Written Notes of Arguments on behalf of the Petitioners

 

DISTRICT: South 24-Parganas

 

In the High Court at Calcutta

Civil Revisional Jurisdiction

C.O.4032 of 2015

(Biswaroop Bhattacharya &Anr. Vs. Smt. Aloka Roy & Ors.)

C.O.4033 of 2015

(Gopal Shaw &Anr. &Anr. Vs. Smt. Aloka Roy & Ors.)

C.O.4034 of 2015

(Santanu Kanjilal &Anr. Vs. Smt. Aloka Roy & Ors.)

 

Written Notes of Arguments on behalf of the Petitioners

 

Factual matrix of the case:

The first two revisional applications have been filed by the subsequent purchasers of apartment situate at Premises No.578, Laskarhat, Kolkata700039 in Ward No.107 under BoroughXII of the Kolkata Municipal Corporation (‘the said premises’ and ‘the KMC’ respectively for short). The said premises is a Ground+3 storied building. The petitioners in the first revisional application are the owners of the apartment at the 3^rdfloor of the said premises and the petitioners in the second revisional application are the owners of the apartment situate at the ground floor of the said premises. The developers and/or promoters are the petitioners in the third revisional application. The opposite party No.1 in all the revisional applications is the original owner of the said premises who entered into development agreement with the developer/promoter to develop the said premises which was developed and sold by subsequent purchasers.

The opposite party No.1 entered into a joint venture development agreement on 5th December,2007 with the developers/promoters to develop a multistoried building at the said premises and subsequently on 2^ndJune,2008, a building plan was sanctioned by the KMC in respect of the said premises. The developers constructed the multistoried building. On 27^thApril,2009 and 28^thApril,2009, the developers/promoters executed the deed of conveyance being the power of attorney holder in favour of the subsequent purchasers being the petitioners in the first revisional application and the petitioners in the second revisional application respectively. In the deed of conveyance, the opposite party No.1 was the vendor and the confirming party. Thereafter, the petitioners in the first and second revisional application respectively took possession of their apartments and have been living there since then.

 

There has been a demolition proceeding in respect of the said premises which the petitioners came to know on 2^ndFebruary,2012 and it came to their notice that the Special Officer(Building),KMC vide order dated 10^thMay,2011 directed for demolition of the unauthorized construction. The petitioners amongst others, filed a writ petition before this Hon’ble Court and by virtue of the order dated 18^thApril,2012, the said demolition order was set aside and the KMC was directed to hear the matter afresh after granting an opportunity of hearing to the parties.

 

Despite the order being passed by this Hon’ble Court, the petitioners did not get the copies of the précis and demolition sketch and as such, did not get appropriate opportunity to file objection and by order dated 16^thOctober,2012, the Special Officer(Building),KMC again passed an order of demolition in the same line following and/or simply copying the order passed by the then Special Officer(Building),KMC on 10^thMay,2011 which was set aside by this Hon’ble Court. Subsequently, there have been proceedings before this Hon’ble Court regarding the opportunity of filing appeal and ultimately, the petitioners filed statutory appeal before the Municipal Building Tribunal against the said demolition order dated 16^thOctober,2012 by challenging the same. The Municipal Building Tribunal, by judgment and order dated 18^thSeptember,2015 passed in BT Appeal Nos.103 of 2013, 5 of 2014 and 110 of 2014 dismissed the said appeals and confirmed the order passed by the Special Officer(Building),KMC.

 

Challenging the said common judgment and order dated 18^thSeptember,2015 passed by the Municipal Building Tribunal as aforesaid, the revisional applications have been filed and they have been clubbed together and being heard together. By order dated 16^thOctober,2015, this Hon’ble Court was pleased to admit the revisional applications by directing service of copies of the same upon the opposite parties and was further pleased to grant stay of operation of the judgment and order impugned passed by the Municipal Building Tribunal which has been continuing till date.

 

It is pertinent to mention here that when the demolition proceeding initially started, the opposite party No.1, viz., Smt. Aloka Roy, the original owner of the said premises, was the “Person Responsible”(‘PR’ for short) for the alleged unauthorised construction in the said proceeding. However, subsequently, when the second round of demolition proceeding started after the order dated 10^thMay,2011 passed by the Special Officer(Building),KMC was set aside by this Hon’ble Court, the opposite party No.1, surprisingly and mysteriously, became the complainant instead of PR and the developer/promoter along with the subsequent purchasers became the PR. Since at any point of time the petitioners in these three revisional applications neither could get the copies of the documents on the basis of which the proceedings were initiated nor get inspection of record, they could never know how all these alterations in the record of the KMC took place and how a person shown as PR could subsequently become complainant in the same proceeding.

 

The other major aspect of the matter is that the allegation of unauthorized construction is with regard to (i) projection of cantilever on 1^st, 2^ndand 3^rd floor,(ii)construction loft and toilet,WC,(iii)shifting of  inside brick walls on different floors of the said premises within the same covered area, and (iv) conversion of one car parting space into a residential unit.

 

It is pertinent to mention here that all the alleged deviations are within the permissible limit or the within same covered area which have all along been recorded by the Special Officer(Building),KMC as well as Municipal Building Tribunal. Therefore,the deviations are not major. So far the conversion of car parting space is concerned, the same could be regularized by using the powers by the municipal authorities regarding change of user which is permissible in law.

 

Legal submissions:

As stated above, the alleged deviations are well within the permissible limit and/or covered area which could very well be regularized including the change of user by invoking powers under Section 416 of the Kolkata Municipal Act, 1980 (“The 1980 Act” for short).The alleged violations are not causing any inconvenience to any of the inmates of the building as alleged. furthermore, there has been much hue and cry that all the car parking spaces have been covered whereas despite the change of user at the ground floor, two car parking spaces are still there which are being used by the subsequent purchasers of the said premises.

 

The first and foremost question involved in the revisional applications is the authority and jurisdiction of the Special Officer (Building), KMC to pass demolition order as the Special Officer (Building), KMC is not the officer appointed in terms of the 1980 Act.By a judgment delivered by this Hon’ble Court (Harish Tandon,J.) on 2^ndDecember,2015 in the case of Susama Saha Vs. Kolkata Municipal Corporation reported in 2015(5)CHN 309,this Hon’ble Court held that the Special Officer(Building),KMC was not the officer appointed under the 1980 Act and could not be appointed by the Municipal Commissioner as such. Therefore, the Special Officer(Building),KMC was not having any jurisdiction to pass the order of demolition. Therefore, the demolition order passed by the Special Officer (Building), KMC suffers from the jurisdictional defect of coram non judice. The said judgment of this Hon’ble Court was carried in a Special Leave Petition by the KMC before the Hon’ble Supreme Court of India and the same was dismissed by the Hon’ble Supreme Court of India with liberty as prayed for by the KMC to seek review of the said judgment. A review application has been filed in this Hon’ble Court by the KMC and the same is still pending adjudication. Therefore, as on date, the judgment delivered by this Hon’ble Court in the case of Susama Saha (supra) holds good and in one of the decisions concerning the similar question, a Co-ordinate Bench of this Hon’ble Court(Partha Sarathi Sen,J.) in C.O.1089 of 2008 (Sri Nemai Naskar Vs. Sri Pradip Acharya & Ors.) followed the decision of Susama Saha (supra) as binding precedent and allowed the revisional application by setting aside the orders passed by the Special Officer(Building)KMC as well as the Municipal Building Tribunal and remanded the same to the KMC to start the proceeding de novo.

Copies of the judgment delivered in the case of Susama Saha (supra) and the subsequent judgment of a Co-ordinate Bench of this Hon’ble Court following the case of Susama Saha (supra) as binding precedent are enclosed herewith.

 

One more striking point is that the Tribunal has held that the deviations are not minor but major in nature. The Tribunal failed to consider the Kolkata Municipal Corporation (Regularization of Building) Regulations,2015 which came into effect on 20^thJune,2015, i.e., prior to the date of hearing of the appeal by the Tribunal wherein the KMC was empowered to regularize these kinds of deviations which are minor in nature. The Tribunal held that the deviations cannot be treated as minor deviations only because the same are causing inconvenience to the inmates of the building whereas the case remains that none of the inmates are complaining save and except the original owner. The regulations regarding regularization which came into effect in 2015 as aforesaid (“The 2015 Regulations” for short) did not specify or define as to which deviations would be treated as major and which deviations would be treated as minor.

​A copy of the 2015 Regulations is enclosed herewith. 

 

Therefore, the core jurisdictional question as to whether the Special Officer (Building), KMC was having jurisdiction to pass demolition order which is involved in the present revisional applications and has been held to be in favour of the petitioners in the case of Susama Saha (supra) and the subsequent decision of the Co-ordinate Bench of this Court rendered in C.O. 1089 of 2008, it is clear that the order dated 16^thOctober,2012, apart from the factual irregularities, hit by the principles of coram non judice and as such, without jurisdiction and void ab initio. As a result, the order passed by the Tribunal impugned, this revisional application fails on the same score and the same is also liable to be set aside.The law is settled by this time that the question related to coram non judice could be taken at any stage of the proceeding, even in the appellate stage or in a collateral proceedings also.

 

​It is pertinent to mention to note here that the KMC did accept the judgment and order rendered in the case of Susama Saha(supra) as after pronouncement of judgment in Susama Saha(supra),an amendment was brought in Section 400(1) 4^thProviso which empowered the Municipal Commissioner to appoint Special Officer to whom the Municipal Commissioner would delegate his powers and functions to decide the demolition proceeding. Therefore, it is clear that the order passed on 16^th October,2012 passed by the Special Officer (Building),KMC was without jurisdiction and consequently, the decision of the Tribunal without considering the plea of coram non judice is also without jurisdiction and both are liable to be set aside.

 

The opposite party No.1 has proceeded against the petitioners in the third revisional application being the developers/promoters seeking compensation along with the prayer for bringing a Completion Certificate(CC) from the Kolkata Municipal Corporation before the District Consumer Forum. The opposite party No.1 is seriously pursuing the proceeding before the said consumer forum and in view of the pendency of the demolition proceeding and consequent appeal as well as the present revisional applications before this Hon’ble Court, the developers/promoters are not entitled to the Completion Certificate.

 

In case thisHon’ble Court sets aside the order passed by the Special Officer (Building), KMC dated 16^thOctober,2012 and consequent impugned order passed by the Municipal Building Tribunal on 18^thSeptember,2015 by following the ratio decided in case of Susama Saha(supra) which is a binding precedent followed by the other coordinate Bench judgment following Susama Saha(supra) as a binding precedent, in that event, thisHon’ble Court may be pleased to grant liberty to the petitioners in the third revisional application being the developers/promoters to approach the KMC to obtain the Completion Certificate(CC) so that the grievances of the opposite party No.1 regarding grant of Completion Certificate as claimed before the consumer forum is met. In the event the Hon’ble Court directs for initiation of the proceeding de novo, in that case, the Hon’ble Court may pass specific direction that so long the proceedings before the appropriate authorities would be pending, the opposite party No.1would not be able to proceed with the prayer for grant of Completion Certificate (CC) as against the petitioners in the third revisional application being the developers/promoters before the consumer forum.

 

Reply to the submissions made by the KMC:

 

The KMC has submitted that since this Hon’ble Court in various orders passed in the writ petitions at the instance of the present petitioners time to time directed the Special Officer (Building), KMC to hear the matter, now the petitioners cannot turn back and question the jurisdiction of the Special Officer (Building),KMC as the same would be hit by the principles of res judicata. Such a submission is contrary to the cardinal principles of law because the principles of res judicata applies only in factual matters whereas the present question is a pure question of law regarding coram non judice which goes to the root of the matter and could be questioned at any stage and the orders passed by this Hon’ble Court cannot be construed against the principles of law but in accordance with law. As such, the said plea is contrary to law as well as contrary to record.

 

The KMC has further submitted that the appeals as well as the revisional applications at the instance of the apartment owners, the subsequent purchasers, being the petitioners in the first and second revisional application are not maintainable because they are subsequent purchasers and only the proceedings are maintainable as against the developers/promoters. Such plea and/or submission is also grossly contrary to the materials on record as the materials on record would reveal that along with the developers/promoters, the subsequent purchasers also received notices of hearing and participated in the demolition proceeding before the Special Officer (Building), KMC. It would further reveal from the materials on record that there was no such plea before the Municipal Building Tribunal on behalf of the KMC and such plea has been made for the first time before this Hon’ble Court which is not maintainable at all being grossly contrary to the materials on record. It is surprising that the KMC has made submissions against their own record. The KMC has cited three orders of Co-ordinate Benches of this Hon’ble Court passed in C.O.1541 of 2018, C.O.3722 of 2015 and C.O.3355 of 2017 wherein the Hon’ble Court did not accept the plea of based on Susama Saha( supra) as the same was taken at a very belated stage and for the first time before the Hon’ble High Court. The cited decisions differed from the present revisional applications because of the reason that in the present cases, the plea of coram non judice was very much taken before the Municipal Building Tribunal which was not accepted by the Municipal Building Tribunal. Subsequently, the same was raised in this Hon’ble Court as would be evident from the grounds in support of the revisional applications. Therefore, the plea of taking the point of coram non judice at the belated stage on the basis of which those three cited decisions were decided by this Hon’ble Court would not be applicable in view of the facts and circumstances of the present revisional applications. As in the present revisional applications, the points were very well raised before the Tribunal, and it has not been raised for the first time in this Hon’ble Court. Therefore, those three decisions would not be applicable in the present case. 

 

Reply to the submissions of the opposite party No.1:

 

The opposite party No.1 has submitted that Section 400 of the 1980 Act is a procedural law and since the Municipal Commissioner has been empowered to appoint Special Officer(Building),KMC and delegate his power to the Special Officer to hear the demolition proceedings by way of amendment bringing the 4^thProviso to Section 400(1) of the 1980 Act, the procedural law would retrospectively be applicable and the question of coram non judice could be cured by applying the amended provision retrospectively in the instant case. In support of the submission, judgment delivered in the case reported in 1991 SCC Online (Cal) 148, 2003 (6) SCC 659 and 2024 (3) ICC 825 (Cal) have been cited. The said submission is incorrect on the face of it because Section 400 is not a procedural law but a substantive law being the only provision regarding demolition proceeding and the consequent reliefs including the appeal. Section 400 starts with the salutary word “Order of demolition and stoppage of buildings and works in certain cases and appeal”. The very salutary word of Section 400 makes it clear that Section 400 is a substantive provision of law and as such, the submission made on behalf of the opposite party No.1that the same is procedural and amendments could be applied retrospectively has no legs to stand. Law is very clear that the provision of appeal, apart from any other power, is a substantive right which is conferred by the statute and the power giving rights to prefer an appeal under Section 400 makes it absolutely clear that Section 400 is a substantive law and not a procedural law. Therefore, the submission of the opposite party No.1 with regard to applying the amended powers of the Municipal Commissioner brought by the amendments in the form of 4^thProviso in Section 400 (1) is absolutely illegal and unknown to law.

 

Submissions:

In the circumstances, the revisional applications may be allowed by holding that the order passed by the Special Officer (Building), KMC dated 16^thOctober,2012 and the consequent order impugned dated 18^thSeptember,2015 passed by the Municipal Building Tribunal, both be set aside and the petitioners in the third revisional application being the developers/promoters be granted liberty to approach the KMC to obtain the Completion Certificate (CC) as prayed for by the opposite party No.1 in all three revisional applications, in the consumer forum. 

application Under Section 35 of the Consumer Protection Act, 2019

 

Before the Hon’ble District Consumer Disputes Redressal Commission, Kolkata Unit-III
Tramline Building (First Floor)
18, Judges’ Court Road, Alipore, Kolkata – 700027

 

 

CONSUMER COMPLAINT NO. ____ OF 2026

(Under Section 35 of the Consumer Protection Act, 2019)

 

IN THE MATTER OF;

 

Mr. Subrata Das, Son of Radharaman Das, aged about ______years, Residing at Premises No. 44/P/3, Hemanta Mukherjee Road, P.O. – Parnasree,
P.S. – Parnasree (formerly Behala),
Kolkata – 700060, District – South 24 Parganas, West Bengal.

… Complainant

- Versus -

 

1.   M/s. MIK Developer, a Proprietorship Firm, Having its office at Premises No. 90, Santosh Roy Road, P.O. – Barisha, P.S. – Haridevpur (formerly Thakurpukur), Kolkata – 700008, District – South 24 Parganas. Represented by its Proprietor Sri Soumen Chakraborty,
Son of Sri Ashok Chakraborty,
Permanent Address: Premises No. 90, Santosh Roy Road, P.O. – Barisha, P.S. – Haridevpur (formerly Thakurpukur), Kolkata – 700008, District – South 24 Parganas,
Presently residing at C/o Moumita Gain, Premises No. 4/49, Rajendra Prasad Colony, P.O. – Tollygunge, P.S. – Golf Green, Kolkata – 700033, District – South 24 Parganas.

 

… Opposite Party No. 1

(Developer)

 

2.   Sri Somenath Bhattacharjee, Son of Late Shib Prasad Bhattacharjee, residing at Premises No. 327, Diamond Harbour Road, P.O. & P.S. – Behala, Kolkata – 700034, District – South 24 Parganas, West Bengal.

3.   Sri Debjyoti Bhattacharjee, Son of Late Siba Prasad Bhattacharjee, residing at Premises No. 327, Diamond Harbour Road, P.O. & P.S. – Behala, Kolkata – 700034, District – South 24 Parganas, West Bengal.

 

… Opposite Party Nos. 2 & 3
(Land Owners)

 

CONSUMER COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019;

 

The Consumer Complainant most respectfully submits as follows;

 

MOST RESPECTFULLY SHOWETH;

 

1.   That the Complainant is law‑abiding citizens of India residing at the addresses mentioned above. The Complainant is a consumer within the meaning of Section 2(7) of the Consumer Protection Act, 2019, having purchased a residential flat for valuable consideration for personal residential use.

 

2.   That the Opposite Party No. 1 is a developer engaged in construction and sale of residential flats and is a service provider under the Act, 2019. The Opposite Party Nos. 2 and 3 are landowners who jointly developed the property with Opposite Party No. 1 and are jointly and severally liable for the acts complained hereof.

 

3.   That the Opposite Party Nos. 2 and 3 entered into a Development Agreement with Opposite Party No. 1, M/s. MIK Developer, which was duly registered as Being No. 160700510 of the year 2017, and also executed a Power of Attorney in favour of Sri Soumen Chakraborty, Proprietor of Opposite Party No. 1. By virtue of the said Development Agreement and Power of Attorney, Opposite Party No. 1 became legally entitled to sell the developer’s allocation of flats in the said project.

 

4.   That on 14.06.2024, the Complainant lawfully purchased from Opposite Party No. 1 one self-contained residential flat being Flat No. C-6, situated on the 3rd Floor (North-East side), with marble flooring, measuring about 750 sq. ft. Super Built-up Area, equivalent to 577 sq. ft. Carpet Area, in a G+III storied building lying and situated at Premises No. 367, Ho-Chi-Minh Sarani, within Ward No. 128 under Kolkata Municipal Corporation, P.S. – Parnasree (formerly Behala), Kolkata – 700061, District – South 24 Parganas, together with proportionate undivided share in land and common areas.

 

5.   That the total consideration for the said flat was Rs. 12,00,000/- (Rupees Twelve Lakhs only), which was fully paid by the Complainant to Opposite Party No. 1.

 

6.   That pursuant thereto, a Deed of Conveyance dated 14.06.2024 was executed and duly registered in Book-I, Volume No. 1604-2024, Pages 230477 to 230503, Being No. 160406673 of the year 2024, before the Office of the District Sub-Registrar, D.S.R.-IV, South 24-Parganas, West Bengal.

 

Photostat Copy of the said Deed of Conveyance dated 14.06.2024 was executed and duly registered in Book-I, Volume No. 1604-2024, Pages 230477 to 230503, Being No. 160406673 of the year 2024, is annexed herewith and marked as Annexure – “A”.

 

7.   That despite execution and registration of the said Deed of Conveyance and receipt of the entire consideration amount, the Opposite Parties have failed and neglected to hand over vacant and peaceful physical possession of the said flat to the Complainant till date.

 

8.   That the Complainant has repeatedly approached the Opposite Parties requesting delivery of possession. On several occasions, Opposite Party No. 1 assured that possession would be handed over shortly; however, even after lapse of more than one year, possession has been deliberately withheld.

 

9.   That such non-delivery of possession amounts to deficiency in service and unfair trade practice as defined under Sections 2(11) and 2(47) of the Consumer Protection Act, 2019.

 

10.                That the acts and omissions of the Opposite Parties have caused severe mental agony, harassment, and financial loss to the Complainant, who has been unlawfully deprived of enjoyment of his own property.

 

11.                That this Hon’ble Commission has the territorial jurisdiction to entertain, try and adjudicate the present complaint inasmuch as the subject-matter of the complaint, namely the residential flat in question, is situated within the territorial limits of Kolkata under the jurisdiction of Parnasree Police Station. Further, the Opposite Party No. 1 carries on business and has its office within the jurisdiction of Haridevpur Police Station, and the Opposite Parties also reside within the jurisdiction of Golf Green Police Station, all of which fall well within the territorial jurisdiction of this Hon’ble Commission.

 

12.                That this Hon’ble Commission also has the pecuniary jurisdiction to entertain the present complaint, as the value of the consideration paid by the Complainant for purchase of the said flat is Rs. 12,00,000/- (Rupees Twelve Lakhs only), which is well within the pecuniary limits prescribed under the Consumer Protection Act, 2019, read with the rules framed thereunder.

 

13.                That the cause of action for the present complaint first arose on 14.06.2024, when the Deed of Conveyance in respect of the subject flat was executed and registered in favour of the Complainant after receipt of the entire consideration amount, but the Opposite Parties failed and neglected to hand over physical possession of the said flat. The cause of action further arose on each and every subsequent date when the Complainant repeatedly requested and demanded delivery of possession, but the Opposite Parties deliberately avoided and refused the same. The cause of action is continuous and recurring in nature and is subsisting day by day till date, as the physical possession of the subject flat has not yet been delivered to the Complainant, causing continuous mental agony, harassment, and financial as well as social hardship to the Complainant.

 

14.                That the Complainant is constrained to seek compensation to the tune of Rs. 6,00,000/- (Rupees Six Lakhs only) for the immense mental agony, continuous harassment, acute hardship, and severe inconvenience suffered by him on account of the deliberate, illegal, and willful failure of the Opposite Party No. 1, in connivance with the other Opposite Parties, to hand over vacant and peaceful physical possession of the subject flat, despite execution and due registration of the Deed of Conveyance in favour of the Complainant and receipt of the entire sale consideration.

 

15.                That the Complainant has been subjected to prolonged suffering and uncertainty due to the continued non-delivery of possession for an inordinate period of time, which has caused serious disruption to his normal life and has deprived him of the basic dignity of having a settled residence of his own. The hardship suffered by the Complainant is further aggravated by his meagre earnings, as he has been compelled to reside with his family members under constrained circumstances, facing daily inconvenience, humiliation, and mental distress.

 

16.                That the acts and omissions of the Opposite Parties squarely constitute deficiency in service and unfair trade practice, and have forced the Complainant to initiate the present proceedings. The Complainant, therefore, also seeks an award of costs of litigation and incidental expenses incurred in pursuing the present complaint, as the same has become inevitable solely due to the unlawful acts, negligence, and persistent inaction on the part of the Opposite Parties.

 

17.                That the Opposite Party No. 1, M/s. MIK Developer, represented by its proprietor Soumen Chakraborty, is a habitual offender indulging in unfair trade practices, as is evident from the records of this Hon’ble Commission, wherein several consumer cases have already been decided against the said developer, and many other cases are still pending adjudication before this Hon’ble Commission. It is further submitted that Arrest Warrants have been issued against the said developer Soumen Chakraborty in several execution proceedings pending before this Hon’ble Commission, which clearly demonstrates his deliberate defiance of lawful orders and his intent to evade legal obligations.

 

18.                In view of the aforesaid conduct, the Consumer Complainant reasonably apprehends that the Opposite Party No. 1 has deliberately fled from his duty to deliver physical possession of the subject flat and is intentionally evading service of notice and lawful process. It is pertinent to state that the said developer Soumen Chakraborty is presently hiding at his in-laws’ residence situated at C/o Moumita Gain, Premises No. 4/49, Rajendra Prasad Colony, P.O. – Tollygunge, P.S. – Golf Green, Kolkata – 700033. Communications sent to his office address and residential address have returned unserved due to his continued absence; however, communications sent to the aforesaid in-laws’ address have been duly served upon him by the Postal Authority, which clearly establishes that the said Opposite Party No. 1 is deliberately concealing himself and is presently residing at the said address to evade his legal responsibilities.

 

19.                That prior to approaching this Hon’ble Commission, the Consumer Complainant, through his Learned Advocate, caused a legal notice to be issued to the Developer as well as the Land Owners by way of a letter dated 27th day of January, 2026, calling upon them to discharge their contractual and statutory obligations and to hand over physical possession of the subject flat along with all consequential reliefs. The said legal notice was duly served upon the Developer and the Land Owners; however, despite valid service thereof, none of the noticees have chosen to respond to the said legal notice, nor have they cared to send any reply or take any remedial steps whatsoever till date. Such deliberate silence, inaction, and utter disregard to the lawful demand of the Consumer Complainant clearly demonstrate their mala fide intention and non-cooperative attitude, thereby leaving the Complainant with no other efficacious alternative but to invoke the jurisdiction of this Hon’ble Commission under compelling circumstances to seek appropriate reliefs as prayed for herein.

 

Photostat Copy of the Legal Notice dated 27th day of January, 2026, postal receipts, and postal track reports are annexed herewith collectively and marked as Annexure – “B”.

 

20.                That the value of the consumer complaint for the purpose of jurisdiction is as Value of the subject flat (consideration paid): Rs. 12,00,000/-. The said valuation squarely falls within the pecuniary jurisdiction of this Hon’ble District Consumer Disputes Redressal Commission as prescribed under Section 34 of the Consumer Protection Act, 2019. The requisite court fee has been paid accordingly.

 

21.                That the Consumer Complainant, having lawfully purchased the subject residential flat and having paid the entire consideration amount, most respectfully seeks delivery of peaceful, vacant, and lawful physical possession of the subject one self-contained residential flat being Flat No. C-6, situated on the 3rd Floor (North-East side), with marble flooring, measuring about 750 sq. ft. Super Built-up Area, equivalent to 577 sq. ft. Carpet Area, in a G+III storied building lying and situated at Premises No. 367, Ho-Chi-Minh Sarani, within Ward No. 128 under Kolkata Municipal Corporation, P.S. – Parnasree (formerly Behala), Kolkata – 700061, District – South 24 Parganas, together with proportionate undivided share in land and common areas. The Complainant further seeks compensation to the tune of Rs. 6,00,000/- (Rupees Six Lakhs only) towards the immense trouble, harassment, and continuous suffering endured by him due to non-delivery of possession for a prolonged period, particularly considering his meager earning and the acute difficulties and indignities faced while being compelled to stay with his family members without a settled residence of his own. The Complainant also seeks award of the costs of litigation and incidental expenses incurred in pursuing the present proceedings, as the same has become inevitable solely due to the unlawful acts, omissions, and negligence of the Opposite Parties.

 

22.                That the present consumer complaint is filed by the Complainant in a bona fide manner and in the true spirit of the Consumer Protection Act, 2019, solely for the purpose of securing lawful reliefs arising out of the deficiency in service and unfair trade practices committed by the Opposite Parties. The Complainant has not suppressed any material fact nor has he approached this Hon’ble Commission with any ulterior motive, malice, or intention to harass the Opposite Parties. The complaint has been instituted in good faith, in the interest of justice, equity, and fair play, and to uphold the administration of justice, as the Complainant has been left with no other efficacious or alternative remedy except to invoke the jurisdiction of this Hon’ble Commission for redressal of his genuine and continuing grievances.

 

 

 

 

In the facts and circumstances stated hereinabove, the Consumer Complainant most respectfully prays that this Hon’ble Commission may graciously be pleased to;

 

a) Direct the Opposite Parties jointly and severally to hand over peaceful, vacant, and lawful physical possession of one self-contained residential flat being Flat No. C-6, situated on the 3rd Floor (North-East side), with marble flooring, measuring about 750 sq. ft. Super Built-up Area, equivalent to 577 sq. ft. Carpet Area, in a G+III storied building lying and situated at Premises No. 367, Ho-Chi-Minh Sarani, within Ward No. 128 under Kolkata Municipal Corporation, P.S. – Parnasree (formerly Behala), Kolkata – 700061, District – South 24 Parganas, together with proportionate undivided share in land and common areas, to the Complainant forthwith;

 

b) Direct the Opposite Parties jointly and severally to pay compensation of Rs. 6,00,000/- (Rupees Six Lakhs only) to the Complainant for mental agony, harassment, inconvenience, and suffering caused due to non-delivery of possession despite execution and registration of the Deed of Conveyance;

 

c) Direct the Opposite Parties to pay litigation costs of Rs. 50,000/- (Rupees Fifty Thousand only) or such other amount as this Hon’ble Commission may deem fit and proper;

 

d) Direct the Opposite Parties to comply with the order within a stipulated period, failing which the awarded amount shall carry interest at such rate as this Hon’ble Commission may deem fit from the date of default till realisation;

 

e) Pass any other or further order(s) as this Hon’ble Commission may deem fit and proper in the interest of justice and to secure the ends of justice.

 

AND FOR THIS ACT OF KINDNESS, THE COMPLAINANT AS IN DUTY BOUND SHALL EVER PRAY.

 

 

SCHEDULE OF THE PROPERTY

 

ALL THAT one self-contained residential flat being Flat No. C-6, situated on the 3rd Floor (North-East side), with marble flooring, measuring about 750 sq. ft. Super Built-up Area, equivalent to 577 sq. ft. Carpet Area, in a G+III storied building lying and situated at Premises No. 367, Ho-Chi-Minh Sarani, within Ward No. 128 under Kolkata Municipal Corporation, P.S. – Parnasree (formerly Behala), Kolkata – 700061, District – South 24 Parganas, together with proportionate undivided share in land and common areas.

 

 

VERIFICATION

I, Subrata Das, Son of Radharaman Das, aged about ______years, Residing at Premises No. 44/P/3, Hemanta Mukherjee Road, P.O. – Parnasree, P.S. – Parnasree (formerly Behala),
Kolkata – 700060, District – South 24 Parganas, West Bengal, the Complainant above named, do hereby verify that the statements made in paragraphs 1 to ___ of the consumer complaint are true to my knowledge and belief and those made in the remaining paragraphs are based on information received and believed by me to be true.

Verified at Kolkata, on this ___ day of __________, 2026.

 

 

__________________________
Subrata Das
(Complainant)

 

 

 

 

 

 

 

 

 

 

 

AFFIDAVIT

 

I, Subrata Das, Son of Radharaman Das, aged about ______years, by faith Hindu, by Occupation Auto Driver, Residing at Premises No. 44/P/3, Hemanta Mukherjee Road, P.O. – Parnasree, P.S. – Parnasree (formerly Behala), Kolkata – 700060, District – South 24 Parganas, West Bengal, do hereby solemnly affirm and state as follows;

 

1. That I am the Complainant in the consumer complaint filed before this Hon’ble District Consumer Disputes Redressal Commission, Kolkata Unit–III, and as such I am well acquainted with the facts and circumstances of the case and competent to swear this affidavit.

 

2. That the statements made in paragraphs 1 to ___ of the consumer complaint are true to my knowledge and belief and the statements made in the remaining paragraphs are based on information received by me from reliable sources and believed by me to be true.

 

3. That the present consumer complaint has been filed bona fide, in good faith, and in the interest of justice and the administration of justice, without any suppression of material facts and without any ulterior motive.

 

4. That this affidavit is made in support of the consumer complaint and for the purpose of obtaining appropriate reliefs from this Hon’ble Commission as prayed for therein.

 

 

 

DEPONENT
Identified by me,

 

 

Advocate

Prepared in my Chamber,

 

 

Advocate

Date : ________________2026

Place : Alipore Judges’ Court

 

N O T A R Y