State Consumer Disputes Redressal Commission
Aftabuddin Ahmed vs Jawaid Husain on 13 December, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/81/2017 (Arisen out of Order Dated 22/12/2016 in Case No. Complaint Case No. CC/487/2015 of District Kolkata-I(North)) 1. Aftabuddin Ahmed S/o Lt. Moinuddin Ahmed, B/45/5H/3, Diamond Harbour Road, P.S. - Ekbalpoor, Kolkata - 700 027. ...........Appellant(s) Versus 1. Jawaid Husain S/o Lt. Abid Husain, 1/2, Raja Dinedra Street, P.S. - Narkeldanga, Kolkata -700 009. 2. Nasiruddin Ahmed S/o Lt. Aminnudin Ahmed, B/45/5H/3, Diamond Harbour Road, P.S. - Ekbalpoor, Kolkata - 700 027. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr.Supriya Roy Choudhury, Advocate For the Respondent: Mr. Avijit Bhuina, Advocate Dated : 13 Dec 2017 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This appeal has been directed against the judgment and order dated 22-12-2016 passed by Ld. DCDRF, Kolkata, Unit-I (North) where Ld. Forum concerned while disposing of the complaint case being CC/487/2015 dismissed the same, exparte.
Being aggrieved by and dissatisfied with the said judgment and order of dismissal the present appeal has been preferred by the complainant.
Briefly stated, the case of the complainant was that the complainant, one of the joint tenants of the thika property being premises no. B/45/5H/3, Diamond Harbour Road, referred to in the schedule 'A' of the petition of complaint and the joint tenants of the said thika property intended to develop their property by constructing a multistoried building thereon, entered into an agreement with the OP no. 1/developer on 25-04-2013 subject to fulfillment of certain terms and conditions. Subsequently another agreement was executed between the complainant and the OP no. 1 and the proforma OP no. 2 herein on 25-04-2013, considering and in settlement of all issues, area of allocation of the complainant and the proforma OP no. 2 were revised in respect of their two flats measuring about 500 sq. ft. each to two flats measuring about 570 sq. ft. each facing roadside also on the 1st floor of the proposed building. Thereafter on the basis of an oral settlement made between the parties in respect of their shares in the property and administration of the property, such oral settlement was reduced to writing on 02-052013 under their signatures. On the basis of the said agreement, the OP no. 1 got a building plan of three storied building, sanctioned from the KMC and after obtaining approval from the Controller, Calcutta Thika Tenancy by order dated 12-08-2012, the OP no. 1 constructed the G+4 storied building on the property referred to in the schedule 'A' below but he (OP no. 1) was reluctant to hand over two flats measuring 570 sq. ft. carpet area facing front side on the 1st floor. The OP no. 1 was however managed to convince the proforma OP no. 2 to accept a flat on the 2nd floor and the OP no. 2 accepted possession of one road facing flat on the 2nd floor. The OP no. 1 in contravention of the agreement dated 25-04-2013 put pressure on the complainant to accept a flat at the back side on the 2nd floor and threatened that if the complainant was not accepting the back side flat on the 2nd floor, the OP no. 1 will not allow any flat in the building to the complainant. The OP no. 1 was more interested to sell out a road facing flat on the 1st floor at a higher price rather than to discharge obligation according to the agreement dated 25-04-2013. Since the complainant was not interested to accept any flat as part of his owner's allocation other than the flat specifically mentioned in the agreement, the failure of the OP no. 1 to hand over possession of the owner's allocation in accordance with the agreement tantamounting to deficiency of service. The OP no. 1 who was interested to sell out the owner's allocation or any part thereof at a higher price and also construction of building in deviation of sanctioned plan for his illegal gain amounting to unfair trade practice as well and the conduct of the OP no. 1 being detrimental to his interest prompted the complainant to take recourse of the DCDRF concerned for claiming reliefs in terms of the prayers of the petition of complaint.
The complaint case was disposed of exparte against the OPs since they did not appear before Forum concerned to contest the matter.
Now the point for consideration whether Ld. Trial Forum was justified in dismissing the complaint case.
Ld. Counsel appearing for the appellant in course of hearing drew our attention to the Annexure 'C' and tried to impress us that the building plan was sanctioned by the KMC with the approval of the Controller, Calcutta Thika Tenancy by his order dated 21-08-2012 and the construction was done as per the sanctioned plan of the KMC, as shown in the site plan attached to the agreement dated 25-04-2013.
Ld. Counsel for the respondent expressed a contrary view. He pointed out with reference to the provision of section 5 (4) of the Thika Tenancy Act 2001 and submitted that the interests of the thika tenants holding directly under the State under section (1) of section 5 shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-shares-interest and spouses or to the prospective heirs, with a prior permission of the Controller subject to the provisions of sub-section (1) of section 6. He with all fairness admitted that the thika tenants holding directly under the State as per section 5 (1) shall be entitled to construct pucca structures or to change the nature, character and dimension of an existing structure on the land in accordance with the building plans sanctioned under the Kolkata Municipal Corporation Act, 1980 and the rules made thereunder.
Here the relationship between the complainant and OP are not categorically averred nor any document to establish the fact that the documents particularly sanctioned plan from the KMC was produced before Ld. Forum concerned which prompted Ld. Trial Forum not to give any relief to the complainant in terms of his application.
Taking into consideration the materials on record in the light of provision of section 5 of the Thika Tenancy Act 2001, we are unable to take a different view. Hence, we are inclined to dismiss the appeal resulting dismissal of the complaint case but we do not pass any as to costs. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER