Samiksha Bhattacharya, Member
The compliant petition has been directed by the Complainant u/s. 17 of C.P.Act 1986 alleging deficiency in service against the O.P.
Facts of the case in brief are that Complainant is owner of land of total 3 cottah 8 Chattack under Mouza- Brahmapur, Pargana-Magura, R.S-Dag No. 169 Part Dag No. 635, Tauzi No.- 0.60, J.L No.-48, Ward No. 11 under P.S-Regent Park, Dist-24 Pgs. (South) together with old and dilapidated building, Municipal Premises No.142 & 1595 Brahmapur, Kolkata-700096. Complainant desired to develop the said land by constructing a multi-storied residential building and for that purpose she approached the O.P who is known to be a developer and accordingly one development agreement was executed on 14-03-2012 by and between the parties. As per said development agreement dated 14-03-2012 the O.P agreed to construct G+3 storied building on that premises with habitable condition as per sanctioned building plan duly issued by Kolkata Municipal Corporation where owner’s allocation has been described as 42% of total FAR of the proposed building consisting of one self contained flat on the first floor south west side, one flat on the second floor south east side and one flat on the third floor south west side along with two car parking spaces at the ground floor. The developer shall pay adjusted money of Rs. 6 lakhs by cash which the owner shall refund after taking possession in her allocation. As per development agreement O.P undertook to deliver the owner’s allocation within 18 months or extended period of 24 months from the date of sanctioned building plan. The developer also undertook that if he fails to deliver possession of owner’s allocation then he will pay a sum of Rs. 8000/- p.m. to the owner as demurrage. The O.P obtained the sanctioned building plan from KMC on 09=07-2013. For the purpose of construction the Complainant also provided registered Power of Attorney in favour of O.P. on 23-07-2012. In spite of completion of building the O.P did not deliver the possession of entire owner’s allocation to the complainant. During the period of construction the complainant was in need of huge amount of money and she decided to sell one flat out of her three flats. Accordingly she sold one flat on first floor to Smt. Mili Bhattacharya (Chowdhury) at the cost of Rs. 20,15,000/-. O.P delivered the possession of flat on 16-03-2015 with undertaking to complete the work at the earliest. Thereafter O.P did not deliver rest portion of owner’s allocation i.e. two flats on 2nd & 3rd floor and two car parking spaces till date.
The Complainant sent a letter dated 22-06-2015 for the owner’s allocation but did not receive any response. Another letter dated 26-07-2015 was sent with request to provide documents like total sanctioned FAR as per plan, owner’s allocation, sanctioned copy of water and drainage connection and Completion Certificate. On 17-07-2015 O.P intimated about extra area of owner’s allocation and demanded an amount of Rs. 3,55,100/- from the complainant. By letter dated 03-08-2015 Complainant strongly denied the illegal demand and submitted that there is a shortfall of area measuring about 94 sq. ft for which Complainant is entitled to cost for shortfall area. Again O.P sent a letter on 24-08-2015 and illegally demanded cost of extra area of 203 sq. ft. amounting to Rs. 6,80,050/- and stated that to accept the owner’s allocation complainant is Liable to pay the extra cost. Complainant strongly denied and disputed the illegal demand of O.P and recommend by letter dated 11-09-2015 to arrange jointly the inspection for actual measurement of the area for determining the cost. Initially O.P assured to participate in inspection for measurement but subsequently avoided the same. O.P created different sorts of obstruction regarding egress and ingress by the Complainant in the building in question and threatened the Complainant that they would not provide any owner’s allocation to her. Complainant lodged a complaint regarding the misconduct of the O.P before the Banshdroni Police Station on 04-10-2015. Thereafter, Complainant sent a letter dated 07-01-2015 with request to give owners allocation but O.P again misbehaved with the Complainant. Complainant again lodged a complaint before the Banshdroni Police Station on 08-10-2015. Considering the reported misconduct of the O.P. the Complainant vide letter dated 08-10-2015 revoked General Power of Attorney dated 23-07-2012 by executing revocation deed before the ADSR, Alipore on 08-10-2015. The Complainant also intimated such revocation of power before the Building Department Ward No. 11 KMC on 20-11-2015. Subsequently, Complainant approached the Consumer Grievance Redressal Cell, Department of Consumer Affairs, Kolkata on 08-08-2016 for redressal of her grievances. In spite of their attempt for joint measurement of area the O.P did not turn up. To reveal actual state of affairs whether there is at all any extra area, as claimed by the O.P, the Complainant personally approached one Valuer & Surveyor, Kolkata High Court and Civil Engineer Mr. Saktipada Bera and vide letter dated 16-12-2016 requested him to measure the Owner’s allocation. After physical inspection Mr. Bera found that there was no extra area and his report dated 09-01-2017 speaks that there is clear violation of sanctioned building plan and there is every possibility of safety and security threat of the habitants of the building. For the illegal activity and unfair trade practice performed by the O.P the Complainant is suffering mental and physical harassment as well as financial loss. O.P is liable to pay compensation of Rs. 8000/- p.m till delivery of possession and is also liable to pay adequate compensation for such harassment. Hence the petition of complaint has been filed praying for a direction upon O.P to deliver peaceful vacant possession of two flats and two car parking spaces as per Development Agreement dated 14-03-2012, to provide Completion Certificate of the building to remove all the deficiencies as per Engineer Mr. Saktipada Bera’s report dated 09-01-2017, compensation of Rs. 20 lakhs and litigation cost of Rs. 50,000/-.
Sole O.P appeared before this Commission and filed their written version. In their written version O.P denied all material allegations inter alia stated that on 16-03-2015 O.P delivered the possession of flat in the 1st floor of the said premises to the complainant which is within 20 months from the date of obtaining sanctioned plan from the KMC. The flat was delivered to the Complainant within the stipulated time as per Development Agreement dated 14-03-2012. The Complainant has revoked the General Power of Attorney given to the O.P by executing revocation deed on 08-10-2015. As a result of which the O.P neither able to sell his own allocation nor able to deliver the rest portion of the Complainant’s allocation. The O.P also stated that he sent a letter on 17-07-2015 to the Complainant that the owner was allotted 1866 built up area in total as owner’s allocation in the 3rd Floor and as such owner was provided 106 sq.ft. built up area in excess to above allocation. As such the O.P demanded Rs. 3, 55,100/- . The Complainant had refunded the amount of Rs. 5,00,000/- out of total refundable amount of Rs. 6 lakhs as per agreement. The O.P also demanded that amount. O.P intimated vide letter 24-08-2015 with total FAR as per sanctioned building plan is 3960 sq. ft. and the Complainant is entitled to 42% of total FAR which is 1603 sq. ft. whereas the O.P has given to the Complainant 625sq. ft. built up area on the 1st Floor, 622 sq. ft. built up area in 2nd Floor, 619 sq. ft. built up area in 3rd Floor, i.e. 1866 sq. ft. and 515 sq. ft. out of total 113.908 sq. mtr. i.e. 1226 sq. ft. car parking space on the ground floor. Therefore the Complainant has been given advantage area of 203 sq.ft. and therefore claimed amount of Rs. 6,50,050/-@ 3350/- per sq. ft. and Rs. 1 Lakh is refundable amount. O.P has already submitted a revised sanctioned plant before the Competent Authority of the KMC but he had not yet been received since the authority asked him to wait till November 2015. All on a sudden complainant revoked the General Power of Attorney on 08-10-2015 which was given to O.P on 23-07-2012. The O.P also rushed to local police station being Banshdroni Police Station and lodged a General Diary being GD entry No. 929 dated 14-10-2015. As a result the O.P could not complete the construction work of the building though he has already invested a huge amount of money and he could not sell the developer’s allocation to intending purchasers to realize his invested amount.
Since the power was revoked the O.P neither completed the construction nor delivered the possession to the Complainant and the other intending purchasers from the developer’s allocation. Hence O.P prayed for dismissal of the complaint case with extemporary cost.
Ld. Lawyer for the Complainant submitted that in the written version O.P has stated that they have given extra area of 106 sq.ft. (In Para-14 of the written version) whereas in Para-15 of the written version O.P has claimed that 203 sq.ft. has been provided extra area to the Complainant. Ld. Lawyer for the Complainant submitted that actually O.P has given less area of 94 sq. ft. and for which the Complainant is entitled to cost payable by O.P. As per report of Surveyor and Valuer Mr. Saktipa Bera there are various deficiencies and the area is less than the agreed area to be given by the O.P to the Complainant.
Ld. Lawyer for O.P submitted that after 80% of construction work all on a sudden Complainant revoked the Power of Attorney on 08-10-2015. Thereafter O.P could not complete the construction work nor could sell the developer’s allocation. At this moment the grievance by the Complainant, if any, cannot be entertainable by the O.P as the Complainant already revoked the Power of Attorney which was given to O.P on 23-07-2012. The O.P has given the excess area and therefore O.P is entitled with cost of Rs. 6,18,050/- and till date Complainant has not refunded Rs. 1 Lakh which was deposited by the O.P to the Complainant.
Upon submission of both the parties and on perusal on entire material on records it is admitted fact that Complainant is the land owner of land of the schedule property under “Mouza- Brahmapur, Pargana-Magura, R.S-Dag No. 169 Part Dag No. 635, Tauzi No.- 0.60, J.L No.-48, Ward No. 11 under P.S-Regent Park, Dist-24 Pgs. (South)”.
It is also admitted fact that Complainant entered into Development Agreement with the O.P on 14-03-2012 to construct a G+3 storied building on her land. It was agreed that O.P would give her 3 flats, one self contained flat on 2nd floor, south west side, one flat on the 2nd floor, south east side and one flat on 3rd floor, south west side along with to car parking spaces at the Ground Floor. As per agreement on a Developer shall pay adjusted money of Rs. 6 Lakh by cash which the owner shall refund after taking possession in her allocation. It was agreed that the owner’s allocation would be provided by O.P within 18 Months or extended period of 24 Months from the date of obtaining the sanctioned building plan from KMC. O.P delivered the possession of one flat on 16-03-2015 to the Complainant. It is also admitted fact that Complainant sold the flat on 1st Floor to Smt. Mili Bhattacharya (Chowdhury) at the cost of Rs. 20,15,000/- since the Complainant was in need of money. Two flats have not been delivered to the Complainant till date and the car parking spaces are also due to the Complainant.
Now the question is whether there is any shortfall of area or excess of area given to the Complainant. Since the Complainant has already sold one flat to the third party, at this moment whether the area of the flat was less or excess that cannot be ascertained. Ld. Lawyer for the Complainant submitted that the O.P had not delivered other two flats and two car parking spaces. It cannot be ascertained whether less area has been provided to the Complainant since the delivery of possession is due till date as per petition of the complaint. As per submission of Ld. Lawyer for complainant the one complete flat on the 1st floor has been delivered by the O.P to the complainant and that flat was sold to third party. Therefore, after selling of that flat complainant has no right to claim anything for that flat in question. If the flat on the 1st floor was of less area or excess area that might be the concern of the present flat owner. Therefore the prayer for cost for providing less area cannot be entertainable since the delivered flat was already sold by the complainant to third party and till date the possession of other two flats are due to the complainant as per petition of complaint. Moreover, the area of the building was assessed by the Survey Engineer, Mr Saktipada Bera who was appointed by the Complainant. We have not found any document that Mr. Bera had sent the notice to O.P intimating the date of inspection. There was no prayer by the Complainant before this Commission for appointment of any Ld. Commissioner for measurement of the area as alleged by the complainant.
Complainant has prayed for a direction upon O.P to deliver the peaceful vacant possession in two Flats and two car parking spaces as per Development Agreement dated 14-03-2012. Now the question is whether the O.P is deficient in service for not providing two flats and two car parking spaces to the Complainant. On perusal of documents and upon submission of both parties it is admitted fact t
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hat Complainant revoked the General Power of Attorney on 08-10-2015 which was given to O.P on 23-07-2012. The instant case was filed before this Commission in the month of January, 2017. At that material point of time the O.P was not the Power of Attorney holder and after revocation of power the O.P has no right to construct the building and to deliver the flats to the Complainant. Complainant also informed the Building Department, KMC about the revocation of Power of Attorney. As a result O.P became powerless to construct the building as well as to deliver the flats to the Complainant. Therefore issuance of completion certificate also does not arise. At this stage there is no relation between the Complainant and the O.Ps as Consumer and Service Providers due to revocation of General Power of Attorney which was initiated by Complainant herself. The C.P Act provides remedies to a consumer against deficient service. In the instant case O.P could not fulfill the terms of agreement since Complainant revoked the Power of Attorney. Since O.P has no right after revocation we cannot give any direction upon O.P. In view of above we find no deficiency in service on the part of O.P and as a result Complainant is not entitled to get any relief. Hence, Ordered The Complaint Case being No. CC-55 of 2017 be and the same is dismissed on contest. There is no order as to cost. However, complainant is given liberty to approach a Civil Court to redress her grievances.