MRS. FIROZA KHATOON, PRESIDENT
The complainant’s case in a nutshell is that the opposite party no.1 namely Bikash Khara is the power of attorney holder executed by the land owners of the suit property i.e. premises no.12/1/H/8, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037.
Sri Swapan Talukder, Sri Ashis Talukder and Sri Gopal Talukder being owners executed and registered a general power of attorney on 27.12.2017 in favour of opposite party no.1 to manage their property being premises no.B/12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037. Thereafter, Mrs. Bidyut Paul and Mrs. Tanusree Chowdhury being owners executed and registered a general power of attorney dated 11.01.2018 in favour of opposite party no.1 to manage their property i.e. premises no. B/12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037.
Thereafter, opposite party no.1 being empowered by the aforementioned two general power of attorneys entered into two agreements for lease dated 19.09.2018 for 99 years each in respect of one that measuring about 960 sq. ft. (super built up area on the 2nd floor) and in respect of another flat measuring about 720 sq. ft. (super built up area on the 3rd floor) of premises no.12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037 with the complainant. The opposite party no.1 started the work of construction and accordingly the complainant paid a sum of Rs.8,00,000/- (Rupees eight lakhs) only to the opposite party no.1 but opposite party no.1 has not completed the work of construction as per terms and condition of the deed of lease within 15 months. On the other hand, opposite party no.1 informed the complainant that one Prasanta Mondal, opposite party no.2 herein will complete the balance construction work and handover the possession of the flats to the complainant very soon. Accordingly the complainant served a letter dated 10.02.2021 upon opposite party no.2 through his advocate to which the opposite party no.2 did not reply. The complainant alleges that the opposite parties are liable for deficiency in service and unfair trade practice. Hence this case.
It appears from the record that notices were duly served upon opposite party nos.1 and 2 but none of them appeared in the case.
The case proceeded ex-parte against opposite party no.2 vide order no.5 dated 03.11.2021 and against opposite party no.1 vide order no.6 dated 23.11.2021. Thereafter the opposite party no.2 appeared and filed written objection against the prayer of injunction order submitted by the complainant.
It further appears that on the point of maintainability of the case the Commission heard both the complainant and opposites party no.2 on 25.03.2022 and the Commission held the complaint case maintainable with a further observation that the question whether the property is a thika tenancy property or not, will be decided after adducing evidence by the party and a date was fixed for filing written version by the opposite parties.
In spite of such order opposite party no.2 did not care to file any written version in the case and ultimately the case was heard ex-parte against both the opposite parties.
However the opposite party no.2 cross-examined the complainant by filing questionnaire in this case.
Point for decision
- Is the complainant entitled to get relief as prayed for ?
Decision with reasons
The complainant filed affidavit in chief on 06.06.2022 but no documentary evidence submitted by the complainant. Opposite party no.2 cross-examined the complainant by filing questionnaire to which the complainant filed reply on affidavit on 14.11.2022. It further appears from the record that opposite party no.2 filed affidavit in chief and cross-examined by the complainant to which opposite party no.2 submitted reply on affidavit.
Point no.1
It is needless to reiterate that the complainant has not filed any documentary evidence in this case. Though he referred in his evidence in chief two power of attorney dated 27.12.2017 and 11.01.2018. That a part the two agreement for lease dated 19.09.2018 were also not submitted in evidence.
However we find both the registered power of attorney dated 27.12.2017 and 11.01.2018 and both agreement for lease dated 19.09.2018 in record which was filed by the complainant at the time of filing of the case.
In the both power of attorney dated 27.12.2017 and 11.01.2018 the premises number is mentioned as ‘B/12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037’ but in the both agreement for lease dated 19.09.2018 the premises number is mentioned as ‘12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037’. There is no pleading or evidence of the complainant that premises no.B/12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037 and premises no.12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037 is one, same and identical premises.
During the hearing of the maintainability of the case some documents were filed by the opposite party no.2. Same documents also filed by opposite party no.2 in his affidavit in chief. Be it mentioned here, such evidence of opposite party no.2 do not get support of any pleading of opposite party no.2. However, from the tax receipts of the Kolkata Municipal Corporation for the year 2021-2022 it appears the name of the owner of premises no. B/12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037 is B. Romoni Mohan Talukder and a photocopy of challan (TR From. no.7) reveals one Rangalal Talukder deposited adhoc rent of Rs.528/- (Rupees five hundred twenty eight) only in respect of premises no. 12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037 in favour of Kolkata Thika Tenancy on 09.05.2019. The address premises no.‘B/12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037’ or the address premises no.‘12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037’ itself suggests the premises is hut in nature and it is Thika Tenancy property. Which also gets support from the photo copy of challan (TR From no.7) for the year 2009.
The name B. Romoni Mohan Talukder which appears in Kolkata Municipal Corporation tax bill for the year 2021-2022 as owners of premises no.B/12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037 suggests possession of B. Romoni Mohan Talukder in respect of aforementioned premises. By no stretch of imagination tax bill of Kolkata Municipal Corporation can be considered as a document of title of any property.
Moreover, the two registered power of attorney dated 27.12.2017 and 11.01.2018 do not disclose the civil status of the executants in respect of premises no.B/12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037. It is only mentioned that the executants are absolutely ceased and possessed and sufficient entitled to all that piece and parcel of undivided land measuring an area of 4 cottah more or less together with structure with three number existing tenants of the said premises.
It is apparent on the face of the document that the executants remained silent regarding their title over the premises no. B/12/1/H/8. No document of title in respect of the premises referred above has been submitted by the complainant in proof that the executants of two power of attorneys are the absolute owners of the premises in question. No document has been submitted by the complainant to show that no objection certificate has been obtained from the Thika Controller in compliance with section 5(1)(b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 for completing or re-building of the premises or any sanctioned building plan obtained from Kolkata Municipal Corporation. Moreover, as per section 4 of the Act, the interest of thika tenant holding directly under the State under sub-section (1) shall be heritable and shall not be transferable to any third party and according to section 5(a) of the Act, the holding can be developed for residential and business purposes for themselves and the Bharatias under them.
The complainant has miserably failed to prove the locus standi of opposite party no.1 to enter into the aforementioned two agreements for lease for 99 years in respect of the flats mentioned therein situated at premises no. 12/1/H/8, Paikpara, Raja Manindra Road, P.S. Chitpur, Kolkata- 700037.
Having considered the discussion made above we have no hesitation to hold that the both agreement for lease for 99 years are void abinitio and cannot be enforced in law.
Therefore point no.1 is decided against the complainant.
The case of the complainant fails.
Fees paid correct.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed ex-parte without cost.
Dictated and corrected bu me
….....................
President
