This appeal is directed against the Final Order delivered by Ld. DCDRC, Malda dated 16.03.2021 in CC No. 1 of 2018.
The complainant Arun Roy and his wife filed the consumer complainant against Milan Mishra and others. The Opposite Parties did not contest the case. The case was heard exparte and Final Order was delivered infavour of the complainant.
The complainant case in nut shell is that the subject matter of the case i.e., the property situated Dist. Malda, PS Gazole, Mouja Gazole, J.L No. 83, Khatian No. 1647, 1648, 1649, Plot No. 575, 570, Area 600 Sqft alongwith staircase, common passage and balcony.
The property originally belongs to Milan Mishra S/O Makhanlal Mishra there after the said original owner decided for development the property by way of constructing a multi storeyed building for which the original owner was entered an agreement with the promoter Anjan Chowdhury and his brother Ranjan Chowdhury but due to absence of Ranjan Chowdhury maximum construction work already been constructed and agreement to sale was also been executed with the intending purchasers. Accordinglyon the basis of promise made by the opposite party one agreement was executed by Anjan chowdhury in favour of the Petitioner No. 2 in respect of flat area 600 Sq ft which mentioned in the schedule below property and agreement was executed on 15-11-2013. It is to be mention that one agreement was executed between Sikha Roy on behalf of herself and her husband and Anjan Chowdhury on behalf of himself and also on behalf of Ranjan Chowdhury and the amount also been received by the Anjan Chowdhury from Arun Roy i.e., one of the Petitioner times to time,
After execution the Agreement dated 15-11-2013 the maximum amount i.e., amount of Rs.6,50,000/-(Rupees Six lakhs fifty thousand) received by the opposite party from the Petitioner No. 1 out of Rs. 9,00,000/- (Rupees Nine lakhs the Petitioners enters into the 'B' schedule flat but as per plan and agreement the opposite party did not make construction, in this connection the Petitioners requested to the opposite party to perform the contact as early as possible as because the said work for clearance of common passage and electrification which is very much essential for human life but the opposite party did not solve the problem intentionally by ignoring the appeal and request of the Petitioners for which the Petitioners are suffering various difficulties. The opposite party violated the agreement intentionally and did not make any arrangement for common passage, electric connection not only that the opposite party are also intentionally creating troubles by way of obstruction on the passage which is being used an ingress and outgress from the flat as both the works are very much essential for human being.
So, the Petitioners has been compelled to file the instant petition for direction upon the opposite party for completion the work for common passage and work for electrification within specific time in default that a sum of Rs.2,00,000/- for the work of common passage and for the provision of electrification. Otherwise, the Petitioners shall be prejudice and deprived from the bonafide service as per agreement The opposite party has miserable failed to provide essential service as agreement due to their will full negligence of the opposite party as well as unfair trade practice.
The consumer complaint was admitted on 16.01.2018.
OP No.1 and 2 recorded their presence through Ld. Advocate by V. Nama but they did not file W.V within statutory period. So, the Ld. Forum placed the case exparte hearing.
Before exparte hearing, the OP No1 & 2 filed their separate W.V., which was kept with the record. They prayed for accepting the W.V. which was not entertained and the exparte hearing was concluded and Judgement was passed exparte.
Being aggrieved with this order the appeal was registered as the OP’s were not satisfied with the observations and decisions of Ld. Forum.
The appeal was admitted in due course and after receiving the notice of appeal. The complainants have contested the appeal.
Ld. Advocate of both sides has conducted the hearing of appeal before this bench.
Decision with reasons
During the course of hearing the appeal the Ld. Advocate of the complainant by furnishing a net copy collected from the Banglar Bhumi website and mentioned It is the version of the complainant that the land mentioned in the schedule of the complaint originally belongs to Milan Mishra but ironically, he has mentioned three khatians in the schedule of the complaint i.e., Khatian no. being 1647,1648 and 1649. The complainants have not produced nor exhibited any plot / khatian information or other documents relating to land of the schedule, before the District Commission to show that the land of all the three khatians belong to Milan Mishra alone. The complainants have withheld the same. Those three Khatian information has been produced before the Hon'ble Commission and from that information it would appear that khatian no. 1647 belongs to Mohanlal Mishra, khatian no. 1648 belongs to Kalyan Mishra and khatian no. 1649 belongs to Milan Mishra.
Hence, those Kalyan Mishra and Mohanlal Mishra were the necessary parties to the case who have not been impleaded in the original case. Hence, in absence of any documents relating to land, the observation of the District Commission that the O.P. No. 2 is a real owner not absolutely correct and the directions of the Ld. District Commission upon the O.P. No. 2 is not at all tenable in law.
Ld. Advocate of the respondents by counter argument mentioned that the appellant and the said Anjan Chowdhury, the proforma Respondent made living in the flat which the Respondents made their residence after necessary payments were made as per the agreement a hell on earth by denying them electricity and thereby denying supply of piped water. At times the respondents have to carry water in buckets from the well two floors below.
The appeal, thus, is misconceived, without any basis and evidently is a ploy to delay execution of the order of the Ld. D.C.D.R.C., Malda in case No. D.F.C. case No. 01/2018 with a motive to make Respondent No. 1 and 2 leave the property making way for the appellant and the proforma respondent to seek buyers ready to pay a higher price that is prevalent at present.
After going through the WNA of both sides and on perusal of relevant documents in record it is found that OP No. 1 Anjan Choudhary and his brother executed agreement / Baynama while while Ranjan Chaudhary was not impleaded as a party to the case for the reasons become unknown.
Secondly, the agreement and the residential complex covers plot No.575 and 570 which appurtenant to Khatian No. 1647,1648 and 1649 respectively. Land record speaks that Khatian No. 1647 and 1648 stands with name Mohanlal Mishra and Kalyan Mishra, while Khatian No 1649 stands in the name of Milan Mishra.
In the present case only, Milan Mishra was impended as OP No. 2 in consumer complaint. But Kalyan Mishra and Mohanlal Mishra were not included as party to the case though they are necessary party .
Ld. Forum has disposed of the case in haste and did not give opportunity to OP to plead their case while they furnished the W.V. in belated stage due to covid pandemic.
So, in apparent and on the very outset, Ld. Forum has adjudicated the dispute in irregular manner and no Judicial approach was exhausted.
So, in order to protect the interest of justice. The instant Final Order under appeal should be set aside with an approach to rehear the case judiciously after giving opportunities to the parties to go on with their cases with merit after necessary change in their pleadings.
Ld. Advocate of the respondent mentioned that if the case remands back, necessary order should be passed so that the complainants who are presently in habituating in the said residential complex should get the uninterrupted electricity and water supply.
Hence, it is ordered
That the instant appeal be and the same is allowed on contest without cost. The Final Order of Ld. DCDRF, Malda dated 16.03.2021 in CC No. 1/2018 stands set aside.
The Ld. DCDRF Malda is hereby requested to re-hear the case afresh after accepting the W.V. already filed by the OP No. 1 & 2. The complainants begiven the liberty to amend the consumer complaint and to implead necessary parties.
Ld. Forum shall also entertain the application of the complainants if they file for electricity supply and water supply to their flat in the said residential complex and pass necessary order.
Fresh W.V. of additional W.V. if the parties want to file, shall also to be considered.
Both parties are asked to appear on 14.09.2022 for fixing the schedule of re-hearing before the Ld. Dist. Commission.
Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. Forum.
