Order-15.

Date-07/04/2017.

       Shri Kamal De, President.

This is an application u/s.12 of the C.P. Act, 1986.

            Complainant’s case, in short, is that he was the monthly tenant in respect of one room with verandah including common bath and privy measuring about 9’9” X 8’2”, verandah 3’2” X 8’5” being premises No.50-L/H/6, Pottery Road, P.O. Tangra, P.S. Entally, Kolkata – 700 015 at a monthly rental of Rs.90/- payable according to English Calender month under the OPs 2 to 9.  One agreement dated 02-06-2015 has been executed in between OPs 2 to 9 and OP1 for development of premises No. 50-L/H/6, Pottery Road, P.O. Tangra, P.S. Entally, Kolkata – 700 015.  It has also been stipulated in the said agreement dated 02-06-2015 that the entire building would be demolished and the complainant will vacate his tenanted portion temporarily on or before 02-06-2015 to 01-05-2016 for commencing the construction work and shall cooperate with the 2^nd party.  OP1 in terms of the agreement for development and in terms of the plan sanctioned by the Kolkata Municipal Corporation completed the building in respect of aforesaid premises, but in spite of repeated requests and demands OP1 in collision with other OPs did not allow the complainant to shift back to his tenanted portion as per the terms of the agreement between the complainant and the other OPs.  It is alleged that the OP1 has also failed and neglected to pay the rent to the complainant in respect of his shifted tenanted premise since the month of June, 2016.  The complainant, thereafter, by a letter dated 05-05-2016 requested OP1 to hand over the possession of the said tenanted premises in his favour but OP1 on receiving the same letter did not pay any heed to that effect.  It is alleged that complainant is facing great difficulty for the conduct of the OPs including the OP1.  OP1 also even did not pay the monthly rend to the complainant for his present tenanted premises where the complainant shifted.  It is alleged that the OP1 is guilty of deficiency in service and for violation of the agreement dated 01-07-2015 and 07-10-2015.  It is stated OP1 is deficient in service.  It is also stated that OP1 is required to hand over the tenanted portion to the complainant in terms of the contractual obligation of the agreement dated 01-07-2015 and 07-10-2015.  Hence, this case.

            OPs have not entered appearance in this case or contested the case in spite of receipt of summons.  So, the case has proceeded ex parte against the OPs.

Point for Decision

1. Whether the OPs are deficient in rendering service to the complainant?
2. Whether the case is maintainable in its present form and prayer?
3. Whether the complainant is entitled to get the relief as prayed for?

Decision with Reasons

We have perused the documents on record i.e. Photostat copy of agreement dated 01-07-2015, Photostat copy of agreement dated 01-07-2015, Photostat copy of General Power of Attorney, Photostat copy of agreement cum NOC dated 07-10-2013, Photostat copy of letter dated 05-05-2016 addressed to OP by the complainant. 

            We find that the complainant filed the instant case praying for directing the OP1 to put the complainant into possession in respect of the tenanted premises at newly constructed premises being No. 50-L/H/6, Pottery Road, P.O. Tangra, P.S. Entally, Kolkata – 700 015.  It is stated that the complainant was a tenant in respect of the said premises at a monthly rental of Rs.90/- payable according to English calendar month under OPs 2 to 0.  It was agreed in between the parties that the complainant would vacate the tenanted portion temporarily in between 02-06-2015 to 01-06-2015 for commencing of the construction work at the said premises and after construction of the building, the complainant would be put into possession as a tenant in the newly constructed building.  It may be argued that it is a dispute between landowner and tenant and cannot be decided by Consumer Forum.  We are fortified in this regard by decision of Hon’ble N.C.D.R.C. reported in 2011(4) CPJ 481. 2011(4) CPR 235. 2011(3) CPC 499 National Consumer Disputes Redressal Commission, New Delhi.           

            We find from the documents on record that the complainant was in occupation of tenanted premises measuring in respect of one room with verandah including common bath and privy measuring about 9’9” X 8’2”, verandah 3’2” X 8’5” and common bath and privy.  It was agreed in between the parties that the complainant would be accommodated in newly constructed building in lieu of old tenanted premises.  As per agreement complainant vacated the tenanted premises and shifted over to alternate accommodation.  Thereafter the OPs demolished the erstwhile tenanted room and constructed a new building.  The complainant then insisted them to put him into possession in the newly constructed building as per the agreement dated 02-07-2015, 07-10-2013 but the OPs are not willing to perform their part of contract.  We think that as per the agreement dated 02-07-2015, 07-10-2013 the OPs are duty bound to deliver the possession of the tenanted premises to the complainant who had vacated the tenanted premises.  We find that after construction of the building OPs failed to give the complainant the possession of his tenanted premises.  Thus the OPs are guilty of deficiency in service since they have failed to comply out the statutory obligation cast upon them as per the development agreement made between the parties.

            None came from the side of the OPs to contradict or controvert the version of the complainant.  The Evidence on Affidavit filed by the complainant remains unchallenged and uncontroverted.  In absence of any contrary and controverting materials on record and having regard to the documents thereon, we think that the complainant is entitled to get the relief as prayed for. 

Consequently, the case merits success.

Hence,

Ordered

That the instant case be and the same is allowed ex parte but on merit against the OPs.

            The OPs are hereby directed to hand over to the complainant vacant and peaceful possession of the tenanted portion as described in the agreement dated 02-07-2015 and 07-10-2015 in the newly constructed building at premises No. 50-L/H/6, Pottery Road, P.O. Tangra, P.S. Entally, Kolkata – 700 015 within a period of 40 days from the date of this order failing which the OPs shall also be liable to pay to the complainant jointly and severally an amount of Rs.5,000/- per month from the date of expiry of the stipulated period 40 days till the date of handing over the possession of the tenanted premises to the complainant.

            OPs are also to pay litigation cost of Rs.10,000/- to the complainant within the said stipulated period.

Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.