Gautam Agarwala vs Uttam Kumar Chatterjee & 4 Ors

Heard Mr. Manish Kohli, Advocate, for the appellant and Mr. Kunal Chatterji, Advocate, for respondent-5.

Gautam Agarwala, an owner of Flat No.1-C, Front Block, Mangalam Apartments, has filed above appeal from the order of State Consumer Disputes Redressal Commission, West Bengal, Kolkata, dated 01.10.2019, passed in CC/9/2018 Mr. Uttam Kumar Chatterjee and another Vs. Jayshree Tea & Industries Ltd. and others.

The office has reported that the appeal has been filed with delay of 504 days. The appellant has filed IA/2701/2021 for condonation of delay in filing the appeal. The appellant has stated that he was not arrayed as the party in CC/9/2018 and had no notice of it. On 14.10.2020, the police authorities forced the wife of the appellant to remove the appellant’s car, parked at parking slot i.e. at the north-east corner of the front block of the building Mangalam Apartments. On questioning, the police authorities informed that they were implementing the order of State Consumer Disputes Redressal Commission, West Bengal, Kolkata, dated 29.09.2020, passed in IA/315/2020 filed in EA/165/2019. Under legal advice, the appellant filed Writ Petition No.9485 of 2020, for mandamus and quashing entire proceeding of EA/165/2019 before Kolkata High Court on 19.11.2020, which was dismissed as infructuous on 24.12.2020. Then the appellant was advised to file an appeal against order dated 01.10.2019, passed in CC/9/2018. Then the appellant applied on 10.02.2021, for issue of certified copy of the order dated 01.10.2019, which was issued to him on 19.02.2021. Then the appeal was drafted and filed on 18.03.2021. The appellant had no notice of CC/9/2018. It is only on 14.10.2020, the appellant came to know about the order dated 01.10.2019. At that time Supreme Court has waived the limitation in Suo Moto Writ Petition No.3 of 2020, due to pandemic in country, which was continuing till the date of filing of the appeal. Causes shown are sufficient. Delay in filing the appeal is condoned.

Mr. Uttam Kumar Chatterjee and Mrs. Anindita Chatterjee (respondents-1 and 2) filed CC/9/2018, for directing Jayshree Tea & Industries Ltd. and Alipore Mangalam Resident Welfare Association (respondents-3 and 4) (i) to issue specific allotment letter in respect of covered car parking space and ensure free ingress and egress of his car to that place, (ii) to issue “completion certificate” of the building, (iii) to Issue receipts of maintenance charges in every month, (iv) to issue all audited reports of the accounts of Alipore Mangalam Resident Welfare Association, (v) to remove all illegal constructions of the building beyond the sanctioned plan i.e. B.S.41 (B-IX) dated 07.10.1998, (vi) to pay Rs.4 lakhs, as the compensation for mental agony and harassment, (vii) to pay cost of Rs. one lakh, (viii) to direct Kolkata Municipal Corporation to inspect the construction of Mangalam Apartments and submit report relating to un-authorise constructions; and (ix) any other relief, which is deemed fit and proper in the facts and circumstances of the case.

The complainants stated that Jayshree Tea & Industries Ltd. (opposite party-1) was builder and constructed Mangalam Apartments at 33-A, Raja Santosh Road, Kolkata. The complainants purchased Flat No.4B along with one specific covered car parking area for Rs.4200000/-. While constructing the building Mangalam Apartment, opposite party-1 made a pillar in the north-east side due to which two car parking spaces as provided in the lay out plan at north-east side of Front Block was obstructed.  In the sanctioned building plan, no pillar was shown in the north-east side. Due to constructing the pillar in the north-side, the builder permitted ingress and egress to the car parking space at north-east side from eastern side. One car parking slot was allotted to the complainant at this place. In connection with the service, the complainant had to stay in Mumbai for some period. Taking advantage of long absence of the complainants, Alipore Mangalam Welfare Association divided the car parking slot into two spaces by a yellow line and put number plate on small place and one such divided car parking space was given to Mr.Gautam Agarwal (owner of flat No.1C) without any knowledge of the complainants.  When the complainants came to the apartment in early 2015, this development was noticed by him.  Mr. Gautam Agarwal, on instigation of the builder and the Resident Welfare Association, shifted the small car of the complainants without their knowledge from the car parking space as allotted to the complainants and began to park his Honda city (Old Model) at this place and thus, fully blocked ingress and egress of the complainant’s car. The action of builder and Resident Welfare Association amounts to unfair trade practice in grabbing the car parking space allotted to the complainants.  The complainants gave several e-mail, letter and verbally requested to the Secretary of Resident Welfare Association in respect of blockage of his ingress and egress up to car parking space allotted to him.  But they merely gave assurance to look into, but never came with any solution of the problem. While purchasing the flat, the complainants had to pay Rs.1.5 lakhs for car parking space and has been illegally deprived from car parking space. The complainants also approached the local police in this respect, but of no result. The opposite party did not provide the copy of the completion certificate of the project till today. The Resident Welfare Association used to charge Rs.55600/- per year towards maintenance charges, but did not supply its receipt nor  provide detail of expenses relating to maintenance, as such, the complainant has reasons to believe that the maintenance charges were realised exorbitantly.  The builder raised various constructions in addition to the lay out plan and thus the constructions were unauthorised constructions. Kolkata Municipal Corporation be directed to make inspection in this respect and submit his report in respect of unauthorised construction.

After hearing the parties, State Commission by the impugned order dated 01.10.2019 has noticed the allegation of the complainant that Gautam Agarwala, the appellant has been utilising the car parking space as allotted to the complainants. By impugned judgment, State Commission directed the builder (i) to provide a specific allotment letter relating to open/covered car parking space to the complainants in accordance with Clause 1.13 of the deed of conveyance dated 29.01.2007 and ensure free ingress and egress of the complainant car to the said car parking space as per provisions of Rules 77 and 78 of the Kolkata Municipal Corporation Building Rules, 2009 within 60 days from the date, (ii) to provide completion certificate of the project within 60 days (iii) to give Rs.100000/- as compensation within 30 days and Rs.10000/- as the cost of litigation. Hence, this appeal has been filed.

We have examined the judgment as well as entire record of the appeal.  Although in the complaint Uttam Kumar Chatterjee and Mrs. Anandita Chatterjee have stated that the appellant has grab car parking space allotted to them and due to constructing a pillar at unauthorised site, the ingress and egress to car parking slot at north eastern portion of Front Block has been obstructed, but State Commission has neither recorded any finding that the appellant has encroached upon car parking space of the complainant’s Uttam Kumar Chatterjee and Mrs. Anandita Chatterjee nor any relief has been granted against the appellant. State Commission has directed the builder to provide a specific allotment letter relating to open/covered car parking space to the complainants in accordance with Clause 1.13 of the deed of conveyance dated 29.01.2007 and ensure free ingress and egress of the complainant car to the said car parking space as per provisions of Rules 77 and 78 of the Kolkata Municipal Corporation Building Rules, 2009 within 60 days from the date. This order does not suffer from any illegality. Further, it cannot be said that the appellant is aggrieved by the order of State Commission dated 01.10.2019 passed in CC/9/2018 as there is nothing against the appellant in this order.

If under the grab of the order dated 01.10.2019, the builder or Resident Welfare Association has issued fresh allotment letter to Mr. Uttam Kumar Chatterjee relating to car parking space which was allotted to the appellant or they are creating any hindrance in using the car parking space as allotted to the appellant, it is a fresh cause of action and the appellant is entitled to challenge the action of respondents in this respect separately before appropriate forum.

ORDER

In the result, the first appeal is dismissed giving liberty to the appellant to redress his grievances afresh before the appropriate forum.