Samiksha Bhattacharya, Member

The instant case has been filed by the Complainants u/s. 17(I)(a)(i) of C.P Act 1986 alleging deficiency in service against the O.Ps.

Brief facts of the case are the Complainants, being the joint owners of the property measuring more or less 4 cottahs 15 Chittaks at Mouja Masunda, J.L No. 34 comprised and contained in L.O.P No. 4, C.S/R.S. Dag No. 816 (P), L.R.Plot No. 1640, L.R Khatian No. 2786 under the local limits of New Barrackpur Municipality. Complainant No. 1 transferred a share of plot of more or less 1 Cottah, 8 Chhitaks, 23 sq. ft. along with a tile shaded 100 sq. ft. covered portion to his daughter namely Saswati Dasgupta who is Complainant No. 2 in the present case, by a registered deed of gift in the year 2014 being deed of gift No. 03439/2014 dated 08-05-2014 and thus the Complainant No. 1 and Complainant No.2 became the joint owners in respect of their share over the said Bastu land alongwith the one storied house lying thereon, which is described as ‘Schedule-A’ in the petition of Complainant.

The Complainants, having legal necessity to develop ‘A schedule’ property for the purpose of earning their livelihood, were in search of a suitable promoter/developer having financial background and expertise in construction business. Upon hearing the same O.P. no.2, the developer, who is proprietor of O.P.no.1, the Construction Company, approached the Complainants to appoint him as promoter/developer to develop the ‘Schedule A’ property. On 27-07-2015 the Complainants entered into the development agreement with the O.Ps which is duly registered being deed No. I-04029/15 dated 27-07-2015 before the ADSR Sodepur, North 24 Parganas, recorded in Book No.1 Volume No. 1524 being Page No. 35540 to 35580. Both the Complainants and the developer put their signature in the said Deed of Development Agreement for construction of the “A” schedule property. The Complainants also executed a registered Power of Attorney in favour of the O.Ps being No. 04045/15 dt. 27-07-2015. As per the terms and condition of the development agreement O.Ps have taken custody of all the original documents of the Complainants i.e, Deed of Gift no.I-224 dated 07-03-1995, I-03439 of 2014, Municipal Tax receipt No. 98138 and 98184 dated 13-05-2015, Mutation Certificate vide No. 4199 dated 14-01-2015 for holding No. 225/I/1, Municipal Sanctioned Plan No. 246 dated 30-09-2003 (of Complainant No.1) ,Electric bill for the period June, 2015 to August, 2015, Parcha & Dakhila Khajna in respect of the Schedudle land. In accordance with the terms of the said development agreement O.P.No.2 is liable to construct a G+3 storied building compromising of several flats/garages at their own cost over the ‘schedule A’ property within 24 months from the date of sanction of the building plan from the concerned Municipality. It is also mentioned that in case of failure to complete the construction work within the time frame and to handover the owners’ allocation the O.Ps. will be liable to pay compensation in the form of house rent @Rs. 6000/-per month at the initial stage and at the present stage per month from the date of shifting of the landowners from the ‘A’ Schedule property till the completion of the building. Though the O.Ps have undertaken to bear the shifting charges and house rent they have failed and neglected to bear any such expenses except for initial three months. It was the duty of the O.Ps to prepare the building plan upon the approval of the Complainants and to submit the same to the concerned authority in the name of owners at the cost of O.Ps but till now no plan or initiative has been taken by the O.Ps. The period for completion of the project was already passed but O.Ps have not approached before any authority to take any initiative to complete the construction of the building. Complainant No.1 has approached before the Chairman of the concerned Municipality by letter dated 10-11-2017 but the O.P.No.2 has intentionally neglected the terms and condition of the development agreement. The Complainants also sent an advocate’s letter dated 17-05-2018 to O.P but O.P. no. 2,who is proprietor of O.P. No. 1 Company, did not pay any heed. Finding no other alternative Complainants filed the instant case praying for direction upon O.Ps to strictly comply with the terms and condition of the development agreement dated 27-07-2015 by way of completion of the construction work after obtaining the sanctioned plan from the concerned municipality and to hand over the owners’ allocation as described in the schedule-B in the petition of complained along with the compensation of Rs. 8 Lakh and litigation cost of Rs. 35000/-.

Though the notices were sent to O.Ps but the envelopes containing notices in respect of O.P.Nos.1 & 2 returned with the postal endorsement ‘unclaimed’ which amounts to good service. Thereafter, several opportunities were given to file the written version by the OPs., but none appears on behalf of the O.Ps before this Commission nor filed any written version within the stipulated period. Therefore,the case was fixed ex-parte against the O.Ps.

Ld. Advocate for the Complainants has submitted before us that though the development agreement was executed on 27-07-2015 nothing has been done yet by the O.Ps. The Complainant No.1, being an septugenarian praying before this Commission for passing necessary order against the O.Ps. The O.Ps have given only Rs. 6 Lakh to the Complainants and rent of three months @ 6000/- as per terms and conditions of the development agreement. Rs. 6 Lakh was given to the Complainants by the O.Ps. as first installment. In the said development agreement it was agreed that the construction of the building would be completed within 24 months from the date of sanctioning of the plan by the Municipal Authority. But the O.Ps failed and neglected to do anything to get the sanctioned plan or to complete the construction of the building in question.

Upon submission of the Ld. Advocates for the Complainants and on perusal of materials on records we find that in the Development Agreement it has been mentioned that ‘The Developer will complete the construction within 24(twenty four) months positively from the date of sanctioning of the plan by the concerned Municipal Authority. For this purpose Developer must take all necessary steps’ (Clause ix of internal page 8 of Development agreement). it is also mentioned that ‘However, in any case if the Developer fails to complete the said construction work within a period of 24( Twenty Four) months from the date of sanctioning of the plan by the New Barrackpore Municipality barring unforeseen circumstances, the Developers will be held liable to appropriately be compensated, the Land Owners by payment of money towards damages amount’. The mode of payment was described as ‘(a) total payment be made positively before completion of the Project in not more than 4 (four) installments, (b)First Installment amounting to Rs. 6,00,000 (Rupees six Lac only) be paid to the owners in advance at the time of signing the Deed of Development Agreement, (c) Second installment will be paid to the owners after completion of 1st floor roof for a sum of Rs. 6.00 Lac (Rupees Six Lac only), (d) Third installment will be paid to the owners after completion of 2nd floor for a sum of Rs. 6.00 Lac (Rupees Six Lac only), (e) Balance amount will be paid to the owners at the time of giving the physical possession to the land owners’.

As per Clause-2 of Article-VII of Development Agreement the land owners i.e. Complainants shall help to obtain mutation of the property in the name of the Developer and/or its nominee or nominees and/or in favour of the future flat owners after the completion of the construction and after transfer or sale of all the flats to the said future owners hereof. Clause 3 of this Article also states that ‘the Land Owners shall handover physical possession of the land with the existing structure to the developer and/or his representatives within 7 days after obtaining building sanctioned plan from the Chairman of New Barrackpur Municipality to have access to the land for the purpose of the Development, soil testing etc. and further permit the Developer to place hoardings, to keep building materials and allow the men and agents of the Developer to stay in the land for the purpose of the construction of the building or apartment in question as stated hereinabove”. Therefore as per these Clauses of the Development Agreement the Complainants had to handover the physical possession of the land with the existing structure to the OP within 7 (seven) days after obtaining the building sanctioned plan. But Complainants have alleged that the Opposite Party had not taken any initiative to obtain the building sanctioned plan from the concerned authority. Complainants have annexed one letter dated 10-11-2017 addressed to Municipal Chairman, New Barrackpur Municipality informing him that Opposite Party had not started any construction work upon the land of the Complainants. In that letter it has been mentioned that there is an existing plan being No. 246 dated 30-09-2003 and Complainants have prayed for the xerox copy of the same. Ld. Advocate for the Complainants has submitted that though the Development Agreement is in force the Opposite Parties have not fulfilled the terms and conditions as per the said Development Agreement. The Complainants have prayed for a direction upon the O.Ps to complete the construction work but Complainants have also alleged that till date the O.Ps have not obtained the sanctioned plan, more precisely, O.P. had not taken any initiative for the same. On the contrary as per terms and agreements Complainants ought to have vacated their land after obtaining the sanctioned plan. As per Clause (2) of Article VII of the Development Agreement(Running Page no.11) the Landowners shall handover the physical possession of the land with the existing structure to the developer and/or his representatives within seven days after obtaining building sanctioned plan from the Chairman of New Barrackpore Municipality to have access to the land for the purpose of the Development ,soil testing etc. As per agreem

ent O.Ps paid Rs. 6,00,000 as first installment. Thereafter since the construction work is yet to start O.Ps did not give any amount to the owners/Complainants. Moreover, all the terms and conditions of the Development Agreement should be strictly followed by both the parties. We find that in the instant case there are mixed questions of facts and law, which cannot be properly adjudicated by the consumer court. The Consumer Commission has no power to cancel the Development Agreement. Therefore, the Complainants should have approached before a competent Civil Court since the terms and conditions have been violated by both the parties. Due to unchallenged testimony we are in dark that whether O.Ps have applied for obtaining any building sanctioned plan and other permissions. Therefore, we cannot pass any order for the relief of the Complainants. However, Complainants are at liberty to approach a Civil Court to ventilate their grievances and to seek for their relief. Hence , Ordered CC/122/2019 be and the same is dismissed ex-parte. Complainants are at liberty to approach a Civil Court for redressal.