Judgment : Dt.04.08.2017
This is an application made by one Purabi Roy, wife of Sri Parimal Roy, residing at 136/1, Upen Banerjee Road, P.S.- Behala at present Parnashree, Kolkata-700 060 against (1) Smt. Bula Roy, Proprietor of M/s Pragati Construction of 16/91, Behala Govt. Quarter, Parnashree Pally, P.S.-Behala, Kolkata-700 060, OP No.1, (2)Sri Susanta Mondal, son of Sri Krishna Chandra Mondal of P-235, Upen Banerjee Road, P.s.- Behala, Kolkata-60, OP No.2, (3) Smt. Sandhya Mondal, wife of Sri Susanta Mondal, P-235, Upen Banerjee Road, P.S.-Behala, Kolkata-60, OP No.3 and (4) Sri Shyamal Mondal, son of Sri Manik Chandra Mondal of P-235, Upen Banerjee Road, P.S.-Behala, Kolkata-60, OP No.4, praying for an order directing the OP No.1 to give possession of the flat, owner’s allocation, in the newly constructed building, and an order directing the OP to pay compensation of Rs.5,00,000/- for causing mental harassment and an order directing the OP to pay Rs.1,00,000/- as litigation cost.
Facts in brief are that Complainant being an owner of a plot of bastu land measuring 2 Cottahs 11 chitkas along with brick built tile shed structure appertaining to Mouza- Behala, J.L.No.2, R.S. No.83, Touzi No.346, Khatian No.1925, Dag No.39 & 40. This property was purchased by virtue of a registered deed of sale, obtained from the then owner Sk. Md. Idris on 16.8.1989. At that time OP No.3 & 4 were the adjacent to owners plot of land on eastern side being premises No.267A, Upen Banerjee Road, Parnasree P.S. For the development of the said property Complainant with OP No.3 & 4 amalgamated their respective plots of land by executing of one deed of amalgamation on 9.8.2002 which was registered before the Registrar of Assurances. Complainant being a complete housewife and more or less illiterate and her husband being a very simple minded, executed a registered a general power of attorney in favour of OP No.2 before DSR at Alipore. Complainant completely relied OP No.2 agreed that he would manage and develop her own purchased property along with OP No.3 & 4. Complainant used to live far off her purchased plot of land. OP No.2, 3 & 4 convinced the Complainant to enter into a development agreement with OP No.1 and the deed of development agreement was executed on 14.4.2004 without the knowledge of the Complainant. In that development agreement OP No.2 signed the documents on the basis of registered general power of attorney by the Complainant. In the first week of January, 2005, Complainant noticed that OP No.1 entered into the said property and removed the existing structure and also came to know that building plan has already been sanctioned. Complainant completely disbelieved for his such wrongful activities. Thereafter, receiving this development agreement Complainant could learn that the ratio of the owner was mentioned as 30% and the ration of developer was 70%. This illegal work is the result of OPs was in connivance with each other. The proposed building has already been completed. But Complainant’s allocation has not been handed over. OP No.2 illegally filed a suit before the 7th Civil Judge, Senior Division at Alipore for specific performance of contract being title suit No.20 of 2005 and subsequently the said suit was withdrawn. Complainant in order to stop the illegal construction lodged a general diary for which Complainant filed MP case No.918 of 2006 under Section 144(2) of Cr. P.C. Complainant also filed an application under Section 9 of Arbitration and conciliation Act and title suit No.1900/2008. Complainant learnt that OP No.3 & 4 already received the possession of the flat. Complainant is entitled to her allocation as per the terms and conditions of the alleged development agreement and also entitled to Rs.5,00,000/- for mental agony and litigation cost of Rs.1,00,000/-. So, Complainant filed this case.
OP No.1 filed written objection wherein she has denied all the allegations. Further she has stated that Complainant has chosen two forms which is barred under the law. Complainant was represented through her power of attorney. So, she has no locus standi to ask owner’s allocation as per the development agreement. She is not a signatory to the development agreement. So, OP No.1 has prayed dismissal of this case. Other OPs did not file written version and contest the case.
Decision with reason
Complainant filed affidavit-in-chief to which OP No.1 filed questionnaire to which Complainant filed affidavit-in-reply. Similarly OP No.1 filed affidavit-in-chief to which Complainant filed questionnaire to which OP No.1 filed affidavit-in-reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of affidavit-in-chief, questionnaire and affidavit-in-reply of respective parties, it appears that Complainant is not a signatory to the development agreement. So, Complainant claiming owner’s allocation, does not arise here. Complainant herself has stated that she gave power of attorney of her land to OP No.2 who signed on the development agreement. Accordingly, it is OP No.2 who can ask the allocation for and on behalf of the Complainant from OP No.1.
Further, it appears that one proceeding is pending before the Ld. District Judge under arbitration and conciliation act 1996. In addition, one title suit is also ending.
So, we are of the view that Complainant does not become consumer of OP No.1 because she has not entered into any agreement with the OP No.1, developer.
Further, on perusal of development agreement also it is clear as to whether power of attorney holder of Complainant can have any share for Complainant. Accordingly, we are of the view since one title suit and one proceeding under arbitration and conciliation case are pending, Complainant is not entitled to any relief.
Hence,
ordered
CC/395/2016 and the same is dismissed on contest.
