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 a landowner against the Developer/builder on the allegation of deficiency of services in a dispute of housing construction.
In a capsulated form, complainant’s case is that being owner of a piece of land measuring about 5 cottahs 8 chittaks lying and situated at premises No. 146, Anandapur, P.S.- Tiljala, Now Anandapur, Kolkata- 700107, Dist- South 24 Parganas within the local limits of Ward No. 108 of Kolkata Municipal Corporation he entered into a development agreement with the Opposite Party on 17.06.2011 for raising construction of a G+3 storied building over the said premises. According to the terms of the agreement, the complainant was entitled to 30% of the total flat area sanctioned by the Kolkata Municipal Corporation which comprises of entire first floor and balance flat area on top floor together with proportionate undivided impartiable share and on interest of the land together with common area and facilities besides non-refundable amount of Rs. 1,00,000/-. As per terms of the agreement the OP was under obligation to complete the construction within 36 months from the date of agreement. On the self-same date the landowner has also executed one Power of Attorney in favour of the Opposite Party and delivered possession of the land. Subsequently, on 01.02.2016 the complainant entered into a supplementary agreement which reflects that the developer entered into a development agreement with the adjacent landowner in respect of plot of land at premises No. 9/1, Anandapur, P.S.- Tiljala, Now Anandapur, Kolkata- 700107 and after amalgamation of both the plots, the OP specified one flat being No. 4B measuring about 1000 sq. ft. super built up area on the top floor and one four wheeler parking space on the ground floor at premises No. 9/1, Anandapur in favour of the complainant. However, as within 6 months from the date of such supplementary agreement the OP could not keep his promise, the said supplementary agreement has become non-est. On 01.02.2016 the complainant was put in possession of one flat of first floor without providing any possession letter. Due to non-est of the supplementary agreement dated 01.02.2016 the complainant by letter dated 11.08.2016 called upon OP to adhere to the terms and conditions of the development agreement dated 17.06.2011 but it remains unheeded. By development agreement dated 17.06.2011 the developer agreed and assured not to give possession to any third party till delivery of owners allocation but the Opposite Party sold out owners allocation in respect of flat situated on first floor at a total consideration of Rs. 38,00,000/-. Hence, the complainant approached this commission with prayer for several reliefs, viz.- (a) to assess in square feet for delivery of 30% of the total flat area in favour of the petitioner/complainant, in view of the sanctioned plan; (b) to deliver possession letter along with copy of sanctioned plan and completion certificate to the petitioner/complainant; (c) to pay a sum of Rs. 38,00,000/- the value of the flat terms and condition of the development agreement; (d) to deliver rest 30% of total flat area in favour of the complainant and in default, an amount to be assessed at Rs. 4,000/- per sq. ft.; (e) to pay Rs. 40,00,000/- as compensation, for mental trauma and harassment due to deficiency in rendering service; (f) to pay Rs. 50,000/- as litigation cost etc.
The Opposite Party by filing a written version has stated that as per development agreement dated 17.06.2011 the complainant was supposed to get 1200 sq. ft. in the newly constructed building since the total FAR available in the building to be constructed upon a plot of land having 4 cottahs 10 chittaks 18 sq. ft. As on 01.02.2016 the OP has already handed over the flat measuring about 1279 sq. ft. super built up area on the first floor, the complainant is not entitled to any more area of the property in question and as such the complaint should be dismissed.
In support of his case, complainant has tendered evidence through affidavit. The Opposite Party did not file questionnaire to test the veracity of statement of complainant. Further, the OP did not adduce any evidence through affidavit.
The overwhelming evidence on record make it quite clear that on 17.06.2011 the complainant being owner of a piece of land measuring about 5 cottahs 8 chittaks more or less lying and situated at premises No. 146, Anandapur, P.S.- Tiljala, Now Anandapur, Kolkata- 700107, Dist- South 24 Parganas within the local limits of Ward No. 108 of Kolkata Municipal Corporation had entered into a development agreement with the Opposite Party/ builder for raising construction of G+3 storied building over the same.
The development agreement indicates that as per agreement the complainant is entitled to 30% of the total flat area sanctioned by the Kolkata Municipal Corporation of which entire first floor and balance flat area of 30% to be allotted to the owner on the top floor together with proportionate undivided impartiable share and/or interest of the land together with common areas and facilities in the proposed building and further pay a sum of Rs. 1,00,000/- apart from the flat allocation.
Needless, to say, time is essence of the agreement. It has been categorically mentioned that the construction shall be completed by the promoter/ developer within 36 months from the date of execution of the agreement. It implies that the OP was under obligation to complete the construction and handover the owner’s allocation to the complainant within 16.06.2014. However, the OP has failed to fulfil his promise.
The evidence on record also speaks that on 01.02.2016 the complaint entered into a supplementary agreement with the Opposite Party and it was agreed that after amalgamation of the premises No. 146 and the premises No. 9/1 of the adjacent landowner developer will provide one flat being No. 4B measuring about 1000 sq. ft. super built up area on the top floor and one four wheeler parking space on the ground floor at premises No. 9/1, Anandapur. However, as the said agreement was not translated into action within 6 months, complainant is entitled to his allocated portion as per terms of the development agreement dated 17.06.2011.
The complainant in his evidence has categorically mentioned that on 01.02.2016 the developer without providing any possession letter or sanctioned building plan put him in possession of one flat on the first floor. He has also alleged that the Opposite Party has sold out his allocation in respect of a flat on the first floor to a third party namely one Sri Hirendra Chandra Saha on 26.02.2016 at a total consideration of Rs. 38,00,000/-. The said evidence of the complainant remained uncontroverted or unchallenged.
Needless to say, as per development agreement dated 17.06.2011 the OP was under obligation to handover the entire first floor to the complainant. Further, in the agreement it was agreed that the OP/developer shall not handover possession of any portion of the proposed building in favour of any third party before delivery of possession of owner’s allocation. It is quite apparent that the Opposite Party has failed to keep his promise and as such deficient in rendering services within the meaning of Section 2 (1)(g) read with Section 2 (1)(o) of the Act.
In view of the above, the complaint is allowed ex parte
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with the following directions: (i) The Opposite Party is directed to handover delivery of possession of the 30% of the owner’s allocation as per second Schedule to the Development Agreement dated 17.06.2011 to the complainant within 90 days after obtaining Completion Certificate from the Kolkata Municipal Corporation; (ii) The Opposite Party is directed to pay a sum of Rs. 38,00,000/- i.e. the value of the flat of the first floor sold out to a third party on 26.02.2016 in favour of the complainant along with interest thereon at the prevalent Bank interest i.e. simple interest @ 8% p.a. from 26.02.2016 till its realisation; (iii) The Opposite Party is directed to pay Rs. 20,000/- to the complainant as costs of litigation. (iv) The above payments must be paid within 90 days from date.