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



S.R. Construction & Others v/s Anant Kumar Sharma & Another

    First Appeal No. 933 of 2014

    Decided On, 08 July 2016

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE KALIDAS MUKHERJEE
    By, PRESIDENT
    By, THE HONOURABLE MR. TARAPADA GANGOPADHYAY
    By, MEMBER & THE HONOURABLE MR. UTPAL KUMAR BHATTACHARYA
    By, MEMBER

    For the Appellants: Rajesh Biswas, Shibajisankar Dhar, Advocates. For the Respondents: Suman Basu, Rajesh Sen, Advocates.



Judgment Text

Kalidas Mukherjee, President

This Appeal u/s 27A of the C. P. Act, 1986 is directed against the order no.9 dated 21/08/14 passed by Learned District Forum, Barasat, North 24-Paraganas in EA 224 of 2013 rejecting the prayer of the Jdr to recall the W/A.

It is submitted by the Learned Counsel for the Appellants/Developers/OP Nos.1(a) and 1(b) that CC 388 of 2012 was decided on 30/01/13 and no Appeal was preferred against the said judgment. It is contended that the cost of Rs.2,000/- was awarded which has been paid. It is submitted that the possession certificate has been issued and the Municipality issued the occupancy certificate. It is contended that in the judgment there was direction upon the Municipality to inspect the flat and issue completion certificate, although the Municipality was not impleaded. It is submitted that the Appellant applied to the Municipality and applied for occupancy certificate and it was issued. It is contended that the issuance of clearance certificate is unknown in the West Bengal Municipal Act. It is submitted that vide order dated 04/12/13 the execution case was disposed of on full satisfaction against the Developer and in spite of that the Learned District Forum refused to recall the W/A. It is submitted that liberty was given to the Dhr to proceed against the Municipality although not impleaded in the complaint case.

The Learned Counsel for the Respondent has submitted that in the final order passed in the complaint case it has been clearly mentioned in the second part of the order that completion certificate will be issued by the Municipality in respect of the entire construction. It is contended that occupancy certificate was issued illegally and the Municipality acted in excess of its jurisdiction. It is submitted that construction was raised illegally by the Developer beyond the sanctioned plan and, as such, the Municipality ought not to have issued completion certificate.

We have heard the submission made by both sides and perused the papers on record. In the final order dated 30/01/13 passed in CC 388 of 2012 there was direction upon the OP to pay cost of Rs.2,000/- and to hand over the completion certificate of the entire construction and the flat of the Complainant within two months from the date of order after collecting it from the Municipality. The Chairperson of North Barrackpore Municipality was also directed to take such steps to inspect and verify whether any construction has been made outside the sanctioned plan or not and it must be held in presence of the flat owners/promoters and thereafter to pass the clearance certificate. Admittedly, the occupancy certificate dated 17/11/07 has been issued under the provision of sub-rule (2) of rule of 34 of the Building Rules under West Bengal Municipal Act, 1993. It appears therefrom that the certificate was issued in respect of entire building as per sanctioned plan and it was fit for occupation. The Learned District Forum vide order no.3 dated 04/12/13 held that the occupancy certificate was issued in response to the notice of completion dated 09/08/07 in respect of the construction in the suit land vide building permit no.590 of 2005 dated 20/04/06 (G+3 storied). The Learned District Forum observed that first part of the order was complied with, but the second part of the order has not been complied. It is the contention of the Learned Counsel for the Appellant that under the provisions of West Bengal Municipal Act there is provision for issuance of occupancy certificate by the Municipality, but there is no provision for issuance of completion certificate or clearance certificate as mentioned in the order of the Learned District Forum. It is the contention of the Learned Counsel for the Respondent that the Municipality acted beyond its jurisdiction in issuing the occupancy certificate, in as much as, there was illegal construction by the Developer.

Having heard both sides and on perusal of the papers on record, we are of the considered view that the occupancy certificate has been issued as per the provis

Please Login To View The Full Judgment!

ions of Act and Rules as aforesaid. Under the circumstances, the Learned District Forum was not justified in passing the impugned order. After the passing of the order no.3 dated 04/12/13 whereby the execution case was disposed of on full satisfaction so far has been complied with by the Jdrs, there was no ground to proceed further against the Jdrs. The decree has been complied with. The Appeal is allowed. The impugned order is set aside.
O R