This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant is one of the joint owners of all the piece and parcel of land measuring an area of about 5 Cottahs 8 Chittaks 18 sq. ft., more or less together with partly one storied building standing thereon lying situate at and being the Premises No.7/3C, Miazan Ostagar Lane, P.S. Karaya, Kolkata – 700 017.
Being the owner of the aforesaid property the complainant and OP entered into an agreement between themselves dated 07-02-2009, as owners and contractor/developer respectively, whereby complainant offered their valuable aforesaid property for demolition of the existing structures therein and construction of new building on their behalf and the OP accepted such proposal.
The value agreed to be paid to the OP for observing or performing an extending cooperation such as demolition of the existing structures, obtaining sanctioned plan, causing construction of the new building as per sanctioned plan with standard or quality materials, take up all procedures including giving alternative accommodation to the existing tenants for completion of the building project at his own costs and expenses, is the allocation of construction area to the OP in terms of the said agreement and in lieu of such observance and performance of the aforesaid obligations.
OP shall have to handover the owners allocation construction area in the new complete building with all essential facilities and in habitable condition in respect of new building is a) entire ground floor, b) 45 percent of the second floor(southern or northern) portion, c) 45 percent of the third floor(northern or southern) portion, d) entire roof of the building (as mentioned in the scheduled document). Further OP shall have his allocation as his remuneration a) Entire First Floor, b) 55 percent of the second floor(southern or northern) portion and c) 55 percent of the third floor (northern or southern) portion of the new building as more fully and particularly mentioned in the schedule C and also existing tenants shall be provided accommodation out the aforesaid owners’ allocation as complainant’s allocation and at the same time complainant/owners shall have first preference to take the portion of the said building from the allocation portion of the promoter, i.e. the OP and upon written consent of the complainant.
Whereas complainant shall sign all necessary papers or applications, documents as and when required by the Kolkata Municipal Corporation for obtaining the sanctioned plan of the building in the said premises. Similarly, complainant shall have to execute a Power of Attorney in favour of the OP.
Similarly, developer shall demolish the existing structure after making temporary provision for the accommodation of the existing tenants and others who are residing in the said premises and shall have the right to take all the fittings and fixtures and bricks etc. available from the demolished building and also shall get the proposed sanctioned plan sanctioned from KMC and supervise the entire construction and all such purposes, entire cost of the construction of the said building shall handover the owners’ allocation within a period of 18 months from the date of obtaining the sanctioned plan and in default to complete the aforesaid building within the said stipulated period of 18 months, the expenses incurred by the Developer(the OP) shall stand forfeited and he shall have no claim to enforce the aforesaid agreement. At the same time OP shall have his right enter into agreement of tenancy and take money as advance from incoming new tenants who may be inducted in respect of his share of allocation and the owners shall be a confirming party as well as consent to such agreement.
Fact remains OP constructed more or less all erections in respect of the said new building and has in fact without demarcating the complainant’s allocation of the constructed area in the said property and handing over possession thereof to the complainant in terms of the aforesaid agreement, is trying to induct tenants or new occupants and/or creating third party interest in respect of the said property unilaterally and arbitrarily and OP failed and neglected to handover possession of the owners’ allocation of the constructed area.
Even after cooperation extended by the complainant as the owner of the aforesaid property to the OP, OP developer/contractor has not completed their part performance as per said development agreement. But as per terms and condition of the said agreement complainant and owners are entitled to get their possession in respect of their allocation after fully demarcating the same in complete manner but OP has not done it as yet. Question of delivering the possession by the OP to the complainant is a far cry, complainant again and again requested the OP to allocate the complainant’s allocation after proper demarcation but that had not been done and in this circumstances for negligent and deficient manner of service and also for adopting unfair practice deceiving the complainant, the complainant was compelled to file this complaint for proper redressal.
On the other hand OP by filing written statement has submitted that the entire complaint is false and fabricated and is full of mis-statement of fact, suppression of material particulars and misleading one but it is filed by the complainant with an intention to harass the OP and to dislodge the OP from said premises. It is specifically mentioned that one tenant namely Tufail Khan filed a Title Suit no.2558 of 2009 before the Ld. 2nd Civil Judge, Junior Division at Alipore, against the OP and Ld. Court was pleased to pass an injunction order to maintain status-quo to both the parties which still pending before the Ld. Court and in fact for that reason OP has not been able to proceed with the construction work and in the above circumstances, entire complaint is false and fabricated so, same should be dismissed.
Decision with Reasons
On an indepth study of the complaint and written version and also considering the evidence and further considering the argument of complainant and OP it is clear that as per said agreement dated 07-02-2009 Sk. Hyder Ali, Tahera Khatoon, Sultana Qamar, Musarrat Sultana, Rizwan Ahmed, Munni Begum, Md. Faiyazuddin alias Tinku, Md. Akbarniaz Uddin, Md. Niazuddin, Md. Samiruddin, Md. Amiruddin, Me. Imtiazuddin are the first party landowners as per said agreement and OP is the second party as developer/contractor as per that agreement. Truth is that as per agreement date of delivery of possession and allotment of the owner’s allocation as specifically mentioned in the third schedule (Page 13) of the said agreement.
At the same time as per agreement allocation of the owners shall be made within 18 months from the date of sanctioned plan but fact remains in the mean time six years already expired from the date of sanctioned plan but OPs have not handed over the possession in respect of the allocation of the landowners and his tenants and that has not been denied by the OPs in their written statement. Their case is that one tenant has filed the suit against the OP and so, OP is not able to hand over the owners’ allocation.
Peculiar factor is that OP has not filed any such order of the court or copy of plan and written version of himself and landowners in respect of the dispute of that said particular title suit being No.2558 of 2009. Another factor is that the present complaint is filed by Hyder Ali but Hyder Ali is not entitled to get entire owner’s allocation or any particular flat as per said agreement. But truth is that the above mentioned 12 land owners of the said premises are entitled to get owners’ allocation jointly without any specification of particular owners’ allotment. So, considering that fact it is clear that may be complainant has filed this case for the owners and no doubt if any order is passed that shall be passed as per clause of agreement but truth is that OP has not handed over the same to the owners (12 persons as per agreement) and out of that 12 persons present complainant’s share is one of the co-sharer owners. No doubt he has his grievance and grievance is justified. Fact remains OP has failed to perform his part performance but reason as shown by the OP is not justified and legal because it is the legal duty of the OP to do the needful but that has not been done, no copy of order of Civil Court is filed to prove that OP is debarred to proceed with execution of the work and fact remains that a tenant has filed a case against the OP which is nothing but a prepared one and it has been done by the OP for the purpose of lingering the matter so, considering the above facts and circumstances, we are convinced to hold that there is deficiency, negligence on the part of the OPs. Truth is that OP has constructed the entire building on the land of the complainant and other co-sharers as per agreement but owners’ allocation has not yet been made so, deficiency, negligence on the part of the OPs is proved and it is also proved that OP is trying to induct tenants without consent of the owners and that is completely beyond the jurisdiction of the OP and OP cannot induct tenant or to sell any flat to any third party without the consent and signature of the owners including the complainant as one of the co-sharers.
No doubt such sort of act on the part of the OP tantamounts to deficiency of service, negligent manner of service at the same time deceitful manner of service and no doubt for the act of the OP complainant including other co-sharers/owners are facing much inconvenience and they are outside their own house and for which they are paying huge amount as rent. Invariably that shall be paid by the OP but OP is harassing the complainant including other co-sharers/owners which is proved.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the OP with a cost of Rs.10,000/- which shall be deposited to this Forum’s Account.
OP is hereby directed to handover possession of the owners’ allocation jointly to all the owners including the present complainant and tenants as per allotment as noted in the schedule 3 of the development agreement dated 07-02-2009 within two months from the date of this order failing which for non-delivery of the possession to the owners within the owners of the premises including the complainant within the stipulated period in that case for each months delay OP shall have to deposit penal damages to the extent of Rs.50,000/- per month till actual delivery of possession of the owners’ allocation as per agreement to the co-sharer/owners including complainant jointly and said amount shall be deposited to this Forum by the complainant on expiry of each month for none-delivery of the possession to the owners jointly including tenants.
OP is also not permitted to sell any portion of the flat to any third party, shall not enter into any agreement to mortgage or lease with any party shall not induct any tenant in the entire premises and shall not anyway dispose of the said premises by any means and if any such act is done by the OP in that case the said transaction shall be treated as illegal invalid in the eye of law.
OP is directed to comply the order very strictly failing which for non-compliance of the Forum’s order OP shall have to pay penal interest at the rateRs.500/- per day till full satisfaction of the entire decree and full satisfaction of the co-sharer/owners about their allocation and completion certificate to be produced by the OP to the landowners’.
Even after that if it is found that OP is reluctant in that case penal proceeding shall be started for which he shall be imposed further penalty and fine.
