Ajoy Dutta And Ors. vs Dipankar Sarkar And Ors.

REVISION petition No. 3125 of 2012 has been filed against the order dated 25.05.2012 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (''the State Commission'') in First Appeal No. 262 of 2010.

THE facts of the case as per the respondent/complainant are that the respondents purchased individual flats in J D Apartment promoted and constructed by the petitioner/opposite party through registered deeds during the year 2006. Prior to the construction of J D Apartment the building plan was sanctioned by Purulia Municipality, was shown to the respondents wherein the proposed height of each flat from floor surface to the lowest point of ceiling would be 9 ft. 6 inches and thickness of the outer wall of each flat would be not less than 10 inches. Each of the respondents gave advance for their individual flats and entered into agreements separately on different dates in the year 2004 -2005. The price of each flat was fixed as per square feet covering floor space and location of the flat. The respondents also executed the sale deeds individually on different dates in the year 2006 on payment of full consideration money and after registration of sale deed before Sub -Registrar''s office, Purulia and possession were handed over to the flat owners. The respondent alleged that they took their individual possession of the flat on good faith and without taking measurement of the height of the ceiling from floor space and width of the outer wall. Soon after the purchase of flat the respondents and other flat owners noticed that the petitioners in order to earn more money, in the open space with an area of 540 sq. ft., left for parking vehicle, two wheelers, bi -cycles of the flat owners had started construction of business stall by deviating from the sanctioned plan and violation of contractual obligation of sale.

THE respondents subsequently arranged for physical measurement of each flat by a registered surveyor. He found that the height of each room of the flats of respondents was seven feet ten inches instead of nine feet or nine feet six inches from floor surface to the lowest point of the ceiling or beam and the outer walls of each flat of the respondents had been constructed with thickness of five inches instead of ten inches. The respondents then realised that the petitioners had collected excess amount from the respondent towards the cost of construction by adopting unfair trade practice and the service of the petitioners rendered to the respondents suffers from deficiency. Accordingly, legal notice dated 11.09.2007 was served upon the petitioners. In reply to such notice, the petitioners through their lawyer admitted some parts of statements of the respondents but denied to make payment of excess amount as calculated by the registered surveyor.

SUBSEQUENTLY , the name of respondent No. 1 was expunged from the cause tile on the ground that he had already sold out his interest in the purchased flat to some other person. The petitioners contested the case by filing a joint written version denying the material allegation. The petitioners claimed that the construction was done as per the master plan duly approved and sanctioned by Purulia Municipality and no deviation from the sanctioned plan was made. The petitioners prayed for dismissal of the case as the same was barred by limitation and not maintainable being the case filed by seven persons against the petitioners.

THE District Consumer Disputes Redressal Forum, Purulia (''the District Forum'') vide its order dated 30 April 2010 while partly allowing the complaint observed that: "from the above measurement it is crystal clear that the Ops have not provided the height of the flats to the complainants with a measurement of 9 ft. 6 inches from floor to bottom of ceiling. The less height of the flat in case of complainant No. 2 is 9 1/2" (nine and half inches), complainant Nos. 3 to 9 is 9 1/2" (nine and half inches), complainant No. 4 is 8 1/2" (eight and half inches), complainant No. 5 is 8 1/2" (eight and half inches), complainant 6 is 9" (nine inches) and complainant No. 7 is 8" (eight inches) are evident and transparent. The report of the commissioner also reveals that the measurement of the outer walls in case of the flats of above six complainants are identical showing 0'' - 7" (seven inches) including both faces plaster which is also less by 5" (five inches) according to the sanctioned plan, wherein the measurement of outer wall was shown as 10 inches.

If we look into the evidence of PW 3 who is a Diploma Holder in Civil Engineering stated that he inspected seven flats of J P Apartment on 26.08.2007 on the request of flat owners, took measurements of the ceiling height and thickness of outer wall. P W 3 found approximate 8 ft. 8 inches height from floor to ceiling and 7 ft. 8 inches from bottom of the beam from floor surface and thickness of outer wall was found 5 inches thickness of some portion of the outer wall of each flat. In the cross -examination the PW 3 stated that no field book prepare by him was supplied to the owners, no written opinion was given to the flat owners but he gave verbal opinion after measurement.

From above facts and circumstances it can safely be concluded that the OPs have committed breach of their obligations. In this contests in our view it will not be out of place to mention that neither the complainants could produce completion certificate in respect of the construction of flat supposed to be handed over by the Ops nor the Ops have filed completion certificate issued by Municipality, Purulia during the proceeding of the case. To obtain completion certificate from the authority who sanctioned the plan is a mandatory provision and the same is issued on receipt of report of completion of construction of the builder after due inspection as to whether there is any deviation/violation in construction.

Had the completion certificate been handed over to the flat owners at the time of receiving final consideration money and execution of deeds the same would have been filed in this case to strengthen their contention. On the other hand had the Ops been in the possession of completion certificate of the Municipal Authorities it would have been filed to frustrate the allegation and contention of the complainants.

In the above view in the matter this Forum has no hesitation to resolve that the OPs have failed to discharge their obligations, violation the mandatory provisions of Municipal bye -laws and constructed the flats in questions deviating the sanctioned plan which comes within the purview of deficiency in service.

At this critical juncture this Forum think it just and proper to allow the amount to be refunded as excess payment to each of six flat owners as lumpsum basis taking the help of the calculation chart on record without entering into complicated calculation of civil engineering.

The District Forum ordered as under:

That Purulia Consumer Complaint No. 29 of 2007 is partly allowed on contest against both the OPs.

Both the OPs jointly and severely do refund the excess amount, compensation and litigation cost to each of the following complainants to the tune of rupees as noted against each within 30 days from this date.

Complainant No. 2 will get Rs. 57,500/ - plus 9% interest from 15.05.2006 to till realisation, compensation of Rs. 20,000/ - and litigation cost of Rs. 1,000/ - only.

Complainant No. 3 will get Rs. 68,000/ - plus 9% interest from 15.05.2006 to till realisation, compensation of Rs. 20,000/ - and litigation cost of Rs. 1,000/ - only.

Complainant No. 4 will get Rs. 62,800/ - plus 9% interest from 15.05.2006 to till realisation, compensation of Rs. 20,000/ - and litigation cost of Rs. 1,000/ - only.

Complainant No. 5 will get Rs. 54,600/ - plus 9% interest from 15.05.2006 to till realisation, compensation of Rs. 20,000/ - and litigation cost of Rs. 1,000/ - only.

Complainant No. 6 will get 65,000/ - plus 9% interest from 15.05.2006 to till realisation, compensation of Rs. 20,000/ - and litigation cost of Rs. 1,000/ - only.

Complainant No. 7 will get Rs. 62,500/ - plus 9% interest from 15.05.2006 to till realisation, compensation of Rs. 20,000/ - and litigation cost of Rs. 1,000/ - only.

Failure to comply of this order the complainants will put the decree in execution".

AGGRIEVED by the order of the District Forum the petitioner filed an appeal before the State Commission. The State Commission dismissed the appeal by observing as under: "To come to a conclusion regarding the above -mentioned point an Engineer Commissioner was appointed to take measurement of the height of the respective flats and the thickness of outer wall of the flats in question vide Order No. 30 dated 12.11.2009 passed by the Ld. Forum below. The Commissioner took measurement of the flat in presence of both parties. On scrutinizing the Commissioner''s report it is found that there are deviations in the height of the flat and thickness of the outer wall of the flat in terms of the agreement executed by and between the parties. In course of hearing the Ld. Advocate for the Appellants argued that the Complainants alleged only regarding improper height of the flat and thickness of outer wall of the flat. He said no expert evidence is adduced. In fact Engineer Commissioner''s report is sufficient to prove that the height of the flat and thickness of the outer wall of the flats are not in accordance with the agreement. Ld. Advocate for the Appellants further submitted that as per agreement the height of the flats are in accordance with the agreement. But the Commissioner''s report reveals the matter contrary. The Ld. Advocate for the Appellants also mentioned that on cross -examination of the P.W. - 1 it is said that "it has been stipulated at page 5 of the deed that vendor assures to repair any defect of my flat within two months from the date of registration. On expiry of two months the vendor has no liability to repair the defect". Since the stipulated period was over the Complainants, as per the Appellants had no right to file any case regarding any defect in respect of the said flat. In fact, the Complainants filed the case within the time limit as provided under C.P. Act.

It is evident that the O.Ps deviated from the agreed terms and conditions of the agreement executed by and between the purchasers and O.Ps. The Ld. Forum below rightly held that there is deficiency on the part of the O.Ps. Ld. Forum below also calculated the amount to be returned to the respective Complainants in terms of the lesser area provided to them by the O.Ps.

In the foregoing discussion we find that there is no reason to interfere to the order passed by the Ld. Forum below.

In the result the appeal fails.

Hence, the State Commission ordered that the appeal is dismissed on contest without cost. The impugned judgment is affirmed".

Hence, the present revision petition.

WE have heard the learned counsel for the parties and have carefully gone through the record.

LEARNED counsel for the petitioner contended that the Engineer appointed to inspect the flats was not a qualified engineer for inspection and further, he was not examined by the District Forum nor was he allowed to be cross -examined. Further, the calculations of the Assistant Engineer were not accurate or detailed. He has also not opined in his report that the measurement taken by him on 17.03.2010 were as per the sanction plan nor was he given a copy of the sanctioned plan and hence, the order of the lower Fora were misconceived, erroneous and contrary to law. The State Commission had failed to exercise its jurisdiction vested by law and had acted with material irregularity and illegality and the orders should be set aside. Learned counsel for the respondent on the other hand pointed out that the Engineer had been appointed by the District Forum. The objections raised by the petitioner on the reports submitted by the Assistant Engineer were considered by the District Forum and rejected and hence, the orders of the lower Fora based on the report of the Assistant Engineer were valid and legal.

ONGOING through the record, we find that nowhere had the petitioner disputed that they had in fact assured the respondents that the height of each flat from the floor would be 9ft 6 inches and the thickness of the outer wall of each flat would be 10 inches. Their only defence is that the short comings should have been seen prior to taking over the possession and registration of the flat. Hence, the petitioners have failed to show that the measurements taken and the inspection report by the court appointed engineer was erroneous and that the flats had been constructed as per the sanctioned plan. They did not even produce a completion certificate to this effect.

THE District Forum has correctly come to the conclusion that: "had the completion certificate been handed over to the flat owners at the time of receiving final consideration money and execution of deeds the same would have been filed in this case to strengthen their contention. On the other hand had the Ops been in the possession of completion certificate of the Municipal Authorities it would have been filed to frustrate the allegation and contention of the complainants".

In the above view in the matter this Forum has no hesitation to resolve that the OPs have failed to discharge their obligations, violation the mandatory provisions of Municipal bye -laws and constructed the flats in questions deviating the sanctioned plan which comes within the purview of deficiency in service".

Further, the District Forum has correctly observed as under: "At this critical juncture this Forum think it just and proper to allow the amount to be refunded as excess payment to each of six flat owners as lumpsum basis taking the help of the calculation chart on record without entering into complicated calculation of civil engineering".

THE Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., : 2011 (3) Scale 654 has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

THUS , we find that no jurisdictional or legal error has been shown to us in the impugned order to call for interference in the exercise of powers under Section 21(b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed with no order as to cost.