Order-22.

Date-03/12/2015.

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

          Complainants by filing this complaint has submitted that they entered into an agreement with the OP Developer on 14-08-2009 who was entrusted with the task of development and construction of a new residential flat at their premises i.e. premises No.16/1/H/48/8, Biplabi Barin Ghosh Sarani, P.S. Maniktala, Kolkata – 67 and as per the said agreement OP should allocate a room measuring 63 sq.ft. on the ground floor and the cash consideration to the complainants which has been clearly mentioned in the third schedule of the said agreement but OP deliberately failed and/or neglected to hand over the said room as well as the balance amount of Rs.1 lakh till today.

          Complainants made several verbal demands to the OP for handing over the said room as well as balance amount but OP did not pay any

heed to them.  Thereafter, finding no other alternative complainants made written demand to the OP on 18-08-2014 by Regd. Post but in spite of receiving the said letter OP did not take any step to redress their demand.  Thereafter, complainants sent a letter to The Hon’ble Minister-in-Charge, Consumer Affairs Department, Govt. of West Bengal on 08-09-2014 and on that basis that a tri-partite meeting was held on 01-12-2014 by the Dy. Assistant Director of Consumer Affairs Department but OP did not again appear there in lieu of that sent an unsigned letter with date – Nil to The Hon’ble Minister-in-Charge, Consumer Affairs Department and due to such adamant attitude the matter could not be settled and by the letter dated 07-01-2015 the complainants were directed to file complaint before appropriate Forum.

          Complainants stated that OP with most illegally, arbitrarily and with mala fide intention failed and/or neglected to hand over the said room in question and also to pay the balance amount as per agreement.  So, for this negligent and deficient act of the OPs complainant compelled to file this complaint before this Forum praying for redressal and compensation.

          Op by filing written statement submitted that op is carrying on development business and the complainants along with their brother Sri Ratneswar Das entered into a Development Agreement with the op under the terms and conditions mentioned therein and as per agreement it is a joint venture by nature regarding development of a land by construction of a structure thereon and in fact it is a business agreement between the parties.  So, complainants are not consumer under the purview of the definition of Consumer Protection Act 1986 and op is not a service provider and complainant did not enter into this Development Agreement with the op for purchasing any good or availing of any service against payment of valuable consideration.  So, Ld. Forum has no jurisdiction to entertain this complaint and both the parties agreed to treat the said agreement as a commercial agreement and to use the property for commercial purpose and as such any commercial agreement does not come within the jurisdiction of this Ld. Forum.

          It is further submitted that in Development Agreement the Landlords agreed to allow the op to transfer the Developer’s allocation with undivided share in land to the intended purhasers, but very recently op came to know that the said land is recorded as a Thika Land and the complainants are Thika Tenants and as such they have no transferable right in the said land to any third party as transfer of land to any third party is totally barred under the provisions of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 as amended and moreover any agreement towards transfer of land is void under Section 6(2) of the said Act and as such a void agreement cannot be enforced in any court of law.

          It is further submitted that complainants and their brother entered into the said Development Agreement in suppression of material facts and/or distortion of facts, regarding the subject property and they have cheated the op as they have no authority under law to sell and transfer the flats constructed by the op together with undivided share in land and due to such fraud and misrepresentation by the complainants and their brother the op shall have to suffer huge loss as he has no authority under law to transfer the flats under Developer’s allocation.

          Though complainants induced the op to enter into the said Development Agreement by making false statements to the op and practically op promised to pay certain amount as per the Third Schedule of the Development Agreement and said amount of Rs. 1,00,000/- was payable to all the landlords, but fact is that all the landowners are demanding money separately from the op and in this case complainants have not added their brother as a party although the brother was a signatory of the said agreement.

          Moreover op denied the entire allegation of the complainant and alleged that present agreement is void agreement under law and the clauses of the said agreement are sufficient to prove the falsity of the complainants.  Complainants have no transferable right to a third party as per the Act 2001 u/s 5(4) of WBTT (Acquisition and Regulation) Act, 2001.  So the complainants are not consumers.

          Moreover the case is clearly barred by limitation and complainants are trying to enforce a Development Agreement in this Ld. Forum after lapse of six years.  So, the complaint is barred by limitation and further denied all the allegations before this Forum.

Decision with Reasons

        After careful consideration of the complaint and written version and further considering the argument of the Ld. Lawyers of the parties including the agreement dated 14.08.2009, it is found that the agreement was executed by the op and Mamata Das and Nivedita Das and their brother Ratneswar Das and as per agreement it is found that complainants and his brother will get one self-contained flat measuring 600 Sq. Ft. area and another self-contained flat (remaining portion of the first floor) and a room measuring 63 Sq. Ft. on the ground floor of the said building in the said land and that is owners’ allocation and about agreement complainant has not challenged that agreement.

          But most interesting factor is that complainants by a letter dated 13.05.2015 address to Mamata Das and Nivedita Das the complainants informed that he is ready to comply the demand of Rs. 1,00,000/- only as prayed in the complaint petition except the cost and compensation by six installments and regarding the remaining 63 sq. ft. room on the ground floor as per agreement dated 14.08.2009 and he has submitted for relying that he is willing to give peaceful possession of the said room and do all the needful which are required on his part.

          Peculiar factor is that op agreed to handover the said 63 sq. ft. area of room on the ground floor as per agreement dated 14.08.2009 in favour of the complainants that is admitted in writing and it was submitted by the op before this Forum by this letter.  So, considering that fact, it is clear that about agreement there is no denial, no challenge and it is nothing but a Development Agreement and complainants as owners are entitled to get that room on the ground floor a room of 63 sq. ft. and opis willing to give peaceful possession of the said room and do all the needful which is admitted by the op and it is also admitted that he is agreed to pay the balance amount of Rs. 1,00,000/- only as prayed in the complaint petition.  But he is not able to pay the cost or compensation.  But he is willing to pay of Rs. 1,00,000/- by six installments.

          So, considering the said letter of the op Samir Kumar Dutta dated 13.05.2015 we are confirmed that during pendency of the complaint case, op submitted that letter in favour of the complainants and also filed to this Forum and by that letter he is willing to pay Rs. 1,00,000/- and 63 sq. ft. of room on ground floor, that means op has not challenged that part of agreement or the claim of the complainant.  So, invariably op is legally bound to comply his part of performance as per his own admission and admitting the claim of the complainant.  Op submitted by that letter that he is not able to pay cost and compensation that matter should be decided by this Forum.

          But peculiar factor is that in the present case even after admission in respect of the claim of the complainants, Ld. Lawyer of the op raised some legal points and further submitted that the land in question is tikha tenanted land.  Accepted fact is that land in question is Tikha tenanted, complainants are tikha tenants along with brother Ratneswar Das and as per provision of WBTT (Acquisition and Regulation) Act, 2001 no doubt interests of the tikha tenants is directly under State and undersub-section (1) shall be heritable and shall not be transferable except amongst the heirs and existing co-shares-interest and spouses or to the prospective heirs, with a piror permission of the Controller, subject to the provisions of sub-section (4) of section 5.  But complainant cannot transfer the said land to anyone but by that agreement complainants have transferred their tikha tenancy portion to the developer.

          But considering the agreement and no other registered deed of transfer we are convinced that the complainants and his brother Ratneswar Das have not transferred any portion of the tikha tenancy land to the developer, only as per agreement developer was authorized to construct the building.  Now question is whether by development agreement complainants have their legal right to construct this structure by removing the existing structure on the land.  In this regard we have gathered that section 5(1) of the Act, 2001 reveals that tikha tenantsis holding right directly under the State under sub-section (1) shall be entitled to construct pucca structures or to change the nature, character and dimension of an existing structure on the land in accordance with the building plans sanctioned under the KMC Act, 1980 and the rules made thereunder and in this case it is found that complainants as tikha tenants has constructed the structure by demolishing the existing old structure as per KMC sanctioned plan and as per section 5(1) of the Act, 2001 tikha tenants have raised in pursuant of building plan sanctioned by the KMC meant for residential and business purpose of the tikha tenants and for the bharatias as well.  Apart from the above, right has been provided for essential common facilities like common pathway, common bath, toilet, water supply, drainage, sewerage etc. and this right was given to the tenants only to use the tikha land for utilization of the land.

          But as per spirit of the law that is Act, 2001 for construction of the same as per sanctioned plan of KMC thika tenancy right is not changed.  So, the land in question is a tikha tenanted land, complainants and his brother are tikha tenants under the State and they have their right to construct new building for utilization of the land as per provision and when the structure has been developed by the op invariably that right is given by the Act.  But necessary permission may be taken by the complainants at subsequent stage from the tikha controller in this regard, when complainants are tikha tenants admittedly and they have their right.  So there is no illegality in entering into such agreement when the land in question has not been transferred by the registered deed of sale in favour of the op, but op is appointed as developer by development agreement, complainants gave some rooms and in respect of that rooms, that is op’s allocation shall be treated as bharatias under the present complainants and their brother.

          In fact the present agreement is not agreement to sale but agreement for development in that case it shall not be treated as void so no doubt the agreement as advanced by the op’s Ld. Lawyer is not at all tenable as same is without any foundation and practically the entire provision of law has been mis-interpreted by the Ld. Lawyer for the op for some other reasons. 

Anyhow after comparative study of the provision of WBTT (Acquisition & Regulation) Act, 2001 particularly section 5 as a whole with Sec.-6 we are convinced to hold that the present complaint is not any way barred u/s WBTT(Acquisition & Regulation) Act, 2001 and as per said act, tikha controller has no legal authority to decide about that agreement when it is a development agreement and by that agreement complainants hired service of the op for construction of the building and that is admitted by the op.  Op is willing to pay Rs. 1,00,000/- and to hand over the possession of 63 sq. ft. room and in fact as per agreement op has his obligation to hand over possession of the said room and also to hadn over Rs. 1,00,000/-.

As per provision of law (Act, 2001) any agreement for transfer whether oral or in writing or any activity in contravention of the provisions of sub-section (4) or sub-section (5) or provision to sub-section (5) shall be declared invalid under an order of the Controller and the structure or part of structure, as the case may be, shall stand forfeited to the State in accordance with the procedure as may be prescribed and the any short of transfer this statue shall be treated as void but present agreement  of development cannot be taken into account as a document of transfer.

But in this case op has failed to produce any document to show that there is/was any agreement to sale or transfer any portion of the structure to the op by any agreement.  Then it is clear that this present document is agreement for development only in respect of which Thika Controller has no jurisdiction.  If the document would be transferred agreement in that case jurisdiction is vested absolutely to the controller of tikha tenancy.  But it is completely a case for not giving service as complainant hired service and he got sanctioned plan in respect of tikha tenant land and op was engaged to construct building and in lieu of that op was given some rooms and in respect of those rooms no doubt op shall be treated as Bharatias for which op shall have to pay rent to the complainants.  But op has no right to transfer the same by executing the sale deed because op has acted as simple developer and he got some rooms from the complainants that is treated as Bharatias room and if op places any person in those rooms they shall also be treated as Bharatias under complainants and his other brother Ratneswar Das.

But we have gathered that the entire argument advanced by the Ld. Lawyerfor the op is completely without any legal foundation but only for the purpose of dismissing the complaint in a very tactful manner after admitting complainant’s claim, raised such naughty point through their Ld. Lawyer.  When already op has admitted in writing that he is willing to pay Rs. 1,00,000/- and to hand over the possession of the said room.  So, it is proved that op has admitted that as developer and as service provider he has not done it as yet not only that completion certificate has yet not been handed over by the op to the complainants.  But it is the duty of the op to hand over it as developer.

Moreover development agreement is for construction of the building and tikha tenant how and in what manner shall have to use the land is not a factor to be decided by this Forum.  Tikha tenant can use a land after construction of the building for domestic purpose or for his business purpose etc. and in the present case the shop room is required to be used by the complainants for running there own business for livelihood because they are unmarried persons and they want to run their business for themselves. So under any circumstances, the development agreement cannot be treated as for commercial purpose and the development agreement is also not an agreement for commercial purpose and when tikha tenant has no legal right to transfer any portion of land or any structure to third party and rightly in the present case as per development agreement dated 14.08.2009, complainants have not sold any property to any one and by that way he has not collected any amount from any one and he has not entered into agreement for sale with anyone and not even with O.P.

So, it is proved that the development agreement is not an agreement for commercial purpose.  Truth is that op after development handed over two flats but only shop room was kept under lock and key and has not handed over it and op admitted that he is willing to hand over it and pay Rs. 1,00,000/- and then on the admission we can allow this complaint on the ground that there is no legal bar under WBTT (Acquisition & Regulation) Act, 2001 when the agreement of development is not an agreement for sale.  So, under any circumstances the agreement cannot be treated as invalid and further by that agreement developer was allocated some rooms of flats and in respect of that developer is nothing but a bharatia under the complainants and for which rent shall be assessed and op shall have to pay it and if op allows to some other persons, then they will pay that rent as bharatia to the complainants and in fact in the eye of law this complaint is not barred under WBTT (Acquisition & Regulation) Act, 2001.  So, the argument as advanced by the Ld. Lawyer of the op seems to this Forum is not on the legal line and it bears no merit in the eye of law when op admitted that he is willing to pay Rs. 1,00,000/- and to hand over the possession when it is legal obligation of op as service provider and developer to hand over it immediately but that has not been done.

Considering all the above facts and materials, legal provision we are convinced to hold that there is legal and sufficient ground to allow this complaint when this complaint is not barred by limitation also.

Lastly after proper appreciation of the legal position, we find that this present holding situated at 16/1/H/48/8, Biplabi Barin Ghosh Sarani, P.S.- Maniktala, Kolkata- 700067 is nothing but a tikha tenanted land.  No doubt complainants and their brother Ratneswar Das are tikha tenants directly under State and the construction already made by the complainants on the basis of the development agreement dated 14.08.2009 after taking KMC sanctioned plan is still tikha tenanted land and complainants are residing there, op shall be treated as bharatia under the complainants and his brother in respect of his allocations. If op places any other person in the other portion of the flat, they shall be treated as bharatia under the complainants and for which complainants shall have to fix rent and that rent shall be paid by the bharatias to the tikha tenants (Complainants).

But complainants and ops have their no legal right to transfer any portion of the structure or land to anyone and no doubt complainants have not transferred any portion of the land or structure by agreement to sale or by any registered deed of sale.  So, no illegal act has been done by the complainants violating the provision of WBTT (Acquisition & Regulation) Act, 2001.  So, in the light of the above observation the complaint succeeds.

Hence, it is

ORDERED

          That the case be and the same is allowed on admission of the op and also on contest against the op with cost of Rs.10,000/-.

          Op is hereby directed to hand over the case room measuring 63 sq. ft. on the ground floor of the premises to the complainants and to pay that amount of Rs.1,00,000/- to the complainants within one month from the date of this order, failing which op shall have to pay penal damages of Rs.10,000/- in each month till delivery of possession of the said ground floor room to the complainants and also to pay penal interest  at the rate of Rs. 800/- per month from the date of this order till full satisfaction of the amount of Rs. 1,00,000/-.

          But the entire order shall be complied by the op positively within one month from the date of this order failing which penal action shall be started against op u/s 25 read with section 27 of C.P. Act, 1986 for which further penalty and fine shall be imposed upon him.