DATE OF FILING                    :     13.11.2014.

DATE OF S/R                            :      16.04.2015.

DATE OF FINAL ORDER      :     08.07.2015.

Shri Sudip Kumar  Chattopadhyay,  

son  of late Anil  Chattopadhyay,

residing at H.R.B.C. Housing Estate, Block E,  Type III, Flat no. 1,

P.O. Santragachi, P.S. Shibpur,

District Howrah, PIN 711104

and also at  195/5, Mahendra Bhattacharya Road,

Flat no. 4A ( 4^th  floor ),

District Howrah,

PIN 711104. …………………………………………………………… COMPLAINANT.

• Versus -

   

  1.         Sri Ananda  Dutta,

  son of Sri Shankar Lal Dutta,

  sole proprietor of

  M/s. Dutta  Construction.

   

  2.         Sri Sadananda Dutta,

  son of Sri Shakar Lal Dutta,

  Howrah – 711101.

   

  3.         Smt. Sanchita  Dutta,

  wife of Sri  Sadananda  Dutta,

   

  4.         Smt. Sikha Dutta,

  wife of Sri Ananda  Dutta,

  all residing at 26, Baruipara Lane, P.S. Shibpur,

  District Howrah,

  PIN 711104. …………………………………………………OPPOSITE PARTY.

                                                  P    R    E     S    E    N     T

               Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

                                 Hon’ble Member      :      Smt. Jhumki Saha.

              Hon’ble Member : Shri A.K. Pathak,  L.l.b., ( Retired Railway Officer ).         

                                                   F  I   N   A    L       O   R   D    E     R

  1. This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Shri Sudip Kumar Chattopadhyay, against the o.ps., Ananda Dutta & three others, praying for a direction on the o.ps. to remove the pad lock and open the get at the roof of the premises no. 195/5, Mahendra Bhattacharya Road, and also directing the o.p. no. 1 as well as other o.ps. not to make any further construction over the roof of the premises and not to transfer / alienate the roof to any 3^rd person and to pay compensation of Rs. 1,20,000/- to the petitioner and a sum of Rs. 30,000/- as litigation costs.

• 2. The case of the petitioner is that he is owner of a residential flat no. 4A measuring about 840 sq. ft. including super built area in the 4^th floor of apartment situated at HMC holding no. 195/5, Mahendra Bhattacharya Road, P.S. Chatterjee Hut, by virtue of his purchase of the said flat on 05.8.2010. Over the roof of the 3^rd floor there was flat no. 4A and no other construction of the roof was lying vacant. The o.p. nos. 1 to 4 are the joint owners of the land on which the building was constructed and the o.p. no. 1 was the developer. Few days after purchase of the flat the o.p. no. 1 in collusion with other o.ps. made construction on the roof and fixed a gate at the entrance of the roof and the o.p. stated that the same was made for security purpose and put a pad lock in the said gate.The complainant requested the petitioner to open the pad lock for using the roof as he can use the roof as per the deed but the o.ps. did not pay heed to his request. There is no association of flat owners and now the o.ps. are trying to make further illegal construction disturbing the petitioner to use the roof and so the case.

3. The o.ps. though served with notices which returned to this Forum with the postal remark ‘Refused’ are treated as good service and thus the case is heard ex parte against all the o.ps.

4.  The only issue to be decided here whether the petitioner is entitled to get the relief as prayed for ?

DECISION  WITH   REASONS      :

5,        In support of his case the petitioner filed affidavit to prove the averments of the petition and also filed documents in the form of lawyer’s letter and his deed of conveyance dated 05.8.2010 wherefrom it is noticed in page no. 18 being part of the 3^rd schedule wherein  the proportionate rights in respect of common areas are mentioned and it is written therein  that the petitioner has free ingress and egress in the common area mentioned therein including roof along with other flat owners and now the o.ps. have no  right to disturb the petitioner in the use of the roof being common area for all the occupiers.  The oral as well as documentary evidence adduced and produced by the petitioner proved his case ex parte against the o.ps. The  petitioner is entitled to get the reliefs as prayed for.

           In the result, the application succeeds.

           Court fee paid is correct.

Hence,                                  

O     R     D      E      R      E        D

      That the C. C. Case No. 582 of 2014 ( HDF 582 of 2014 )  be  allowed ex parte  with  costs  against  the O.Ps. 

      That the  o.ps. are directed to remove the pad lock from the gate of roof  within 30 days from the date of this order and also not to make further construction over the roof or transfer the same to any 3^rd party.

      The o.ps. are directed to pay compensation of Rs. 3,000/- to the petitioner for the physical and mental agony caused to her and to pay Rs. 2,000/- as litigation costs.   

      The o.ps. failing to comply the order, the petitioner is given liberty to put the final order of the  Forum in execution and also the above amount would carry interest @ 9% p.a. till full realization.

        Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.