State Consumer Disputes Redressal Commission
Sri Suvendu Saha vs Smt. Punam Devi on 2 January, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/89/2018 ( Date of Filing : 28 May 2018 ) (Arisen out of Order Dated 22/05/2018 in Case No. Complaint Case No. CC/362/2017 of District Kolkata-I(North)) 1. Sri Suvendu Saha S/o Sri Sailendra Nath Saha, 48A, B.T. Road, P.S. - Sinthee, Kolkata - 700 050. ...........Appellant(s) Versus 1. Smt. Punam Devi W/o Bhola Mahato, 14/3, Ghoshpara Lane, P.S. - Baranagar, Kolkata - 700 036. 2. Sri Sanjib Chakraborty S/O Late Indu Bhusan Chakraborty, 4/A, New Rathtala, Kolkata-700056 3. Smt. Mamata Dey D/O Haridas Dey, 34/C, Gopal Chandra Chatterjee Road, P.S. Cossipore, Kolkata-700002 4. Sri Sudhansu Kumar Saha S/O Late Ambika Charan Saha,30Z/2, Hare Kristo Lane, P.S. Sinthee, Kolkata-700050 ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Petitioner: Mr. Saroj Kr. Sil, Advocate For the Respondent: Mr. Amarnath Agarwal, Advocate Dated : 02 Jan 2019 Final Order / Judgement PER:HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant Revision Petition under Section 17(1) (b) of the Consumer Protection Act, 1986(hereinafter referred to as 'the Act') is at the behest of the Opposite Party No.1/Developer to assail the Order No. 07 dated 22.05.2018 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I (for short, Ld. District Forum) in Consumer Complaint No.362 of 2017 whereby the application filed by the Revisionist challenging the maintainability of the proceeding was rejected.
The Opposite Party No.1 herein Smt. Punam Devi being Complainant lodged a complaint under Section 12 of the Act before the Ld. District Forum on the allegation of deficiency in services on the part of Opposite Parties for non-delivery of possession and non-execution of Sale Deed in respect of total carpet area of 198 sq. ft. in the ground floor in a building lying and situated at Premises No.34C, Gopal Ch. Chatterjee Road, P.S.- Cossipore, Kolkata - 700002 within the local limits of Ward No.1 of Kolkata Municipal Corporation (KMC) in terms of a tripartite Agreement between the revisionist/tenant, the developer and the landowners dated 14.09.2011.
After entered appearance, the Opposite Party No.1/Developer filed a written version and stated that the instant complaint is not maintainable. Subsequently, by filing a separate application, the OP No.1 challenged the maintainability of the proceeding on two grounds - (1) the complainant cannot be categorised as 'consumer' being tenant under OP Nos. 2 to 4 and (2) the complaint is barred by limitation in accordance with Section 24A of the Act.
After giving due consideration to the submission made by the Ld. Advocates and taking into consideration of the facts and circumstances of the case, the Ld. District Forum by the impugned order rejected the said application. Being aggrieved by and dissatisfied with the said order, the OP No.1/developer has come up in this Commission with the instant revision petition.
Having heard the Ld. Advocates appearing for the respective parties and on perusal of the materials on record, it would reveal that the OP Nos. 2 to 4 were the owners of a piece of land measuring about 5 cottahs with standing structure thereon lying and situated at Premises No.34/C, Gopal Ch. Chatterjee Road, P.S.- Cossipore, Kolkata - 700002 within the local limits of Ward No.1 of Kolkata Municipal Corporation (KMC). On 04.03.2009 they had entered into an agreement with the revisionist/developer to construct a multi-storied building thereon. Accordingly, in terms of the said agreement, the revisionist/developer undertook construction. On 14.09.2011 a tripartite agreement was executed amongst landowners, developer as well as tenant Smt. Punam Devi (OP No.1) herein wherein it was agreed that for the purpose of construction of the building, the tenant will vacate the premises till construction of the building and she shall be provided two rooms measuring about 152 sq. ft. carpet area, one kitchen of 23 sq. ft. carpet area and one bath-cum-privy of 23 sq. ft. more or less in the ground floor of the said premises.
Ld. Advocate for the Revisionist has submitted that in terms of the said tripartite agreement, the complainant is entitled to get repossession in the newly constructed building but she cannot be termed as 'consumer' within the meaning of Section 2(1)(d) of the Act. In support of such submission, no authority has been placed. On the contrary, there are catena of decisions where it has been held that the surrender of tenancy by a tenant to the landowner/developer to construct the building itself amounts to consideration and, therefore, the Ld. District Forum was quite justified in holding that the case is well maintainable.
So far as point of limitation is concerned, it is well settled that in accordance with Section 24A of the Act, a complaint is required to be filed within two years from the date of accrual of cause of action and the said period cannot be extended unless an application for condonation of delay is filed and the same is decided on merit. Here in our case, the complainant has prayed for delivery of possession and execution of Sale Deed in accordance with terms and conditions of Agreement dated 14.09.2011. Therefore, when in accordance with the terms of agreement, the possession has not been delivered, the cause of action is a continuous one and the bar of Section 24A will not be applicable in the facts and circumstances of the case.
The revisional jurisdiction of the State Commission flows from Section 17(1)(b) of the Act, which runs as under:-
"to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity".
The above provision makes it quite clear that the revisional jurisdiction conferred upon this Commission is limited only to the extent of jurisdictional error or material irregularity in passing the order impugned. In the instant case, the revisionist has failed to satisfy that there was any legal error or material irregularity in passing the order impugned.
Having heard the Ld. Advocates appearing for revisionist and OP No.1, we have no hesitation to hold that the instant revisional application has been filed just to cause unnecessary delay and to harass a 'consumer' as defined in Section 2(1)(d) of the Act and as such the revision petition deserves rejection with cost of Rs.10,000/- out of which Rs.5,000/- to be paid by the revisionist/OP No.1 to the OP No.1/complainant and the balance amount of Rs.5,000/- to be paid in the State Consumer Welfare Fund.
Consequently, the revision petition is dismissed on contest with cost of Rs.10,000/- out of which Rs.5,000/- to be paid by the revisionist/OP No.1 to the OP No.1/complainant and the balance amount of Rs.5,000/- to be paid by way of bank draft in the Consumer Legal Aid Account of this Commission.
The impugned order is hereby affirmed.
The parties are directed to appear before the Ld. District Forum on 01.02.2019 positively and on that date the OP No.1/developer must show the receipts showing payment of costs otherwise he will be debarred from contesting the case.
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 forthwith for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER