Date of filing: 09/03/2021                                                    

Date of Judgment: 11/07/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed under section 35 of the Consumer Protection Act, 2019 by (1) Sri Kajal Biswas (2) Sri Ghatak Biswas (3) Sri Shyamal Biswas (4) Smt. Angurbala Biswas and (5) Smt. Swantana Swarnakar alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely M/s. Swabhumi Construction represented by its proprietor Sri Amit Halder.

Complainant case in short is that Sri Bishnupada Biswas predecessor-in-interest of complainants being owner in respect of the property being R.S. No. 43, Khatian No. 1971 comprising in Dag No. 3117 being KMC Premises No. 246, Barisha, under Police Station Behala which he had acquired by way of an exchange with adjacent plot holder Biplab Roy, entered into a development agreement with the father of the OP on 03/09/2012. A General Power of Attorney was also executed in favour of the father of the opposite party namely Debasish Halder. Building plan was sanctioned dated 09/04/2015 to erect G+3 storied building but due to the sudden demise of Bishnupada Biswas on 30/06/2017 and Debasish Halder the developer on 08/08/2018, the development agreement dated 03/09/2012 and the General Power of Attorney dated 04/10/2012 automatically got cancelled. Thereafter the development agreement was entered into between the present complainants as owners with the OP on 02/01/2019 and Power of Attorney was also executed along with the said registered development agreement. As per the terms of the development agreement complainants were entitled to 5 Nos. of flat, 3 Nos. of shop room and non-refundable sum of Rs. 7,50,000/- out of which OP paid Rs. 2,50,000/- at the time of execution of the development agreement. The complainants had imparted possession of their land to OP for construction of G+3 storied building but OP failed to complete the said construction within the stipulated period of 18 months. As per the agreement in the event of failure to hand over the possession of owners allocation, developer was to pay Rs. 10,000/- per month as compensation. It was also agreed in the development agreement that the developer shall arrange their all expenses in total of Rs. 14,000/- for the alternative suitable accommodation till the possession was delivered. But since the inception of development agreement dated 02/01/2019 OP has violated the terms and conditions of the development agreement and did not start any construction work and also stopped paying the charges for alternative accommodation of the complainants. A notice was sent dated 12/02/2019 by the complainants to OP through their Ld. Advocate but all in vain. So the present complaint has been filed praying for directing the opposite party to handover the owners allocation along with non-refundable money and arrear rent for alternative accommodation, compensation for delay in construction OR to direct the OP to reinstate the complainants to their original accommodation as it was prior to the date of development agreement, to pay compensation of Rs. 1,00,000/- and litigation cost of Rs. 50,000/-.

On perusal of the record it appears that as OP did not take any step on service of notice, the case has been heard exparte.

So the only point requires determination is whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

In support of their case complainants have filed the copy of the deed of exchange between their predecessor-in-interest and Biplab Roy. Photocopy of the building plan, photocopy of the development agreement along with Power of Attorney dated 02/01/2019 and property tax bill issued by the KMC, the letter sent through their Ld. Advocate dated 12/07/2019 & 12/102019 respectively.

On a careful scrutiny of the development agreement along with Power of Attorney dated 02/01/2019 entered into between the parties, it appears that there is a specific recital that on 03/09/2012 already a development agreement was entered into with the developer Debasish Halder and a Power of Attorney was also executed which was registered on 03/10/2012. It is categorically mentioned in said development agreement dated 02.01.2019 that “subsequently as per the terms of the said development agreement as well as the said Power of Attorney, Debasish Halder already obtained a sanction building plan by the concerned authority of KMC being plan no. 2015130009 dated 09/04/2015 and said Debasish Halder already started such construction work but unfortunately the predecessor-in-interest of the present land owner first part herein, said Bishnupada Biswas has died on 30/06/2017 and said developer Debasish Halder also has died on 08/08/2018. As a result of which the said development agreement was cancelled and the registered Power of Attorney was also automatically stand cancelled as per Law”.

So the abovementioned recital in the development agreement dated 02/01/2019 is very categorical that the possession of the property was already handed over by the owner namely Bishnupada Biswas the predecessor-in-interest of the complainants to the developer, Debasish Halder the predecessor-in-interest of the OP. Even though no specific date has been mentioned of delivering the possession of the property by the owners to the developer for its development but it indicates that after the building plan was sanctioned on 09/04/2015, the construction of the building was already started as proposed in the plan. So the possession was handed over by Bishnupada Biswas much before the present development agreement dated 02/01/2019 was entered into between the parties.

It may be pertinent to point out that the complainants have stated in the complaint that they had imparted possession of their land on the date of signing of the development agreement entered into between the parties on 02/01/2019 for constructing G+3 storied building but the same cannot be accepted as their own document i.e. the development agreement dated 02/01/2019 is very specific that the possession was already handed over to the father of the OP and the construction was already started after sanction of building plan in the year 2015.  

Complainants have prayed for directing the OP to pay the arrear rent for alternative accommodation but they have not filed any document that they are residing in any rented accommodation neither there is any specific date mentioned since when they have been residing in the alleged alternative accommodation. So the prayer of the complainants to reinstate them back to their original accommodation is devoid of any merits, as before this commission there is contradictory evidence as to delivery of possession to OP by the owners to develop the property. The arrear rent as claimed by the complainants towards alleged alternative accommodation cannot be assessed in the absence of any document in this regard. So as .the case of the complainants made out in the present complaint suffers from inconsistencies and contradiction, complainants are not entitled to the reliefs as prayed for and thus the complaint is liable to be dismissed.

Hence

          ORDERED

CC/137/2021 is dismissed exparte.