JUDGEMENT

Complainant by filing this complaint has alleged that the schedule property of this complaint has a shop on the ground floor situated at the premises No.2/1/2, Deb Lane, Kolkata – 700014, P.S.-Entally, District-North 24 Parganas and the predecessor in interest of the complainant Madan Mohan Bhagat, since deceased was the original tenant in respect of the suit property under Chandra SekharSarkar, SasankaSekharSarkar, BidyutLataSarkar, LaxmiSarkar, SmtSupritiSarkar, Rudra Prasad Sarkar and SmtSarbaniSarkar.

          Subsequently during the continuance of such tenancy IndraSekharSarkar died leaving behind his wife SmtSupritiSarkar, son Rudra Prasad Sarkar and daughter SmtSarbaniSarkar and sisterSmtSabitaSarkar.  Subsequently SabitaSarkar died without any legal heirs.

          During the period of August, 2001 the land owners decided to develop their property through a prospective developer and one of the developers namely Smt Lovely Dey, wife of Sri AsitDey approached the owner for development the case land and by a written agreement for development it was executed by the land owners and the said developer for development of the case building.

          On execution of such development agreement the developer herself and one of the land owner namely SasankaSekharSarkar, now deceased discussed with the present complainants for allowing the developer for construction of the said building as per sanctioned plan and that during such discussion it was decided that the developer shall start the construction from the back side of the case land and after completion of the back side the complainant shall shift his shop room to the back side, thereafter the developer shall raise the construction on the front side and after completion such construction the complainant shall get a newly constructed shop room in their previous position as tenant.

          During such discussion it was decided that the present occupier shall continue to pay the monthly tenancy amount in the name of the land owner which shall be liquidated towards the maintenance of the building.

          In the said premises all the occupiers used to pay their respective charges towards the maintenance.  During such discussions it was also decided that since after the handing over the possession the newly constructed shop room to the complainant and during their continuation of their possession as per the covenant and the choice of the complainant, they can get the case property in the ownership basis at their own cost that means complainants are entitled to get the deed of conveyance in respect of the case property as their own at the cost of the complainant.

          Finally to avoid the misunderstanding among the parties a written agreement was duly reduced embodying certain terms and conditions among the one of the land owner SasankaSekharSarkar who was empowered and the authorized by the co-owners, developer and the present complainant and such agreement was executed on 21.08.2001 and the same was duly notarized through Rani Manjuri Roy at Alipore Judges Court.

          After completion of the construction the developer as well as the land owner duly delivered the possession of the case property in favour of the complainant and the complainant has been till now continuing their possession and running their business.  Since acceptance of the newly constructed shop room, the complainant is continuing to pay such maintenance charges under the heading of monthly rent.  That on account of dereliction of duty and negligence on the part of the op nos. 1 to 4 the complainants suffered loss an injury, harassment, mental agony and for which he is entitled to compensation from the ops.

          All on a sudden the complainant received a notice on 26.03.2012 issued by one Advocate of Sealdah Civil Court for and on behalf of Chandra SekharSarkar and others whereby the complainants have been asked to enhance their rent to Rs.3,000/- and asked to pay the proportionate share of the Kolkata Municipal Corporation tax in respect of the newly constructed building.  But on execution of the aforementioned agreement dated 21.08.2011 the status of the present complainants was shifted from tenant to proposed lawful owner and immediately on receipt of such notice the complainants through their lawyer served a notice dated 10.04.2012 whereby the complainant asked the ops to intimate a suitable date preferably within 7 days from the date of receipt of such notice, so that the complainants can handover the draft copy of the deed of conveyance for the approval of the ops and for fixing up a date for registration, but no reply was given and in the above circumstances, to frustrate and repudiated the claim of the complainant also to get property on ownership basis, the ops have initiated a judicial proceeding before the Rent Controller claiming the complainants as the tenants for fixation of the fare rent and for which the complainants found that they are not in a position to give the result to the complaint and as per agreement and for which the complaint was filed for redressal.

          On the contrary op by filing written statement submitted that the entire complaint is false but ops have asserted that the owners requested the complainants to enhance the rent reasonably in respect of the property to which the complainants refused and on such refusal, the owners filed a case before the Ld. Additional Controller at Sealdah, being Rent Control Case No.568 of 2012 against the complainants and the said case is pending before the Ld. Additional Controller at Sealdah, under Rent Control Case No.568/12 and during that pendency of the said case before the Ld. Additional Controller the complainant has filed the petition before this Forum and the entire allegations are wholly groundless, false, untenable in law and complainant is not entitled to any relief and further submitted that no discussion is made in between the complainant and ops and no agreement was executed by the ops with the complainant and the alleged agreement is not legal in the eye of law and the complainant is not entitled to get as he is possessing the said room after construction.  So, under any circumstances he is not entitled to get any relief and prayed for dismissal of this case.

Decision with reasons

          Practically in this case, Ld. Lawyer for the complainant argued exhaustively stating different aspects except the legal aspect.  But it is the main contention of the Ld. Lawyer for the complainant is that the complainant is not entitled to get relief as per alleged agreement dated 21.08.2001 and then complainants on basis of thendocuments have proved this case.  But Ld. Lawyer for the ops submitted that Ld. Court will decide after considering the fact that complainants are till now tenant in respect of case premises.  Then tenancy cannot be converted to ownership in respect of the room on the ground flooras no agreement has been executed in between the complainants and the owners for selling the same to the complainants and there is no such document to show by the complainant that complainants paid any considertion amount for purchasing the same.  But even then if Ld. Forum wants to decide the matter on the basis of the agreement, Ld. Forum will consider whether that agreement is till legal and valid in the eye of law or not.  So, in this regard we have minutely studied the entire agreement dated 21.08.2001.  Fact remains it was an agreement in between the tenant, Developer and one SansankaSekharSarkar in support of shifting of the tenant to the other place for construction of the building and assurances of their replacement under the present constructed building after construction by the developer.

          But in reality, there is no question of passing any consideration, no agreement to sell or anything.  But it is a simple agreement to give protection to the tenant so that tenant must not been evicted after construction of the new structure by the developer.

          But after careful study of the said agreement Clause 15 of Page – 5 it is found that there is one clause “that if necessary, the occupiers can get the proposed shop room on the ownership basis and in that event the occupier shall have to bear all the expenses and if there is any dispute as differences among the parties, they have liberty to prefer civil suit before the competent Court of Law”.  If these languages are minutely interpreted in that case it is clear that the tenant may get the same as ownership basis if all expenses paid by the occupiers that means if the owners want to sell it or occupiers want to purchase in that case occupiers shall have to pay all expenses that is consideration money, registration cost and other matter and considering that fact, it is clear that this agreement is not an agreement to sell, not an agreement for transferring the shop room, (tenanted room of the complainants) to the complainants as ownership shop room.

          But condition is that if occupiers want to purchase it, he may purchase it but all expenses that means consideration amount as fixedby the landlords to sell it.  So, after proper reading of the said agreement it is clear that it is not an agreement to sale but agreement with the tenants for giving them assurances that after construction of the newly constructed building they shall be placed in their possession in the tenanted room and no doubt up to this stage, complainant is a tenant and there is no scope on the part of the complainant to prove that he is not a tenant but he is a consumer/occupier.

          Fact remains that complainant has stated that he has paying monthly rent. Fact remains for fair rent the case has been started against them when complainant has filed this case.  But most interesting factor is that this agreement does not come under the purview of the truth of C.P. Act 1986, in view of the fact that tenant cannot be a consumer under the landlords and another factor is that this agreement is not for agreement to sale.

          Further considering the present agreement, it is found that it was an agreement amongst developer, complainant and one SansankaSekharSarkar.  But other landlords were not in the scene, names of the other landlords were not included in the agreement and further there is no such wording in the said agreement that SansankaSekharSarkar on behalf of other joint landlords executed the same.  So, under any circumstances, this agreement is not binding upon all the ops.  Fact remains that op nos. 1 to 4 never executed any such agreement.  But fact remains that SansankaSekharSarkar used to look after the development work but truth is that SansankaSekharSarkar had no power of attorney to execute any document.  Complainant has also failed to produce any registered power of attorney executed by other land owners empowering in SansankaSekharSarkar to execute any deed.

          When that is the fact then it can safely be said that this agreement does not come under the purview of term personal contract.  But vital effect of the agreement has already been effected because the tenant was removed from the old structure at the time of construction of new building and this agreement was an assurance to the tenant that they shall be replaced after construction and admitted fact is that complainant was replaced in their tenanted room after construction and he has been paying rent to the landlords.  Then this agreement is deed in the eye of law and the possession delivered long about 7 years back.  But thereafter complainant did not appear before this Forum to implement this agreement as per their interpretation and so the entire complaint is barred by limitation because cause of action arose in the year 2005-06 if actually arose but we have gathered that the present complainant is not a consumer to the ops and at the same time it is palpabl proved from the complainant’s own statement that complainant is till a tenant under the ops in respect of the room.  Ops never executed any agreement in favour of the complainant to sell the shop room but the present agreement was for only to give some protection to the tenant so that they can be replaced in the new building after vacating their old premises and that purpose had already been served because complainants have been admitted that they have got their tenanted room in aforesaid building and he is running his business.

          So, in the light of the above observation we are convinced to hold that present complainants are not consumer under the ops but they are only tenant and fact remains when the ops filed a case before Rent Controller for fair rent then op took such false plea and adopted unfair trade practice and appeared before this Forum to get the tenanted room without any consideration as owner.  Nowadays it has become a practice of the tenant to grab the house of the land owner without any payment and present complainants are no doubt such type of tenants who want to get tenanted room at free of cost and to become a owner in respect of occupied room so the intention of the complainant is proved very bad and immoral because the complaint was filed against the ops only to harass and that is the business to harass the owners in so many manners because they want to deceive the owners by adopting present practice.  So, they have their power at their hand to purchase everything and to make the poor landlords to swallow, torture and harassment made by the complainants and in this case complainants are harassing the ops landlords without any reasons and ultimately this false and fabricated case is filed and it is vexatious case.

          Another factor is that SansankaSekharSarkar had no registered power of attorney executed by other co-sharers landlords.  But SansankaSekharSarkar as Senior member of the family signed in the agreement might be getting some fund from tenant or alms from the tenant and from the developer and signed it.  So, such an agreement is not binding upon the ops.  But the reason for executing such agreement is completely matured when complainant has not been evicted but he had not been refused by the land owners to be in his possession as tenant in the newly constructed building in a separate room and admittedly complainant never suffered any loss as tenant.  So, the present complainant is no doubt false and fabricated and for which complaint fails.

          Hence, it is

ORDERED

          That the complaint be and the same is dismissed against the contesting all the ops but for filing this fabricated complaint, complainant is directed to pay a penalty cost of Rs.10,000/- to the present Consumer Forum for wasting time of the Forum and to harassing the innocent landlords within one month from the date of this order and if it is not collected within one month then penal interest shall be assessed @ Rs.200/- per day till payment of the same and even penal action shall be started against him for which he shall have to face criminal trial and further penalty may be imposed to the extent of Rs.10,000/-.