Sri Ashoke Kumar Pal, Hon’ble President.
The case of the complainants in short is that the complainants are the co-sharers of the land measuring about 10 Kathas 4 Chattacks 38 Sq.ft. together with building thereon comprised in RS Dag No. 11/1513 corresponding to LR Dag No. 25 under RS Khatian No. 671 corresponding to LR Khatian No. 1402 of Mouza – Laskarpur within Rajpur Sonarpur Municipality, Ward No. 30, Holding No. 278, Kalitala, PS – Sonarpur (Now Narendrapur), District – South 24 Parganas. In the middle of January, 2016 the O.P. approached the complainants to develop the property demolishing the existing old building at his own cost and for that the O.P. shall get 63% and owners shall get 37% of the constructed area. A development agreement has been made with the complainant on 24.02.2016 and registered on the same date in the office of the ADSR, Garia being Deed No. 614 for the year 2016 (Annexure – A). On the same day a power of attorney was also executed and registered in the office of the ADSR, Garia. It was agreed upon that the O.P. / developer shall deliver peaceful vacant physical possession of the owner’s allocation within 36 months from the date of sanction of the building plan. But the developer did not proceed the work of demolition of the old building as well as construction of the new building as per terms and conditions of the development agreement. Seven years have been passed but the O.P. / developer did not do any work as per development agreement despite a legal notice dated 24.01.2023 and hence, this case.
The O.P. did not come forward to contest the case and as such, by Order No. 4 dated 17.07.2023 the instant complaint case proceeded ex-parte against the O.P.
Points for Decision :-
- Is the complaint case maintainable in law?
- Are the complainants consumers?
- Is the O.P. guilty of deficiency in service as alleged by the complainants?
- Are the complainants entitled to get any relief as prayed for?
Decision with Reasons :-
Point No. 1, 2, 3 & 4 :-
All the Points Nos. 1, 2, 3 & 4 are taken up together for consideration for the sake of convenience and as they are interlinked.
On perusal of the case record along with copies of documents available on record it appears that the first and foremost point for consideration is whether the instant complaint case is maintainable or not before the Consumer Forum. The complainants have filed the instant compliant case with a prayer for a direction upon the O.Ps. to cancel the development agreement dated 24.02.2016 and the power of attorney dated 24.02.2016 which is the main relief as sought for. The other reliefs are consequential as prayed by the complainants. Now from the four corners of the petition of complaint it is crystal clear that the dispute between the parties falls in the realms of civil dispute which has to be settled by Civil Court. This is not a case which legitimately calls for the grant of any relief by this Commission. The grievance of the complainants pertain to the alleged failure of the O.P. to construct the new building demolishing the old one for which the complainants sustained loss and compensation has also been claimed. Having carefully read the complaint and the documents accompanying it and the reliefs claimed by the complainants it will be just and proper for the complainants to approach a Civil Court for appropriate redress. The relief claimed by the complainants in this case cannot be granted under the C.P. Act, 2019. We may also mention here that District Commission has no jurisdiction to issue a direction of the type as prayed by the complainants. Therefore, it is not possible to grant any relief to the complainants in this proceeding. The complainants are however at liberty to seek their relief from Civil Court in other independent proceeding as may be open to them in law.
The resultant effect of the aforesaid observation as well as discussion we opine that the instant complaint case is not maintainable before the District Commission and accordingly we find no justification to enter into the merit of other points for consideration. Therefore, the complainants are not entitled to get any reliefs as prayed for.
All the points are thus decided in favour of the O.P. and against the complainants.
Hence, the instant complaint case fails.
Fee paid is correct.
Hence, it is,
ORDERED
That the instant complaint case be and the same is hereby dismissed ex-parte.
We pass no order as to cost.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
President
