DATE OF FILING : 23-02-2010.
DATE OF FINAL ORDER : 30-06-2010.
Akhtar Ali,
s/o. Abdul Gaffar,
of 75 and 76, Ganga Ram Bairagi Lane,
P.O., P.S. and District. Howrah COMPLAINANT.
Versus -
1. Asif Ekbal,
s/o. Late Md. Hanif,
of 92, Ganga Ram Bairagi Lane,
P.S. and District.Howrah, Pin.711 101.
2. Abdul Khalique,
son of Late Razzak Mia.
3. Latifunnessa,
w/o. Late Kamruddin,
of 75 and 76, Ganga Ram Bairagi Lane,
P.S. and District. Howrah. OPPOSITE PARTIES.
P R E S E N T
1. Honble President : Shri J. N. Ray.
2. Honble Member : Dr. Dilip Kr. Chakraborty.
3. Honble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representative for the complainant : Sk. Abdul Majid,
Ld. Advocate.
Opposite party nos. 1, 2 and 3 : Ex parte.
F I N A L O R D E R
This is to consider an application U/S 12 of the C.P. Act, 1986 praying for possession and / or re-instate the complainant in the scheduled flat and compensation on the ground of deficiency in service.
Fact of the case, in brief, is that the complainant was a tenant under the o.ps. at 75 and 76, Gangaram Bairagi Lane, P.S. and District – Howrah on payment of monthly rent of Rs. 170/- per month. On 21-07-2008 the complainant entered into a written agreement for vacating his tenanted premises temporarily to construct a multistoried building by the o.ps. and the complainant shifted therefrom temporarily and also shifted all materials and belongings from the tenanted portion. Accordingly, the complainant vacated the room on or about 1st day of August, 2008 and shifted his all belongings and left the premises. As per agreement the o.ps. agreed to re-instate and / or accommodate the complainant in his tenanted premises as described in the schedule of the agreement within six months from the date of vacating the existing possession i.e., from 01-08-2008. The o.ps. demolished the old existing structure and as per agreement dated 21-07-2008 the o.ps. had to complete the multi- storied over the property comprised of holding no. 75 and 76, Gangaram Bairagi Lane, P.S. and District . Howrah. It was settled that after completion of the flat the o.ps. would give the new possession in the ground floor to the complainant. But o.ps. failed to deliver the possession to the complainant within the stipulated period in accordance with the terms and conditions of the agreement. O.ps. have already completed the multi-storied building and complainant met with the o.ps. several times to give effect to the agreement but all are in vain. So the complainant is suffering great mental pain and he has suffered economical loss also as to pay the rent of the alternative accommodation. The complainant and his family members are facing very much trouble. As the o.ps. refused to handover the possession to the complainant, seeing no other alternative complainant sent a lawyers notice to o.ps. on 19-06-2009. After receiving the notice the o.p. no. 1 replied by a letter dated 08-07-2009 by his ld. Advocate Mohammad Arif denying the same and as such the complainant filed this instant case to get relief before this Ld. Forum.
O.p. no. 1 appeared in this case but did not file written version. O.ps. no. 2 and 3 did not appear before this Forum though the notices were duly served upon them. So the case was fixed ex parte against o.ps. no. 2 and 3.
On the date of final hearing o.p. no. 1 was also absent. So the case was heard ex part against all the o.ps.
In view of the pleading of the parties following points arose for determination :
Is the complainant is a consumer under the meaning of C.P. Act, 1986 ?
Is there any deficiency in service on the part of the o.ps.?
Is the complainant entitled to get an order in terms of Section 14 of the C.P. Act, 1986 ?
DECISION WITH REASONS :
POINT NO. 1 :
It reveals from the documents that the complainant was a tenant under the o.p. no. 2. The complainant has filed deed of agreement. The agreement was between the complainant and o.ps. no. 2, 3, land holder, and o.p. no. 1, developer. In the said agreement Forum has observed that the complainant is a tenant in respect of shop room situated on the eastern side of the ground floor at holding no. 75 and 76, Gangaram Bairagi Lane, P.S. and District Howrah 711 101, at a rental of Rs. 170/- only payable according to English calendar. In that agreement it was agreed between the parties that the complainant would get new possession of scheduled room and that portion shall be used as residential cum business purpose in future. It is revealed from the agreement that the complainant was certainly a tenant under o.p. no. 2 but he run a business in that tenanted portion. In the agreement the complainant was approached to vacate his shop room temporarily. So it is clear that the tenanted portion was used by the complainant for commercial purpose and as per agreement the complainant would get the scheduled portion for his commercial cum residential purpose.
Therefore, the Forum concludes that the complainant has prayed for possession of the scheduled flat for commercial purpose. Moreover, the complainant did not produce any document in support of self-employment for the purpose of his livelihood. Hence the complainant is not a consumer under the meaning of C.P. Act, 1986. The Forum has no jurisdiction to pass any order U/S 2(1)(d) of the C.P. Act, 1986.
POINT NOS. 2 and 3 :
From the complaint petition Forum has observed that the address of the complainant is 75 and 76, Gangaram Bairagi Lane, P.S. and District Howrah 711 101. The complainant has prayed the possession for the same premises. The Forum has enquired about this matter. The counsel for the complainant cannot satisfy the Forum why the false address was written in the complaint petition. The Forum has asked to produce the document which proves the present temporary address of the complainant. The complainant cannot furnish any document proving in support of his present address.
As per agreement the complainant has entered into an agreement dated 21-07-2008. Following that agreement the complainant may get the scheduled portion from o.ps. but that is simply a civil dispute. The Forum has no jurisdiction to pass any order to give any relief to the complainant. As the complainant is not a consumer under the meaning of C.P. Act, 1986 so there is no scope to pass any order for deficiency in service on the part of o.ps.
As points no. 1 and 2 fail consequently the point no. 3 fails.
Therefore considering the aforesaid circumstances the complainant is not entitled to get any order in terms of Section 14 of the C.P. Act, 1986.
Points under consideration are accordingly decided.
In the result the application fails.
Hence,
O R D E R E D
That the consumer complaint is dismissed ex parte against all the o.ps. without cost.
Let copies of the order be supplied to the parties, free of costs.
