Tripura

StateCommission

A/11/2018

Dr. Achintya Bhattacharjee - Complainant(s)

Versus

Sri. Pijush Kanti Dutta - Opp.Party(s)

Mr. Kanu Lal Das, Mr. Subrata Chakraborty, Smt. Manisha Majumder

28 May 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.11.2018

 

 

 

1. Dr. Achintya Bhattacharjee,

S/o Late Sushil R. Bhattacharjee,

Resident of Ramnagar, Road No.5,

C/o Teresa Diagnostic Centre,

7, Hospital Road, P.O. Agartala, P.S. West Agartala,

District - West Tripura, Pin: 799001.

 

2. Mrs. Lili Sen,

W/o Shri Asish Sen,

Resident of Pragati Road (near Ice Factory),

P.O. Agartala, P.S. East Agartala,

District - West Tripura, Pin: 799001.

 

… … … … … Appellant/Opposite Parties.

Vs

 

1. Sri Pijush Kanti Dutta,

S/o Late Adhinath Dutta,

43, Akhaura Road, P.O. Agartala,

P.S. East Agartala, Pin: 799001,

District - West Tripura,

[Owner of the land].

… … … … … Respondent/Complainant.

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

 

For the Appellants:                                         Mr. Kanu Lal Das, Adv.

For the Respondent:                                      Mr. Haradhan Sarkar, Adv.

Date of Hearing & Delivery of Judgment:      28.05.2018.

 

J U D G M E N T [O R A L]

 

U.B. Saha, J,

The instant appeal is filed by the appellants, Dr. Achintya Bhattacharjee and another against the order dated 07.02.2018 passed by the learned District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No.C.C.135 of 2017 whereby and whereunder the learned District Forum held that “From perusal of all these decision it is clear that the petitioner did not get proper service from the builder. The step for taking sanction of the AMC also not taken. This is primafacie deficiency of service which is to be decided in this case. Therefore, we considered that this Consumer Court which could provide additional redress has the jurisdiction to entertain this petition”.

2. Heard Mr. Kanu Lal Das, Ld. Counsel appearing on behalf of the appellant- opposite parties (hereinafter referred to as opposite parties/Developers) as well as Mr. Haradhan Sarkar, Ld. Counsel appearing on behalf of the respondent-complainant (hereinafter referred to as complainant).
3. The appeal was admitted earlier. Today, as agreed to by the Ld. Counsel appearing for the parties, the instant appeal is taken up for final disposal at the order stage itself.
4. Brief facts needed to be discussed are as follows:-

The complainant is the owner of the premises/land measuring 0.0670 acre comprised of Sabek Dag No.MPB-13, 6247/p, MPB-13, 6248/p, MPB-136249/p, Hal Dag Nos.2933/3653, 2939/3652, 2940/3651, Khatian No.2185 within District West Tripura, Sub-Registry Office - Sadar, P.S. West Agartala, Revenue Circle - West Agartala under Tehasil - Agartala West, Mouja - Agartala Sheet No.7. Being the owner of the aforesaid land, the complainant entered into an agreement with the appellants, Developers for development of land by demolishing the old structure and for construction of G+3 storied building on the aforesaid land of the complainant. The appellants-Developers did not complete the construction as per agreement between the parties within the stipulated period of 26 months, but the same was completed and handed over on completion of 38 months i.e. almost after a year. Not only that, the Developers also constructed the proposed construction/building beyond the approved plan for which no sanction/permission was taken from the complainant and even not from the Municipal Corporation. Hence, the complainant filed the complaint petition claiming compensation for Rs.18,30,056/- and Rs.15,000/- towards costs of litigation.

5. The opposite parties upon receipt of the notice from the learned District Forum raised the question of maintainability on the ground that the complainant is not a consumer as per the provisions of Section 2 of the Consumer Protection Act, 1986 and in support of their contention, they have relied upon two decisions of the Hon’ble National Consumer Disputes Redressal Commission, namely, First Appeal No.303 of 1992 [C. Narasimha Rao Vs K.R. Neelakandan and Another] and Case No.C-523 of 1993 [Har Sarup Gupta and Others Vs Kailash Nath and Associates].
6. On the other hand, complainant relied upon a judgment of the Hon’ble Supreme Court in Faqir Chand Gulati Vs Uppal Agencies Pvt. Ltd. & Anr. (Civil Appeal No.3302 of 2005) wherein the Hon’ble Apex Court decided almost a similar question and finally set aside the order of the Hon’ble National Commission, State Commission and District Forum holding that the disputes regarding deviation from the agreement by the developer would come within the purview of the Consumer Forum under the Consumer Protection Act like the order passed by the learned District Forum in the instant case.      
7. Being aggrieved by the order of the learned District Forum as stated (supra), the appellants-opposite parties preferred the instant appeal.
8. Mr. Das, Ld. Counsel appearing on behalf of the opposite parties while urging for setting aside the impugned order would contend that the learned District Forum committed error while passing the order to the effect that Consumers Fora has the jurisdiction and also asking the opposite parties for submitting written statement. He has reiterated the aforesaid two cases referred before the learned District Forum.
9. On the other hand, Mr. Sarkar, Ld. Counsel appearing for the respondent-complainant relied upon the decision of the Hon’ble Apex Court in Faqir Chand Gulati (supra).
10. We have gone through all the decisions cited by the Ld. Counsel for the parties. We are of the opinion that the decisions in First Appeal No.303 of 1992 [C. Narasimha Rao Vs K.R. Neelakandan and Another] and in Case No.C-523 of 1993 [Har Sarup Gupta and Others Vs Kailash Nath and Associates] decided by the Hon’ble National Commission have no application in the instant case as the facts of those cases are totally different than the case in hand. In case of C. Narasimha Rao (supra), the respondent K.R. Neelakandan and another submitted that the complaint petition claimed the value of the malba of the old building said to have been removed by the appellant-opposite party and also for the rent paid by them for the house occupied by them after the demolition of old building and in Har Sarup Gupta and Others (supra) the complainants alleged that O.P. has not built the flats in terms of the contract and hence the O.P. should be directed to compensate them to the tune of Rs.17 lacs whereas in Faqir Chand Gulati (supra) the Hon’ble Apex Court decided almost a similar question as involved in the case at hand. Thus, we are of the opinion that the learned District Forum rightly held that orders of the Hon’ble National Commission passed in the aforesaid two cases have no application.

We are of the further opinion that the case in hand is squarely covered by the judgment of Faqir Chand Gulati (supra) and thus the learned District Forum rightly held that the District Fora has the jurisdiction to decide the complaint case on merit.  

In view of the above, the instant appeal is dismissed being devoid of merit. No order as to costs.

However, the appellant-opposite parties are at liberty to file their written statement before the learned District Forum within two weeks and the learned District Forum will decide the matter on merit in accordance with law.

Send down the records to the learned District Forum, West Tripura, Agartala.