Order-17.
Date-13/10/2015.
In this complaint Complainant Dominic Arokianathan by filing this complaint has submitted that by virtue of an agreement dated 15.04.2008 with one Ruhul Amin Prop. M/s. S.H. Construction (op) for residential flat measuring about 1500 sq. ft. at 5, Karim Hossain Lane, Kolkata – 700017 and for that purpose complainant has paid Rs. 16,00,000/- for the entire flat and rate per sq. ft. was/is as Rs. 1,200/-.
Though complainant has paid the full amount for the said flat, but the op has not completed the said flat till date and also not deliver up the sad flat upon complainant within stipulated time as per the said agreement.Though complainant on several occasion requested the op no.1 to complete the said flat and deliver up the possession.But the said op no.1 was reluctant and arrogantly threated the complainant with dire consequences saying that he will hand over the possession to a third party.
Complainant came to know that the op no.1 in connivance with the other occupiers in the said premises of that flat on the ground floor and 4thfloor respectively, are illegally occupying the said incomplete flat with an intension to hand over the possession of the said flat to an unknown person.Complainant resisted the said attempt and lodged a complaint to Beniapukur Police Station on 12.04.2014 and after the said complaint, op assured the complainant that the op completed the said flat and handed over the same to complainant within few months.But op failed to do the same and tried to handover the said flat to a third party.
Thereafter on 04.02.2015 complainant filed a case u/s 144 of Cr. P.C. before the Ld. 1st Class Executive Magistrate at Sealdah being M.P. 175/2015.Landlords/Proforma op on behalf of the complaint also requested to the op to complete and delivered the peaceful possession of the flat to the complainant or returned the amount of the complainant but op did not pay any heed in this regard.
Practically for the laches and negligence and deficiency on the part of the op, complainant has been suffering a huge loss and also mental pain and agony and at the same time op has adopted unfair trade practice and op also failed to deliver the peaceful possession of the said flat as yet.In the result, complainant has prayed for necessary action and for redressal.
On the other hand op by filing written statement submitted that the present complaint is vexatious, false and fabricated and complainant with the help of landlords filed this complaint for some ill purpose.
Fact remains that op to do the construction work smoothly tried to complete the flat and handed over the same.But Proforma ops made some hindrances, obstruction and after completion of the entire flat, the allocation of the landlords were given that is an area of 2800 sq. ft. in the newly constructed building and when op started to book the remaining portion of the said premises that is Developer’s portion and started to handing over possession to the intending parties and in course of the same, complainant approached the op for the flat in question.
But in the meantime owners including the Proforma op encroached the entire building and also the Developer’s allocation of more than 3000 sq. ft. more or less including the flat of the complainant and even did not allow the op to enter into his allocation and enable him to handover the flat to the intending parties including the complainant.Though op made several request, reminder and persuasion terminated the said development agreement and demanded the landlords including the Proforma ops to vacate the encroached portion and enable him to hand over the same to few other including the complainant but the landlords including the proforma ops did not vacate the encroached portion for which op is/was unable to hand over the same to few other persons including the complainant.But landlord did not vacate and they are occupying the same.
In the above situation, complainant is unable to get his developer’s allocation which is illegally encroached by landlords including the Proforma op.So, there is no negligence, deficiency on the part of the op.
Op further submitted that he has/had intention to handover the flat not only to the complainant but to some others also if he got his areas wrongfully encroached by the landlords including the proforma ops.In the above circumstances, op prayed for dismissal of this case.
On the other hand Proforma Op by filing written statement submitted that no doubt op/Developer has failed to complete the whole construction work of the said premises, though proforma op requested the op to construct the work along with flat of the complainant and notice has been sent to the op where Lawyer of the op in his reply dated 11.02.2015 stated that all liabilities and responsibilities have paid up/concluded/completed by the proforma ops and the agreement had been terminated in long past and proforma ops have admitted the allegation of the complainant that is true and op Developer tried to encroach the premises illegally for which they have taken also the help of the competent authority.Proforma ops also admitted that op has received Rs. 16,00,000/- from the complainant for one flat on the 1st Floor.So, Developer has the duty to complete and hand over the said flat to the complainant and it is also admitted by the proforma ops that even after payment of huge amount, complainant is not enjoying the said flat booked by him on the part of the op/Developer has failed to perform his duties towards the complainant and also landlords that is the proforma op.
So, op Ruhul Amin should be directed to pay the entire amount including cost, compensation and proforma op has nothing to do in this regard and when complainant has not prayed for any relief against proforma ops, they have nothing to do and prayed that the case may be dismissed against them.
Decision with reasons
On proper consideration of the complaint and written version and further considering the Agreement dated 15.04.2008 in between the parties, it is clear that by that agreement, practically Agreement was made in between the complainant and op (contractor).But landlords were not the signatories or confirming parties in that Agreement and by that Agreement, op Ruhul Amin intended to induct complainant as tenant in one flat at East & North corner namely flat-B, comprising two bed rooms, kitchen bath cum privy and verandah measuring about 600 sq. ft. covered area more or less on the 1st floor of Block-B, at the said premises No.5 and as per said Agreement, it is found that by that Agreement, complainant approached the first party for letting out him the flat on Tenancy basis all that piece and parcel of one self-contained flats consisting of two bed rooms, one dining hall room, etc. as described and op Developer agreed to complete the area of 1500 sq. ft. more or less covered area on the first floor North – West corner of stair case position of the said building in Block-Band complainant agreed to pay the construction charges of the said flat at the rate of Rs. 1200/- per sq. ft. and rate of rent for the flat is settled at rupees one rupee and fifty paisa only per month and payable according to the English calender month, the rent is however subject to increase at the rate which shall be every after 5 years and/or after enhance as per W.B. Premises Tenancy Act, 2002 and it is specifically mentioned in the said Agreement that complainant shall use the said flat for the purpose of his residence only, but not for any other purpose.
It is specifically mentioned in Clause-9 that complainant has agreed to pay 85 percent of his construction before taking his booked portion flat to the first party Developer and balance 15 percent to be paid at the time of delivery of possession of the said flat to the second party with agreement and rent receipt directly in the name of complainant.
It is specifically mentioned that tenancy shall be transferable and inheritable and the same shall be governed under West Bengal Premises Tenancy Act 1997 as amended from time to time and complainant shall have right to make necessary repair and decoration of his flat at his own cost for which the third party landlords shall not raise objection and complainant shall be treated as tenant and landlord proforma op nos. 1 & 2 shall accept that complainant is incoming tenant on the first floor at the proposed construction of the building at the said premises.No doubt for construction of tenanted portion of flat, op has received Rs. 16,00,000/- from the complainant.But relationship in between the complainant and op is nothing but landlord and tenant and as per Agreement, it is not an Agreement for Sale but it is an Agreement for induction of the complainant as tenant and complainant shall have to pay construction charges of the said flat at the rate of Rs. 1,200/- per sq. ft. as tenant not as purchaser.
No doubt op was appointed as building contractor and authorized him to construct a four storied building at the said premises also empowered him to let-out and/or booked the flat or spaces of the constructed building to collect construction cost from them from the incoming tenant to realise the cost of construction of the constructed premises.So, Agreement dated 15.04.2008 in between the complainant and op Ruhul Amin is nothing but an Agreement for induction of tenant and complainant’s right is agreement for tenancy and if tenancy is not given by the op in that case and for that reason complainant cannot be treated as consumer when complainant by that agreement admitted that he shall have to pay rent at the rate of rupee one and fifty paisa per month as tenant and payable according to English Calender month and rent shall be increased after every 5 years.
Considering the total agreement and its clauses, it is clear that the relationship in between the complainant and the said Ruhul Amin is nothing but landlord and intended tenant because complainant by this agreement has agreed that he shall have to pay rent of the said flat at the rate of rupee one and fifty paisa per English Calender month. So, in the eye of law, complainant is not a consumer under the op.
At the same time it is found that proforma op nos. 1 & 2 are the owners of the building.They have already cancelled all the powers of the op Ruhul Amin to construct building to complete building or to let it out or to handover the flat space out of constructionor to collect from the incoming tenant to realise the cost of construction of the premises.So, op Ruhul Amin has no legal authority to place the complainant as tenant or to handover the possession of the tenanted portion to the complainant.
Moreover the agreement is not executed by the landlordsproforma op nos. 1 & 2 and they are not confirming party of the present agreement.So, this agreement is not binding upon proforma ops.
But after considering the entire agreement and those clauses, it is clear that for the purpose of construction on tenanted portion, he received that money.Now op Ruhul Amin of M/s. S.H. Construction has no right to enter into the building because Development Agreement which was initially executed amongst the ops is cancelled by the proforma ops.
Further from the defence of the op, it is found that op has admitted that the entire building is under the possession of the landlords and fact remains that the money of Rs. 16,00,000/- was received by op Ruhul Amin, not by the landlords.
Further considering the entire Agreement, it is found that it is an Agreement for induction of tenancy in respect of particular area of the premises as tenant.But there is no such Agreement for Sale of the flat in favour of the complainant. Construction cost was received as per power given by the landlord’sprofroma op nos. 1 & 2 but that power has been cancelled.So, the present Agreement is not a Housing Construction and there is no Agreement in favour of the complainant by the op for sale of flat so the present Agreement cannot be treated as Agreement for Sale in favour of the complainant by op no.1.But this Agreement is nothing but an Agreement for construction of tenanted portion of the complainant.but in the eye of law such an agreement of inducting tenancy is not valid in view of the fact that the landlords has not confirmed the same by signing the same as confirming party and moreover in the agreement landlords are not parties.
For the sake of the argument if it is found that if it is an Agreement for induction of tenancy after taking money but when landlords of the land in questions are not confirming party and are not also parties of the Agreement, tenancy cannot be treated as valid tenancy agreement and as per agreement he is intended tenant under the op not under the proforma op nos. 1 & 2.
So, in the eye of law the present complaint is not maintainable because any agreement of tenancy in between the tenant and the op no.1 is not valid in the eye of law when all powers given by the landlords proformaop nos. 1 & 2 had already been cancelled and present agreement is not executed by the confirming party that is original landlords proforma op nos. 1 & 2 and moreover as per Agreement, complainant cannot claim any tenancy under proforma ops.
In the light of the above observation we are convinced to hold that no doubt complainant paid Rs. 16,00,000/- as tenant for completion of his tenanted portion but agreement is found is found a void agreement and further any agreement in between the tenant and so called landlords cannot be treated as an agreement for sale of a flat and for which this present construction does not come under the purview of the Housing Construction for which relationship between the complainant and op Ruhul Amin is not a purchaser and service provider but intended tenant and so called landlord.But so called landlord has no right interest over the entire construction including the land.
In the result, this complaint fails.
Hence, it is
Ordered,
That the complaint be and the same is dismissed on contest without any cost against the op and also against other proforma ops but without any cost.
