Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 159/2020

The  complainant has instituted  this complaint case against  the OPs for passing direction to the OPs for restoring this structure which has been mentioned in the A schedule property  and to make the same habitable  as the OPs  caused illegal demolition of the building without getting any permission from the appropriate authority and also for passing direction to the OPs for not passing any illegal act on the basis of the development agreement  dtd. 05.07.2018 and power of attorney  of 07.07.2018 and also for compensation to the tune of Rs. 40,00,000/- and also for payment of temporary accommodation  charge of Rs. 1,14,000/- till  August, 2020 and also for payment accommodation  charges @ of Rs. 6,000/- per month from September, 2020 till possession is delivered to the complainant  in respect of A schedule property.

Fact of this case

Case of the complainant

The case of the complainant which is deciphered from the complaint petition  in bird’s eye view is that the complainant is a consumer under the OPs  and case under the purview  of the definition  of consumer of Consumer Protection Act, 1986 and the complainant is the owner  in respect of Bastu land situated at Holding No. 61, Hriday Krishna Banerjee Lane, P.S. Bantra, Dist. Howrah situated with Ward No.  21 of Howrah Municipal Corporation  and the OPs approached to the complainant to develop the above noted land and to that effect registered development agreement   was executed  on 05.07.2018 and one registered power of attorney was also executed on 07.07.2018 and according to the said agreement the OPs  shall obtain appropriate sanction plan  from the Howrah Municipal Corporation  and as per the owner’s allocation  mentioned in the “Kha” schedule .  The complainant is entitled to get 40% of the constructed portion out of G+4 storied  building  out of which the complainant is entitled to get 1000 sq. ft. flat at the 2^nd floor and 100 sq. ft.  shop room  at the ground floor and also shall get Rs. 2,50,000/-  from the OPs.  It is also the case of the complainant that he agreed to develop the property which has been  mentioned  in “Kha” schedule property  as per sanction plan and the owner’s allocation  is to be handed over within one year from the date of sanction plan but the said sanction plan  has not yet been obtained by the Ops from Howrah Municipal Corporation  and the complainant is in dark about the fate of the sanctioned plan of  G+4 storied building and the Ops did not inform the complainant whether the sanctioned plan  has been obtained by the OPs from Howrah Municipal Corporation or not ?  It is submitted that commence the work of construction work  was shifted  for temporary residence at Holding  No. 20, Jay Narayan  Babu Anada Dutta Lane, P.S. Bantra, Dist. Howrah at the monthly rent 6,000/- per month  for 11 months and as per development agreement  the OPs agreed to pay the monthly rent  to the landlord since September 2018 without  the OPs has paid rent for 5 months but thereafter failed to make payment  of the rent as a result of which the complainant had  to shift  at the residence at 86/2, Shantiram Rasta, Bally, Dist. Howrah at the monthly rent of Rs. 6,000/- per month  but the Ops had not paid any such rent  and immediately after shifting  of complainant at the tenanted premises  No.  61, Hriday Krishna Banerjee Lane, P.S. Bantra, Dist. Howrah without getting  any permission from Howrah Municipal Corporation  and on account of illegal demolition  of the above noted building  the complainant is unable to reside at the said premises and complainant  has suffered  severe damages  mental pain and agony.  The complainant  has further stated  that since the OPs have failed  to deliver possession of the newly constructed building  to the complainant within stipulated  period of time and before getting the sanction plan  the OPs have demolished  the entire building, the complainant has suffered huge financial loss, mental pain and agony and the Ops have failed to raise any construction  in the above noted building.  It is alleged that complainant is entitled  to get the charges of rent  and a sum of Rs. 15,00,000/-  for causing demolition  of the building  and for misappropriation  of the valuable  articles  from the said building.   It is alleged that Ops  should compensate  the complainant  for illegal demolition  of building  and also for restoring  possession of the complainant in the said building  and also for failure of the Ops to make construction in the said building.    It is asserted that the OPs have violated the terms & conditions  of the development of agreement  and develop power of attorney  and also failed to complete the construction within stipulated period of time  and the complainant  on several occasions  requested the OPs to comply the terms & conditions  of development agreement  dtd. 05.07.2018 but they failed to give honor to the said terms & conditions  of the development agreement and as a result of which the complainant sent advocate’s letter to the OPs dtd. 09.12.2019 through speed post with AD and the OPs received the said notice but did not given any reply.  It is pointed out that the complainant all along negotiated  the matter with Ops for settlement of the disputes  between the parties  but no initiative on the part of the OPs has been taken  and it appears  from the conduct of the Ops  that they are not ready and willing  to proceed  with the Government of development in respect of the A schedule property.  It is further alleged that the Ops has been causing no doubt as a result to the complainant  by not complying the terms & conditions  of the development agreement  dtd. 05.07.2018 in respect of the A schedule property.  For all these reasons the complainant by filing this complaint case has prayed before this District Commission for allowing  the prayers which has been described in the complaint petition.

Defence Case

In spite of receiving notice the OPs have neither appeared  nor filed any W/V in spite of getting statutory period of time of 45 days and as a result of which this District Commission vide Order No. 6 dtd. 09.12.2020 has passed the order of ex-parte hearing of this case.

Points of consideration

On the basis of the pleadings  of the parties this District Commission after going through  the material of this case record  and also for the purpose of proper and complete adjudication  of this case is going to adopt the following points of consideration:-

(i)        Has this District Commission jurisdiction to try this case?

(ii)       Is this case maintainable in its present form and in the eye of law?

(iii)      Whether the complainant has cause of action for filing this case?

(iv)      Is the complainant a consumer under the OPs or not?

(v)       Whether the complainant is entitled to get  relief  as per prayer of the complaint petition?

(vi)      To what other relief / reliefs is the complainant entitled to get in this complaint case?

Evidence lying of this case record

In order to prove  the case the complainant has filed evidence on affidavit  and against the said evidence on affidavit  no interrogatories  has been filed as the OPs are not contesting this case.  At the same time the OPs also have not filed any evidence on affidavit to disprove the case of the complainant.

Argument  highlighted  by the parties

In course of argument the complainant has filed Brief Notes of Argument  and in addition to the filing of Brief Notes of Argument  the complainant has also highlighted verbal argument laying emphasis upon the oral and documentary evidence .  On the other hand the OPs have neither filed any Brief Notes of Argument nor highlighted any argument.

Decision with reasons

The questions and / or issues involved in the above noted points of consideration adopted by this District Commission for disposal of this case, are interlinked / interconnected with one another.  For that reason and also for the interest  of convenience of discussion all the above noted points of consideration  are clubbed together  and taken up for discussion jointly.

For the purpose of arriving at just and proper decision in respect of the above noted points of consideration and for proper and complete adjudication  of this complaint case, there is urgent necessity of making scrutiny of the material of this case record and there is also necessity of scanning the evidence on record.

It is admitted fact that jurisdiction issue and / or maintainability point are the vital two questions which are  required to be determined  at first.  In this connection  this District Commission after going through the material  of this case record and on close examination of the pleading adopted by the complainant finds that the OPs have prayed for passing declaration to OPs for immediate restoration of the structures as mentioned in the schedule A property and to make  the said premises habitable immediately and also prayed for passing direction upon the OPs for not doing any illegal act on the basis of the agreement for development dtd. 05.07.2018.  In this regard, it is very important to note that this District Commission has no jurisdiction to pass any negative declaration and such type of negative declaration can only be sought for before the Hon’ble Civil Court as per provisions of Specific Relief Act.  But the complainant instead of approaching  before the Ld. Civil Court has come forward to this District Commission seeking declaratory relief.  Thus, it is crystal clear that this District Commission  has no jurisdiction to pass any declaratory relief as per provisions of the Specific Relief Act.

In this case the complainant has claimed  compensation of Rs. 40,00,000/- and also claimed  accommodation charges of Rs. 1,14,000/- and temporary accommodation charges  @ of Rs. 6,000/- per month for the period of September, 2020 till the possession  of the complainant  is restored  in the A schedule  property.  If the claim of compensation of the complainant is taken up for consideration as a whole, it is to be revealed that total claim of the complainant is exceeding Rs. 50,00,000/-  in respect of which this District Commission  has no pecuniary jurisdiction.  Thus, it is crystal clear that this District Commission has no pecuniary jurisdiction to try this case.

Moreover, the complainant has claimed  before this District Commission  that the Ops have demolished  the residential premises situated at  61, Hriday Krishna Banerjee Lane, P.S. Bantra, Dist. Howrah  without taking any permission  from the Howrah Municipal Corporation  and it has also been alleged that the OPs have not obtained any sanction plan from the Howrah Municipal Corporation for development and construction  of new project at the above noted premises.  In spite of highlighting  such claim against Howrah Municipal Corporation,  the said Municipal Authority has not been impleaded as a party in this case although  Howrah Municipal Corporation is a necessary party in this case.  Thus, it is crystal clear that this case is bad for defect of parties.

After going through  the material of this case record, this District Commission finds that the complainant  has claimed that the OPs have partly demolished  the above noted premises of the complainant but in order to substantiate this matter has neither prayed any Local Investigation Commission nor submitted any prayer  for any Expert Commission.  This mater  is clearly reflecting  that the complainant  has failed to establish  his case in support of his  claim of illegal demolition  of the building .  In this regard this District Commission shall also not be out of mind that for illegal activities of the Ops, there is necessity of initiating Criminal Case  but surprisingly the complainant has failed to take any steps  in this regard.  All the above noted factors are clearly reflecting  that complainant has filed this case before the wrong forum.  In this regard, it is important to note  that this complaint case is not maintainable in the eye of law and this complaint case is bad for defect of parties and this District Commission  has no jurisdiction to try this case.

Considering all the above noted factors this District Commission is of the view that there is no other alternative before this District Commission but to dismiss this case.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 159/2020 be and the same is dismissed on contest  as it is not maintainable  and this District Commission has no pecuniary jurisdiction to try this case.

No order is passed as to cost.

Let this complaint petition be returned to the complainant  for filing the same before the Appropriate Forum.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

  President