w w w . L a w y e r S e r v i c e s . i n



M/s. Aridipa Enterprise Rep. by its partner, Soma Basu v/s Partha Saha & Another


Company & Directors' Information:- SOMA ENTERPRISE LIMITED [Active] CIN = U55101MH1977PLC114178

Company & Directors' Information:- L L ENTERPRISE PRIVATE LIMITED [Active] CIN = U26960AS2002PTC006815

Company & Directors' Information:- SOMA ENTERPRISE LIMITED [Not available for efiling] CIN = U99999MH1998PTC114178

Company & Directors' Information:- G C ENTERPRISE (INDIA) PVT LTD [Active] CIN = U19129WB1992PTC055125

Company & Directors' Information:- A AND R ENTERPRISE PRIVATE LIMITED [Active] CIN = U51900DL2011PTC226264

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- J K ENTERPRISE PVT LTD [Active] CIN = U55101AS1986PTC002580

Company & Directors' Information:- SOMA ENTERPRISE LIMITED [Active] CIN = U52520TG1977PLC002201

Company & Directors' Information:- S S G ENTERPRISE (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL2000PTC103084

Company & Directors' Information:- M T ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U19201WB2001PTC092823

Company & Directors' Information:- B M P ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U74210TN2005PTC056329

Company & Directors' Information:- M N ENTERPRISE PRIVATE LIMITED [Active] CIN = U51101MH2012PTC238475

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- S K BASU & CO LTD [Strike Off] CIN = U36900WB1937PLC009162

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- N D ENTERPRISE PRIVATE LIMITED [Active] CIN = U72200WB2013PTC222749

Company & Directors' Information:- N D ENTERPRISE PRIVATE LIMITED [Active] CIN = U72200JH2013PTC001004

Company & Directors' Information:- BASU AND COMPANY PRIVATE LIMITED [Active] CIN = U45201DL2001PTC111274

Company & Directors' Information:- G. N. ENTERPRISE PRIVATE LIMITED [Active] CIN = U14294RJ2018PTC061147

    First Appeal No. A/843/2017

    Decided On, 28 August 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT
    By, THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

    For the Appellant: Barun Prasad, Subrata Mondal, Sovanlal Bera, Advocates. For the Respondents: Ahsanul Islam, Priyankar Deb Sarkar, Advocates.



Judgment Text

Ishan Chandra Das, President

This Appeal has been directed against the Judgement and Order dated 14.7.2016, passed by ld. D.C.D.R.F. South 24 Parganas at Baruipur in C.C. 530 of 2014 where the ld. D.C.D.R.F. while disposing of the said Complaint Case allowed the same in part, directed the O.P. No.1 /Developer to hand over the Completion Certificate to the complainant within two months from the date of the order with a further direction to the O.P.No.2 who is the Appellant herein to cooperate in obtaining the Completion certificate with further direction to the OPS to take initiative for removal of illegal construction in the car parking space by the Authority of the Kolkata Municipal Corporation, to pay compensation of Rs.25,000/- (Rupees twenty five thousand) and litigation cost of Rs.10,000/- (Rupees ten thousand) only.

Being aggrieved by such direction, the OP NO.2 of C.C. 530 of 2014 i.e. M/s Aridipa Enterprise ( the Developer) preferred the Appeal being A/843/2017.

The back-ground of the instant Appeal has been described below in a nutshell. The Complaint Case being C.C. 530 of 2014 was filed before the ld. D.C.D.R.F. against the Land Owner/OP No.2 and the Developer/OP No.1 claiming certain reliefs . The complainant purchased a flat measuring more or less 875 Sq.ft. at premises No. 59 Dinesh Pally, P.S.Regent Park, Kolkata 700 070 and since the date of purchase the Complainant was put in possession of the premises. The complainant claimed that for the purpose of getting Completion certificate he made several requests to both the OPs orally and in writing but did not get any response from them. The OPs did not provide the deep tube-well in the premises as promised and it was further alleged that no Completion certificate of the building was provided to the Complainant/Purchaser. It was further alleged that the OPs had converted one car parking space into a room by constructing a pucca wall as a result of which the complainant was facing difficulties for egress and ingress to and from the premises, in contravention of the rules and regulations of the KMC Act and contrary to the plan sanctioned by the KMC. The complainant also alleged that the OPs illegally constructed a privy with a water tap over the septic tank resulting that the such privy being used by unknown public who come to the premises for the purpose of carrying out commercial manufacturing activities in the said garage cum room of the ground floor causing interference to the privacy of the flat owners. Since the Kolkata Municipal Corporation refused to issue Mutation certificate in the name of the complainant as no Completion certificate was supplied to him and that prompted him to take recourse of the D.C.D.R.F. praying for such certificate and other consequential reliefs.

The OP No.1 who is the Appellant herein filed a Written version to contest the Complaint case denied all the material allegations and contended that the Complaint Case was hit by the Provision of Section 24A of the C.P.Act . Denying and disputing the material allegations as contained in the body of the application, the OP NO.1 admitted that a car parking space measuring 360 sq.ft. in the front side of the ground floor of the building was under the Owner’s allocation and another car parking space of 180 sq.ft. in the front side of the ground floor of the building was under the Developer’s allocation. But the OP No.2 i.e. the Land owner transferred the said car parking space to her son and daughter-in-law by a registered Deed of Gift and in the back ground the OP NO.1/Appellant ultimately prayed for dismissal of the Complaint Case since no relief could be given by the OP NO.1 to the Complainant who purchased the flat from Owner’s allocation.

Ld. Trial Forum upon consideration of the facts and circumstances of the case allowed the same in part and directed the OPs to hand over Completion certificate to the complainant within two months from the date of the order , to remove illegal construction from the car parking space within 15 days and further directed the OPs to pay compensation of a sum of Rs.25,000/- (Rupees twenty five thousand) and litigation cost of Rs.10,000/- (Rupees ten thousand) to be paid within two months from the date of the order as noted in the earlier part of the judgement.

It is already mentioned above that the OP no.1 /Developer being aggrieved by such order preferred the instant Appeal and while disposing of the said Appeal, being A/843/2017, this Commission took into consideration the facts and circumstances of the case, allowed the Appeal, set aside the judgement impugned, remit the case to ld.D.C.D.R.F. for fresh decision of the case after giving the complainant an opportunity to implead the subsequent transferees as well as the KMC as parties to the proceeding for just decision of the case and left all the issues open, to be disposed of by ld. D.C.D.R.F. independently without being influenced by any of the observations as per judgement dated 25.9.2018.

Being aggrieved by such direction the Complainant/Respondent No.2 preferred a Revision being R.P. No. 3325 of 2018 before the Hon’ble National Commission and the Hon’ble National Commission while disposing of the said Revision Petition passed the order, as quoted below :

“29.05.2019

Order

Mr.Soumendra Roy Chowdhury, learned Counsel appearing for the Petitioner had stated on 14.12.2018 that the Petitioner shall delete Relief (B) from the Complaint. The statement was recorded. Today again, the learned Counsel for the Petitioner had reiterated the same statement and therefore, the Complaint stands confined to Reliefs (A)(C) and (D) only. In this view of the matter, there is no question of impleadment of Kolkata Municipal Corporation or the persons who are alleged to have occupied some portion of the premises in the same project. We, therefore, set aside the order dated 25.9.2018 passed by the State Consumer Disputes Redressal Commission, West Bengal (for short “the State Commission”) and restore Appeal No.A/843/2017 to the Board of the State Commission with a request to decide the said Appeal in accordance with law as expeditiously as possible, preferably within a period of three weeks, when a certified copy of the order is filed before it.

We make it clear that we have not expressed any opinion on the merits of the Appeal.”

In view of such direction of the Hon’ble National Commission, we have concentrated ourselves to dispose of the Appeal with regard to prayer A,C and D as per Petition of Complaint of C.C. 530 of 2014.

Ld. Counsel appearing for the Appellant before us tried to impress that his client was ready to provide the Completion certificate to the Complainant but expressed that his client would not be able to collect such certificate from the Competent Authority due to the fact that the OP NO.2/Land Owner caused construction in contravention of the sanctioned plan, obtained from the KMC and unless and until such an illegality has been removed by the parties it would not be possible for his client to collect the Completion certificate. We have considered the submissions of the ld.Counsel for the parties and we have given our anxious thought over the problem to be faced by the parties.

Considering the circumstances as expressed by the ld.Counsel for the parties and for finality of litigation we make it clear that the OPs of C.C.530 of 2014 being the Land owner and the Developer of the building shall take every measure to remove or to regularize the construction, made by them in contravention of the sanctioned p

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lan and collect the Completion certificate from the Competent Authority for giving it to the Complainant. Since the complainant confined himself to the reliefs with regard to A,C and D of his Petition of complaint we simply uphold the decision taken by ld.D.C.D.R.F. with regard to payment of compensation and litigation cost amounting to Rs.25,000/- (Rupees twenty five thousand) and Rs.10,000/- (Rupees ten thousand) respectively, to be paid to the Complainant within 60 days from the date of the order. The cost of removal of construction or regularization of the construction shall be borne by the OPs No.1 and 2 i.e. the Land Owner and the Developer at the ratio of 2/3rd and 1/3rd respectively due to the fact that the land owner got 360 Sq.ft. of car parking space whereas the Developer got 180 Sq.ft. Parties do bear their respective costs of Appeal.
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