This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this case stated that he along with others is the joint owners of “All That”, a piece of land measuring about 2 cottahs and 11 chittaks along with an old single storied building being premises No.22/1/W/4, Cannel East Road, P.S. Maniktala, Kolkata – 700 067.
The complainant along with other co-sharers entered into an agreement for development of the said property with the OP Sri Bechu Mistry. But the original copy of agreement was kept with the OP and the photocopy of the said agreement was given to the complainant along with other co-sharers and there is no signature of the OP in the photocopied version of the agreement.
It was settled in the said agreement that the complainant would get one flat measuring 340 sq. ft. carpet area i.e. 425 sq. ft super built up area at the back portion of the 2nd floor of the newly constructed building. It has also been agreed in between the parties that 8ft. wide wall would be constructed by the OP measuring 50% of the roof, one side would be used by the complainant along with co-sharers and the other side would be exclusively used by the OP. It was also agreed that the flats as per contract would be handed over to the complainant along with the co-owner. But the vacant land at the back portion will be retained by the OP.
The complainant and other co-owners executed one unregistered power of attorney in favour of the OP in the year 2009. The photocopy of the power of attorney alongwith the signature of the complainant and other co-owner was given to them. But OP is selling the flats illegally without having a registered power of attorney. By a supplementary agreement, signed in December, 2009 it was decided that OP will construct G+2 building on or about 08-06-2011 and begin to distribute flats to the intending tenants and purchasers also. But it is surprising that OP avoids the complainant along with co-owners after the completion of the flats. After several persuasions, the OP did not pay heed to the complainant’s words. As a result, the complainant failed to get the flat. The complainant sent a letter of lawyer on 31-08-2010 for handing over the flat, but no step has been taken by the OP. The OP was directed through the layer’s notice dated 20-06-2011 not to sell the flats to the third party before allotting the flats to the complainant and the co-owners. Within 8th August, 2011, the OP gave possession to other co-owners except that complainant. The complainant also informed the O.C. of Manicktala P.S. but without any result. Now the complainant is residing at a rented room in a rural area.
The complainant prays to Forum to handover the possession of the said flat, to provide a necessary compensation of Rs.6 lakhs for non-delivery of the flat to give compensation of Rs.4 lakhs for mental agony, harassment, to provide cost of Rs.20,000/- for legal proceedings to deliver completion and sewerage certificate to Rs.20,000/- for delaying issuance of the said certificates and to pay 18% interest of the total amount of compensation and not to transfer the flat in question to the third party.
In the written version OP states that the complaint case is not at all maintainable in the eye of law. The complainant case is barred by provision of Consumer Protection Act, 1986. The instant complaint is motivated and baseless and imaginary. The complaint has been filed with ulterior motive. The complaint case is not at all maintainable for non-joinder and mis-joinder of party.
Though it was admitted by the OP that the original development agreement was lying with him, yet he denied the allegation that the document was kept with an ulterior motive. Not only the development agreement, but also the power of attorney is lying with the OP, OP cannot transfer the flats to the third parties without a registered power of attorney.
In the written version the OP states that it was difficult to prove by the complainant and the co-sharers that the said flats which have been constructed by the OP and would be handed over to the co-sharers along with the complainant. That the complainant is residing in a village for not getting a flat from the OP is yet to be proved.
The complainant’s advocate sent a letter to the OP for handing over the flat to the complainant and other co-owners but the same is returned to the addressee with postal endorsement ‘not claimed”. The OP states that it would have to be proved by the complainant that he has handed over the flat to other co-owners except the complainant.
OP has stated that the complainant has to prove that the OP has sold the flat to the third party. OP does not think that there is any deficiency of service from the part of the OP. The OP also states that the complainant has to prove that the OP has grabbed the complainant’s land and is enjoying monetary benefit by constructing flat and selling the intending purchasers and depriving only the complainant. It is denied by the OP that the complainant demanded Rs.12,20,000/- only with 18% interest.
The OP submits that the complainant gave the OP the land for the construction of the said building. But the OP could not get the building plan due to the defects in the title of the complainant as the complainant and other owners are thika tenant and the complainant also failed to sanction the building plan. By suppressing the fact, the complainant entered into an agreement with the developer and he constructed the building and sold these flats taking consent of other co-owners i.e. the other land owners. He further submitted that OP is not in a position to complete the building in all respects because he is not bound to execute the unregistered power of attorney. As the complainant has suppressed material facts, his case is not maintainable in the eye of law.
The OP further submits that the complainant is not at all a customer because there is no customer and service provider relationship between the complainant and the OP.
The OP stated that a letter dated 18-02-2013 was sent to the complainant for taking possession of the said flat but the complainant did not pay any heed to that. The OP further states that he is not willing to withhold the flat but he wants to handover the flat. On the contrary, the complainant with ill motive intentionally did not take possession of the said flat in question. It is false that OP wants to sell the flat to the third party.
The OP states that due to non-performance of the complainant and other co-owners the OP is unable to execute the deed of conveyance so u/s 13(3B) of the C.P. Act, 1986, the application is misconceived and as such deserves to be dismissed.
Decision with Reasons
On proper study of the complaint and written version and evidence in chief it is evident that the complainant entered into an agreement with the OP that he, along with other co-sharers permitted the OP through that agreement to construct a G+3 building on the land owned by the complainant and other co-owners, and the complainant would get a flat measuring 340.5 sq.ft. at the back portion of the top most floor. But the most peculiar fact is that the complainant is yet to get the flat till today.
The OP has not handed over the flat to the complainant without showing any reason as to why the complainant is deprived of getting the flat.
On 31st August, 2010, the complainant sent an advocate’s letter to the OP asking him the reason of depriving the complainant of his possession and requesting him to handover the said flat within seven days from the receipt of the letter. But no action has been taken by the OP though the acknowledgement card proves that OP was received the same. But the OP is reluctant to discharge his duty.
On indepth study of the written version filed by the OP Developer particularly the para 14 of the written statement(Page3) it is clear that OP developer has admitted that the complainant shall have to get a flat measuring about 340 sq. ft. carpet area super built up area of 425 sq. ft. at the back portion of the second floor of the newly constructed of three-storied building at 22/1/H/4, Cannel East Road, P.S. Maniktala, Kolkata – 700 067 and it is also admitted by the OP that the complainant along with his other co-sharers shall have to get 50% portion of the roof of the newly constructed building of 3 storied building and OP shall have to get balance 50% portion of the roof of the building and the OP developer shall have to erect and construct the building and the flats at his own cost and will deliver the flats as per the agreement to the co-owners of the premises after completion of the flat and that the said flat will be treated as sole ownership flat and OP would retain the vacant land at the back portion of the building but in respect of the vacant portion OP did not get any sanctioned plan because it was detected that it is a Thika Tenancy Land.
Further from, the written statement it is clear that complainant’s other co-sharers have been possessing the flat as it had already been handed over by the OP but OP has alleged that complainant has not taken possession illegally only to create some pressure upon the OP and did not take possession of the flat in question after completion.
The OP has denied the allegation of the complainant that OP is trying to sell any third party or any stranger but ultimately OP has admitted in Para 33 of the written version (Page 11) that at the very outset after completion of the building OP is already willing and ready to deliver the said flat to the complainant and OP completed the said building in the stipulated period and as per agreement stand by the parties. So, the prayer of the complainant is completely vexatious and frivolous. In the circumstances, OP has submitted that necessary order may be passed by dismissing the suit.
Considering the above facts it is clear that in respect disputed land there are other co-sharers who have already got the flat as per agreement and truth is that complainant’s flat is already completed and it is in the custody of the OP because complainant has not taken possession though OP asked him to take possession so, considering the fact of taking possession by the other co-sharers or the owner compelled us to believe that complainant for some unknown reason did not receive the possession and take delivery of the possession with a purpose to collect some money from OP and filed this case.
It is undisputed fact that land in a question is a Thika Tenancy Land so, as per provision of Thika Tenancy Act amended up to date the owner of the land has their no legal right to transfer any portion to any third party without the permission of the controller of Thika Tenancy. So, invariably OP has rightly pointed out that in respect of the vacant land which he has been allotted as per agreement is unable to construct any building as no sanctioned plan is issued by the KMC on the ground the permission has not been given by the landlord after collecting it from the controller of the Thika Tenancy Act for further construction in the vacant land and probably for that reason complainant is creating pressure upon the OP for getting more amount. So, apparently complainant has tried to convince this Forum that it is the laches on the part of the OP. But practically the laches on the part of the complainant is proved in view of the fact that his other co-sharers have already taken possession of their flats but complainant has failed to give any satisfactory explanation in his complaint or before this Forum for what reason he did not receive the possession when OP is always willing and ready to handover the possession.
In this regard after consulting and study the deed of agreement it is clear that complainant has filed this complaint only to get more money because as per agreement it is specifically mentioned that in future if OP will construct any building and flats on the vacant portion in that case complainant and his other co-sharers shall have to execute deeds etc. and it is also agreed by the parties at the time of further construction on the vacant land if any complication will arise in that case complainant and their other co-sharers shall have to take all such steps to solve that problem and to give the OP a chance to construct the building and complainant and their other co-sharers shall have to give all sorts of co-operations, legal help in this regard. But now, the situation has been changed because complications have already been started because the land is a Thika Tenancy Land and such a land cannot be transferred by the Thika Tenant and as per law complainant is nothing but a Thika Tenant and other co-sharers are also of same status. So, without the permission of the controller of Thika Tenancy further construction cannot be made and peculiar factor is that complainant and other co-sharers have not executed any Power of Attorney registered in favour of the OP for which OP is deprived to get any chance to construct further construction on the vacant land and in respect of that area of land and in respect of further construction complainant and his co-sharers shall not have to get any benefit and that is the moot problem of the present case and by taking such chance complainant has filed this complaint and no doubt complainant has filed a preposterous complaint before this Forum. But we are not unmindful to the effect that he is not taking possession so, considering the that fact we are directing the complainant to take possession of the flat at once and OP shall have to sent a letter to the complainant to take delivery of the possession within one month on a proper receipt. Invariably OP shall have to handover one certificate for the flat in question that same is properly completed and it is fit for habitation but there is no other reason to rely upon the complainant’s story and no other prayer can be allowed in view of the fact that in the agreement there is no such averment of future act of the OP for completion certificate etc.
Fact remains construction of any building over the Thika Tenancy Land can only be made in respect of the old construction only and with the permission of the Controller of Thika Tenancy but in respect of the present portion in which complainant’s flat is situated it is the duty of the landowners to collect the completion certificate from the KMC as per permission of the Controller of Thika Tenancy and as per agreement it is not the duty of the OP. so, at best complainant can get the possession of the flat but no other relief can be granted in favour of the complainant.
Accordingly, in the light of the above observation the present complaint is allowed by passing such legal order and by disposing of the application finally.
Hence,
Ordered
That the case be and the same is allowed on contest but without cost against the OP.
OP is hereby directed to handover the Khas possession and deliver the possession of the flat in dispute in favour of the complainant by sending a letter to the complainant and also by putting such date on which date the possession of the flat shall be delivered to the complainant and in this regard OP may file that letter to the complainant before this Forum if it is found complainant refuses to accept it.
At the same time complainant is hereby directed to take delivery of possession of the flat in dispute from the OP Developer within one month from the date of this order by sending such letter to the OP requesting him to be present at the time of delivery of possession of the flat on a certain date and OP shall have to issue a possession certificate which shall be handed over by the OP and that copy of certificate shall be submitted before this Forum after lapse of one month. If complainant fails to comply that order in that case it is the headache of the complainant and in future complainant shall not be able to file any case against the OP. But if OP fails to comply order in that case OP shall have to pay penal damages of Rs.1 lakh to this Forum.
Parties are hereby directed to comply the order very strictly and follow the matters.
Other relief as prayed for by the complainant is hereby rejected.
