Date of filing : 05.10.2016
Judgment : 20.03.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under Section 12 of the Consumer Protection Act, 1986 by Nevedita Bose alleging deficiency in service on the part of the OP ( referred as OP hereinafter ) (1) Mrs. Shikha Chakraborty (2) (a) Pushpa Rani Basak (b) Bandana Basak (c) Chitra Basak.
Case of the complainant in brief is that the complainant has become the absolute owner of a flat measuring 750 sq.ft. on the ground floor of a building at premises no. 237, Parnasree Pally, Kolkata – 700 060 by virtue of a Deed of Conveyance dated 08.12.2010. The complainant has stated that since purchasing of the said flat an asbestos shade has been causing obstruction to free flow of air and light as the asbestos shed has been installed in a manner so that it completely covered the window of her flat. The complainant intimated the same to the OP No.1 by letter dated 03.11.2015 but, inspite of receiving the said letter, the OP did not take any step to remove the shed and again on 07.12.2015 another letter was sent to the OP No.1 but no fruitful result was yielded. The complainant has further stated that the OP No.1 by a letter dated 21.01.2016 stated upon Kolkata Municipality and thereafter the complainant sent two letters dated 10.02.2016 & 08.03.2016 but OPs paid no heed to that letter and, thereafter the complainant by filing the instant consumer complaint prayed for direction upon the OPs to remove the window shed and to pay Rs. 5,00,000/- towards compensation, to pay cost and other reliefs.
The OP No.1 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the asbestos shed was already there at the time of purchasing the flat and the complainant initiated the case after expiry of more than 6 years from the date of purchasing the said flat. The OP No.1 has further stated that the complainant is not in physical possession of the said flat but let out the flat to one Mr.Arun Kumar Saha for gain. It is stated by the OPNo.1 that the OP No.1 ( developer) sold all the flats of developers allocation and as per Development Agreement discharged all her obligation towards the land owner and intending purchaser. Moreover at present no such asbestos shed remains there on the Northern side of the flat in question and accordingly prayed for dismissal of case.
Complainant and OP No.1 adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
The complainant annexed copy of Deed of Conveyance dated 08.12.2010, letters dated 03.11.2015, 19.02.2016 08.03.2016 issued by the complainant to the OP No.1 letter dated 21.01.2016 issue by the OP No.1 to the complainant.
The OP No.1, by adducing evidence, has further stated that the Deed of Conveyance dt. 08.12.2010 by virtue of which the complainant became absolute owner of the flat in question was executed by and between the complainant and Late Shankar Basak who died on 17.05.1997. It is further stated by the OP No.1 that the instant case has been initiated against Pusparani Basak who also died on 07.02.2005 leaving behind her two sons and three daughters namely Sadananda Basak, Bidyasagar Basak, Bandona Basak, Chandana Basak, and Archana Dey and daughter -in-law Chitra Basak.
In course of argument Ld. Advocate for the complainant narrated the facts mentioned in the petition of complaint and drew our attention towards the letter dated 21.01.2016 issued by the OP.
Ld. Advocate for the OP submitted that no case is tenable against any dead person and, moreover, the instant case is hopelessly barred by limitation.
Points for determination :
- Whether a Forum constituted under the Act has authority to pass an order in the nature like mandatory injunction as prayed for ?
- Whether the complaint is barred by limitation ?
- Whether there is deficiency in providing service on the part of the OP?
- Whether the complainant is entitled to the reliefs as prayed for ?
Decision with reasons :
Point Nos. 1 & 2 :
Point nos. 1 & 2 are taken up for comprehensive discussion.
The complainant by filing the instant consumer complaint has sought relief in respect of an asbestos shed which has been causing obstruction to the passage of light and air and the said asbestos shed has been noticed by the complainant on and from the date of purchasing the flat and has prayed for permanent removal of the shed.
Now the question is whether this Forum is empowered to pass such mandatory injunction order.
On perusal of Section 13 for the Consumer Protection Act it appears that the Fora are empowered to pass interim relief. But an interim order is not synonymous to mandatory injunction and, therefore this Forum does not enjoy such power.
On perusal of documents on record it appears that Deed of Conveyance was executed by Late Shankar basak (through his constituted Attorney ) and Smt. Sikha Chakraborty in favour of Nivedita Bose ( complainant herein ) on 08.12.2010 and by virtue of which Nivedita Bose became absolute owner of the flat in question. The OP developer has categorically stated that with the registration of the Deed of Conveyance the OP developer completed his contractual obligation but after expiry of more than 6 years from the date of registration of the Deed of Conveyance the complainant has initiated this case praying for certain relief. However, as per Section 24 (A) of the Consumer Protection Act, 1986 the consumer will have to approach for redressal of grievance before any redressal agency instituted under this Act within 2 years from the date of occurrence of the cause of action. In the instant case the complainant herself has stated in her petition of complainant that she noticed the said shed from the date of purchasing the same. It clearly indicates that the complainant was aware about the fact from the date when the Deed of Conveyance was executed i.e. on 08.12.2010.
The complainant has stated that letter dated 21.12.2016 issued by the OP creates cause of action but it is now well settled that mere correspondences or exchange of letters cannot extend the period of limitation.
Point Nos. 1 & 2 are decided accordingly.
Point Nos. 3 & 4 : Since Point Nos. 1 & 2 are decided negative there is no scope to go into the merit of the instant case.
In such view of the matter we are of opinion that the instant case is liable to be dismissed.
Hence,
Ordered
That CC/466/2016 is dismissed on contest being not maintainable.
