JUDGEMENT

          Complainant by filing this complaint has submitted that complainant is a bona fide tenant in respect of the tenanted portion being a portion at premises No. 10F, Krishna Mullick Lane under P.S.- Ultadanga, Kolkata – 700037 and delivered the possession to the op nos. 1 to 6 after execution of the agreement by and between the complainant and the op nos. 1 to 6 and op nos. 1 to 5 entered into Development Agreement with the op no.6 to develop the said premises by way of construction of multistoried building on the said premises and op nos. 1 to 5 appointed Sonali Nag the Sole Proprietor of Green House Developers, the op no.6 by executing a Power of Attorney in favour of Sonali Nag related to the construction of multistoried building on the land owned by op nos. 1 to 5.

          Op no.6 with the concurrence of the op nos. 1 to 5 approached to the complainant to provide them the tenanted portion of the said premises after construction of the building as per Building Plan to be sanctioned by KMC and in consideration of the tenanted portion of the said premises, op nos. 1 to 6 undertook to provide a self contained residential flat to the complainant out of his allocation and the complainant agreed to accept this offer and in pursuance of the said offer, complainant entered into an Agreement on 15.03.2010 with op nos. 1 to 6 and accordingly as per terms and conditions complainant vacated the tenanted portion of the said premises and delivered his tenanted portion to the op nos. 1 to 6 in compliance of the terms of the said agreement as per the said agreement dated 15.03.2010 op nos. 1 to 6 undertook to perform and/or discharge their contractual obligations in pursuance of the said agreement dated 15.03.2010 where it is stipulated that he will provide a self contained residential flat in consideration of the tenanted portion of the complainant and op nos. 1 to 6 assured the complainant that they would register and execute the deed register in respect of the flat situated in the 2^nd Floor at Premises No. 10F, Krishna Mullick Lane, P.S.-Ultadanga in consideration of his delivering tenanted portion of the old structure of the premises but till date op nos. 1 to 5 failed and neglected to deliver the possession as well as Registration of the Deed of Conveyance in respect of the flat under consideration.  So the complainant is a consumer as defined in the C.P. Act, 1986.

          Op nos. 1 to 6 made a proposal and offered to the complainant and the complainant accepted it.  So it is a promise and at the desire of the op nos. 1 to 6 the complainant vacated the tenanted portion and delivered the same to the op nos. 1 to 6 for construction of the building on the said premises with the promise to provide one flat on the 2^nd floor of the building.  Ops are a service provider to the complainant as defined in C.P. Act 1986.  But ops have not complied and have not discharged their obligation.  So, building was constructed on 27.08.2012 when the complainant requested to get the deed register in favour of the complainant in term of the said agreement and refused to do so for which complainant was compelled to file this complaint.

          On the other hand Sonali Nag, op by filing written statement submitted that she is op no.6 and alleged that the present complaint is not maintainable as per C.P. Act and complainant had no locus standi to get any relief under C.P. Act and it is specifically mentioned that the complainant was a tenant under op nos. 1 to 5 at a monthly rent of Rs. 168/- and after the development agreement was entered between the op nos. 1 to 5 and the op no.6 the complainant vacated the said premises and was willing to purchase one flat in the proposed building.  On 10.06.2009 a sanctioned building plan was obtained from the Kolkata Municipal Corporation being No. 2009010029.  Thereafter immediately the members of the local club of that area, Belgachia Sarbojanin Durgoutsav Committee approached the firm demanding to leave half of the said premises for conducting Durga Puja and they stopped the work and several cases was lodged.  But on 28.09.2010 the owners were forced to donate 1.5 Cottahs of the alleged land out of 4 Cottahs land  and again an application was made for a revised plan for the remaining plot of land and the firm suffered huge loss.  Complainant took advantage of the adverse situation and forced the op no.6 to give her a flat measuring about 690 sq. ft. without any consideration by an unregistered agreement for sale dated 15.03.2010 and also included a clause in the agreement that Rs. 7,000/- per month is to be paid to the complainant till receiving the possession of the same and op no.6 till date duly has been paying the said amount by account payee cheques.

          On or about March 2011 after passing many hurdles when the work was in progress then a will of Smt Nirmalabala Dasi, mother of Samir Kumar Neogy came into picture where it was clearly written that the said land or any building constructed on it cannot be transferred to anybody till the lifetime of Sri Samir Kumar Neogy, the op no.4 and even after repeated requests op nos. 1 to 5 failed to deal with and settle the matter.  On 24.09.2013 finding no other way a legal notice was served upon the op nos. 1 to 5 to solve the issue and to compensate for the losses incurred by the op no.6 due to delay caused by the existence of the said Will.  The sanction of loans are stopped due to the said Will as a result of which the construction work also ceased due to lack of funds and the complainant along with her daughter and some unknown persons tried to break the padlock of the main entrance of the said premises as a result of which a M.P. Case No. 2071/2013 in the Court of Sealdah is still pending and it is further submitted that in the present case the op is neither indulging any services for a specific consideration not it has been specified in the unregistered agreement for sale that the op no.6 had to hand over the possession of a flat measuring about 690 sq. ft. free of cost and hence the complainant does not fall under the ambit of the section 2(d)(ii) of the C.P. Act 1986.

          So, the entire allegation of the complainant is baseless and it is a rent related dispute so it cannot be decided by this Forum.

          On the other hand op nos. 1 to 5 stated that they had no knowledge about the offer made by op no.6 to the complainant and op nos. 1 to 5 never entered into any agreement with the complainant on 15.03.2010 and nor the op nos. 1 to 5 had any knowledge of any discussion had with the complainant regarding handing over of the possession and registration of flat and the op nos. 1 to 5 had never made a proposal to the complainant for any flat.  Op nos. 1 to 5 are not service provider and are not guilty for deficiency in service.  Op nos. 1 to 5 also stated that they had not yet received the owner’s allocation from op no.6 and op nos. 1 to 5 are not liable to execute any documents till they received the consideration in full from the op no.6.  So, the present complaint should be dismissed.

                                                         Decision with reasons

          On proper consideration of the entire complaint and the written version including the argument as advanced by the Ld. Lawyers of both the parties, it is found that an agreement was executed on 10.03.2010 and as per agreement, it is found that complainant is a tenant under the op nos. 1 to 5.  But truth is that op nos. 1 to 5 did not enter into any agreement with the tenant and as per agreement no consideration was passed and fact remains as per agreement when the construction would be made in respect of the tenanted portion a flat shall be allotted to the complainant.

          But in the agreement he has shown as tenant, intended purchaser.  So, as per C.P. Act, 1986 if any transaction is made without any consideration in that case that transaction does not come under the purview of the Housing Construction and in this case practically the complainant’s claim is tenancy right under op nos. 1 to 5.  But in reality op nos. 1 to 5 did not enter into agreement with the tenant/complainant.  But agreement was executed by the op no.6 and fact remains in place of previous tenanted portion in the new building in the second floor a flat shall be allotted.  But in the agreement it is not noted from whose allocation it shall be made and after considering the entire agreement to sale it is clear that there was no consideration passed or there is no such averment that in future it shall be passed.  But complainant has claimed that in lieu of the tenancy he is entitled to get that flat and as per agreement ops shall have to handover the same, but they have not handed over it.  But considering the materials on record as filed by the op, it is clear that construction has not been completed in view of the several civil complications and for complication of the Will and further the local club has created pressure and op nos. 1 to 5 was compelled to handover 1.5 Cotahs out of the total property.  In fact owners are responsible for that because there is an agreement in between the owners and developers.  But developer has failed to complete it and the entire work is stopped for the failure of the op nos. 1 to 5.  But in reality op nos. 1 to 5 never authorized the op no.6 by any registered power of attorney to execute any agreement with their tenant.  So no doubt at present situation is very complicated because complainant has failed to prove any cogent document to show that any registered power of attorney was executed by the owner in favour of op no.6 for entering into agreement with the complainant on behalf of op nos. 1 to 5.  No doubt op nos. 1 to 5 have rightly proved that fact and fact remains in this case complainant has failed to prove that op no.6 had his legal right to execute such agreement on behalf of op nos. 1 to 5 and in the said agreement there is no signature of op nos. 1 to 5 also.

          Another factor is that it is a dispute in between the complainant and the land lords and op nos. 1 to 5 and fact remains op nos. 1 to 5 have proved that they never authorized op no.6 to enter into such agreement with their tenant.  Op nos. 1 to 5 have also alleged that the complainant was not a tenant under the op nos. 1 to 5 and in this case complainant has also failed to produce any rent receipt issued by op nos. 1 to 5 prior to said agreement.  But complainant has tried to show that by providing one Rent Control Form – 3 dated 14.08.2010.  But prior to that no rent receipt was issued by the op nos. 1 to 5 and one Rent Control receipt or challan is proved that in respect of the old structure of the present premises under the op nos. 1 to 5.  So, apparently complainant has failed to prove by any cogent evidence that he was a tenant under op nos. 1 to 5 and op nos. 1 to 5 entered into agreement at the time of vacating the premises as tenant and truth is that complainant has also failed to prove by any cogent evidence that Sonali Nag was the constituted attorney of the op nos. 1 to 5 by any registered power of attorney and at the same time complainant has failed to prove that op nos. 1 to 5 authorised op no.6 to enter into an agreement with the complainant.

          Considering all the above fact, it is found that this present dispute is not related to any Housing Construction and in respect of the alleged agreement dated 01.03.2010 in respect of which no consideration was passed.  Moreover the Rent Control challan is of dated 14.08.2010 after agreement and considering all the above fact it is clear that this complainant with the help of the local musclemen forced the op to sign this agreement and no consideration against agreement was passed and at the same time the complainant has miserably failed to prove by any cogent document that prior to 01.03.2010 he was a tenant under op nos. 1 to 5 and considering all the above fact we have gathered that present agreement does not come under the purview of Housing Construction and this agreement apparently is found not executed by op nos. 1 to 5 and at the same time op no.6 have failed to prove that he was registered power of attorney holder of the op nos. 1 to 5 and he executed the document being empowered by op nos. 1 to 5.

          On the contrary op no.6 has failed to produce any such registered power of attorney executed by op nos. 1 to 5 in favour of the op no.6 for executing an agreement with alleged tenant the complainant.  But it is settled principal of law that the person who has no authority to execute any agreement and if he executes any such agreement it is completely a void transaction and it is not binding upon so called owners i.e. op nos. 1 to 5 when complainant or op no.6 has/have failed to produce any proof of any registered power of attorney executed by them in favour of the ops for the purpose executing alleged agreement dated 01.03.2010 regarding transfer of one flat in favour of the complainant without any consideration.  So, in the eye of law the agreement does not come to an effect as op no.6 has failed to prove his legal right to execute such agreement on behalf of the op nos. 1 to 5 for which this agreement in the eye of law is invalid and cannot be implemented by any Forum or Civil Court also.

          Moreover the entire dispute of this complaint cannot be a consumer complaint when complainant did not hire any service of the op nos. 1 to 5 when his claim in the present case is as tenant under op nos. 1 to 5.  But his claim as tenant under op nos. 1 to 5 in respect of his tenanted portion in the total construction out of the entire complex is not proved by filing any receipt issued by the op nos. 1 to 5 but the right of tenancy on the basis of so called post-dated rent control challan cannot be proved when prior to alleged execution of agreement dated 01.03.2010, complainant was not in the possession of the said premises which is proved and prior to that complainant’s tenancy is not also proved by any landlords receipt or other paper.  But it has become a practice that after execution of such sort of alleged deed  such sort of so called tenant are creating trouble with the developer with the aid of the local musclemen and in the present case musclemen already collected 1.5 Cottahs out of the entire area and construction has already been stopped because allegation are there that landowners have failed to give proper relief and it is proved in respect of their title there is civil dispute and construction has been delayed and in fact there are several allegations i.e. Civil allegations, so, it is not possible for the op to complete the same and there is no question of passing any consideration in respect of the present flat and if before the Civil Court complainant can prove his right as tenant in that case he shall have to get tenanted portion what he used to possess and even possession in the eye of law is not in existence for which there is no scope to grant any relief.

          Accordingly, the complaint fails.  Considering the total conduct of the present so called tenant and procurement of the said agreement from the op no.6 is no doubt a forceful act which is also proved and for which complainant is found never appeared this Forum with clean hand for which the complaint should be dismissed as vexatious complaint.

          Hence, it is

                                                             ORDERED

          That the complaint be and the same is dismissed on contest against the ops.

          For filing a vexatious complaint before this Forum and for submitting some false statement against the owners, the complainant shall have to pay a sum of Rs. 10,000/- before this Forum for filing such vexatious complaint as penal cost within one month.