Complainants by filing this complaint has alleged that the complainant nos. 1 to 3 are owners of landed property measuring more or less 2 cottahs 1 chittak along with single storied building lying and situated at premises no.16/24, Beleghata Main Road, presently known as Dr. Suresh Ch. Banerjee Road, Kolkata-700010, P.S.-Beleghata whereas complainant no.4 is a bona fide purchaser of 164 sq. ft. space/room in the proposed building constructed by the op at the above premises as per the agreement dated 21.11.2007 and present op is developer who runs business of construction and allied services and for which the complainant nos.1 to 3 entered into a Development Agreement with the op on 16.11.2007 and as per the terms of the said agreement the op undertook to construct a new four storied building on the said plot of land of complainant nos. 1 to 3 for consideration and the op agreed to complete the construction as per the terms of the said Development Agreement. 

          As per agreement op was agreed to complete the construction within 18 months from the date of sanction of the said building plan by the KMC (Kolkata Municipal Corporation) and to prepare and allot space/rooms for 4 tenants of the owners on the ground floor of the said building and to obtain Building Completion Certificate from KMC within 30 days of completion of the said building.

          Complainants also executed a General Power of Attorney in favour of the op on 23.05.2007to enable her to complete the construction smoothly and accordingly building plan was sanctioned by the KMC being Sanctioned Plan No.16(B-III) dated 13.06.2008 which is valid till 12.06.2013.

          As per the said Development Agreement it was agreed that op shall be responsible to construct and allot the space/rooms to the then existing 4 tenants in the owner’s allocation against the price which would be receivable by the complainant nos.1 to 3 and op.   

          After that complainant nos. 1 to 3 and op entered into 4 separate tri-partite agreements with all 4 tenants to allot and sell them respective space/rooms on the ground floor which would be constructed.  The complainant no.4 was among one of the tenants who agreed to purchase 164 sq. ft. @ Rs.500/- per square feet on the ground floor of the said building and also entered into an agreement to that effect on 21.11.2007 in which op was also a party and the complainant no.4 paid the entire consideration as per the said agreement dated 21.11.2007.

          But op failed to complete the construction of the said building within 18 months from the date of sanction of the building plan and requested the complainants on several occasion to allow more time for completion of the construction but the physical construction of the said building was completed sometime in between March-April 2010.

          After completion of the said building the complainants found that the op did not make any provision for the complainant no.4 and the complainant no.4 had not been given any allotted space.  O.P. intentionally did not make any provision for her at all.  Though according to Development Agreement dated 16.11.2007 and one tripartite agreement between the complainant nos. 1 to 3 and op and Smt Durga Das, Complainant no.4 and the op is under obligation to construct and sell space/rooms for the complainant no.4.

          Further op did not obtain any completion certificate from the KMC and the op did not take any step for obtaining the Completion Certificate.  On several occasions the complainants requested the op to obtain completion certificate and to allot space/rooms to complainant no.4 as per said Development Agreement but the op avoided it intentionally.

          Thereafter complainants sent a letter by Speed Post with A/D through their Advocate dated 28.04.2012 requesting the complainant to obtain building Completion Certificate from KMC and to allot and hand over possession of space/rooms to all 4 tenants as per the said agreement but op intentionally refused to accept the said letter.

          In the above circumstances the op has harassed the complainants for which, the complainants have prayed for redressal and compensation against the op.

          On the other hand op by filing written statement submitted that op according to the Development Agreement and Power of Attorney executed by them on 23.05.2007 obtained the sanction plan from the Kolkata Municipal Corporation and started to construct the proposed building in the case premises and according to tripartite agreement with the existing tenants of the said premises would be shifted at her own cost but one of the tenant namely Dipak Gayen who is also the relative of the complainants forcefully refused and stayed on the ground floor of the said premises which was appreciated by the complaint.

          It is further submitted that the complaint made one registered agreement for sale with the said Dipak Kumar Gayen and on request of the complainant, op was also compelled to sign in the said agreement.

          It was also suppressed by the complainant that the said Dipak Kumar Gayen forcefully took illegal possession in the premises wherein op was to make tenanted accommodation of the said Smt Durga Das the complainant no.4 of this case.

          It is further submitted that Dipak Kumar Gayen has already filed one title suit before the Ld. Civil Judge (Sr. Div.) Sealdah being Title Suit No. 35/2010 against all the complainant nos. 1 to 3 along with the op and the op along with complainants had already appeared in the said suit and facing the trial accordingly.

          Due to taking forceful possession by the said Dipak Kr. Gayen op failed to hand over the possession of flat and subsequently Smt Durga Das who is well known to Dipak Kr. Gayen.  Further Sajjan Kumar Ganguly has lodged on complaint before the O.C. P.S. Beleghata regarding that incident against the said Dipak Kr. Gayen and also filed one application u/s 151 C.P.C. before the Ld. Civil Judge (Sr. Div.) Sealdah in T.S. No. 35/2010 wherein it has been categorically stated by the complainant nos. 1 to 3 that the said Dipak Kr. Gayen on 12.04.2012 suddenly by force break open the padlock of one room of the ground floor of the premises and in fact due to negligence and irresponsibility as well as indulgence of the complainant op failed to hand over the possession of the said flat to complainant no.4 which is owners allocated portion of the said premises according to the terms and conditions of the developer’s agreement.  That op intentionally to help the complainant voluntarily carried all the expenses of the litigation till today but to avoid the responsibility the complainants file this case against the op which is unfortunate but completely false.

          In the above circumstances op prayed for dismissal of this case.

          Further op by filing written petition submitted that the present suit is not maintainable in view of the fact in respect of the present case premises there is civil litigation in between the present party and one Dipak Kumar Gayen.  But that mater has been suppressed and fact remains that the suit is pending before the Ld. Civil Judge (Sr. Div.) Sealdah being T.S. No.35/2010 and till disposal of the case this Forum has no jurisdiction to decide the matter and it is further submitted that the said Dipak Kumar Gayen on 12.04.12 suddenly by force break opened the padlock of one room of the ground floor of the premises and that due to negligence and irresponsibility as well as indulgence of the complainant op failed to hand over the same and so till disposal of the case before the Ld. Civil Judge (Sr. Div.) Sealdah being T.S. No. 35/2010 no relief can be given by this Forum and further submitted that the complainant nos. 1 to 3 are parties in T.S. No.35/2010.  Further the complainant complained before O.C. Beleghata P.S. against Dipak Kumar Gayen.

                                                  Decision with reasons

          In the present case after hearing the argument of the Ld. Lawyers and also relying upon the fact as disclosed in the complaint and defence as taken by the op in the written version and also relying upon the copy of the T.S. No.35/2010 it is found that Dipak Kumar Gayen one of the tenant of complainant nos. 1 to 3 filed T.S. No.35/2010 before the Ld. Civil Judge (Sr. Div.) Sealdah being Title Suit No. 35/2010 against Sajjan Kumar Ganguly, Swastik Kumar Ganguly, Smt Aparna Ganguli and Swapan Dasthat means the present complainant nos. 1 to 3 and op and in the said suit he prayed for a decree of specific performance of contract directing the defendants to execute the registered sale deed in respect of the property detailed below in the schedule-A and Schedule-A of the said property is measuring more or less 160 sq. ft. as covered area and 32 sq. ft. in total 192 sq. ft. as super built area situated on the ground floor attach to Main Road being portion of premises of 16/24 Dr. Suresh Ranjan Banerjee P.S.-Beleghata, Kolkata-700010 and it is further found from the said plaint that agreement to sale for selling shop room in favour of the said complainant Dipak Kr. Gayen was executed by the op and complainant nos. 1 to 3 of this case and said Dipak Kumar Gayen paid Rs.15,200/- as earnest money and that agreement to sale was executed on 27.08.2008.  Similarly present complaint it is found that the present complainant no.4 is admittedly the tenant under the complainant nos. 1 to 3 and it was agreed in between the parties that are the present complainant and the op that the present op and complainant nos. 1 to 3 executed an agreement to sale in favour of the complainant no.4 on 21.11.2007.  It is proved rather it is admitted by the op that agreement was executed by the op and complainant nos. 1 to 3 in favour of the complainant no.4 and complainant nos. 1 to 3 and op agreed to sale one bed room, one dining-cum-drawing room along with kitchen and bath room having an area 164 sq. ft. on the ground floor.  But in the said agreement there is no specification of the boundary of the said premises but whatever it may be, it is admitted by the op that agreement was executed and complainant nos. 1 to 3 as owners have also confirmed that fact.  So it is proved beyond any manner of doubt that present complainant nos. 1 to 3 and op jointly executed the agreement and then complainant nos. 1 to 3 and op are legally bound to execute the sale deed in favour of the complainant no.4 as per agreement to sale dated 21.11.2007.  When it is to be mentioned that this present case area is having one room and someother item attached to that but it is not in respect of any shop room.

          Whereas in T.S. No.35/2010 another tenant of complainant nos. 1 to 3 Dipak Kumar Gayen filed the T.S. No.35/2010 for specific performance of contract only in respect of one shop room on the ground floor and no doubt in that suit present complainant nos. 1 to 3 and op are made parties as defendants and they are contesting no doubt and fact remains Dipak Kumar Gayen got an order of injunction so that he may not be evicted from that portion where he is now staying.  But it is not in respect of self-contained flat on the ground floor but present complainant’s claim is in respect of one beded self-contained flat on the ground floor.  So, there is no legal fiction in between the claim of present complainant no. 4 and Dipak Kumar Gayen in T.S. No. 35/2010 and admitted fact is that both Dipak Kumar Gayen and the present complainant no.4 are tenants in respect of the premises in question and they are entitled to get some benefit in respect of separate agreement and for which under any circumstances the pending Civil Suit bearing No. T.S. 35/2010 is not creating any legal barrier to proceed with the complaint and to execute sale deed in respect of other agreements and further there is no legal fiction in between the property or schedule of the property of this complaint and the property as described in the schedule of the T.S. 35/2010.  So, we are dealing with the claim of the present complainant no.4 whose claim in respect of one self-content flat on the ground floor where as Dipak Kumar Gayen claimed before the Ld. Civil Judge (Sr. Div.) Sealdah in T.S. 35/2010 in respect of one shop room and same is not identical to present case schedule and for which we are confirmed that this Forum has jurisdiction to decide this matter and no doubt the complainant no.4’s claim is admitted by the op and so the complainant no.4 is entitled to get relief as because she has not got the possession of the property and at the same time no final deed of sale has been executed in favour of the complainant no.4.

          Anyhow Ld. Lawyer for the op submitted one ruling reported in III (4) CPJ 115 of Uttaranchal Dispute Redressal Commission  and argued that remedy provided under the C.P. Act cannot take  away inherent power of Civil Court to decide and for avoiding conflicting judgement complaint proceedings should be stayed till disposal of civil suit.  But on through study of the ruling and verdict of the State Commission of Uttaranchal and after comparative study of the present fact and circumstances we find that the said ruling in view of the fact in respect of present claim of the complainant no.4 and fact of Civil Suit as pending we find that Dipak Kumar Gayen never claimed the present complainant no.4’s flat in the said specific performance of contract vide T.S. No. 35/2010.  So, there is no chance of any conflicting judgement and there is no conflict in between the two claims but fact remains that two tenants with whom the complainant nos. 1 to 3 and op entered into an agreement to sale of one shop room to Dipak Kumar Gayen who appeared before Civil Court for relief as per his agreement dated 27.08.2008.  Whereas the present complainant no.4 has appeared before this Forum in respect of his agreement to sale dated 21.11.2007 and no doubt the present complainant agreement to sale is earlier than that of the agreement to sale of that Dipak Kumar Gayen who has filed T.S. 35/2010 before Ld. Civil Judge (Sr. Div.) at Sealdah against present complainant nos. 1 to 3 and op.  In view of the above findings we are convinced to hold that the ruling as referred by the op is not applicable in this case.

          Further the present op tried to convince before this Forum that as per provision of Section-12A of West Bengal Building (Regulation of Promotion) Act 1993 Civil Court has no jurisdiction to decide any matter of consumer u/s 3 of the Act and Consumer Forum has no jurisdiction to pass any order in view of the provision of Section-12A of West Bengal Building (Regulation of Promotion) Act 1993.  No doubt the Ld. Lawyer for the op submitted in view of the above fact the complaint is not maintainable.  But after proper consideration of the judgement including the provision of law that is Section-12A of West Bengal Building (Regulation of Promotion) Act 1993 we have gathered that as per that provision and present op must be a promoter or developer and at first the promoter or developer must have to show that he has registered his name as promoter and developer and also registered his construction by filing registered deed of development etc.  But peculiar fact is that as per provision of Section-12A of West Bengal Building (Regulation of Promotion) Act 1993 op has failed to prove by any cogent evidence that there is any registered deed of agreement of development in between the op and complainant nos. 1 to 3.  Further op has failed to prove that he registered this proposed construction as promoter or developer before the authority under the West Bengal Building (Regulation of Promotion) Act 1993.  On the contrary from the present complaint and written version of the op, it is found that op has not claimed that he registered this project as developer’s project under the complainant nos. 1 to 3 before the authority as appointed under West Bengal Building (Regulation of Promotion) Act 1993.  Moreover in the written version op has not taken any such plea that he completely purchased the land upon which building had been executed and the op transferred in favour of the complainant and fact remains that complainant nos. 1 to 3 did not transfer the land by any registered deed or development and for allotment and in view of the above fact and circumstances, we are convinced to hold that the ruling as referred by the op as reported in ICC-212 (4) Page 834 is not applicable in this case.  But the very ruling is applicable in case when the land owner registered the development agreement in favour of the developer/promoter with condition that the entire land is surrendered in favour of the developer and against such consideration they shall have to get the allocation.  But in the present case it is not the case of the op that he is registered promoter or developer as per provision of West Bengal Building (Regulation of Promotion) Act 1993 and for which this Forum has jurisdiction to decide it.

          In this context it is to be mentioned that the provision of Section-12A of West Bengal Building (Regulation of Promotion) Act 1993 is applicable only where promoter and developer are able to prove that his project has a registered deed from the owners and he has entered his name as promoter and developer by registering the same before the authority as appointed under the West Bengal Building (Regulation of Promotion) Act 1993 and the project has also been registered.  Then the subsequent provision of law and any other provision of law can be invoked otherwise it is not applicable and only Section-12A of West Bengal Building (Regulation of Promotion) Act 1993 specifically mentions that no Civil Court shall have any jurisdiction to entertain or decide any question relating the matter arisen under any provision of this Act or the rules made there under.  So, it is clear from that provision at first promoter or developer shall be guided by the said Act and their status and their construction shall be registered under the said Act and if it is not registered by the said Act in that case that Act is not applicable.  In the light of the above observation we are convinced to hold that this Forum has jurisdiction to decide the same when the present project or the present op is not a registered promoter or developer as per said Act 1993 and the present project was also not registered under the said Act 1993 and for which the ruling as referred by the Ld. Lawyer for the op is not at all applicable in this case.

          In the light of the above observation we are convinced to hold that present complaint is in the eye of law maintainable and the submission of the Ld. Lawyer of the op that the present complainant is not maintainable in the eye of law and tenable in the eye of law.  But on overall evaluation of the legal position and present fact and circumstances we are confirmed that the present Forum has jurisdiction to decide and the present complaint is entitled to get relief as prayed for as per provision of this Act 1986. 

          In the result, the complaint succeeds.

          Hence, it is

                                                       ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against op but that cost shall be paid by the op  to the complainant no.4.

          Complainant no.4 is entitled to get possession of the self-contained flat on the ground floor as per  agreement dated 21.11.2007 and no doubt the op and complainant nos. 1 to 3 are bound to execute the sale deed in favour of the complainant in respect of the said flat by delivering possession in favour of the complainant no.4 and for which op and complainant nos. 1 to 3 are hereby directed to hand over and deliver kash possession in respect of the flat as described in the schedule of the complaint also as per agreement dated 21.11.2007 in favour of the complainant no.4 and at the same time on the date of delivery of possession op  and complainant nos. 1 to 3 shall have to execute a registered sale deed in favour of the complainant no.4.  But it must be done within two months from the date of this order failing which op shall have to pay a compensation of Rs.16,00,000/- to the complainant no.4.  If it would not be possible to deliver kash possession of the flat for want of non-existence of such flat in the case premises on the ground floor and after completion of two months either op shall have to deliver kash possession of the flat as per agreement dated 21.11.2007 in favour of the complainant no.4 and he along with complainant nos. 1 to 3 shall have to execute the sale deed or in default alternatively op shall have to pay compensation of Rs.16,00,000/-  in favour of the complainant no.4 within 15 days from the date of failure to execute sale deed and delivery of possession and even if op fails to comply the order of this Forum in that case op shall have to pay punitive damages @ Rs.8,000/- per month till full payment of the said amount and said punitive damages shall be deposited to the State Consumer Welfare Fund.

          Op is hereby directed along with complainant nos. 1 to 3 to execute sale deed and prior to that hand over possession in favour of the complainant no.4 within two months from the date of this order failing which op shall have to comply the alternative relief as granted in favour of the complainant no.4 failing which penal action shall be taken against op for which op shall be responsible and even the penal proceeding may be started for which further penalty may be imposed with imprisonment u/s 27 of C.P. act 1986.