Judgment : Dt.28.7.2017

            This is a complaint made by one Sri Indranil Das Chowdhury alias Indranil Das, son of late Chattaranjan Das Chowdhury of 65/1, Bidhan Pally, P.O.-Garia, P.s.-Bansdroni, Kolkata-700 084 against M/s Swasti Construction, sole proprietor, Sri Sandip Das 65/1, Flat No.2, Bidhan Pally, P.O.-Garia, P.S.- Bansdroni, Kolkata-700 084, praying for supply of water in brick built asbestos shed as per agreement dt.17.8.2010 and 7.9.2010 and a direction upon the OP to restore water connection or to supply water to the Complainant’s brick built premises as per agreement dt.17.8.2010 and 7.9.2010.

            Facts in brief are that Complainant is the owner of land measuring about 2 cottahs 2 chittkas and 28 sq.ft. of premises No.345, Bidhan Pally under KMC in the said plot. Complainant’s father constructed one brick built asbestos shed structure upon a portion of the land and used to reside with family members. Complainant’s father died in 1973 and his mother constructed a two storied building upon a portion of the said land in 1975 and started residing there. Thereafter, on 17.8.2010 a development agreement was entered into the complainant and the OP and on the basis of that agreement OP constructed a G + 3 stored building as per the plan approved by the KMC and he was fully aware of the fact that there is a brick built asbestos shed structure at the back side of the said building. On 7.9.2010 a supplementary agreement was executed between the parties in which it was clear that OP has not been authorized to demolish the asbestos built structure and he has no right to sale the structure and the land owner has exclusive right in respect of the asbestos structure. As per clause 5 of the supplementary agreement, the OP agreed to supply water, electricity through separate pipeline to the said asbestos structure. It is categorically agreed between the parties that OP has no right or interest in the said asbestos structure. Complainant on several occasions pursued the OP to supply water in the brick built asbestos shed as per agreement. But, he did not oblige. So, Complainant filed this case.

            OP denied all the allegations of the Complainant and has submitted that there was no such agreement between the parties and OP has already supplied water and electric connection to the asbestos structure. Complainant was put into possession of the said flat and commercial area long back on 17.1.2013 in terms of owner’s allocation and after taking possession of the temporary asbestos shed structure. Complainant started living there with his wife. Complaint is harassing one. Complainant was supplied water, but, suddenly he disconnected the water supply. So, OP has prayed for dismissal of the complaint.

            Decision with reasons

            Complainant filed affidavit-in-chief against which OP has filed questionnaire to which Complainant has filed affidavit-in-reply. Similarly, OP has filed affidavit-in-chief to which Complainant has filed questionnaire to which OP has filed affidavit-in-reply. Xerox copy of two agreements have been filed.

            Main point for determination is whether the Complainant is entitled to the reliefs as prayed for.

            It is the allegation of the Complainant that OP did not supply water and electric connection to the Complainants asbestos shed structure.

            On perusal of the agreement dt.7.9.2010, it appears that the developer has not been authorized by the land owner to demolish the existing brick built asbestos shed structure adjacent to the two storied building of the premises. Further, it is mentioned that developer is not entitled to sale the said structure. Only the land owner shall have exclusive right in respect of uninterrupted          peaceful possession and enjoyment of the said structure. It is also mentioned that all parties agreed to supply water and electricity through separate pipe lines and electric wire will be provided by the developer at the said asbestos shed structure from the proposed building. The landowner shall enjoy the sewerage facility to be provided by the Developer.

            It is the prayer of the complainant that he was provided water facilities and electric supply through separate pipelines. On the contrary, it is the contention of the OP that as per the agreement he had supplied water facilities and electric connection. But, Complainant filed this case only to harass the OP, developer.

            On perusal of the affidavit-in-chief, questionnaire and affidavit-in-reply of the respective parties, it is clear that there are allegations and counter allegations. It is the contention of the OP that in 2013 the said supply was provided. This complaint has been filed after about a lapse of three years. No explanation is forthcoming as to why the complainant could not be filed within the period of two years which is fixed for filing any consumer complaint. The sanction plan has been filed on behalf of the Complainant which clearly reveals that the existing structure has to be demolished before commencement of the work which is fully occupied by the owner.

            In the present case, the dispute relates to the existing structure which remained under occupation of the Complainant. KMC did not permit that structure to remain standing. The OP has option to demolish it and so complaint becomes infructuous. It can be safely said that Complainant did not approach the Forum with clean hands.

            Hence ordered

            CC/543/2016 and the same is dismissed on contest.