DISTRICT CONSUMER DISPUTES REDRESSAL FORUM HOWRAH 20, Round Tank Lane, Howrah 711 101. Office (033) 2638 0892, Confonet (033) 2638 0512 Fax (033) 2638 0892 Complaint Case No. CC/220/2017 1. SMT. NIVA RANI NANDI, W/O. Sambhu Nath Nandi, Uttar Baksara, P.S. Santragachi (previously Jagacha),Howrah 711101. ...........Complainant(s) Versus 1. M/S Siddhi Vinayak Construction, 1/1, P.K. Roy Chowdhury Lane, P.S. Shibpur, P.O. B. Garden, Howrah 711103. 2. Sri Swapan Biswas S/O. Late Santosh Kumar Biswas, Purba Saninagar, Sapuipara Barowaritala, P.S. Nischinda, P.O. Sapuipara, Howrah 711227. 3. Sri Satyadeo Sharma S/O. Sheoji Sharma, 1/1, P.K. Roy Chowdhury Lane, P.S. Shibpur, P.O. B. Garden, Howrah 711103. ............Opp.Party(s) BEFORE: HON'BLE MR. Abdul Kuddus PRESIDENT HON'BLE MRS. Smt. Banani Mohanta, Ganguli MEMBER HON'BLE MR. Sajal Kanti Jana MEMBER For the Complainant: For the Opp. Party: Dated : 03 Jan 2018 Final Order / Judgement DATE OF FILING : : 04.07.2017. DATE OF S/R : 09.08.2017. DATE OF ORDER : 03.01.2018. Smt. Niva Rani Nandi, wife of Shambhu Nath Nandi of Uttar Baksara, P.S. Santragachi ( previously Jagacha ), Howrah 711110. ???????.?????????.??..?? COMPLAINANT. Versus - 1. M/S. Siddhi Vinayk Construciton, represented by its partners of 1/1, P.K. Roy Chowdhury Lane, P.S. Shibpur, P.O. B. Garden, District Howrah, PIN 711103. 2. Sri Swapan Biswas, son of late Santosh Kumar Biswas of purba Santinagar, Sapuipara, Barowaritala, P.S. Nischinda, P.O. Sapuipara, Howrah 711227. 3. Sri Satyadeo Sharma, Son of Sheoji Sharma of 1/1, P.K. Roy Chowdhury Lane, P.S. Shibpur, P.O. B. Garden, District Howrah, PIN 711103.. ????????????????.??OPPOSITE PARTIES. P R E S E N T Hon?ble President : Abdul Kuddus. Hon?ble Member : Shri Sajal Kanti Jana. Hon?ble Member : Smt. Banani Mohanta ( Ganguli ). F I N A L O R D E R Facts of the case of the complainant, in short, is that Complainant is the owner of case property situated under R.S. khatian no. 224, mouza Uttar Baksara, P.S. Santragachi, District Howrah, measuring 1 cottah 7 chitak 28 sq. ft. having no. 69A Lane. Complainant entered into an agreement with o.p. no. 1 , M/S. Siddhi Vinayak Construction, which is represented by o.p. nos. 2 & 3, for construction of multi storied building in the case property. As per terms and conditions of the said contract o.p. will provide one flat in ground floor measuring 40% of total construction area of the proposed multi storied building with common areas facilities and there is also further contract that the opposite party shall pay Rs. 1 lakh to the complainant in installments. Thereafter this complainant and the o.p. executed agreement which has been registered on 06.06.2014 and a power of attorney which has been registered and executed by the complainant in favour of the o.p. on 06.06.2014 for the development of the case property. Possession of the case property has also been delivered to the o.ps. These o.ps. have not started any construction in the case property after expiry of ten months. So advocate notice dated 17.02.2017 was also sent to the o.ps. requesting them to start construction; but o.ps. did not pay any heed. So this complainant has filed this complaint and pray for making direction upon the o.ps. to complete construction work by six months as per terms of agreement dated 06.06.2014 and also made prayer to cancel development agreement. Complainant also prays for compensation to the tune of Rs. 8 lakhs and litigation costs of Rs. 1 lakh. In this case o.ps. have not appeared. So this complaint case has been heard ex parte. DECISION WITH REASONS : Heard ld. advocate for the complainant. Perused photo copy of the agreement and the materials on record. It reveals from development agreement executed and registered by the complainant and the o.p. nos. 2 & 3 for o.p. no. 1 that this complainant and the o.ps. have entered into an agreement for making construction of multi storied building in the case property. Now these o.ps. have not started any construction in the case property. So this complainant has filed this case in this Forum and prays for passing award directing o.ps. to complete construction within six months as per terms of agreement dated 06.06.2014 or to cancel development agreement. So it reveals that it is an agreement in between complainant and the o.ps. for the purpose of construction of multi storied building. There is nothing on the record to show that a consideration for the development was paid by the complainant. Let us see whether this complainant is consumer or not as per provision of Section 2(1)(d) of the C. P. Act, 1986. It has been observed by the Apex Court reported in AIR 2009 ( Supp) page 577(A) that C.P. Act, 1986 Section 2(1)(d)(o) - Consumer and the land owner agreeing with builder to construct and share constructed area - Not truly a co-venture with builder and he is simply a consumer - Builder a service provider ? Land owner can raise consumer dispute as regards deficiency in service by builder. In view of above observation of the Hon?ble Apex Court in the present case we find that this case agreement for development of the case property is not the joint venture of the complainant and the o.ps. Agreement was made in between complainant / land owner and the builder / o.ps. and as per agreement a share of the building i.e., one flat and Rs. 1 lakh would be paid to the complainant by the o.ps.. So we find in view of the observation of the Hon?ble Apex Court that this complainant is a consumer and o.p./ builder are the service provider. We hold that this complaint is maintainable. Let us see whether this Forum has any jurisdiction to cancel the case agreement ? It has been observed by the Hon?ble National Commission reported in 2015(1) CPR 288 NC that cancellation of sale deed and re conveyance plot to o.p. cannot be directed by Consumer Forum. So in view of the above observation of the Hon?ble National Commission this Forum has got no jurisdiction to pass any order / award cancelling the case agreement executed by complainant and o.ps. In this case complainant has also made further prayer directing o.ps. to complete construction within six months as per terms of the case agreement. In the present case we find from page 8 of para 2.2 of the agreement that as per terms of the contract second party i.e., these o.ps. are to deliver possession of one flat of the case building within one year and six months from the date of approval of the sanctioned plan by the Howrah Municipal Corporation. In the present case this complainant has made allegation that no steps have been taken by the o.p. to make construction. There is nothing on record that whether the plan of the case multi storied building have been approved by the HMC or not ? Case agreement was made on 06.06.2014. Three years has been expired / elapsed from the date of execution and registration of agreement. These o.ps. have not appeared in this case to submit written version. So in view of observation of the Hon?ble National Commission reported in 2017(4) CPR page 590 (NC) that intention of non filing of written version amounts to admission of allegation leveled in complaint. So in view of the Hon?ble National Commission we find that the allegation made in the petition of complaint by the complainant will be treated as admission of the o.p. in respect of the allegation made in the petition of complaint. Moreover, we do not find any reason to disbelieve the unchallenged contents of the petition of complaint. Accordingly we hold that complainant is entitled to an order in the matter in respect of his prayer about completion of construction work as per terms of the development agreement. So we hold that there is deficiency in service on the part of o.ps. in the matter of construction of building in case property as per terms and condition of case agreement. Considering the other facts and circumstances we like to award Rs. 10,000/- as compensation and Rs. 5,000/- as cost of litigation but the prayer in respect of cancellatin of development agreement and other relief are liable to be rejected. In the result, this complaint case succeeds in part. Hence, O R D E R E D That the C. C. Case No. 220 of 2017 ( HDF 220 of 2017 ) be and the same is hereby allowed ex parte in part against all the o.ps. That the o.ps. are hereby directed to complete the construction of multi storied building by one year six months as per terms of agreement executed and registered by the complainant and the o.ps. on 06.06.2014 from the date of receipt of copy of judgment failing which o.ps. are liable to pay compensation @ Rs. 10,000/- per month according to English calendar till completion of construction of building in case property. Rs. 10,000/- is also hereby awarded as compensation and for mental harassment and agony and Rs. 5,000/- is awarded as cost of litigation. The other prayers made by the complainant in his petition of complaint are hereby rejected. If o.ps. fail to comply with the direction made above within period mentioned above then complainant is at liberty to get the order implemented with due course of law. Let a plain copy of the judgment be given to the petitioner, free of costs, and other plain copies also be served upon the o.ps. by registered post / speed post with A.D. as early as possible. DICTATED & CORRECTED BY ME. ( Abdul Kuddus ) President, C.D.R.F., Howrah. [HON'BLE MR. Abdul Kuddus] PRESIDENT [HON'BLE MRS. Smt. Banani Mohanta, Ganguli] MEMBER [HON'BLE MR. Sajal Kanti Jana] MEMBER