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Jasmin Ali v/s M/s. D.S. Construction, Rep. by its prop., Shila Patwari & Others

    First Appeal No. 21 of 2020
    Decided On, 22 September 2022
    At, West Bengal State Consumer Disputes Redressal Commission Kolkata
    By, THE HONOURABLE MR. JUSTICE MANOJIT MANDAL
    By, PRESIDENT
    By, THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER
    For the Appellant: None appears. For the Respondents: None appears.


Judgment Text
Shyamal Kumar Ghosh, Member

The instant appeal has been brought against the impugned order dated-29/11/2019 passed by the ld Trial Commission below in connection with the CC case no – 29/2019 wherein the Ld Trial Commission below while disposing of the said CC case, allowed the same on contest against the opposite-parties with cost and being aggrieved with such order the instant appeal has been filed by the appellant /complainant.

The fact of the case in brief is that the complainant was an absolute owner of land which was fully described in schedule “A” of the petition of the complaint. A development agreement dated 01/08/2012 was executed between the complainant and the ops/developer for construction of the multistoried building at “A” schedule property. Thereafter a registered power of attorney dated 03/08/2012 was executed by the complainant in favour of the op no – 2/developer. The vacant possession of the land was also delivered to the ops for construction. The construction work was supposed to be completed within 2 years from the date of displacement / handing over physical possession of the land. But it was very unfortunate that the said construction was not completed within the prescribed period of time and as such the possession of the flat was not delivered to the complainant/landowner. Further it was stated that the op did not pay Rs. 10,000/- per month as per their commitment for the purpose of loss of her shelter. Having no other alternative the complainant knocked at the door of the Commission for getting her relief / reliefs as prayed for.

The opposite-parties contested their case by filing written version stating inter alia that they never agreed to pay Rs. 10,000/- per month towards compensation for displacement from the subject plot. The building plan was sanctioned on 06/09/2016 and it was valid till 06/09/2019. The ops already completed the construction work and submitted completion plan before the concerned Municipality for approval. The ops further stated that installation of lift, arrangement of water system, drainage etc werealready done and they already applied for providing electricity connection. The owner’s allocation was not handed over to the complainant for unavoidable circumstances. The ops were always ready to deliver the owner’s allocation to the complainant. There is no negligence or deficiency in service on the part of the ops and hence the ld. counsel prayed for dismissal of the petition of complaint with cost.

In course of hearing ld. counsel appearing for the appellant/complainant drew our attention to the observation of Ld. DCDRC below and pointed out that the Ld. Trial Commission below completely ignored and overlooked the materials and documents on record while passing the impugned order mentioned above. The ld. counsel also urged inordinate delay in delivery of possession of the flat in question. As per letter dated 24/09/2018, the D.S. Construction Co. agreed to pay Rs. 6000/- only per month from September 2018 to till the delivery of possession. But the Ld. DCDRC failed to consider the same. Rather the Ld. DCDRC allowed only compensation amounting to Rs. 1,00,000/- for loss sustained by the complainant including mental pain and agony. Ultimately the ld. counsel prayed for enhancement of the compensation as the amount of compensation was very much meager.

In course of hearing ld. Counsel for the respondents/ops submitted that the nature of land was classified as “DANGA” not “BASTU” at the time of execution of the agreement and as such some reasonable time was required to be completed the process regarding conversion of land from “Danga” to “Bastu”. After conversion, the ops submitted the building plan before the concerned Municipality and the said plan was sanctioned on 06/09/2016. The building was already completed in habitable condition. Ld. Advocate also submitted that by way of letter dated 11/12/2019, the ops requested the complainant to provide her bank details so that the ops were able to transfer the awarded amount butno suitable response came from her end. The ops also requested the complainant, through the said letter dated 11/12/2019, to take the delivery of the flat in question and the ops also undertook to handover the completion certificate immediately as and when available from the concerned Municipality. Ld. Advocate further submitted that there is nothing wrong in the impugned order and the same is not called for interference as the impugned order was ultimately passed in favour of the complainant/appellant and against the ops. They are ready to comply the impugned order in full and as such the ld. counsel prayed for dismissal of the instant appeal with cost.

We have heard the ld. Advocates appearing for both the parties at length and in full.

We have also perused materials on record carefully.

It is admitted that a development agreement was executed between the owner/complainant and developer/op on 01/08/2012. Subsequently, one registered General Power of Attorney was also executed by the complainant in favour of the developer viz. Smt Shila Patwari on 03/08/2012. We have perused a letter dated 10/09/2018 wherefrom it appears that the complainant requested for delivery of physical possession of owner’s allocation along with completion certificate and sanctioned plan. The complainant, through this letter, requested for payment of Rs. 10,000/- per month for alternative accommodation from the date of displacement to till the delivery of physical possession. The letter dated 24/09/2018 reveals that the op/developer prayed for another 6 months time for making all arrangements in respect of delivery of possession as well as completion of unfinished works.

It is fact that there was an inordinate delay regarding delivery of the possession of the flat in question and for that reason the complainant suffered financial loss. Under such circumstances, there is no hesitation to hold that there is a clear gross negligence and deficiency in service on the part of the ops.

However by filing the Brief Notes of Argument, the ld. counsel for the ops/respondents categorically stated that in view of the impugned order dated 29/11/2019 passed by the Commission below, the ops, through the letter dated 11/12/2019, requested the complainant to provide bank details so that the ops can be able to transfer the awarded amount as directed by the ld Trial Commission below, but no fruitful response comes from the end of the complainant. Now the ops are ready to deliver the particular flat to the complainant.

Considering all aspects from all angles, we can realize that the ops/developers are trying to implement the order impugned passed by the Trial Commission below and in this respect the ops/developers show a good gesture.

As per our view the compensation granted by the Ld. DCDRC, below is very suffici

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ent, just and proper as per gravity of the case and the prayer for enhancement of the compensation from the end of the complainant/appellant has no leg to stand upon. So, we do not pass any comments/remarks regarding the impugned order passed by the Commission below. Now, we can safely come to conclusion that there is no such wrong, error or mistake in passing the order impugned dated 29/11/2019. Accordingly, we affirm the order impugned dated 29/11/2019 and subsequently dismiss the instant appeal on contest without any order as to cost. The instant appeal being no. A/ 21/2020 stands disposed of. Note accordingly. Let a copy of this order be transmitted to the Ld. DCDRC for compliance and taking necessary action.
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