Date of filing: 09/02/2018
Date of Judgment: 22/02/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Sri Jamdar Ram under section 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as OPs hereinafter) namely (1) Smt. Kanaklata Hazra (2) Azad Khan (3) Sk. Dilwar Hussain alies Dola (4) Sk. Anwar Ali (5) Sk. Raju and (6) Md. Zakir Hussain, alleging deficiency in rendering of service on the part of the opposite parties.
Case of the complainant in short is that complainant was residing as a tenant on payment of monthly rent at premises being No. 56/10/1, Picnic Garden Road, under Tiljala Police Station, Kolkata – 700 039, under owner Smt. Basanti Hazra and Sri Chhotu Hazra. After their death O.P. No. 1 became the absolute owner in respect of the said property and the complainant became tenant under the O.P. No. 1. O.P. No. 1 entered into a joint venture agreement to raise a multi storied building at the said premises being No. 56/10/1, with O.P. Nos. 2 to 6 being partners of firm Garib Nawaz Associates. So complainant was convinced to vacate the premises and he would be rehabilitated in the newly constructed building in the status of a tenant. Due to the pressure upon the complainant he shifted to another accommodation in the same premises. O.P. No. 1 forced the complainant to sign and execute an agreement that he had agreed to buy a space in the proposed multi storied building for a consideration. So a civil suit and injunction was filed by the complainant against the O.P. No. 1. Thereafter opposite parties came to a compromise and entered into an agreement with the complainant on 06/05/2015 for providing the complainant with accommodation of one room measuring about 70 sq. ft. More or less carpet area on the ground floor of the new proposed multi storied building with providing all other facilities such as flooring, electrical wearing, water connection and connection of electric supply etc. Soon after shifting of the complainant in the said room with an assurance by the opposite parties to provide him with water supply and separate electric connection but in spite of the repeated requests they denied providing the water supply and the supply of electricity. Several request has been made but the opposite parties paid no heed and thus present complaint has been filed praying for directing the opposite parties to water supply and supply of electricity from CESC at the room of the complainant, to pay an amount of Rs. 50,000/- for harassment and mental agony and to pay litigation cost of Rs. 15,000/-.
O.P. No. 2 to 6 have contested the case by filing the written version denying and disputing the allegation contending specifically that after giving the possession of the room to the complainant it was learnt that the measurement of the room was 85 sq. ft. instead of 70 sq. ft. So the complainant was asked to vacate room and was offered a room measuring 70 sq. ft. but the complainant did not agree and offered that he would pay an amount of Rs. 50,000/- (in some places OPs have mentioned Rs. 30,000/- and somewhere it has been recorded as 50,000/-) for extra 15 sq. ft. but till date complainant has not paid the said amount. As per the terms and conditions of the agreement dated 06/05/2015 they are not liable to provide electricity and water supply at the room of the complainant. Thus the OPs have prayed for dismissal of the case.
O.P. No. 1 has not taken any step on service of notice and thus case has been heard exparte against O.P. No. 1.
During the course of trial complainant filed his examination in chief on affidavit which was followed by filing questionnaire by contesting OPs 2 to 6 and reply by the complainant. OPs also filed their examination in chief but no questionnaire was filed by the complainant. However, he ultimately filed the brief notes of argument and contesting OPs also filed their written notice of argument. Argument was also heard.
So the following points requires determination:-
- Whether there has been deficiency in rendering of service on the part of the opposite parties?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
At the very outset it may be pertinent to point out that this case is entirely based on an agreement dated 06/05/2015 executed by and between the parties. Complainant though has claimed that there was an earlier agreement and he was being forced to sign, has no relevance for the purpose of adjudication of the disputes agitated in the present complainant.
On a careful scrutiny of the written version filed by the O.P. Nos. 2 to 6 it is evident that they have not disputed and denied the execution of the said agreement dated 06/05/2015. It is also not in dispute that as per the terms of the said agreement complainant has been handed over a room on the ground floor of the new proposed multi storied building in premises no. 56/10/1, Picnic Garden Road, Tiljala Police Station, Kolkata – 700 039. The only contention which has been raised by the O.P. Nos. 2 to 6 is that the said room is actually 85 sq. ft. instead of 70 sq. ft. as agreed in the agreement. But no document has been filed by the OPs in order to substantiate that the said room measures 85 sq. ft. OPs have also not stated the basis of arriving at a conclusion that the said room actually measures 85 sq. ft. In such a situation the said contention of the OPs about area of the room being excess of 15 sq. ft. is nothing but an afterthought.
As per the terms of the said agreement in clause – 9 it is specifically mentioned that complainant shall be handed over the possession at the new proposed building at the agreed portion in the ground floor under the status of tenant under the party to the 1st part i.e. owner / O.P. No. 1 herein and the complainant shall be liable to pay an amount of Rs. 700/- per month as monthly rent. The schedule of the said tenanted portion agreed to be handed over to the complainant along with other amenities described are as follow:-
“All that piece and parcel of one (1) room measuring about 70 sq. ft. more or less carpet area on the ground floor of the new proposed multi storied building on premises No. 56/10/1, Picnic Garden Road, Tiljala Police Station, Kolkata – 700 039, with wall plaster, flooring, electrical wiring together with common privy, bathroom, water connection and connection of electric supply”
So the said schedule is very categorical that the complainant was agreed to be delivered room measuring 70 sq. ft. along with amenities of providing essential services i.e. water connection and connection of electric supply. It appears from the record that O.P. Nos. 2 to 6 had put the question to the complainant by filing questionnaire stating therein that it was completely liability of the complainant to bring electric meter in room which supports the claim of the complainant that he has not been supplied with the electric connection. The schedule as highlighted above in the agreement is very categorical about the supply of electric connection to the complainant in his room by the opposite parties. So O.P. No. 1 being the owner of the premises where the complainant is a tenant in respect of the room delivered to him as per the terms of agreement, O.P. No. 1 is liable to provide the electric connection / electric meter by taking appropriate step before the authority concerned. However so far as the supply of water connection it appears that the agreement indicates about a common privy and bathroom and not for the exclusive enjoyment of the complainant. So the claim of complainant that he is entitled to the water supply in his room cannot be accepted. However he is entitled to a direction upon the opposite parties to supply the electric connection in his room. In the given facts and situation of this case we find no justification to pass an order as to compensation.
Hence
Ordered
CC/66/2018 is allowed exparte against O.P. No. 1 and on contest against O.P. 2 to 6. Opposite Party No. 1 is directed to take step before the CESC for the supply of electric connection at the room of the complainant situated at premises No. 56/10/1, Picnic Garden Road, Tiljala Police Station, Kolkata – 700 039 as per agreement dt. 06.05.2015 within two months from the date of this order. Opposite parties are directed to pay litigation cost of Rs. 15,000/- to the complainant within the aforesaid period of two months.
