Safecon Apartments PVT. LTD vs Sujoy Biswas & 25 Ors

V.K.Jain, Presiding Member

Respondent 3 to 26, who are the owners of different plots amalgamated the said plots into a single plot of land and they entered into an agreement with the appellant for construction of a ground + five storied building on the aforesaid amalgamated plot of land. The complainants entered into agreements with the appellant, for purchasing residential flats in the proposed building. The possession, as per the agreement, executed by them with the appellant, was to be delivered by January 2013. The possession however, was delivered to them late, though it had been delivered before the Consumer Complaint came to be instituted by them. The Sale Deeds in their favour were also executed. The complainants then approached the concerned State Commission by way of separate Consumer Complaints, alleging therein that neither the Completion Certificate had been provided to them, nor had the petitioners completed the remaining works in the building constructed by it. It was also alleged by them that the building material used by the appellant was inferior, as a result of which, the floors had cracked and the walls of the flats had got damaged. The following were the prayers made in the Consumer Complaints instituted by them:

Direction may kindly be given upon the opposite party No.1 to complete the work of the common areas and facilities as mentioned in the Schedule "C" herein below and to repair and/or repairs the damages portion of the flat within a specific period;

Directing the opposite party no.1 to pay the interest at the rate of 18% as per agreement for sale and also on account of non-deliver the flat within the time as mentioned in the agreement for sale;

Directing the opposite party no.1 to demolish the illegal and unauthorized construction on the ground floor at their own cost and expenses failing which necessary order may kindly be passed to demolish the said illegal and unauthorized construction at the cost and expenses of the opposite party no.1;

Directing the opposite party no.1 to handover the completion certificate in respect of the Schedule "A" property;

Directing the opposite parties to form flat owners Association in respect of Schedule "A" property;

Directing the opposite party no.1 to install separate electric meter in the name of your petitioner;

Compensation to the tune of Rs.2,00,000/- (Rupees two lakh) for mental agony and harassment;

Damages to the tune of Rs.3,00,000/- (Rupees Three Lakh) only for below quality materials used in flat.

The complaints were resisted by the appellant who denied the allegations made in the complaint against it and interalia stated that it had executed the Conveyance Deed in favour of the complainants and delivered possession of the allotted flats as well as the garage to them. It was also claimed that the flat as well as all the common facilities, amenities etc. were completed at the time the possession was delivered. It was also claimed in the written version that the lifts had also been installed and were running in good condition.

The State Commission, vide impugned order dated 18.12.2017, declined all the prayers made by the complainants except the prayer for issuance of a direction to the appellant to hand over the completion certificate to them. The State Commission also directed the petitioners to pay Rs.50,000/- as compensation and Rs.10,000/- as the cost of litigation, within ten days failing which the said amount was to carry interest @ 8% per annum.

Being aggrieved from the order passed by the State Commission, the appellants are before this Commission by way of these appeals.

The complainants have not filed any cross-appeal challenging the order passed by the State Commission despite the fact that most of the prayers made by them in the Consumer Complaint were declined by the State Commission. As a result, it is not permissible for this Commission to go into the correctness or otherwise of the said order to the extent the other prayers made by the complainants in the Consumer Complaints were declined.

As noted earlier, the State Commission directed the petitioners to provide completion certificate to the complainants, in addition to awarding compensation to them. The learned counsel for the appellants has drawn my attention to the Occupancy Certificate purporting to be issued by Dumdum Municipality and available on page no.132 of the paper-book, which to the extent it is relevant, reads as under:

Subject: Grant of Occupancy Certificate under sub-rule (2) of Rule of 34.

Building Particulars : Premises No. and Street 14, Masterda

Sarani, Kolkata-79.

Ward No. 06

Sir,

With reference to your notice of completion dated 14.07.2014 I hereby certify that the building as per description below on plot 14, Masterda Sarani, Kolkata-79 Ward No.06 in respect of which plans were sanctioned vide Building Permit No.PWD/Plan-G+V/424/2010-2011 dated 24.03.2011 has been inspected with reference to the provision of the Building Rules, under West Bengal Municipal Act, 1993 and is Certified to be fit for occupation.

DESCRIPTION OF CONSTRUCTION, USE AND CONDITIONS, IF ANY.

One set of building plans with endorsement "Approved Completion Plan" is returned herewith (where required).

This is also the submission of the learned counsel for the appellants that no certificate other than the Occupancy Certificate extracted hereinabove is required under the rules of the Dumdum Municipality. He has also drawn my attention to the proceedings recorded by the Assistant Director, Directorate of Consumer Affairs and Fair Business Practices, Govt. of West Bengal dated 23.07.2015, which to the extent it is relevant, reads as under:

Both the complainants and opposite party are present for the mediation meeting. The opposite party have appointed Sri Arunachal Bhattacharjee, Advocate as their representative.

It has been mutually agreed that all the pending works as pointed out lay the complainants including electric connections from C.E.S.E. will be completed within four (04) months of time since today, i.e. 23/7/15.

The complainants may approach the legal forum after expiry of the above period.

It may be noted that the complainants have occupied their flat and got their possession later and the completion certificate from the municipality concerned has been obtained by the OP.

This is also the submission of the learned counsel for the appellants that the aforesaid proceedings are signed by all the complainants.

It would thus be seen that an Occupancy Certificate had been obtained by the appellants and had been provided to the complainants by 23.07.2015 whereas the Consumer Complaints came to be instituted in the year 2016. If the appellants were not required to obtain any certificate other than the Occupancy Certificate extracted hereinabove, the direction to the appellants to obtain the Completion Certificate and deliver the same to the complainants was not called for. As far as the compensation and cost of litigation is concerned, it has come in the order of the State Commission that the possession of the allotted flat was to be delivered to the complainants by January 2013. The possession however, came to be delivered much later. It is not known when the Occupancy Certificates were made available by the appellants to the complainants though it appears from the proceedings recorded by the Assistant Director, Directorate of Consumer Affairs and Fair Business Practices that the same had been completed by 23.07.2015. The notice of completion was given by the appellants to Dumdum Municipality only on 14.07.2014. Therefore, there was a delay in obtaining the said Occupancy Certificate.

Considering the delay in obtaining the Occupancy Certificate and delivering possession of the allotted flats to the complainants, the direction for payment of compensation and the cost of litigation does not call for any interference by this Commission in exercise of its appellate jurisdiction. It is however, directed that in case the compensation and cost of litigation, as awarded by the State Commission, paid within six weeks from today, it shall not carry any interest. The appeals stand disposed of.