Samaresh Prasad Chowdhury, Presiding Member
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of a purchaser against the developer/promoter on the allegation of deficiency of services in a dispute of housing construction.
Succinctly put, complainant’s case is that on 12.07.2014 he entered into an agreement with the Opposite Party to purchase of a residential flat measuring about 1000 sq. ft. super built up area being flat No. 4 on the first floor and one covered car parking space measuring about 120 sq. ft. of one roof covered car parking space within two roof covered car parking spaces on in a partly G+3 storied and partly straight 3 storied building christened ‘Anil Apartment’ lying and situated at premises No. 63, Brahmapur Road (Locally known as 33, Brahmapur Governed Colony) , P.S.- Bansdroni, Kolkata- 700070, Dist- South 24 Parganas within the local limits of ward No. 112 of Kolkata Municipal Corporation at a total consideration of Rs. 34,25,000/-. On payment of entire consideration amount, the developer executed and registered the deed of conveyance on 07.11.2014. The complainant has stated that the developer has obtained sanctioned building plan from the Kolkata Municipal Corporation on 25.03.2013 and after construction obtained completion certificate from the Kolkata Municipal Corporation on 03.07.2014. However, on the date of registration i.e. 07.11.2014 the Opposite Party split one number parking space into two and allotted the complainant one car parking space out of those two split parking spaces in order to accommodate an extra car parking space. The complainant submits that due to such unethical act of the Opposite Party, he is not in a position to keep his vehicle in the building directly accessible from the road. The complainant submits that in doing so, OP has violated the sanctioned building plan after obtaining completion certificate from the Kolkata Municipal Corporation. Hence, complainant approached this commission with prayer for compensation of Rs. 8,00,000/- for harassment and mental agony suffered by him.
The Opposite Party by filing a written version has stated that they have obtained sanctioned building plan from the Kolkata Municipal Corporation with an area of measuring 80 sq. meter car parking space i.e. about 861 sq. ft. and they have made arrangement of six number of spaces for parking of the cars therein. The OP has stated that after payment of entire consideration amount the sale deed was executed in favour of the complainant and after taking possession of the flat and car parking space, the complainant enjoyed the same and never raised any objection on any ground whatsoever. The OP submits that in the extreme north side car parking space there was total length of about 27 ft 6 inches x 10 ft. 4 inches and after dividing the two parts, one will have about 13 ft 9 inches i.e. with the area of about 142 sq. ft. each and the complainant has purchased car parking area of 120 sq. ft. and as such question of deficiency of services does not arise.
Both the parties have tendered evidence through affidavit.
They have also given reply against the questionnaire set forth by their adversaries. During final hearing, both the parties have filed BNAs in support of their respective cases.
The overwhelming evidence on record make it quite clear that one Sri Anil Ranjan Bhattacharjee was the owner of a piece of land measuring about 4 cottahs 15 chittaks lying and situated at premises No. 63 Brahmapur Road (Locally known as 33, Brahmapur Governed Colony) , P.S.- Bansdroni, Kolkata- 700070, Dist- South 24 Parganas within the local limits of ward No. 112 of Kolkata Municipal Corporation. In order to develop the said property and to raise construction, the landowner had entered into an agreement for development with the OP on 13.02.2013. On the self-same date the landowner also executed a general Power of Attorney by which the landowner has authorised the developer the right to sell of developer’s allocation. Thereafter, the developer has obtained sanction building plan from borough No. XI of the Kolkata Municipal Corporation being building plan/permit No. 501/12-13 dated 25.03.2013. subsequently, after construction of the building, the Opposite Party has obtained completion certificate from the Kolkata Municipal Corporation on 03.07.2014.
It remains undisputed that on 12.07.2014 the Opposite Party had entered into an agreement for sale with the complainant to sell one self-contained flat measuring about 1000 sq. ft. super built up area on the first floor and also one roof covered car parking space measuring about 120 sq. ft. out of two roof covered car parking spaces stated on the northern side of the G+3 storied portion in the said newly constructed building at a total consideration of Rs. 34,25,000/-. It also remains undisputed that on payment entire consideration amount on sale deed was executed by OP in favour of the complainant on 07.11.2014.
Now, the complainant has not lodged any complaint in respect of the flat in question, as mentioned above and the entire allegation of the complainant centres around to the car parking spaces provided to him by the OP. As per terms of the agreement, the OP was under obligation to provide one covered car parking space measuring about 120 sq. ft out of two covered car parking space on the northern side of the building. Therefore, as per terms of the agreement there should not have been more than two covered car parking spaces on the northern side. The complainant has specifically alleged that on the date of execution and registration of sale deed, the OP split one number of car parking space into two and allotted him one out of those two split car parking spaces. As a result, the complainant is facing serious problem in getting excess of the car in the building from the road.
In this regard, in penultimate paragraph of written version, the Opposite Party has mentioned that the northern side of car parking space has the total length of about 27’ ft. x 06” inches and the width of about 10’ ft. x 04” inches and if the total length is divided into two parts then each one will have about 13’ ft. x 09” inches i.e. about 142 sq. ft each and as the complainant has purchased the car parking area of about 120 sq. ft, the complainant will not be prejudiced in any way.
In ascertaining the real controversy, let us have a look to the reply given by the Opposite Party against the questionnaire set forth by the complainant. Apparently, the OP has deviated sanction building plan in splitting the car parking spaces just to accommodate another car in order to earn profit. In fact, on the date of registration of the sale deed one number of car parking space was spitted into two and allotted the complainant one out of those two car parking spaces. In this regard, the answers given by OP in reply Nos. 13 and 14 against the questionnaire set forth by the complainant appears to be relevant which are reproduces below:
“13. Do you admit that due to the shifting of the Watchman’s Booth and the Toilet from the Northern side to the Southern side has made the length of the Northern side Car parking space more, than as shown in the plan and the Regularized plan?
Ans: totally disagree. This is an absurd claim.
In the sanctioned Plan all the car parking had length of 5 m. After the shifting and allotting 2 numbers parking in place of one number now my parking has a length of 4.2 m approx. (as per your affidavit).
14. Whether the actual position of the Northern side car parking space is similar as shown in the plan annexed with your purchase deed?
But the parking plan (not approved and not authorized by any LBS) annexed with deed of sale is not in line with sanctioned plan hence not in line with the agreement for sale.”
Needless to say, in accordance with the provisions of Kolkata Municipal Corporation Act, 1980 and Rules framed thereunder, it is obligatory on the part of developer/ promoter to construct the building in accordance with the sanction plan obtained from the Kolkata Municipal Corporation and there is hardly any scope to deviate the sanction building plan without any prior permission of the competent authority. Evidently, after construction of the building, the Opposite Party has obtained completion certificate from the Kolkata Municipal Corporation on 03.07.2014.
In the case before hand, the entire mischief has been done by the developer after obtaining completion certificate from the Kolkata Municipal Corporation and as such when the change has been done without concurrence of the competent authority, it not only indicates deficiency in services, but also falls within the definition of ‘unfair trade practice’ as per Section 2(1)(r) of the Act. This kind of splitting in violation of the sanction plan after obtaining completion certificate clearly demonstrates high handedness on the part of developer which is an unfair trade practice as per Section 2(1)(r) of the Act. In a decision reported in (2019) 5 SCC 725 (Pioneer Urban Land and Infrastructure Limited –vs- Govindan Raghavan) the Hon’ble Supreme Court has observed thus:
“6.8. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted li8ne, on a contract framed by the builder. The contractual terms of the agreement dated 08.05.2012 are ex facie one sided, unfair and unreasonable. The incorporation of such one sided clauses in an agreement constitutes an unfair trade practice as per Section 2(1)(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder.”
Mr. Barun Prasad, Ld. Advocate for the Opposite Party has submitted that when the complainant purchased the flat and car parking space which was a ready built flat after obtaining completion certificate, it was a sale simplicitor and the complainant cannot be categorised as ‘consumer’ within the meaning of Section 2(1)(d) of the Act. In order to ascertain the actual state of affairs, let us have a look to the definition of ‘consumer’ as defined in Section 2(1) of the Act which are set out below:
“Consumer means any person who –
i. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other then the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
ii. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose”.
Explanation:- for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.
Section 2 (1) (d) of the Act provides that the Consumer is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for any commercial purposes.
Therefore, when the complainant purchased the flat from the Opposite Party on payment and the complainant has been filed within two years from the date of execution of sale deed i.e. on 27.10.2016 the complaint must be said to be maintainable as per the definition of ‘consumer’ as defined in Section 2(1)(d) of the Act.
Having heard the Ld. Advocate for the Opposite Party and the complainant in person and on going through the materials on record it appears that one cannot be permitted to split of one car parking space into two without the prior approval of the competent authority. For such unauthorised and illegal act on the part of developer, the complainant is facing tremendous difficulties as his car parking has become a stack car parking. In other words, unless another car is shifted or moved, the complainant is not in a position to place the car in the building. In other words, the car
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is no more directly accessible to the road. This certainly amounts to mental agony and serious inconveniences and also undue hardship to the complainant. Since the complainant has already taken possession of the car parking space and has been befooled in accepting the sale deed on dotted line to the developer, i think, the complaint should be allowed as there was apparent deficiency of services on the part of Opposite Party. Considering the facts and circumstances and having heard both sides it appears to me that considering the value of car parking space of a locality vis-s-vis the loss suffered/ has been suffering by the complainant, we think a compensation of Rs. 2,00,000/- in the facts and circumstances will meet the ends of justice. Under compelling circumstances, complainant has to approach this commission for which he is entitled to litigation costs which we quantify at Rs. 10,000/-. In view of the above discussions, the complaint is allowed on contest with the following directions: (i) The Opposite Party is directed to pay compensation of Rs. 2,00,000/- to the complainant within 45 days from date in default the amount shall carry interest @ 9% p.a. from the date till its realisation; (ii) The Opposite Party is directed to pay a sum of Rs. 10,000/- to the complainant as costs of litigation; (iii) The above payments should be made within 45 days in terms of the above order.