1. Smt. Vandana Raval @ Smt. Vandana D. Raval,

            3A, Gopal Banerjee Street,

            P.S. Bhawanipore, Kolkata-25    and

            3/25, Azadgarh, 2^nd Floor,

            P.S. Jadavpur Kolkata-40.                                                                            _________ Complainant

____Versus___

1.       M/s Harshad Apartment Builder Pvt. Ltd.

            99, Ashutosh Mukherjee Road,

            P.S. Bhawanipore, Kolkata-25.                  

2. Smt. Sova Ghosh,
3. Smt. Rita Roy Chowdhury,
4. Smt. Mita Dasgupta,

            All residing at

            99, Ashutosh Mukherjee Road,

            P.S. Bhawanipore, Kolkata-25.                                                                ________ Opposite Parties

Present :           Sri Sankar Nath Das, Hon’ble President

                                    Smt.  Samiksha Bhattacharya, Member

Order No.   32    Dated  28-07-2015. 

       The case of the complainant in short is that complainant a monthly tenant and her son Parth Raval and daughter Ms. Mishika Raval had been residing in a portion of the ground floor flat consisting of two rooms, kitchen, toilet / bathroom, passage and other common facilities at ground floor, the then time measuring about 480 sq.ft. carpet area more or less at premises no.3A, Gopal Banerjee Street, P.S. Bhawanipore, Kolkata-25 as a monthly tenant at a monthly rental of Rs.830/- per month which she had been depositing with the office of the Rent Controller, Kolkata.

            (1) Smt. Sova Ghosh wife of Late Bishnupada Ghosh by occupation house wife, (2) Smt. Rita Roy Chowdhury, wife of Sri Tripti Narayan Roy Chowdhury by occupation house wife and (3) Smt. Mita Dasgupta, wife of Sri Gopinath Dasgupta by occupation – service, all by faith Hindu, by nationality Indian, at the then time residing at 3A, Gopal Banerjee Street, P.S. Bhawanipore, Kolkata-25 and at present residing at 99, Ashutosh Mukherjee Road, P.S. Bhawanipore, Kolkata-25, herein after jointly called and referred to as the owners / landlords represented by their Constituted Attorney Sri Devanand Lalwani.

            The landlords / owners entered into an agreement with the developer on 16.12.05 for development and construction of a multi storied building after demolishing the existing two storied building at premises no. 3A, Gopal Banerjee Street, P.S. Bhawanipore, Kolkata-25 on certain terms and conditions by a development agreement. 

            In consideration of such co-operation and assistance to be rendered by the tenant the owner / developer agreed to give the tenant one self contained flat measuring more or less 380 sq.ft. carpet area (the built up area will be measured at actual on carpet area and super built up area @ 25% will be charged on built up area i.e. carpet area + built up area) containing two bed rooms, one kitchen cum dining and one toilet / bathroom in the 1^st floor of the new constructed building at 3A, Gopal Banerjee Street, P.S. Bhawanipore, Kolkata-25 will purchase at a price of Rs.1500/- per sq.ft. only. The developer shall give proposed plan. However, if any changes or modification if needed to be done as per rules of KMC.

            To facilitate the construction of the new building being approached by the owner / developer the tenant / second part agreed to vacate the existing tenanted portion and to shift to the temporary accommodation for the interim period of construction for which the developer has agreed to pay an amount of Rs.2500/- per month for the 18 months.

            The tenant declares that she has no objection if the developer demolishes the existing structure / building and constructs the new building. The developer will render co-operation for construction of the new building obtaining sanction building plan etc. It is further agreed that this agreement may be treated as written consent of the tenant for submitting the plan, NOC, of the developer to the Kolkata Municipal Corporation.

            The owners / landlords / developer fail to give the possession within 24 months from the date of execution of the agreement i.e. 4.5.08 of these present in that event both the owners and developer shall be liable to bear the rent for the alternative accommodation till repossession is given to the tenant in the said premises no. 3A, Gopal Banerjee Street, P.S. Bhawanipore, Kolkata-25.

            The owners and developer fail to reinstate the tenant in the new building within the stipulated period of if for any reason the project could not be completed or abundant due to misunderstanding between the owners and the developer.

            The tenant as per agreement had vacant the tenanted house and at present residing at 3/25, Azadgarh, Kolkata-40, 2^nd Floor, P.S. Jadavpur since 4.7.08 and the developer had handed over a Xerox site plan over the suit property approved by the KMC where the approved plan is totally dissimilar as per the tripartite agreement dt.4.5.08 with the said complainant / developer and landlord / owners as no such flat of 380 sq.ft. in the 1^st floor has been found.

            The developer failed to give possession within 24 months from the date of execution of the tripartite agreement i.e. 4.5.08.

Decision with reason:

         O.p. no.1 had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. Ld. lawyer of o.ps. in the course of argument submitted that the case has got no merit and the same is liable to be dismissed. O.p. nos.2 to 4 did not contest the case by filing w/v and as such, matter was heard ex parte against o.p. nos.2 to 4.

            We have gone through the pleadings of the parties, evidence and documents in particular. It appears from the record that complainant was the tenant under o.p. nos.2 to 4 and when o.p. nos.2 to 4 decided to develop a multistoried building after demolishing the old structure thereon entrusted the property to o.p. no.1 for such development of the building. In view of such construction job and agreement was executed to provide the complainant 380 sq.ft. carpet area on the 1^st floor within 24 months from the date of execution tripartite agreement dt.4.5.08. Originally an agreement was executed between the complainant and o.p. no.1 and the owners and subsequently complainant approached to o.p. no.1 for modification but the same was not finally signed by complainant.

            It is seen from the record that The landlords / owners entered into an agreement with the developer on 16.12.05 for development and construction of a multi storied building after demolishing the existing two storied building at premises no. 3A, Gopal Banerjee Street, P.S. Bhawanipore, Kolkata-25 on certain terms and conditions by a development agreement.  In consideration of such co-operation and assistance to be rendered by the tenant the owner / developer agreed to give the tenant one self contained flat measuring more or less 380 sq.ft. carpet area (the built up area will be measured at actual on carpet area and super built up area @ 25% will be charged on built up area i.e. carpet area + built up area) containing two bed rooms, one kitchen cum dining and one toilet / bathroom in the 1^st floor of the new constructed building at 3A, Gopal Banerjee Street, P.S. Bhawanipore, Kolkata-25 will purchase at a price of Rs.1500/- per sq.ft. only. The developer shall give proposed plan. However, if any changes or modification if needed to be done as per rules of KMC. To facilitate the construction of the new building being approached by the owner / developer the tenant / second part agreed to vacate the existing tenanted portion and to shift to the temporary accommodation for the interim period of construction for which the developer has agreed to pay an amount of Rs.2500/- per month for the 18 months. The tenant declares that she has no objection if the developer demolishes the existing structure / building and constructs the new building. The developer will render co-operation for construction of the new building obtaining sanction building plan etc. It is further agreed that this agreement may be treated as written consent of the tenant for submitting the plan, NOC, of the developer to the Kolkata Municipal Corporation. The owners / landlords / developer fail to give the possession within 24 months from the date of execution of the agreement i.e. 4.5.08 of these present in that event both the owners and developer shall be liable to bear the rent for the alternative accommodation till repossession is given to the tenant in the said premises no. 3A, Gopal Banerjee Street, P.S. Bhawanipore, Kolkata-25.

            In view of the above position and on careful scrutiny of the entire materials on record we find that o.ps. had sufficient deficiency on their part being service providers and complainant has substantiated his case and is entitled to relief.

            Hence, ordered,

            That the case is allowed on contest against o.p. no.1 and ex parte against o.p. nos.2 to 4 with cost. O.ps. are jointly and/or severally directed to rectify the approved plan to Kolkata Municipal Corporation as per tripartite agreement and not to construct the building and/or flat without such rectification of plan and are further directed to pay full amount of rent of the flat where at present complainant is residing since July 2008 and shall provide flat to complainant in the 1^st floor as per tripartite agreement and are further directed to pay to the complainant compensation of Rs.60,000/- (Rupees sixty thousand) only for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees ten thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.

            Supply certified copy of this order to the parties free of cost.