Samaresh Prasad Chowdhury, Presiding Member
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of landowners against a proprietorship concern and its proprietor on the allegation of deficiency of services in a dispute of housing construction.
Succinctly put, complainants’ case is that being owner of a piece of land measuring about 5 cottahs 9 chittaks 8 sq. ft. more or less together with structure standing thereon lying and situated under R.S. Khatian No. 2391, L.R. Khatian No. 421 (P) P.S. – Jagacha, Dist- Howrah within the local limits of Ward No. 50 of Howrah Municipal Corporation entered into a development agreement with the Opposite Parties on 14.08.2009 for raising construction of a multi storied building over the said property after demolition of the existing structure. The complainants have also executed one General Power of Attorney in favour of the Opposite Parties on 15.01.2010 in order to facilitate the work of development. After the said agreement and the execution of General Power of Attorney, the Opposite Parties obtained sanction building plan from Howrah Municipal Corporation. The complainants alleged that the Opposite Parties was doing constructions in violation of sanction plan obtained from Howrah Municipal Corporation for which they were compelled to revoke the Power of Attorney and published the notice on 30.10.2012. The complainants have also alleged that the Opposite Parties were hurriedly trying to dispose of the properties to the third parties including the property allotted to them in the agreement. Accordingly, the complainants sent a letter through their Advocate on 10.09.2013 informing the complainants that the agreement for development has been cancelled. Ultimately, the complainants instituted a civil suit being T.S. No. 308 of 2013 before the Ld. Civil Judge (Junior Division) 3rd court at Howrah with a prayer for declaration and permanent injunction. During the pendency of the said suit, the complainants executed another registered development agreement dated 30.12.2013 with OP and also granted a Power of Attorney in favour of the Opposite Parties. As per terms of the agreement the complainants are entitled to possession of the 40% of the total allocated area. The complainants submit that even after execution of subsequent registered development agreement dated 30.12.2013 the Opposite Parties disowned the subsequent agreement and violated the same by not providing the allocation of the complainants. In this regard, all the requests and persuasions including legal notice remain unheeded. Hence, the complainants have lodged the complaint with prayer for following reliefs, viz.- (a) to direct the Opposite Parties to deliver the 40% of the total constructed and/or built up or i.e. 4642 sq. ft. to the complainants as per development agreement dated 30.12.2013 within fixed time; (b) to direct the Opposite Parties to pay compensation of Rs. 20,00,000/- for harassment and mental agony; (c) to direct the Opposite Parties to pay litigation costs of Rs. 40,000/- etc.
The Opposite Parties i.e. the proprietor of M/s. K.C. Panja and Sons by filing a written version have stated that on the strength of the registered development agreement dated 30.12.2013 and the Power of Attorney conferred upon them they have obtained sanctioned plan from the Howrah Municipal Corporation and complete the construction of the building and verbally delivered the possession of the allotted portion in favour of the complainants. The Opposite Parties have also stated that they have sold out most of the flats to the intending purchasers from their allocated portion or shared with knowledge of consent of the complainants and the complainants’ allocated portion will now kept in vacant possession. Therefore, when there is no deficiency in services the complaint should be dismissed with costs.
The parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. At the time of final hearing, on behalf of Opposite Party BNA has been filed. Though the complainants are represented through the Ld. Advocate yet in accordance with the provisions of Rule 13(2) of consumer protection regulation, 2005. No BNA has been filed.
The pleadings of the parties and the evidence on record make it quite clear that the complainants are the owners of a piece of land measuring about 5 cottahs 9 chittaks 8 sq. ft. more or less together with structure standing thereon lying and situated under R.S. Khatian No. 2391, L.R. Khatian No. 421 (P) P.S. – Jagacha, Dist- Howrah within the local limits of Ward No. 50 of Howrah Municipal Corporation.
It also remains undisputed that on 14.09.2009 the complainants being landowners had entered into an agreement with the Opposite Parties for development of the said property for raising a multi-storied building thereon. Accordingly, the complainants had also executed one registered General Power of Attorney on 15.01.2010 in favour of OP No. 2 authorising him to construct the project and to finish the same within the time as specified in the agreement for development. It has also come to surface that after obtaining sanctioned building plan from the Howrah Municipal Corporation, the Opposite Party started construction work and when the construction of the building was going on, on the plea of unauthorised construction, the complainants by a deed of revocation of Power of Attorney dated 05.10.2012 revoked the authority of the Opposite Parties to construct the building which was published through a notice dated 30.12.2012 in a Daily Bengali Newspaper published from Kolkata.
The evidence on record also goes to show that the complainants herein being plaintiffs instituted a suit for declaration and permanent injunction being T.S. No. 308 of 2013 in the court of Ld. Civil Judge ( Junior Division), 3rd Court at Howrah against the Opposite Parties with prayer for several reliefs including a declaration that the defendants/OPs have no right to proceed with the agreement for development dated 14.08.2009 with a further declaration that the defendants/OPs cannot represent the plaintiffs/complainants interest and do any act by virtue of General Power of Attorney dated 15.01.2010, since revoked etc.
The evidence on record speaks that during the pendency of the said proceeding the parties had entered into a registered agreement for sale on 30.12.2013. In the said agreement, it was agreed that the owner shall be allotted 40% of the constructed area and the remaining of the 60% of the constructed area shall be allotted to the developer. In the agreement it was categorically mentioned that the owners/complainants will be allotted 537 sq. ft. in the form of flat on ground floor abutting the road and on the southern side of the building in the form of two separate rooms, 2209 sq. ft. in the form of 3 Nos. flat on the first floor and balance 1776 sq. ft. in the form of two residential flat on the western side of the third floor.
However, on going through the registered agreement for sale we do not find any specific date for handing over the possession of owner’s allocation. On query, Ld. Advocate for the complainants could not enlighten us to that effect. In any case, when there is no specific time has been mentioned, applying the principles of law laid down by the Hon’ble Supreme Court reported in II(2018) CPJ 1 (Fortune Infrastructure –vs- Trevor D’Lima), a 3 years or 36 months time may be given to the developer to complete the construction of the building. That being so, the committed date of handing over possession of owner’s allocation should be considered as 31.12.2016. The instant complaint has been lodged on 14.02.2017 i.e. after expiry of 3 years from the date of registered development agreement dated 31.12.2013.
In their written version the OPs have stated that they have delivered the possession of the allotted portion of the complainants verbally. However, paragraph 14(d) of the written version does not show when the OPs handed over the possession of the complainants verbally and in presence of whom the said delivery was given. Therefore, the plea taken by the OPs is not at all acceptable and said plea has been taken just to absolve their responsibility in handing over the possession to the complainants in accordance with the terms and conditions of the development agreement dated 30.12.2013. Therefore, the non-delivery of possession of owner’s allocation even after expiry of 3 years from the date of registered deed of development agreement i.e. 30.12.2013 itself amounts to deficiency in services on the part of OPs.
On evaluation of materials on record and having heard the Ld. Advocates appearing for the respective parties it appears to us that the complainants claiming themselves as ‘consumer’ as per observation of the Hon’ble Supreme Court in the case reported in 2008 (10) SCC 345 (Faqir Chand Gulati –vs- Uppal Agencies Pvt. Ltd.) have lodged the complaint and it is found that the OPs being proprietor of a proprietorship concern has failed to render service in terms of development agreement dated 30.12.2013 and thereby deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Accordingly, the complainants are entitled to reliefs in the eye of law. In our view, a direction upon the OPs to deliver the letter of possession and to make actual delivery the possession of 40% of total constructed area i.e. 4642 sq. ft. as per registered development agreement dated 30.12.2013 executed between the parties within 90 days from date will meet the ends of justice.
Since the Opposite Parties did not act in terms of the development agreement an
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d has caused unnecessary harassment and mental agony to the complainants, the complainants are entitled to compensation and considering the loss suffered by the complainants we assess the compensation at Rs. 1,00,000/-. Under compelling circumstances, the complainants had to lodge the complaint for which they are entitled to litigation costs which we quantify at Rs. 10,000/-. With the above discussion, the complaint is allowed on contest with the following directions: (i) The Opposite Parties are jointly and/or severally directed to handover 40% of the total constructed area as per terms of the development agreement dated 30.12.2013 in favour of the complainants within 90 days from date; (ii) The Opposite Parties are directed to pay compensation of Rs. 1,00,000/- to the complainants for harassment and mental agony suffered by them; (iii) The Opposite Parties are directed to pay Rs. 10,000/- in favour of complainants as costs of litigation. (iv) The above payments should be paid within 90 days from date in terms of the above order.