DATE OF FILING : 31-08-2010.
DATE OF FINAL ORDER : 07-01-2011.
Shri Birendra Nath Ghosh,
son of Late Sarat Chandra Ghosh,
residing at 62/11/1, Ichapur Road, P.S. Bantra,
District –Howrah. ---------------------------------------------------- COMPLAINANT.
Versus -
1. K.C. Panja & Son,
represented by proprietor Susanta Panja
having its office at Ichapur Canal Side ( Purba ),
P.O. Santragachi, P.S. Jagacha,
District – Howrah.
2. Samar Kr. Pollay.
3. Murari Mohan Pollay.
4. Parash Nath Pollay.
5. Sushil Kr. Pollay.
6. Ashok Kr. Pollay.
7. Subrata Kr. Pollay.
all sons of Late Haradhan Pollay
of 21/1, Kantapukur 3rd Bye Lane, P.S. Bantra,
District – Howrah. -------------------------------------------OPPOSITE PARTIES.
P R E S E N T
1. Hon’ble President : Shri J. N. Ray.
2. Hon’ble Member : Dr. Dilip Kr. Chakraborty.
3. Hon’ble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representatives for the complainant : Shri Tapas Kumar Panja,
Smt. Anindita Santra,
Ld. Advocates.
Representative for the opposite party no. 1
: Shri Prithwiraj Sarkar,
Ld. Advocate.
Opposite Parties no. 2 to 7 : Ex parte.
F I N A L O R D E R
This is to consider an application filed by one Birendra Nath Ghosh, son of Late Sarat Chandra Ghosh, resident of 62/11/1, Ichapur Road, P.S. Bantra, District – Howrah, U/Ss 11 & 12 of the C.P. Act, 1986 against the O.P. no. 1 K.C. Panja & Sons and six others alleging deficiency in service.
The case of the complainant is that the complainant is a peace loving citizen of India who is now residing at the tenanted premises of HRBC Housing Estate, Block 32, Flat No. 6, Type – IV( R ) Dumurjala, P.S Bantra, District - Howrah. The complainant further states that on 14th day of November, 2008 he entered into an agreement for sale with the O.P. no. 1 K.C. Panja and signed for purchase of a flat measuring about 862 sq. ft. including super built up area on the north eastern side on the ground floor at 62/11/1, Ichapur Road, P.S. Bantra, District – Howrah, duly constructed by O.P. no. 1 and the complainant also entered into another agreement for rehabilitation of tenants in the premises no. 62/11/1, Ichapur Road, P.S. Bantra, District – Howrah, with O.Ps. on 30th day of July, 2008. He further states that he already paid Rs. 2,27,000/- to the O.P. no. 1 on different dates out of Rs. 4,31,000/- which is more than 50% of total consideration amount already received by the O.P. no. 1. In the agreement for sale it was clearly mentioned that the delivery of possession of the flat shall be given in complete form within one year i.e., 14th November, 2009. But in the agreement for rehabilitation for tenants in the premises no. 62/11/1, Ichapur Road, P.S. Bantra, District – Howrah, which was in contrary mentioned that the possession would be handed over within 24 months from the date of this agreement. But after expiry of a long period of 24 months as lot of work of the proposed flat for the complainant were pending whereas the rest portions of the flat almost completed. The complainant further states that after completion of the said period complainant’s works of the said flat was not completed at all whereas the complainant several times met with the O.P. no. 1 in person, sent several letters and requested him to handover the said flat immediately in ready condition but the O.P. no. 1 did not care over the same in any manner. So the complainant has handed over the aforesaid petition of complaint for direction upon the O.Ps. to hand over the possession of the flat immediately after completing the construction in habitable condition and also to execute and register the sale deed in favour of the complainant and further to appoint a L.B.S. of H.M.C. for inspecting the flat whether it is habitable condition or not as per agreement for sale as well as rehabilitation of tenants. Besides, the complainant prays for a sum of Rs. 5,00,000/- as compensation with litigation cost of Rs. 25,000/-.
The O.P. no. 1 denied all the material allegations of the complaint in his written version and states that the flats in question were already completed a long time back. The agreement for rehabilitation work was executed by and between the landlord and the tenants and in the said agreement for sale O.P. is not the party, thus since the present complainant is one of the tenants the dispute is not a consumer dispute at all but a mere dispute of tenancy which is beyond the scope, ambit and purview of the Consumer Protection Act. Further, in any case, this O.P. no. 1 has no role to play in the said dispute as such no relief can be claimed against this O.P. by the complainant in the present complaint. Furthermore the complainant shall be rehabilitated by the landlords and this O.P. has no role to play in that. The relief of rehabilitation is not tenable this O.P. who is a mere developer and as such relief of rehabilitation is not tenable against this O.P. in any manner. It is also pertinent to mention in this connection that the tenant reportedly did not pay any amount as claimed to the landlord and they have no documents to show that they have paid the same. It is stated in this connection that there is already a dispute pending between the landlords and one of the landlord viz. Sri Murari Mohan Polley has filed a civil suit being Title Suit No. 49 of 2010 before the Ld. Civil Judge ( Senior Division ) 2nd Court at Howrah praying for a decree for partition, injunction etc., and in the said suit an interim order of status quo is already existing in respect of the suit properties in that suit and the subject matter in this is also the subject matter in that suit. In such a situation this ld. Forum cannot grant any relief to the complainant in the manner as prayed for. So it is submitted that the instant application for relief against the O.P. no. 1 is liable to be dismissed for want of merits in the case i.e, no deficiencies made out against O.P no. 1.
The O.P. nos. 2 to 7 do not appear and contest the case and the case against them heard ex parte.
Point for determination whether the application is liable to be allowed or not ?
DECISION WITH REASONS :
Both parties namely complainant and the O.P. no. 1 filed written brief notes of argument respectively and also relied on certain documents filed at the time of filing the case. At the outset of argument ld. Advocate appearing on behalf of the O.P. no. 1 has submitted that the complainant is the dominus litis in the instant case and it is for her to prove the facts alleged against the O.P. But in the instant case she has taken no pain to do so. In such a situation the provision of Section 101 of the Indian Evidence Act will come into action This Section is based on the rule ie incumbit probation qui dicit, nonqui negat which means that the burden proving a fact rests on the party who subsequently asserts the affirmative of the issue and not upon the party who denies it. In other words the burden of proving fact always lies upon the person who asserts. Until such burden is discharged the other party is not required to be called upon to prove his case.
It appears from the record we find that the agreement for rehabilitation was executed by and between the landlord and the tenants and in the said agreement this O.P. no. 1 is not a party and as such the present complaint is one of the tenants in disputes is not a consumer dispute at all and a mere dispute of tenancy which is beyond the scope, ambit and purview of the Consumer Protection Act. The O.P. no. 1 has no role to play in the said dispute. As such no relief can be claimed against this O.P. by the complainant to the present complaint. Moreover, it appears that there is already a dispute pending between the landlord and one of the landlord namely Murari Mohan Polley. Murari Mohan Polley has filed a Civil Suit being Title Suit No. 49 of 2010 before the Ld. Civil Judge, ( Senior Division ) 2nd Court at Howrah praying for a decree of status quo is already existing in respect of the suit properties in that suit and the subject matter in this case is also the subject matter in that suit. Further more, the complainant shall be rehabilitated by the landlords and the O.P. no. 1 has no role to play in that and it is alleged that the tenant reportedly did not pay any amount as claim to the landlord and they have no documents to show that they have paid the same. The complainant moreover did not counter the allegations against the O.P. no. 1 regarding the T.S. No. 49 of 2010 before the Ld. Civil Judge, ( Senior Division ), 2nd Court at Howrah for partition, injunction etc. and the said suit an interim order of status quo existing in respect of the suit property. If that be so the complainant is not entitled to get any relief against the O.P. no. 1 until and unless it is proved by her regarding title suit pending before the civil Court.
In absence of any iota of evidence we are not in a position to say that the relief can be given to the complainant as prayed for.
Having heard on both sides and also considering the papers on records we find that the complainant failed to substantiate his case against the O.P. no. 1 for any deficiency in service.
In the result the complainant is not entitled to succeed his case which is liable to be dismissed.
Hence,
O R D E R E D
That the complaint petition U/Ss 11 & 12 of the C.P. Act, 1986 is dismissed on contest against the O.P. no. 1 and ex parte against the O.Ps. no. 2 to 7 but without cost in the facts and circumstances of the case.
The case is thus disposed of.
Supply the copies of the order to the parties, free of costs.
