated form, Complainants’ case is that complainant no.1’s are husband and wife jointly had applied for a row house being numbered as A/08/04 on 12.01.2006 with a payment of Rs.3.4 lakhs. The complainant no.2’s are also husband and wife jointly applied for duplex house being numbered as A/9/12 on 04.11.2009 with a payment of Rs.2,00,000/- and complainant no.3’s also being husband and wife jointly applied for a row house being numbered as A/10/40 on 28.04.2006. Accordingly, the provisional allotment letters were issued by the KWIC with a structure of mode of payment on 02.07.2007, 26.02.2010 and 02.07.2007 respectively. The complainants state that they have paid Rs.32,92,337/-, Rs.23,41,027/- and Rs.22,55,125/- respectively. The complainants alleged that as per provisional allotment letter, the completion date of the project was 31.12.2007 with an extended grace period on 30.06.2008 but the project has not completed till date. The complainants submitted that they are residing in their unit with eight other purchasers and four weekenders out of 508 units (purchasers) in cluster A & B only due to non-compliance of the agreed terms and conditions and breach of contract by KWIC. The complainants have specifically alleged that there is no power back up during power failure, no solar light, no club, no recreation centre or community centre, no telecommunication facility for security help, no close circuit TV for security and help in emergency. The complainants have also alleged that there is no proper complete boundary wall, post office, police station, shopping mall, Cineplex, community hall, fire brigade internal and external, transport facility etc. and within five years from the time of launching of project, no progress has been made to that effect. Hence, the complainants have come up in this Commission with prayer for several reliefs on account of deficiency in services on the part of the developer/KWIC.
The opposite party no.3/KWIC by filing a written version disputed the claim of the complainants and challenged the maintainability of the proceeding. The OP no.3/developer has stated that the complainants from time to time made payment and as on the date of filing W.V. a sum of Rs.32,92,337/-, Rs.23,41,027/- have been paid by the complainant nos. 1 & 2 and Rs.9,66,460/- and Rs.4,91,576/- are still due and payable by them. The OP no.3 has also stated that the units booked by the complainants were completed in all respect in March, 2010 and the completion certificate in respect of the units of the complainants were received on 18.06.2010. Immediately thereafter, they requested the complainants to pay the balance outstanding and to take possession of their respective flats. The OP no.3 has also submitted that due to some unavoidable circumstances, they could not complete the construction of the project within the time frame but they were not negligent and as such the complaint should be dismissed.
During hearing of the case, both the parties have tendered evidence on affidavit. They have also filed replies against the questionnaires set forth by the adversaries. Besides oral evidence, both the parties have relied upon some documentary evidence.
On the threshold of the discussion, it would be pertinent to record that three complainants i.e. three couples have lodged the instant consumer complaint against the Chief Executive Officer and the Director of KWIC without impleading KWIC as a party. Subsequently, KWIC has been added as OP no.3 and contesting the case. Out of three complainants who have lodged the complaint, complainant no.3 by filing an application being MA/557/2013 has deleted her name from the cause title of petition of complaint on the ground that the grievances of her against KWIC has been redressed.
In Paragraph-21 of the petition of complaint, the complainants have stated thus –
“21. The complainants are residing in the township project of the opposite parties and entered into an agreement with KWIC in the same project and therefore, complainants are jointly filing this petition under Section 2(b)(iv) of Consumer Protection Act, 1986 as amended upto date”.
Mr. P.R. Bakshi, Ld. Advocate for OP no.3 has drawn my attention to the definition of Section 2(b)(iv) and the provisions of Section 13(6) of the Act and submitted that the complainants have filed the complaint in a representative capacity but did not seek the leave of the Commission in accordance with Section 12(1)(c) of the Act and as such on that score alone, the complaint should be dismissed being not maintainable.
Mr. B.B. De, Ld. Advocate for the complainants, on the contrary has submitted that the KWIC in their written version has admitted that they could not complete the construction as per terms and conditions of provisional allotment letters and buyers agreement and now after long six years, the claim of the complainants will not be defeated on technical ground.
The materials on record indicate that the petition of complaint has been filed by three complainants who had booked their respective row houses/duplex in the development project undertaken by OP no.3/KWIC on the ground of deficiency in services on several counts. The complainants have sought the following reliefs – (a) to provide completion certificate; (b) register the Deed of Conveyance; (c) complete the project within stipulated time and not to impose any holding charges; (d) to give all the facilities and/or amenities as per brochure and agreement; (e) to construct and/or remove the defect in the houses; (f) not to increase built up area; (g) not to cancel the agreement and/or transfer the property to the third party; (h) compensation at the rate of 18% for delayed possession and litigation cost of Rs.75,000/-.
As this complaint has been filed by more than one consumer, Section 12(1)(c) of the Act comes into play which reads as under:-
“Manner in which complaint shall be made.
- A complaint in relation any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by –
- .......
- ........
- One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of or for the benefit of, all consumers so interested”.
Admittedly, 508 persons purchased the flat from the opposite party and three of them have filed this complaint. This indicates that other flat owners are either satisfied with the construction made by the developer or not interested to lodge complaint. In any case, perusal of prayer clause would show that the relief has not been claimed for other similarly placed persons. The interpretation and scope of Section 12(1)(c) of the Act was the subject matter of adjudication before Three-Member Bench of the Hon’ble National Consumer Commission reported in I (2017) CPJ 1 (Ambrish Kumar Shukla & 21 Ors. – vs. – Ferrous Infrastructure Pvt. Ltd.). While dealing with the scope of Section 12(1)(c) of the Act, the Hon’ble Commission has observed thus –
“The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them, therefore, will not be maintainable. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 agreed persons will be compelled either to file individual complaint or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have the legislative intent. The term ‘persons interested’ and ‘persons having the same interest’ used in Section 12(1)(c) means the persons having a common grievance against the same service provider. The use of the words ‘all consumers so interested’ and ‘on behalf of or for the benefit of all consumers so interested’, in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking common relief and consequently having community of interest against the said service provider”.
The materials on record indicate that the complainants have not filed any application for leave of the Commission to file the complaint in a representative capacity in accordance with the provisions of 13(6) of the Act. It should be noted here that the out of 508 flat owners, only 3 flat owners have lodged the complaint and during the pendency of the proceeding, complainant no.3 Smt. Reena Kumar by filing an application delete her name from the cause title of the petition of complaint with a clear assertion that her grievances against the KWIC has been redressed.
Under the garb of Section 12(1)(c) or Section 13(c) of the Act which are primarily meant for common services, e.g. facility of lift, deficiency in maintaining common areas or common facilities, complaint regading goods are not maintainable before this Commission particularly, when row houses/duplex were booked for different amount on different dates under different terms and conditions. If complaint pertaining to deficiency in goods pertaining to many complaints is allowed in one complaint, it will create serious problem as observed by a Larger Bench of Hon’ble National Consumer Commission in the case of Ambrish Kumar Shukla & 21 Ors. (supra).
Considering all the above, in view of the provisions of Section 12(1)(c) of the Act, the complaint being not maintainable in this form, it is liable to be dismissed.
For the reasons aforesaid, the instant complaint is dismissed on contest being not maintainable. There will be no order as to costs.
However, this will not debar the complainant nos. 1 & 2 to approach this Commission by filing petition of complaint separately afresh after removing the defects as mentioned above.
