HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 41 of the Consumer Protection Act, 2019 ( in short, ‘the Act’) challenging the order dated 10/02/2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit-III, Dist. 24 Parganas (South) ( in short, ‘the District Commission’) in connection with consumer case No. CC/108/2021.

2. The appellant being the complainant filed a complaint case being No. CC/108/2021 praying for the following reliefs :-

“i) To deliver the two flats (2 nos. of BHK flat on the 3^rd floor) to the complainant as per the development agreement which was executed by and between the developers and the owner / complainant on 20.07.2017 or if failed to deliver the same then paid the present market value of the two flats of 1BHK measuring about 350 sq.ft. each to the owner and issue the possession letter and also complete the incomplete work on the 2^nd floor.

ii) Rs.200/- per day from sending the notice by the Advocate of the complainant dated 08.01.2021 to the date of Payment as compensation for the harassment inconvenience, frustration and mental agony suffered by the complainant.

iii) That the shifting charges a sum of Rs.5000/- p.m. should be paid by the Developers / Opposite Parties till date from July, 2020 to till date to the Owner.

iv) Litigation cost, legal notice and other expenses of Rs.70,000/- to be paid by the Developer / Opposite Parties to the complainant.”

3. Notices were duly served upon the respondents and the respondents appeared in this case and contested the case by filing written version denying the material fact. Both the parties filed their respective examination in chief on affidavit followed by filing questionnaire and reply thereto. Both the parties also have filed their BNAs.

4. After hearing both sides and on perusal of the evidence and materials available on record the Learned District Commission dismissed the complaint case on contest by the order impugned.

5. Being aggrieved by and dissatisfied with the said order, the appellant has preferred this appeal.

6. Having heard the Learned Advocate appearing for the parties and on perusal of the materials available on record it appears to me that it is an admitted position that even though a development agreement dated 20/07/2017 was entered into between the parties but due to shortage of land, supplementary agreement dated 18/09/2017 was entered into between the parties to construct a 3 storied building instead of 4 storied building as agreed in the development agreement dated 20/07/2017.

7. It is also an admitted position that the entire 2^nd floor in the newly constructed 3 storied building has been handed over to the complainant.

8. It is also an admitted position that the supplementary agreement was entered into to construct a 3 storied building.

9. It is also an admitted position that plan of 3 storied building was approved by the Kolkata Municipal Corporation and the said plan bears the signature of the complainant as owner.

10. The Learned Advocate appearing for the appellant has urged that the complaint case is maintainable. So, the complaint case should be allowed by this Commission.

11. The Learned Advocate appearing for the appellant has further urged that the impugned order dated 10/02/2023 is otherwise bad in law and is liable to be set aside. He has further urged that the impugned order passed by the Learned Commission is against the principles of material justice, fair play and equity and if the impugned order is not set aside it will cause great prejudice to the right of the appellant herein. He has further urged that the developer has every authority and the Kolkata Municipal Corporation authority also allowed to make construction over the 3^rd floor half portion only subject to modified sanction plan approved by the Kolkata Municipal Corporation but the developer in the instant case failed to submit modified plan for sanction to the Kolkata Municipal Corporation authority for construction of half portion over the top floor straight as per the declaration dated 25/09/2017.

12. He has further urged that the impugned order should be set aside and the complaint case should be allowed by this Commission. Otherwise, the appellant will suffer irreparable loss and injury.

13. On the other hand, the Learned Advocate appearing for the opposite parties has urged that the Learned District Commission has rightly passed the order. So, the impugned order should be affirmed by this Commission. Now, I shall have to consider as to whether the appeal filed by the appellant should be allowed.

14. Having heard the Learned Advocate appearing for the parties and on perusal of the record it appears to me that to prove the case the appellant filed a copy of development agreement dated 20/07/2017 which was duly registered on 25/07/2017. Copy of the said development agreement dated 20/07/2017 discloses that the appellant and the respondents entered into a development agreement on 20/07/2017 and registered on 25/07/2017 for construction of a 4 storied building ( straight four) namely ground floor, 1^st floor, 2^nd floor and 3^rd floor on the property measuring 2 (two) Cottahs, 8 (eight) Chittaks fully described in Schedule ‘A’ of the development agreement and allocation of flats was distributed whereby the appellant was entitled to the entire 2^nd floor and 3^rd floor (top floor) consisting of 2 nos. 1BHK Flats measuring 350 sq. ft. super built up area of the straight 4(four) storied building. For construction of the said building the land owner Jogamaya Basak executed a power of attorney in favour of the developers. The complainant has filed supplementary agreement in the form of Declaration executed on 17/09/2017 registered on 25/09/2017 which discloses that on physical verification of the land, it was found 2 Cottahs, 9 sq. ft. in place of 2 (two) Cottahs 8 (eight) Chittkas and accordingly, both the parties agreed to construct a straight 3 storied building in place of a 4 storied building.  A copy of said supplementary agreement dated 17/09/2017 registered on 25/09/2017 also discloses that the appellant / land owner accepted the allocation of the entire 2^nd floor straight 3 storied building which is the top floor consisting of 2 nos. 1BHK flat measuring 350 sq. ft. super built up area according to the sanction plan under the Kolkata Municipal Corporation rule. It is evident that the said sanction plan was duly signed and acknowledged by the appellant / land owner.

15. On consideration of the development agreement dated 20/07/2017 duly registered on 25/07/2017 and the supplementary agreement dated 17/09/2017 registered on 25/09/2017 I am of the view that the schedule of owner’s allocation and the developer’s allocation in a supplementary agreement is part and parcel of the registered agreement dated 25/07/2017 and accordingly, the appellant / land owner has been provided with 2 nos. 1BHK flats on the 2^nd floor (straight 3 storied building as per the sanctioned plan signed by the land owner over which the roof  is open for all the flat owners for common use.

16. It is well settled that the sanction of the plan for a multi-storied building depends on the measurement of the flat under Kolkata Municipal Corporation rule and no one can be permitted to construct any building without the sanction plan. I think that the term ‘top floor’ and ‘the roof’ have different meaning and different utilities. The roof is always a roof and common for all flat owners. As such, the roof cannot be said as ‘top floor’. As such, it cannot be said that it is a ‘top floor’. On careful perusal of the petition of complaint being No. CC 108 of 2021 it appears to me that the complainant Jogamaya alias Jogomaya Basak filed the petition of complaint through the attorney before the Learned District Commission. In the petition of complaint the complainant has nowhere stated about the said supplementary agreement dated 17/09/2017 and registered on 25/09/2017 accepting land owner’s allocation. Therefore, it may be concluded that the appellant / complainant has not come before the Learned Commission with clean hands. The complainant / appellant has brought to enforce the registered development agreement dated 25/09/2017 as regards the complainant’s allocation though the said agreement had no force after the execution of the supplementary agreement dated 25/09/2017.

17. Upon careful perusal of the record including the evidence of the parties it appears to me that the possession of the entire 2^nd floor has been delivered by the developer on 12/05/2019. Under this fact I am of the view that the claim of further money towards the shifting charge is nothing but an afterthought. Therefore, the Learned District Commission has rightly turned down the prayer of shifting charge.

18. Under these facts and circumstances and on consideration of the materials available on record it is found that the Learned District Commission properly considered the evidence and facts and circumstances of the case and finally arrived at the conclusion and passed the judgment which, according to me, calls for no interference by this Commission.

19. As such, it is liable to be affirmed and the appeal is liable to be dismissed.

20.  In the result, the impugned order dated 10/02/2023 passed by the Learned District Commission in connection with consumer case No. CC/108/2021 is hereby confirmed.

21. The appeal is, therefore, dismissed. There will be no order as to costs.

22. Let a copy of this order be sent to the Learned District Commission at once.

23. Office to comply.