Today is fixed for hearing of MA/81/2021 which was filed on 09.02.2021 by A.S. Construction and its partners (who will hereinafter be called as the developers) against Shri Chandra Saha and Anuva Roy (hereinafter be referred to as the landowners). This has arisen out of landowners 's CC/179/2020.

There was an agreement between the landowners and the developers executed on 03.12.2003 for development of land measuring about 4 Cottahs 26 Sq.ft. under CS Khatian No. 162, under Rajarhat Police Station. As per agreement the developers were due to finish the proj by 28.01.2019. 

As the said Agreement dated 03.12.2003 was not translated into reality within the stipulated time the landowners filed Consumer Complaint Case no. 179/2020 on 07.08.20 for getting back the original documents together with  compensation of Rs. 2,00,000/- and also for costs.

By filing aforesaid MA the developers have sought for a dismissal order chiefly  on the ground that the complaint is tainted with suppression of material fact as to pendency of WPA 2153/2007 before the Hon’ble High Court and also on the ground that the claim of the complaint has been undervalued.

We have heard the Ld. Advocates of both sides and adverted to the material available on record.

It is admitted position that the complaint is undervalued it is not supported by valuation report. The Ld. Advocate appearing for the landowners has assured this commission that valuation report would be filed and deposit of deficit court fees would be paid.

It is now well settled that the value of land as on the date of agreement (i.e. as on 03.12.2003) has to be reckoned with. With direction to the Ld. Advocate of the landowners to file report as to valuation of land as on 03.12.2003 and also to pay the deficit court fees we hold a view that one of the grounds taken by developers becomes in-operative now. However the developers would be at liberty to press this point at the time of final hearing of the case in case of noncompliance with the aforesaid direction.

The Miscellaneous application bears a reference to (I) WPA 14890 of 2003 and (II) WPA 2153/2007 and which were disposed of on 25.06.2003 and 17.12.2021 respectively. Both were filed by the land owners. 

Challenging a notice served upon the land owners asking them to show cause on why the provisionally sanction G+4 storied building plan of RS Plot No. 161 would not be revoked the landowners filed writ petition no. 2153 and the Honourable court found the application as infructuous on 17.12.2021; whereas in writ application no. 14890 of 2003 the question as to the nature of the land was involved and the land was declared as 'danga' one. It may be deduced therefrom that whether the land was a part of water body or not was involved in both the cases and it was decided it was danga.  

True it is that the complaint of CC/179/2020 does not bear mention about the aforesaid Writ Applications and that WPA No. 2153 was pending when the Complaint case was filed (i.e. on 07.08.20). At the same time it may be that they did not consider it necessary to do so. 

Be that as it may,  question may still arise as to whether complainants were justified in bringing this complaint case on 07.08.20 when the writ petition No. 2153 was yet to be decided or not.

It is quite apparent that the parties of the present case and the parties to the writ applications are not same and identical. Again the reliefs sought for from the Hon’ble Court and the reliefs sought for from this Commission are altogether different.

The developers would be at liberty to say at the time of final hearing that sanctioned plan G+3 multi storied building could not be procured due to issue as to the nature and character of the land - if it was so. This commission would also, by then, get oral evidence and also other evidence to decide this point. Until then it would be unsafe to opine that the landowners were altogether unjustified in bringing this complaint case.  It would not be wise for us to jump to a conclusion that the land owners were under legal obligation to wait for the disposal of the writ application. Rather we feel disposed to say that this issue may become a weapon in the hands of the developers to resist claim of the complainant as to cancellation of the agreement due to a efflux of time.

Therefore, we are of the view that the complaint case does not deserve a dismissal order only because of the fact that it was filed during pendency of writ petition no. 2153 or that the landowners omitted to incorporate it in the complaint.

As such, that the MA filed by the developers does not merit acceptance.

Hence, it is ordered that the MA/81/2021 be and the same is dismissed on contest but without cost.

14.03.2022 is fixed for adducing evidence by the complainant.

Let plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MR. Lakshmi Kanta Das]
PRESIDENT