DATE OF FILING : 13.11.2014.
DATE OF S/R : 16.04.2015.
DATE OF FINAL ORDER : 08.07.2015.
Smt. Monisha Sarkar,
wife of late Dipendranath Sarkar,
residing at 195/5, Mahendra Bhattacharya Road,
Flat no. 3A ( 3rd 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 D utta,
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
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Smt. Monisha Sarkar, against the o.ps., AnandaDutta & three others, praying for a direction on the o.ps. toremove the pad lock and open the get atthe 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 3rd person and to pay compensation of Rs. 1,20,000/- to the petitioner and a sum of Rs. 30,000/- as litigation costs.
- The case of the petitioner is that she is owner of a residential flat no. 3A measuring about 840 sq. ft. including super built area in the 3rd floor of apartment situated at HMC holding no. 195/5, Mahendra Bhattacharya Road, P.S. Chatterjee Hut, by virtue of her purchase of the said flat on 05.8.2010. Over the roof of the 3rd 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 she can use the roof as per the deed but the o.ps. did not pay heed to her. 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.
- 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.
- 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 her case the petitioner filed affidavit to prove the averments of the petition and also filed documents in the form of lawyer’s letter and her deed of conveyance dated 05.8.2010 wherefrom it is noticed in page no. 18 being part of the 3rd 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 her 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. 581 of 2014 ( HDF 581 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 3rd 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.