DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. _136   _ OF ___2012

DATE OF FILING : 5.6.2012    DATE OF PASSING JUDGEMENT:  _10.7.2018_

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Subrata Sarker  & Jhunu Prasad

COMPLAINANT   :             Sri Salil Kumar Ghosh, of Block-1C-8, Flat no.8, Prantik Housing Estate, PH-1, Mahatma Gandhi Road, P.O R.C Thakurani (B.O) Kolkata – 104. P.S Haridevpur.

•  VERSUS  -

O.P/O.Ps                    :  1.  The Housing Commissioner, West Bengal Housing Board, “Abasan”105, S.N Banerjee Road, Kolkata – 14, P.S New Market

                                     2.     The Assistant Housing Commissioner-I, West Bengal Housing Board , “Abasan”105, S.N Banerjee Road, Kolkata – 14, P.S New Market

                                     3.   The Assistant Housing Commissioner-II, West Bengal Housing Board, “Abasan”105, S.N Banerjee Road, Kolkata – 14, P.S New Market

                                     4.   The Secretary, Thakurpukur  Co-Operative Housing Society Ltd. office at Prantik Housing Estate, PH-1, Mahatma Gandhi Road, P.O R.C Thakurani (B.O) , Kolkata – 104, P.S Haridevpur.

                                     5.     The Manager, Canara Bank, College Street Branch, Kolkata-7, P.S Jorasanko.

_______________________________________________________________________

                                                J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

                  Alleging deficiency in service and unfair trade practice on the part of the West Bengal Housing Board i.e O.P nos. 1,2 and 3 , the complainant has filed the instant case under section 12 of the C.P Act, 1986.

                  The facts leading to the filing of the instant case may be epitomized as follows.

                  The complainant was living in a rented house; he had no residential house of his own, he was in search of a flat and one day he came across an advertisement in Anandabazar Patrika to the effect that West Bengal Housing Board had launched a project “Prantik,  PH-I” at Thakurpukur through O.P nos. 1,2 and 3. He made application for allotment of a flat. A flat was also provisionally allotted to him in the aforesaid project in compliance of the procedure laid down in the Brochure . The said flat was situated on the top floor i.e the 3^rd floor of the project building. So, in terms of Clause 6.1.5 of general terms and conditions of the Housing Board, complainant applied on 19.1.2011 for a flat on first floor in place of top floor of the said building. Accordingly,  a flat being no.8/8, Type 1C was allotted to the complainant by the Board vide its letter no.913 dated 24.2.2011 ,on the first floor of the project building for a total consideration price of Rs.11,25,800/- plus 2% service charge for change of flat. Total consideration price was paid by the complainant. Permissive possession of the flat was delivered to the complainant by the O.P nos. 1,2 and 3 on 19.9.2011 only after the complainant becoming a Member of Housing Society i.e O.P-4.  After having taken possession of the flat, the complainant came to see that the flat was used one; it was externally coloured; toilets previously used by someone and was in dirty condition; mechanism of the cisterns were completely broken and not in working condition; filthy and dirty water was leaking into the kitchen and toilet from the pipes of the upper floor flat;  the floor of the flat full of potholes and repaired outwardly  by cement , slab and sink in the kitchen were broken and coloured with black paint , the steel windows were rusted etc. and etc. All such defects were noted in the complaint book of the Board by the complainant and were also brought to the notice of the Board as well as Housing Society i.e O.P-4.

                     It is further alleged by the complainant that the Board practiced deception upon the complainant. Board was requested several times by the complainant to do the necessary repairs and registration ,but to no effect. That apart, name of the project has also been changed by the Board to “Thakurpukur Housing Estate Ltd. PH-I” from “Prantik Housing Estate,  PH-I” in complete violation of the norms of brochure and such change in the name of the project has also been reflected in various letters of the Board.

                 The sale deed was not executed in terms of the brochure and instead of doing it, the O.P nos. 1,2 and 3 imposed pre-condition to the effect that the draft deed to be confirmed by the Society i.e O.P-4. There was nothing mentioned in the brochure that the draft deed was to be confirmed by the Housing Society i.e O.P-4. Taking this leniency on the part of the Board, the office bearers of O.P-4 did not feel any  pain to charge Rs.35000/- as illegal gratification from the complainant for supplying the draft copy of the deed.  The Board, last of all, shot a letter dated 13.1.2012 to the complainant and thereby gave an ultimatum to him to the effect that unless the sale deed was registered within 60 days of the receipt of the said letter, allotment of the flat would be cancelled. O.P-4 has also demanded Rs.15,225/- and Rs.7740/- from the complainant as maintenance charge ,though the complainant has paid maintenance charge up to September, 2012 since the month of taking over possession i.e 19. 9.2011.

                  Now the complainant  prays for issuing appropriate direction for permanent injunction, compensation, removal of defects etc. and etc. Hence, this case.

                  Denying all allegations of the complainant, one written statement is filed by the O.P nos.1,2 and 3 ,wherein it is contended inter alia that the case is not maintainable in Law. No positive case is made out by them against the allegation of deficiency in service and unfair trade practice as brought by the complainant. According to them, whatever has been done with respect to the flat of the complainant, is done in terms of the brochure issued by the West Bengal Housing Board.

                  Written statement is also filed by the O.P-4 ,wherein it is contended that nothing illegality has been done to the complainant by it. The complainant has been made a Member of the Society in pursuance of the rules of Society and he is bound to pay maintenance charge to the Society since 1.1.2002 like all other flat owners. Complaint of unfair means against office bearers is false and frivolous.

                  Written statement is also filed by the O.P-5 . According to O.P-5 he advanced a loan to the complainant for purchasing a flat. He is not a service provider of the complainant in so far as the Housing Project is concerned and, therefore, the case should be dismissed in limini against him.

                  Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

1. Is the case maintainable in its present form and in Law?
2. Are the O.Ps liable for deficiency in service as alleged by the complainant?
3. Is the complainant entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

                 Evidence on affidavit is filed by the complainant and O.P nos. 1,2 and 3 , and also O.P-5. Questionnaires, replies and BNAs filed by the parties are kept in the record for consideration.

DECISION WITH REASONS

Point no.1  :

                 Already heard the submissions of the Ld. Lawyers appearing for the parties. Perused the complaint, written version of the statements of the O.Ps and also the documents filed on behalf of the parties. Considered all these.     

               In the instant case it has been contended ad nauseam  on behalf of the O.P-4 that the instant case is not maintainable in accordance with the provisions of Consumer Protection Act, 1986 inasmuch as provisions of Society Registration Act puts a clear bar to the maintainability of the instant proceedings. On this point, the instant case was once dismissed on maintainability ground. An appeal was preferred before the Hon’ble State Commission in F.A no. 1004 of 2013. The aforesaid dismissal order passed by this Forum was set aside by the Appellate Forum and the case has been remanded back to this Forum for re-trial, vide order no.23 dated 14.8.2013 of this Forum. There has been no revision preferred against the said order of Hon’ble State Commission and, therefore, the said order has attended finality. Now, the O.P-4 cannot raise the said point again before this Forum , because that point has been put at rest by the appellate Forum. As the said point has been put at rest ,we are no longer in a position to drag ourselves into the vortex of that controversy at present.

              Point no.1 is thus decided primarily in favour of the complainant.

Point no.2 and 3  :

               Now to see whether the O.Ps are guilty of deficiency in service as alleged by the complainant. It has been alleged by the complainant that the flat which has been delivered to him by the O.P nos. 1,2 and 3 suffers from enumerable defects. It is stated by him both in his complaint and also in his evidence that the flat is externally coloured, toilets are previously used and are lying in dirty condition, cistern is broken and not in working condition, filthy water falling in the kitchen and toilet of the said flat through the pipeline of the upper floor flat , floor of the flat is also repaired by cement, sink of the kitchen is broken, steel windows rusted, main door of the flat could not be closed properly etc. and etc. These are specific allegations brought by the complainant against O.P nos. 1,2 and 3. But O.P nos. 1,2 and 3 have not been able give specific denial of all these allegations . They should have given specific denials to such allegations of the complainant. In absence of specific denial of the allegations of the complainant, it may lawfully be held that the defects as alleged by the complainants are all admitted by O.P nos. 1,2 and 3.

              Now arises the question whether the Housing Board has any obligation to repair the defects as pointed out by the complainant in his flat. We find an answer to this question in the terms and conditions of the brochure. We have to see what are the terms and conditions of the agreement i.e the brochure issued by the Housing Board. Clause 7.2 of the Brochure lays down that the Board will execute the transfer deed in favour of the allottee and deliver possession of the flat to the allottee on registration of the sale deed immediately after completion of construction of the building. Clause 8.6 of the said Brochure provides that no complaint regarding design, lay out, accommodation, specification, fittings, fixtures etc. and amenities provided in the flat shall be entertained by the Board after handing over possession of the same to the allottee and the allottee will be allowed to inspect the allotted property before its physical possession.

                Upon scrutiny of the materials on record it is found that the Board has not acted properly in accordance with the provisions of clause 8.6 of the Brochure. It has been stated by the complainant both in his petition of complaint and also in his affidavit in chief that he has not been allowed to inspect the flat before delivery of possession by O.P nos. 1,2 and 3. The allottee has a right to inspect the flat before taking delivery of physical possession thereof in accordance with the provisions of clause 8.6 of the Brochure. Denial of such right to the to the complainant by the O.P nos. 1,2 and 3 is tantamount to deficiency in service on their part. That apart, it has been provided by clause 8.6 of the Brochure as referred to above that the Board will not entertain any complaint regarding any design, accommodation, fittings, fixtures etc. of any flat by any allottee of the flat after handing over possession. The said provision of agreement makes it clear that the Board will not entertain any complaint regarding the matters as referred to above after delivery of possession of the allottee. But what about the complaint regarding those matters which took place before delivery of the possession and regarding the defects occurring before the delivery of possession  to the allottee. The Board must be held liable for deficiency in service for defects arising prior to delivery of possession. There  two kinds of situations  arise in view of clause 8.6 of the agreement as cited above –

1. Defects committed during post delivery period and
2. Defects committed during pre delivery period.

Coming to the facts of the instant case it is found that all the defects of the flat as pointed out by the complainant relate to pre-delivery period. The possession of the flat was delivered to the complainant on 19.9.2011 by O.P nos. 1,2 and 3 and the complaint regarding defects of the flat was lodged on 20.9.2011 by the complainant in the respective Book maintained by the Board. He also brought all those defects to the notice of O.P nos. 1,2 and 3 as well as the Housing Society i.e O.P-4. Not only this , he also requested the Board several times to do the necessary repairs and registration of the flat in his favour videletters of complainant dated 29.9.2011 and 2.2.2012. But the O.P nos. 1,2 and 3 have played ostrich like ; they took no action to remove the defects in the flat of the complainant. The complainant has purchased a new flat from O.P nos. 1,2 and 3. O.P nos. 1,2 and 3 also gave out in the advertisement published by them and also in the Brochure issued by them that new flat will be sold to the allottees after having constructed the same. There was no agreement that old and used flat would be sold to the complainant, but an old and unused flat having so many defects has been sold to the complainant and now, none of the O.P nos. 1,2 and 3 pays any heed to complaint of the complainant. O.P nos. 1,2 and 3 are bound to remove the defects of the flat of the complainant as these defects relate to pre-delivery period of the flat. Delivery of possession of the flat to the complainant with pre-existing defects is undoubtedly an act of deficiency in service on the part of the O.P nos. 1,2 and 3. It is undoubtedly an unfair trade practice also on their part.

One may argue that the Board has no responsibility to repair the defects point out by the complainant in his flat ,because those defects relate to post delivery period. Assuming for a moment that there is truth in such kind of argument, O.P nos. 1,2 and 3 are still liable to remove the defects of the flat of the complainant. Complainant has been given permissive possession only of the flat; he has not been given possession with full ownership by the Board. Such kind of delivery of permissive possession of a flat is in no way contemplated in any provision of the agreement i.e the Brochure issued by the Housing Board of the Government. Clause 7.2 lays down that the Board will execute the transfer deed in favour of the allottee and then deliver possession on registration of sale deed. This possession as contemplated under Clause 7.2 of the agreement is not permissive possession but a full fledged possession of an owner of a flat. But the Board has innovated a new procedure dis-regarding the provision of the Brochure and has delivered permissive possession to the complainant of the flat. Such permissive possession as is given to the complainant by the Board cannot be regarded as full fledged possession of an owner of a flat and this being so, we must say that the O.P nos. 1,2 and 3 are still liable to do the repair of the flat of the complainant by virtue of clause 8.6 of the agreement, because full fledged possession is yet to be delivered to the complainant.

It has also been alleged by the complainant in his petition of complaint that the name of the project has been arbitrarily changed by the Board to “Thakurpukur Housing Society Ltd., PH-I” from earlier name “Prantik Housing Estate, PH-I” in complete violation of the norms of Brochure. The project is named as “Prantik Housing Estate, PH-I” at Thakurpukur. It was so advertised in the Newspaper also. It is so mentioned in the allotment letter of the complainant also. It is also so mentioned in the “information guide” issued by the West Bengal Board with the Brochure. The project has also seen the light of the day by activeinitiative of O.P nos. 1,2 and 3. O.P-4 i.e Thakurpukur Co-Operative Housing Society Ltd. has no role to play behind the construction of the flat in the project. It is not the owner of the project site. The name of the project can only be changed if amendment is done to the Brochure in compliance with the rules of the Brochure. It is not the case of the O.P nos. 1,2 and 3 that such amendment has been done regarding the change of name of the project. In absence of such amendment it can be very well held that the change of the name of the project has been done arbitrarily by O.P nos. 1,2 and 3. The project can never be named as ‘Thakurpukur Housing Project’; it is ‘Prantik Housing Project’ at Thakurpukur. Change of the name of the project by O.P nos. 1,2 and 3 without adverting to the provisions of the agreement is an arbitrary act and as such , it is also an instance of deficiency in service on their part.

Next comes the question as to whether O.P-4 i.e the Housing Society has committed any deficiency in service by demanding Rs.15,225/- and Rs.7740/- from the complainant as maintenance charge since 1.1.2002. The complainant was put to possession of the flat on 19.9.2011 and he has been a Member of the Society after taking the delivery of the possession. The Society cannot claim maintenance charge from him since 1.1.2002. Their demands seem to be unjust and unlawful. The complainant has paid all the maintenance charge up to September, 2012 since the month of taking over possession of the flat i.e 1.9.2011.The unlawful demand of O.P-4 for maintenance charge since 1.1.2002 is an act of deficiency in service on their part and they cannot do this. A charge of corruption has also been brought by the complainant against a Member of Housing Society i.e O.P-4. The charge is that the said Member of the Housing Society demanded a sum of Rs.35000/- from him for issuing a draft conveyance deed in favour of the complainant. We cannot understand why the task of issuing a draft conveyance deed to the complainant has been left with the Housing Society i.e O.P-4 by O.P nos. 1,2 and 3. It is the O.P nos. 1,2 and 3 i.e the Board itself which is solely liable to execute and register the sale deed in favour of the flat purchasers and it is so provided in clause 7.2 of the Brochure/agreement. There is no mention whatsoever that the Housing Society will act as a confirming party to the said deed of conveyance by the Board in favour of the complainant. The duty of the Housing Society is to look after the maintenance. They need not be made any confirming party to any title deed of the flat purchasers. But such leniency has been given to the Housing Society i.e O.P-4 unnecessarily by O.P nos. 1,2 and 3. Any kind of leniency given unnecessarily to any person opens the gateway to corruption by doing this. The O.P nos. 1,2 and 3 have committed acts contrary to the terms and conditions of the agreement /brochure. This leniency on the part of the O.P nos. 1,2 and 3 is also an act of deficiency in service on their part.

The O.P-5 isa Bank ; it only advanced a housing loan to the complainant. It is not service provider of the complainant in so far as the housing construction is concerned. So, the petition of complaint appears to be not maintainable against him.

Upon what have been discussed above and in view of the facts and circumstances of the case transpiring in the discussion as made earlier, we are of the opinion that the O.P nos. 1 to 4 are guilty of deficiency in service.

The point nos. 2 and 3 are thus answered in favour of the complainant.

In the result, the case succeeds.

         Hence,

ORDERED

that the complaint case be and the same is decreed on contest against O.P nos. 1,2,3 and 4 with a cost of Rs.10,000/- and dismissed on contest against O.P-5 but without cost.

                 In the circumstances some directions are required to be issued to the O.P nos. 1 to 4 and the directions are issued as hereunder:

1.       O.P nos. 1,2,3  will remove the defects of the flat as pointed out by the complainant in his petition of complaint at their own cost without charging even a farthing from the complainant therefor, within a month of this order.
2.      In case, the said O.P nos. 1,2,3  fail to remove the defects within the aforesaid period, they will have to pay a sum of Rs. 4 lacs as compensation which amount includes the cost of removal of defects and the loss sustained by the complainant due to depreciation in value of his flat, harassment and mental agony suffered by him with interest @10% p.a till full realization thereof.
3. O.P nos. 1,2 and 3 are also directed not to give any effect to their letter bearing Memo no.196/AHC-II/H.B  dated 13.1.2012 and no. 1008/AHC-II/H.B dated 15.3.2012 until the defects of the flat of the complainant are removed.
4. They i.e O.P nos. 1,2 and 3 are ,however, given liberty to issue similar kind of letter i.e letter demanding registration of flat and that is only after the removal of defects in the flat by them.
5. O.P nos. 1,2 and 3 are further directed to take proper step within a month of this order for restoring the exact name of the project i.e PRANTIK HOUSING ESTATE, PH-I   and to display the same prominently in the glow sign board at the main entrance of the project building.
6. O.P nos. 1,2 and 3 shall not allow the housing estate i.e O.P-4  to sign the sale deed as confirming party.
7. O.P-4 is directed to pay a sum of Rs.2,000/- as compensation for deficiency in service caused by them and as pointed out in the body of the judgment.
8. The cost of litigation will be apportioned among the O.P nos. 1 to 4 in equal parts and would be payable within a month of this order, failing which it will carry interest @10%p.a till full realization thereof.

     Let a free copy of this order be given to the parties concerned at once.   

                                                                                                                   President

I / We agree

                              Member                                            Member               

Dictated and corrected by me

                         President