This is an application u/s.12 of the C.P. Act, 1986.

          Both the complainants Jayanta Das and Sambhu Das by filing this complaint has submitted that by an agreement dated 24-08-2012 between the complainants nos.1 and 2 and the OPs nos.1 and 2, OPs agreed to sale two flats; one on the ground floor measuring 335 sq. ft. in favour of the complainant no.1 and another on the 2^nd floor measuring 335 sq. ft. at premises no.16/1/H/53, Muraripukur Road, Kolkata – 700 067 and as per agreement complainant shall not bear any cost of construction of those two flats and as per the terms of the said agreement the complainants as old tenants are entitled to get the same as per said agreement and consideration of such transfer is the delivery of possession at the time of construction of the said building.

          As per agreement the construction shall be completed within 12 months from the date of execution of the agreement dated 24-08-2012 and as per said agreement OP shall have to deliver possession and transfer the two flats in favour of the complainants prior to sale of other flats to the third parties without making any claim of money for such flats from the complainants who shall bear the registration costs only and fact remains there is an agreement for development of the above premises between the OPs no.1 and 2 but construction has been made up to five floor but OP 1 has provided one small room to the complainant without allowing them to use bath and privy and also supply of water in the said building.

          Complainants repeatedly requested the OPs to implement the terms of the agreement dated 24-08-2012 but ultimately they failed to comply the same and in the above circumstances, complainant under registered post with A/D sent a notice through his lawyer on 31-07-2013 asking them to give delivery of possession of the two flats as per referred agreement dated 24-08-2012 and to execute and register the sale deed within fortnight from the date of such notice.  But anyhow the OP had deliberately avoided the service thereof and the notice upon the OP2 has been duly served.  In spite of such service the OPs failed to comply the terms and condition of the agreement and for which complainant is compelled to file this complaint for redressal for negligent and deficient manner of service of the OP and for violating the terms and condition of the said agreement.

          On the other hand, OP by filing written statement has submitted that the case is barred by principle of estoppels, waiver and acquiescence and fact remains complainants are not the tenant under the OP and further submitted the land upon which the construction was made is a Thika Tenanted land which cannot be transferred or sold by any deed of registration as per Thika Tenancy Act, 1979 (amended up to date) it is further submitted that building is a dilapidated condition and as such it is necessary to remodel or to reconstruct and fact remains complainants are sitting intact and keeping the room unauthorizedly, so, the premises could not be repaired or developed as such OPs have been compelled to entire into the agreement on the point of threat.  Further it is submitted that no sanctioned plan was obtained from KMC so the question of registration does not or cannot arise at all and for the sake of the argument it is accepted that complainant is a tenant under the OP in that case present complaint is not maintainable and no consideration was passed or any payment in view of that flat is paid by the complainant whatsoever.  So, the case of the complainants is fictitious and fact remains Sambhu Das already took Rs.2 lakhs from the OP for vacating the room.  No monetary transaction was done by Sefali Das, mother of the complainants who is not tenant in the said premises and there is no document to show that complainants and their mother was tenant in the said premises and as because Sefali Das and complainants were unauthorized occupants of the said premises, the question of providing each of them 335 sq. ft does not or cannot arise at all.  So, the complainant cannot get any benefit by misusing or abusing the provision of the C.P. Act and the complainants are not entitled to get any relief under the C.P. Act under the relation of the landlord and complainants does not come within the purview of the C.P. Act and in this case complaint should be dismissed.

Decision with Reasons

A proper study of the entire materials on record including the fact as disclosed in the complaint and finally answer of the complainant against the questionnaire made by the OP it is clear that OP became the owner of the said premises by devolution of the interest of the said property but complainants aim is that both the complainants are tenant on the death of their father and uncle and their uncle and father already died and now the present complainants are tenant but it is equally true that in respect of the present structure West Bengal Premises Tenancy Act does not apply but the land is situated in the Thika Tenancy Land so this act is applicable and further fact is that in respect of the Thika Tenancy Land no sanctioned plan can be issued by the KMC without the prior permission of the Thika Tenancy Authority and when it is a Thika Tenancy Land remodeling by Thika Tenancy Act allowed reconstruction but no portion of the Thika Tenancy Land or structure can be sold by the Thika Land owner by any means.  So, as per agreement OP has his own legal right to sale the two flats in favour of the complainants without the permission of the Thika Tenancy Authority.  Fact remains complainant has been residing in a small area on the said structure on the ground floor and truth is that no consideration was passed and at the same time complainant has failed to produce any document to show that he was a Thika Tenant under the land of the OP, no such document has also been filed.  But admitted position is that by that agreement OP1 has admitted that Jayanta Das and Sambhu Das were tenants and after development they shall be placed to in respect of the two flats consisting of 335 sq. ft. and Jayanta Das shall have to get such an area of flat having one bed room, one kitchen, one verandah, one dining on the 2^nd floor whereas Sambhu Das shall have to get similar area of flat on the ground floor.  But in the present case, in fact, Sambhu Das and Jayanta Das both of them have filed this case and if we rely upon the said agreement in that case it is proved for the purpose of development of the Thika Tenancy Land and house OP1 took help of the OP2 and remodel the said building but for that reason no plan was sanctioned by the KMC and OP did not collect it.  But anyhow complainants’ tenancy right appears to us as Thika Tenancy Right but Thika Tenancy Right in respect of suit property cannot be determined by this Forum.  If complainants are Thika Tenancy and their right is being infringed by the OP in that case complainant must have top appear before the Thika Tenancy Tribunal for proper decision.

          Regarding this agreement we can say that, in fact, there is no consideration was passed and as per Thika Tenancy Act, 1979 the present OP1 has no legal right to transfer the same to anyone without the permission of the Thika Tenancy Tribunal and Authority but fact remains at the time of remodeling complainants were replaced to some other places by the OP1 and OP1 agreed to replace them after remodeling.  Remodeling has already been completed but OP1 has not replaced the complainant in the two separate flats as described in the agreement.  But question is whether complainants have any Thika Tenancy right or not but we are not entering into that matter but relying upon the agreement and also considering the admission of the OP that the said agreement was executed and also admitted that complainant used to reside in the said premises then invariably complainants should be replaced in respect of flats as per measuring as per said agreement and in that respect the consideration is that they shifted from the old house as per request of the OP1 and as per agreement and when the construction has been completed it is the duty of the OP1 to replace them and in this regard National Commission has already been observed that if any tenant is replaced from the old structure for the purpose of remodeling or reconstruction in that case after reconstruction they shall be replaced there and if the landlord does not permit in that case some other Forum has jurisdiction to replace the same considering the shiftment of the tenant to some other places by the landlord during the period for construction of the building and considering that fact we are convinced to hold that no doubt OP1 as landlord is not permitted to execute any sale deed in respect of Thika Tenanted Land without the permission of the Thika Tenancy Authority and Tribunal but in view of the National Commission OP1 must have to replace the complainants in two flats as tenant as per agreement when in the agreement OP1 has admitted that they were tenants and they were in the old structure whether it is authorized or unauthorized it shall be decided by the Civil Court but when OP1 has admitted as tenant and agreed to replace them two different flats then OP1 is bound to do that legally but fact remains OP1 is not willing to do that for which complaint is compelled to file this complaint before this Forum.  But anyhow after considering the agreement it is found Arup Chowdhury, OP2 was not signatory of the said agreement that means Arup Chowdhury, OP2 was not a party in the said agreement.  When that is the fact then it can safely be said that this complaint is not maintainable against OP2 because that agreement is not binding upon OP2.  In the light of the above observation we are convinced to hold that complainant is entitled to relief in part and practically complainants are entitled to be replaced in two separate flats having an area of 335 sq. ft. as described in the body of the complaint and scheduled of the complaint one on the ground floor and another on the 2^nd floor.

          Accordingly, complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest against OP1 with cost of Rs.5,000/- (Rupees Five thousand only) but the same is dismissed ex parte against OP2 but without any cost.. 

OP1 is hereby directed to accommodate the complainants in the newly remodeled flats as per agreement and as per schedule of the agreement dated 18-11-2011 actually within two months from the date of this order by delivering possession to the complainants failing which OP1 shall have to face consequences and for that reason invariably for non-compliance of the Forum’s order OP1 shall have to pay punitive damages @Rs.20,000/- per month till replacement of the complainants into their respective flats of the case premises as per agreement dated 18-11-2011 executed in between the complainants and OP1 which is admitted by the OP1 also.

Even if the OP1 is found reluctant to the comply order in that case penal proceeding u/s.27 of the C.P. Act shall be started against him and further penalty shall be imposed.