DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

                                                              SOUTH 24 – PARGANAS,

                                        AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144

                                                           C.C. CASE NO. 59 OF 2019

DATE OF FILING: 12.04.2019                                                   DATE OF JUDGEMENT: 11.12.2019

Present                      :   President       :   Ananta Kumar Kapri

                                        Member         :   Jhunu Prasad

                                        Member       :     Jagadish Chandra Barman

COMPLAINANT              : 1. Sri Bijoy Kumar Bhowmick,

                                             2. Sri Ajoy Bhowmick,

                                             3. Sri Sanjoy Bhowmick,

                                             4. Sri Amar Bhowmick.

 All sons of late Phani Bhusan Bhowmick, Residing at 1278, Garia Laskarpur, G.S. Colony, Block – “A”, P.S. – Sonarpur, District – South 24 Parganas. 

• VERSUS  -

O.P/O.Ps                         : 1. NASKAR & MONDAL DEVELOPERS, A registered partnership Firm having its Office at 188/2, Picnic Garden Road, P.O. & P.S. – Tiljala, Kolkata – 700 039 represented by its partner.

2. Sri Goutam Mondal, S/o – Sri Tarapada Mondal, Residing at 188/C, Picnic Garden Road, P.O. & P.S. – Tiljala, Kolkata – 700 039.

3. Lily Naskar, W/o – Dabobrata Naskar, Residing at 115, Picnic Garden Road, P.O. & P.S. – Tiljala, Kolkata – 700 039.

__________________________________________________________________________

JUDGMENT

Sri Ananta Kumar Kapri, President

Facts leading to the filing of the instant case may be epitomized as follows.

Complainants have got the subject land by virtue of a gift deed executed by the Governor of the State of West Bengal on 19.02.2008. Land has been obtained by them from the government on refugee rehabilitation quota. Thereafter, they decided to raise a multistoried building upon their land and therefore engaged the O.P. developers with the task of such building. A joint venture agreement dated 22.06.2011 was also executed between the parties i.e. the complainants and the developers and thereby the developers agreed to raise such kind of building on the land of the complainants. The old building of the complainants upon the subject land was demolished by the developers and demolition charge was also made over to the complainant by developers. The developers promised to complete construction of the building within 30 months of the date of joint venture agreement. But, nothing was done by the developers upon the subject land and therefore the complainants have filed the instant case praying for compensation etc. Hence, this case.

O.Ps. have filed W/Vs wherein it is contended inter-alia that the complainants are not entitled to get any relief from the forum. The positive case as made out by them is that one joint venture agreement was executed between them and the complainants and thereby they agreed to raise a multistoried building upon the subject land belonging to the complainants. The vacant possession of the said land was also handed over to them by complainants. They also paid demolition charge to the complainants; soil test was also done. But thereafter, the O.Ps. came to know that the complainants have no right to transfer the subject land to anyone by virtue of the provision of gift deed executed by Governor of State of West Bengal in favour of them. By the provision of gift deed, there is a ban of 10 years imposed upon the transfer of subject land and the complainants are not entitled to transfer the said land until expiry of 10 years from the date of execution of the gift deed. The complainants have violated that provision of the gift deed having suppressed the said provision of the gift deed. So they are not entitled to get any relief as prayed for. The case should be dismissed in limini with cost.               

                                                             POINTS FOR DETERMINATION

1. Is the case maintainable in law?
2. Are the complainants entitled to get relief or reliefs as prayed for?

Evidence on affidavit is on behalf of the both parties along with their documents.                                                                            

  DECISION WITH REASONS

Point nos. 1 and 2:

            Here is an allegation in the petition of complaint that the O.Ps. who were service providers of the complainants have not raised the multistoried building in terms of the agreement reached between the parties. The allegation is nothing but in nature of deficiency in service and this being so, we feel no difficulty to say that the case is maintainable in law.

            Now to see whether the complainants are entitled to get relief or reliefs as prayed for in this case. The relief prayed for by the complainants is based mainly on 2 documents i.e. -1) Joint venture agreement dated 22.06.2011, and 2) General power of attorney (GPA) dated 22.06.2011. By General power of attorney (GPA) the complainants have inter-alia authorized the O.P. developers to sell, transfer and to enter into any agreement with intending purchasers for sale of the flats to be constructed in the proposed multistoried building. In joint venture agreement the owners i.e. the complainants have also agreed and undertaken to convey indivisible proportionate share in subject land to the intending purchasers. A copy of deed of gift dated 19.02.2008, Annexure – B to the complaint is filed on record. A perusal of this gift deed reveals that there is a provision to the effect that the donee shall have no right to alienate or transfer in any way the land comprised in the schedule of the gift deed within a period of 10 (ten) years from the date of the deed of gift. A ban is seen to have been imposed on the transfer of the subject land extending for a period of 10 years from 19.02.2008. So, the ban will remain effective upto 19.02.2018 and within this period the complainants are not entitled to transfer the subject land to anyone in any manner except in those circumstances mentioned in the recital of the gift of deed. But, now it is seen that the complainants have transgressed the said ban imposed by the government, having made joint venture agreement and general power of attorney (GPA) with the O.Ps. and thereby they have agreed to transfer the land in favour of intending purchasers. Such kind of agreement i.e. joint venture agreement and also the general power of attorney (GPA) appear to be contrary to the ban imposed by the Government of West Bengal in deed of gift. The complainants have no locus-standi to make any agreement for transfer of the subject land in favour of anyone within the aforesaid stipulated period. This being so, the joint venture agreement as well as general power of attorney (GPA) appear to be illegal and void and on the basis of such documents, the complainants are not entitled to get any relief from the forum.                      

            In the result, the case fails.

            Hence,

        ORDERED

            That the complaint case be and the same is dismissed on contest against the O.Ps. but without any cost.   

Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.

I/We agree                                                                                                               President

                                                Member                                Member                                           

                        Directed and corrected by me

                                                               President           

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

ORDERED

            That the complaint case be and the same is dismissed on contest against the O.Ps. but without any cost.   

Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.