DATE OF FILING                    :     02.07.2013.

DATE OF S/R                            :      26.09.2013.

DATE OF FINAL ORDER      :     15.02.2016.

Sri Sachindranath  Ghosh,

son of late Jatindranath  Ghosh,

presently resident of c/o. Mr. Ayub Ali Khan, Kandapapur,

near Ashirbad Marriage House, Boalia, Garia,

Kolkata 700 084. …………………………………………………… COMPLAINANT.

• Versus   -

1.         The Chairman,

Howrah Improvement Trust.

2.         The Additional Land Acquisition Officer,

Howrah Improvement Trust.

3.         The  Chief Executive Officer,

Howrah Improvement Trust.

all of 19, Grand Trunk  Road ( South ),

P.S. and  District Howrah,

PIN 711 101.

4.         Ramendranath  Ghosh,

son of late Jyotindranath  Ghosh,

resident of 20/9, Onkarmal Jethia Road, P.O. B. Garden, P.S. Shibpur,

District Howrah,

PIN 711 103.

5.         Malay Ghosh,

6.         Nandan Ghosh,

7.         Chandan Ghosh,

8.         Kanchan  Ghosh,

9.         Manju  Ghosh,

10.       Nupur  Ghosh,

o.p. nos. 5 to 8 are the sons and o.p. nos. 8 and 9 are the sons and daughters

of late Dhirendranath Ghosh,

all resident of 482/3, Kharagpur, District East Midnapur, 

PIN 721301.

11.       Bolu  Roy  Chowdhury,

12.       Doly Roy  Chowdhury,

o.p. nos. 11 is the son and o.p. no. 12 is the

daughter of late Promode Roy Chowdhury,

both resident of  Thuba Taki, P.S. Taki,

district 24 Parganas (  South ).

13.       Kabul  Guha,

son of Namita Guha,

daughter of late Jyotindranath Ghosh,

resident of Baguihati.………………………………………OPPOSITE PARTIES.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. This is an application  U/S 12 of the C.P. Act, 1986 filed by the petitioner, Sachindra Nath  Ghosh, against the o.p. Chairman, Howrah Improvement Trust and 12 others, praying for direction upon the o.p. nos. 1 to 3  to deliver possession of a residential flat containing three bed rooms by executing and registering the proper deed of conveyance in his favor and also directing the o.ps. to pay a sum of Rs. 8 lakhs towards rent paid by the petitioner as well as other expenses borne by him and also to pay Rs. 7 lakhs as compensation for mental agony and harassment.    

2. The case of the petitioner is that his father late Jatindra Nath Ghosh was the real owner and occupier of schedule mentioned property situated at 20/9, Onkar Mal Jetia Road, P.S. Shibpur, though in the schedule there is no of measured amount of land with boundaries. The petitioner further submitted that after the demise of his father, Jatindra Nath  Ghosh, his mother Saila Bala Ghosh along with three sons and two daughters became joint owner of the property along with the petitioner. His mother Saila Bala died on 13.07.1987 and before her death she executed a will on 28.6.1986 in respect of her undivided share in the property in favour of the petitioner who became owner of 1/3 share along with the other co-sharers.   

3. In the year 1984 the mother of the petitioner, Saila Bala Ghosh, received a letter from o.p. no. 2, the Additional Land Acquisition Officer, Howrah Improvement Trust, along with acquisition form and she came to know about the construction of Second Hooghly Bridge and the o.ps. were acquiring  the land from the people and against which they were willing to compensate the people by paying initial amount of money at the time of delivery of possession and thereafter a new accommodation in the form of flat or land to the people who delivered possession as per the requisition of the o.p. nos. 1 to 3 namely Chairman,  Additional Land Acquisition Officer and Chief Executive Officer of the Howrah Improvement Trust. On 23.4.1984 mother of the petitioner, namely, Saila Bala Ghosh, claiming one three room flat before the o.p. no. 1 being his request no. 398 dated 23.4.1984 and also placed her objection about violation and on 10.5.19884 a joint petition was submitted by her sons and daughters i.e., petitioner and proforma o.ps. before the o.p. no. 2.

4. Thereafter within a few months the mother of the petitioner, Sailabala  Ghosh, delivered peaceful vacant possession of their land and house to the o.ps. and collected initial amount of compensation and shifted to a nearby tenanted accommodation at 11/9, Balai Mistry Lane, where the petitioner has been residing along with his mother since 1984 till date for which he incurred a sum of  Rs. 7 lakhs towards rent as well as other expenses. The o.p. no. 1 did not pay heed to the writings of his mother during his life time as she approached the o.ps. for a good number of times with prayer for remaining compensation as well as allotment of a residential flat as promised by the o.ps. The petitioner after the demise of mother went on requesting the o.ps. to allot  three  room flat as well as pay the remaining compensation and over 50 times he wrote to the o.p. nos. 1 to 3 but in vain as the o.p. did not pay heed to the petitioners who wrote letters consistently since 1984 to 2012 as well as 2013.

5. The predecessor of this petitioner vacated their land with structure to the o.ps. for construction of Second Hooghly Bridge of the o.ps. who without keeping their promise to allot flat neglected and rather guilty of gross negligence and deficiency in service. Thus there is a continued cause of action in this case and hence this case.  

6. The o.p. nos. 1 to 3, Howrah Improvement Trust, contested the case by filing a written version denying allegations made against them and submitted that the case is not maintainable either in law or in facts and also the petitioner has no cause of actin to file this case and the case is also hopelessly barred by provision of C.P. Act, 1986 and the case is also barred by law of limitation and this Forum has no jurisdiction to interfere in this case and no notices  were served on the o.ps. before filing this case.

7. The o.ps. further submitted that there is no office of the o.p. no. 2 i.e., Additional Land Acquisition Officer, at the premises no. 19, G.T. Road, and o.p. nos. 1 & 2 are  wrongly impleaded in this   case. It is further stated that the case mentioned property was requisitioned in the year 1984 by the Additional Land Acquisition Officer, Howrah Improvement  Trust, which is a government organization and  possession of the property was taken in the year 1984. Award was declared by the Special Land Acquisition Officer and compensation paid as the property was vested to the state free from all incumbrances and as such said Saila Bala  Ghosh had no right,  title and interest to execute the  will on 28.6.1986 in respect of any of her allotted share and the case mentioned property.  They further submitted that at the time of enquiry by the D.I.B. which  found that Saila Bala  Ghosh did not reside at  20/9, Onkarmal Jethia Road, P.O. B. Garden, P.S. Shibpur, District Howrah, and she resided at 11/9, Balai Mistry Lane, Howrah 711 103, as would appear from the report of D.I.B. It is also not correct that the o.ps. were willing to give new accommodation with flat or land to the people who delivered their possession as per requisition of o.p. nos. 1, 2 & 3. There was no such scheme of the o.ps. The affected people who were found residing in their premises which were requisitioned either as owners or as tenant during such acquisition conducted by the Land Acquisition  Department and thus enquiry being made by the  D.I.B., Howrah, those persons were rehabilitated as per the decision of the District Rehabilitation Committee of which District Magistrate was the principal member.

8. Further the property was requisitioned in the year 1984 and possession was taken also in the year 1984 and rehabilitation was made also in the year 1984 to the people who resided in the requisitioned properties during such acquisition and also compensation was declared by the Special Land Acquisition and the affected person received the compensation and also they were rehabilitated and now filing this case is hopelessly barred by limitation and the petitioner has no right to claim compensation before this Forum. Thus the above case of the petitioner be dismissed with costs.

9. Upon pleadings of  parties the following  points arose for determination :

1. Is the case maintainable in its present form ?
2. Whether the petitioner has any cause of action to file the case ?
3. Whether the petition is barred by limitation ?
4. Whether  there is  any deficiency in service on the part of the O.Ps. ?
5. Whether the complainant is entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

10. All the issues aretaken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of his case the petitioner filed affidavit as well as documents claiming that the petitioner is entitled to get a three room residential flat from the o.p. and also compensation of Rs. 8 lakhs as rent paid by him for the rented accommodation for himself andher mother and also Rs. 7 lakhs for the mental agony and harassment.Though the petitioner has not filed any document in support of being owner of the property yet the notice issued by the o.ps. on the mother of the petitioner showing that her mother was occupier of premises no. 20/9, Onkarmal Jethia Road, P.O. B. Garden, P.S. Shibpur, District Howrah, and HRBC Project was going on in the said property and the case no. was 404 (III)(4) of 1983-84 wherein compensation was paid by the Special LA Collector amounting to Rs. 8,257. 64 p. in favour of the petitioner and also letter written by the mother of the petitioner on 23.4.19894 duly received by the Additional Land Acquisition Officer, H.I.T. Department, showing during in the claim of the petitioner that they were either the owner or occupier of the property as also notices were issued against Saila BalaGhosh, mother of the petitioner. The petitioner also filed a copy of will of Smt. Saila BalaGhosh wherein there is mentioned that the said land with house was acquisitioned by the Collector on 11.7.1984 and a compensation of Rs. 8,256.64p. was paid to the mother of the petitioner, SailabalaGhosh.

11. In the instant case this Forum heard the ld. counsel for the petitioner as well as for the o.p. Ld. counsel for the petitioner submitted that U/S 3 of theC.P. Act, 1986 this Forum has jurisdiction to try such a case as thisForum is added with the power to try such case because U/S 3 of the C. P. Act, 1986 it is categorically mentioned that this Act shall have jurisdiction in addition to and not in derogation of the provision of any other law for the time being in force.Thus it must be kept in mind that the provisions of this Act are to be understood with a wide meaning to give effect to the object and purpose of theAct as this Act was passed in1986 to supplement the over burden of civil courts.The legislature intended to provide additional remedy in addition to the available statute which could be enforced in proper cases.The Parliament intended to pass this Act to give relief the consumer instead of proceeding of civil court and so this statute was passed to give cheap and quick justice to the people. Our Supreme Court as well as our National Commission in their decision opined that this Act is not to replace the existing statues and where there is a clear bar then the litigants would not resort to the C.P. Act, 1986.

12. In the instant case C.C. 215 of 2013 the facts showing that the HIT and HRBC were engaged for the construction of 2^nd Hooghly Bridge and made acquisition of land and as per the notice issued by the Special Land Acquisition Officer the land along with structure of many a persons were vested in the state and the mother of the petitioner was one such owner / occupier of 20/9, Onkarmal Jethia Road, P.O. B. Garden, P.S. Shibpur, District Howrah,not only accepted partial compensation from theGovernment but also applied before the Government to allot a three bed room flat in her favour.Thus the facts of the case showing that it was a case of acquisition of land byGovernment in the year 1984 when the land of the petitioner was vested to the state and it is not a clear case of consumer, U/S 2(1)(d) of the C.P. Act, 1986 as it is laid down that ‘Consumer’ means a person who buys goods or avails of such services for any commercial purpose except for the purpose of earning his livelihood for his self employment. In the instant case the petitioner being the alleged owner of the property is not a consumer but the ld. counsel for the petitioner in his argument submitted before theForum that Section 3 of the C.P. Act, 1986 has jurisdiction to entertain such case even if the petitioner is not a consumer and the dispute is not a consumer dispute as Section 3 of C.P. Act is there.

13. Regarding the acquisition of land byGovernment by the L.A. Collector who issues noticeson the owners or occupiers of the property and then such land and buildings are vested to the state and compensation and others benefits are awarded in favour of the land looser and when any person is dissatisfied with the order of compensation given by such Collector then there is specific provision in law that such aggrieved person would approach the L.A. Tribunal of the District as is the provision of law laid downby the legislature. In the statute there is clear mention that Collector means the Land Acquisition Collector and the Court means the principal Civil court of original jurisdiction in the District which means the District Judge which also include the Additional District Judges. Thus when the State Government is of opinion that it is necessary for the maintenance of supplies and services essential to the life of the community and then the StateGovernment by notification make requisition of any land and any such land looser being dissatisfied with the compensation awarded by the state has to approach before the principal civil court of the district i.e., the District Judge of the District in the form of land tribunal which decides such case and thus this Consumer Forum is not the proper forum for deciding the instant case.In the instant case the land was requisitioned and taken possession by the state in the year 1984 but this C.C. No. 215 of 2013 was filed in the year 2013 i.e., after a lapse of about 30 years which is clearly barred by the Law of Limitation. U/S 24A of theC.P. Act, 1986 it is laid down that the DistrictForum shall not admit a complaint unless it is filed within two years from the date on which the cause of action arises and in the instant case the case was filed almost 30 years after the arising out of the cause of action and thus this case is hopelessly barred by limitation even though ld. advocate for the petitionersubmitted that the petitioner wrote letter to the o.p. nos. 1, 2 & 3 and thus the cause of action continued but thisForum is of opinion that writing letters to a authority one sidedlynever give rise to the continuity of the cause of action as is the stablished law of the law. Further regarding jurisdiction of this forum to entertain such a case the petitioner has to be a consumer but here the petitioner declares himself as owner and occupier of property and praying for compensation and thus he is neither a consumer nor a person availing services from the o.ps. who neither sellers of goods or the service providers. Thus this petitioner not being a consumer and the dispute between the petitioner and the o.p. not being a consumer dispute this Forum has no jurisdiction to try such case when there are specific provision of law and the petitioner has to approach the properForum i.e., L.A. Tribunal of the District to get redressal of his grievances as the petitioner was aggrieved by and dissatisfied with the order of compensation passed by the Special L.A. Collector.Further the facts of the case shows that it was a case of land acquisition and so not being a consumer complaint, so the petition and petitioner cannot be entertained by this Consumer Forum taking protection U/S 3 of the C.P. Act, 1986 that the petitioner is entitled to additional remedy under this Act though he files any other cases before a civil court but such submission also cannot be taken care of by thisForum because such additional remedy provided under theC.P. Act, 1986 cannot give a lee-way to cut short the regular procedure of filing a regular case before a particular Forum as authorized by the legislature by enactingsuch act and in the instant case against the land acquisition as is clear from the facts and circumstances of the casethe petitioner has to approach the L.A. Tribunal and not thisConsumer Forum which enacted for the purpose of providing quick and cheap justice to the consumer.

In view of above discussion and findings this Forum finds that this is a case of land acquisition which took place in the year 1984 and thus the case is really time barred U/S 24A of theC.P. Act, 1986 and also under the Limitation Act, 1963 and being a time barred complaint this Consumer Forum cannot be made to avoid legal barriers created under Limitation Act as well as this specific statute wherein such matters are dealt with and the petitioner here cannot be called as a consumer and he ought to have sought remedy before a regular court wherein the matter lies and thus this Forum does not entertain such a complaint filed by the petitioner and the same act of the petitioner amounted to simple abuse of the process of law as well as abuse of the Forum itself.

In the result, the application fails.

Court fee paid is correct.

      Hence,

                       O     R     D      E      R      E        D

           That the C. C. Case No. 215 of 2013 ( HDF 215  of 2013 )  be and the same is dismissed on contest without  costs  against  the O.Ps. 

             Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.