State Consumer Disputes Redressal Commission
Aniruddha Chakraborty vs Maajagadharti Construction on 6 March, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/200/2018 ( Date of Filing : 28 Feb 2018 ) (Arisen out of Order Dated 11/01/2018 in Case No. Complaint Case No. CC/2/2018 of District Kolkata-I(North)) 1. Aniruddha Chakraborty P-24/A, C.I.T. Road, Scheme - VI M, Kolkata - 700 054. ...........Appellant(s) Versus 1. MaaJagadharti Construction 27/1/H/3, Dr. Suresh Chandra Banerjee Road, P.S. - Beliaghata, Kolkata - 700 010. 2. Sanjay Das, partner, Maa Jagadhatri Construction 27/1/H/3, Dr. Suresh Chandra Banerjee Road, P.S. - Beliaghata, Kolkata - 700 010. 3. Mahua Das W/o Lt. Subal Das, 27/1/H/3, Dr. Suresh Chandra Banerjee Road, P.S. - Beliaghata, Kolkata - 700 010. 4. Pradip Chakraborty 37, A Chaul Patty Road, P.S. - Beliaghata, Kolkata - 700 010. Since deceased. Stand substituted as per order no. 3 dated 16/07/2018 by Legal Heir under Sl. No. 7,8 & 9. 5. Jiban Kr. Banerjee B/1/H/7, Rashmoni Bazar Road, P.S. - Beliaghata, Kolkata - 700 010. 6. Pradip Banerjee B/1/H/7, Rashmoni Bazar Road, P.S. - Beliaghata, Kolkata - 700 010. Since deceased. Stands substituted as per order no. 3 dated 16/07/2018 by Legal Heir under Sl. No.7 and 8. 7. Smt. Gouri Chakraborty- Wife of Late Pradip Chakraborty, 37A, Chaulpatty Road, P.S. : Beliaghata, Kolkata - 700010. 8. Sri Sudip Kumar Chakraborty - Son of Late Pradip Chakraborty 37A, Chaulpatty Road, P.S. : Beliaghata, Kolkata - 700010. 9. Sandip Kumar Chakraborty,S/O Late Pradip Chakraborty 37, A Chaul Patty Road, P.S. - Beliaghata, Kolkata - 700 010 ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Appellant: Ms. Punam Kumari Choudhury, Advocate For the Respondent: Ms. Rajasi Paul, Advocate Dated : 06 Mar 2019 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The challenge in this appeal, by the Complainant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') to assail the Order being Order No.02 dated 11.01.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, Ld. District Forum) in Consumer Complaint No. 02/2018 whereby the complaint lodged by the Appellant under Section 12 of the Act was dismissed in limini.
The Appellant herein being Complainant lodged the complaint before the Ld. District Forum stating that on 05.10.2012 he entered into agreement with the OP Nos.1 & 2 to purchase of a self-contained flat measuring about 520 sq. ft. lying and situated at Premises No.37A, Chaul Patty Road, P.S.- Beliaghata, Kolkata - 700010 within the local limits of Ward No.34 of Kolkata Municipal Corporation at a total consideration of Rs.10,85,000/-. The complainant has stated that he has paid Rs.5,25,000/-to the OP Nos. 1 & 2 on diverse dates. In terms of the said Agreement, the OP Nos. 1 & 2 were under obligation to handover the flat within 18 months. However, some times in the month of November, 2013 OP Nos. 1 & 2 expressed their inability to handover the said flat and requested the complainant to purchase another flat of same measurement at Premises No.B/1/h/7, Rashmoni Bazar Road, P.S.- Beliaghata, Kolkata - 700010 within the limits of Ward No.34 of the Kolkata Municipal Corporation. As per terms of the Agreement, the OPs were under obligation to handover the flat in question within March, 2015. The complainant has alleged that during his visit to the site in February, 2015 he did not find any construction. Hence, the appellant approached the Ld. District Forum on the allegation of deficiency in services on the part of OP Nos. 1, 2 & 3 with prayer for several reliefs, viz.- (a) a direction upon the OPs to refund Rs.5,25,000/- with interest @ 18% p.a.; (b) compensation of Rs.3,00,000/- for harassment mental agony; (c) litigation cost of Rs.20,000/- etc. After hearing the Appellant and on perusal of petition of complaint and the documents annexed therewith, the Ld. District Forum by the impugned order did not admit the complaint and dismissed the same in limini. To impeach the said order, the complainant has come up in this Commission with the present appeal.
Heard the Appellant in person and seen the materials on record.
On perusal of the Agreement, which is the genesis of the complaint, it would appear that on 05.10.2012 the appellant had entered into an agreement for lease for the period of 99 years in respect of one flat measuring about 520 sq. ft. on the ground floor at a consideration of Rs.10,85,000/-. It also appears that the property is a thika tenancy and covered under Thika Tenancy Act, 1981. The Ld. District Forum in their impugned order has observed that the property is a thika property and the complainant wanted to have the flat after construction of the said property on a lease hold basis and since the superior right of the thika property has been vested to the State of West Bengal, the landowner had no right to enter into a contract with the developer for construction of the building on the said land. The reason assigned by the Ld. District Forum is based on sound reasoning in view of the provisions of Calcutta Thika Tenancy Act, 1981.
Moreover, the Agreement on the strength of which the appellant claims his right is a lease hold property of 99 years. Therefore, when the dispute pertains to a lease, the appellant cannot be categorised as 'consumer' as defined in Section 2(1)(d) of the Act.
In view of the above, we do not find any shortcoming or loophole in passing the order impugned. On the contrary, had the complaint been admitted, it would have cause unnecessary harassment to the appellant/complainant.
Resultantly, the appeal is dismissed being not maintainable. However, this order will not prevent the appellant/complainant to approach the appropriate Forum in accordance with law and in this regard, in order to overcome the hurdle of limitation, the appellant/complainant may seek assistance of the decision of the Hon'ble Apex Court reported in (1995) 3 SCC 583 [Laxmi Engineering Works - Vs. - PSG Industrial Institute].
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER