In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, 4th Floor, Kolkata-700087.
CDF/Unit-I/Case No.459/2012
1) Pradip Kumar Mandal,
2) Jharna Mandal,
Both residing at 1711/1, M.G. Road (1st Floor),
P.S. Haridevpur, Kolkata-82.
Formerly- 72B, Charu Avenue,
P.S. Charu Market, Kolkata-33. ---------- Complainants
---Versus---
1) The Proprietor / Manager representing
M/s Bengal Construction Co.
22/23A, Monohar Pukur Road,
P.S. Lake, Kolkata-29.
2) Arabinda Kumar Maitra,
22/23A, Monohar Pukur Road,
P.S. Lake, Kolkata-29. ---------- Opposite Parties
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 8 Dated 12-06-2013.
The case of the complainants in short is that o.p. no.1 is a sole proprietorship firm, represented by its sole proprietor Sri Arabinda Kumar Maitra, i.e. o.p. no.2 the lessor ad the developer. Complainants were in the need of residential accommodation in Calcutta and hence hired the service of o.p. no.1 for flat. O.p. no.1 the developer offered the complainants flats on lease agreement.
Complainants reached respective lease agreement for respective flats for specific considerations for 99 years on terms and conditions stated therein. The lessor as thika tenant being the absolute owner of the huts, structures and shades erected on or over the land measuring 6 cottas 3 chittaks 31 sq.ft. at premises no.T-55A/2/1, Deshpran Sasmal Road, P.S. Charu Market, Dist.24 Pgs(S), Calcutta-33, Ward no.89 under CMC decided to erect flats.
Lessor has already mutated his name and it thus seized and possessed in khas the said entire premises as a thika tenant on due payment if taxes and other charges. Lessor, as the sole proprietor of the developer firm, to wit, o.p. no.1 intended to erect a pucca building with modern amenities after the demolition of the existing old structures according to plan sanctioned as per Calcutta Municipal Corporation. Lessor as the sole proprietor of the developer firm o.p. no.1 will develop the said premises no.55A/2/1, Deshpran Sasmal Road, P.S. Charu Market, Dist.24 Pgs(S), Calcutta-33 by constructing residential flat / unit with modern amenities / advantages according to the already sanctioned plan by CMC.
As per the lease agreement and in consideration a sum of Rs.3,78,000/- was paid by the lessee to the developer by way of advance rent. A sum of Rs.2,51,640/- was to be paid during the progress of construction of the prepared building.
The developer as well as the lessor hereby agreed to demise unto the lessee all that the said flat being the flat no.E/2 777 sq.ft. in super built up area north-east side on the 2nd floor proposed to be constructed on or over he said premises no. -55A/2/1, Deshpran Sasmal Road, P.S. Charu Market, Dist.24 Pgs(S), Calcutta-33 fully described in the schedule ‘B’ here under written and delineated in the map of plan annexed thereto and therein bordered red, together with all liberties, easements and appurtenances belonging thereto to hold the said schedule ‘B’ property unto the lessee for a period of 99 years completed from data of giving delivery of possession as mentioned with an option of extending the lease period from time to time, thus making the lessee as bonafide occupier without fetterance, provided that the lessee pay the proportionate tax to the competent authority, after having their names mutated with the controller of thika tenancy.
Para no.3 of the agreement goes “The LESSEE will get possession no sooner of the portion of Schedule ‘B’ is found ready for use and LESSEE Shall make all Endeavour to pay entire premium before taking possession and the document that be executed confirming the right, title and interest of LESSEE”.
Para 4 of the agreement further goes “…… It is also reasonably expected that the said schedule4 ‘B’ flat will be completed for delivery of possession to the LESSEE on or about August 2001”.
O.p. issued the complainants a letter of 26.3.07 informing that on the expiry of their sanctioned plan, revalidation has been applied. O.p. assured that the relevant papers would be handed over to complainants and asked to issue advance post dated cheque prior to 31.5.07 and assured peaceful possession “on the very day”.
Complainants found with grief and pain, no advancement of the construction work and persuaded the o.p. to complete the flat early but to no result. A notice was served by complainants to o.ps. on 9.1.06 that complainants have been losing every month for IT for approx Rs.1000/- and capital cost Rs.1000/- approx per month for the last 6 years.
Complainants were compelled to register an advocates letter dt.30.1.08 demanding the immediate completion of the flat and registration and delivery thereof or pay compensation to the tune of Rs.6.5 lakhs. Complainants issued advocates letter again under regd. post requesting the registration of the flat and delivery of the possession at the earliest but to no result as yet. Hence the case was filed by the complainants with the prayer contained in the petition of complaint.
Both the o.ps. did not contest this by filing w/v and matter was heard ex parte against the o.ps.
Decision with reasons:
We have gone through the pleadings of the complainants, evidence and documents in particular and we find that o.p. no.2 entered into a lease agreement with o.p. no.1 herein called as lessor and lessee in respect of a property standing in the name of lessor namely Arabinda Kumar Moitra who is a ‘thika tenant’ being the absolute owner of huts, structures and shades erected over the land measuring 6 cottas 3 chittaks 31 sq.ft. at premises no.T-55A/2/1, Deshpran Sashmal Road, P.S. Charumarket, Kolkata-33, ward no.89 and lessor was processing the said thika tenanted premises on due payment of taxes and other charges. The complainants entered into an agreement to purchase a flat therein and paid some amount of consideration amount and the o.ps. did not complete the flats nor handed over the incomplete flats even and o.ps. also did not execute the deed of conveyance. Complainants have avered that the property in question is a thika tenancy property as we find from the petition of complaint itself. Complainants ought to have been much negligent prior to entering into agreement as lawyer.
In view of the findings above and on perusal of entire materials on record we find that the property in question is a thika tenanted property and o.ps. have got no authority to demolish the structure which was standing thereon and to construct flats and to sell to complainants since thika tenanted property cannot be sold not its character be changed in terms of the provisions of Thika Tenancy Act. That apart, there is nothing on record showing change of character by completion authority as per statute.
In the content of the above position instant complaint cannot be entertained by this Forum in the light of the observations made above and the complainants are not entitled to get relief since complainants cannot b e considered as a consumer as defined in the C.P. Act, 1986.
Ordered,
That the instant case stands rejected ex parte since barred by law.
Complainants are at liberty to agitate the issue before the appropriate Forum on the self same cause of action.
Supply certified copy of this order to the parties free of cost.
