Date of filing : 16.11.2018

Judgment : Dt. 11.02.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Aloka Mullick  alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely Mr. Chanchal Pal.

            Case of the Complainant, in short, is that she is the absolute owner in respect of the land measuring more or less 2 cottah 8 chattak under Mouza – Kalikapur, R.S.Khatian No.137, under R.S.Dag No.81, J.L.No.20, R.S.No.02, Plot No.4, premises No.462A/3, Kalikapur Road. She entered into a development agreement dt.6.12.2010 with the OP. The developer/OP failed to complete the building, after obtaining sanctioned building plan, till 2014. The plan was sanctioned on 10.8.2015. But in spite of that the developer failed and neglected to handover the owner’s allocation within 24 months from the date of sanctioned building plan as per development agreement. He has failed and neglected to provide garage, to do electrical works in the building and to arrange supply of water and also paintings and colouring works. OP has also failed to pay Rs.80,000/- out of total amount of Rs.4,00,000/- agreed to be paid as per the development agreement. OP has also constructed a flat in the ground floor back-portion illegally. Several times Complainant requested the OP to handover her allocation and to complete the building and to remove the unauthorized construction, but, OP paid no heed. He is threatening the Complainant and her son. So, the present complaint has been filed praying for directing the OP to complete the building and to handover the possession as per development agreement, to pay Rs.80,000/-, to provide completion certificate along with final building plan, to demolish the unauthorized construction from the ground floor, which is beyond the sanctioned building plan, to pay compensation of Rs.5,00,000/- for delay in handing over the possession, to pay Rs.3,00,000/- for mental pain and agony and Rs.30,000/- towards the cost of proceedings.

            Complainant  has filed with the complaint, copy of her title deed dt.1.7.2005, copy of development agreement dt.6.12.2010, copy of the notice dt.20.10.2018 sent to OP, and copy of the complaint lodged before the O.C., Garfa Police Station by the Complainant.

            On perusal of the record, it appears that in spite of service of notice, OP did not take any step and thus the case was directed to be proceeded ex-parte.

            During the trial, Complainant has filed the affidavit-in-chief and ultimately argument has been advanced.

            So, the only point requires determination is whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

In order to substantiate her claim that she being the owner in respect of the property entered into a development agreement, with the OP, Complainant has filed the deed dt.1.7.2005 and the development agreement dt.6.12.2010. The copy of the development agreement discloses that as per terms in the agreement, OP was to complete the construction within 24 months from the date of sanction of the building plan. Even though the copy of the sanctioned building plan has not been filed, but it is the admitted case of the Complainant that the plan was sanctioned from the KMC on 10.8.2015. It appears from the said development agreement that the owner’s allocation has been described in schedule B of the agreement, whereby OP has also agreed to pay an amount of Rs.4,00,000/-. It is claimed by the Complainant that out of the said Rs.4,00,000/- an amount of Rs.80,000/- is still due to be paid by the OP. The copy of the documents filed by the Complainant strengthens her claim that the possession as per owner’s allocation in the development agreement, has not been handed over to her. Same is also agitated by the Complainant in the complaint lodged before the Garfa Police Station as well as the notice sent to the OP. So, in the absence of any contrary material before this Forum to counter or rebut the claim of the Complainant, Complainant is entitled to the direction as prayed against the OP. However, so far as relief claimed by her to direct the OP to demolish the unauthorized construction from the ground floor, there is absolutely no material in order to substantiate that this construction is illegal construction because the copy of the sanctioned building plan has not been filed. No document is filed by the Complainant that K.M.C. was informed about the alleged illegal construction so no relief as prayed by the Complainant against alleged illegal construction can be allowed. It may also be mentioned here that Complainant has prayed for an amount of Rs.8,00,000/- in total as compensation. But, before this Forum no evidence is adduced to assess the compensation to such an extent. So, in such a situation, an amount of Rs.70,000/- will be justified towards compensation and litigation cost of Rs.10,000/-.

            Hence

                          ordered

            CC/629/2018 is allowed ex-parte. OP is directed to complete the construction of the building and to handover the possession of the owner’s allocation as per development agreement dt.6.12.2010 and also to handover the completion certificate within three months from the date of this order. OP is further directed to pay Rs.70,000/- as compensation and Rs.10,000/- as litigation cost within the aforesaid period of three months.