ORDER NO. 3 DT. 02.11.2010

HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT

Appellant through Mr. Prabir Das, Ld. Advocate and the Respondent No. 1 through Mr. P.D.Roy, Ld. Advocate, are present.  Heard them in full.  Judgement is passed as under :-

OP No. 2 before the District Forum has come up in appeal against the judtgement and order dt. 18.5.10 passed by South 24 Parganas District Consumer Forum in C.C.Case No. 147 of 2009.

The complaint case is that the complainant entered into an agreement for sale on 13.6.97 with the father of the OP No. 1/Developer for purchase of a self-contained flat at a consideration of Rs. 3,00,000/-.  The said OP No. 1, in his turn,  entered into a development agreement with the present OP No. 2/Appellant for construction of a flat in the questioned land of the said OP No. 2.  The OP No. 2/Appellant had executed a power of attorney in favour of the OP No. 1/Developer by vesting all his powers to the said Developer. 

It is not in dispute that upon construction of the flat in question the possession of the same has already been delivered to the complainant/Respondent upon receipt of the entire consideration money.  It has been alleged in the complaint case that in spite of repeated requests the OP No. 2 has not registered the deed in question in respect of the said flat in favour of the complainant/Respondent.  Evidently the OP No. 1, the said Developer,  has no objection to execute and register the deed of conveyance in favour of the complainant/Respondent in respect of the said flat, the possession of which has been delivered to the complainant/Respondent.  The only defence that has been taken by the OP No. 2, the owner of the land underneath the flat in question, is that the complainant/Respondent is under obligation to pay to the owner the proportionate share of CMC taxes and other costs so long  the separate assessment in respect of the respective flats  is not made.  It has been contended in this Appeal that since after taking possession of the flat in question by the complainant/Respondent, he has not paid the proportionate share of CMC taxes in respect of the building in question.  It does not appear from the materials on record that upon completion of the building in the land in question of the OP No. 2, the CMC has assessed municipal taxes in respect of the said building that has been constructed thereon.  In the absence of such material the obligation, if any, of the complainant/Respondent to make payment of proportionate share of municipal taxes to the CMC does not arise at this stage.

Since the development agreement as well as the agreement for sale that have been entered into by and between the OP No. 1 and the OP No. 2 and between the complainant/Respondent and the OP No. 1, have not been denied by either of the Ops and furthermore, having regard to the fact that the possession of the flat in question has already been delivered to the complainant/Respondent, who is in actual physical possession of the same, we do not find any material whatsoever to interfere with the impugned judgement of the District Forum whereby the Ops have been directed to execute and register the deed of conveyance in favour of the consumer/complainant within 30 days from the date of making of the order on payment of balance consideration money to the OP No. 1 by the complainant, if not already paid in the meantime.  We, therefore, dismiss the Appeal and affirm the order that has been passed by the District Forum.  However, it is observed herewith that at the time of making assessment of the municipal tax in respect of the flat in question of the complainant/Respondent upon execution and registration of the deed of conveyance pursuant to the direction as made by the District Forum, the parties would be at liberty to approach the CMC for determination of the proportionate share of municipal tax that may be payable by the respective parties for the period from the date of taking possession of the flat by the complainant/Respondent till the making of such assessment.