HON’BLE MR. SUDEB MITRA, PRESIDING MEMBER

Order No. : 10

Date : 21.08.2023

Feeling aggrieved by and dissatisfied with the order /judgement dated 22/12/22 passed by the DCDRC, Purba  Bardhaman in CC/224/2022, filed by the complainant/appellant Sudeshna Dutta, who had raised the allegation of deficiency in service and Unfair Trade practice perpetrated against her by the OPs/Respondents no. 1to 4 of CC/224/2022  and A/11/2023, the complainant of CC/224/2022 has preferred the instant appeal before this Commission on 03.02.2023.

By filing the instant appeal against the order dated 22.12.2022 in which the complainant Sudeshna Dutta’s filed CC/224/2022 was not admitted by the DCDRC, Purba Bardhaman, the complainant/appellant Sudeshna Dutta contended that the impugned order dated 22.12.2022, passed in CC/224/2022 by the DCDRC lacks proper appreciation of facts and legal position and inappreciably the said order could reveal that the Ld. DCDRC had failed to appreciate that the dispute between the parties of CC/224/2022 is a consumer dispute and not a civil dispute and the DCDRC by pronouncing the  impugned order could not hold that there was deficiency in service on the part of the respondent no. 1 and other respondents of A/11/2023.

By filing the instant appeal the appellant/complainant contended that the DCDRC was legally wrong  to hold   that the respondent No. 1’s duties responsibilities towards the complainant, as the owner of the plot where the case building is raised and situated and the development and construction in issue of the plot is done in the said case plot, can’t  cease just on the respondent No. 1’s delivery of the possession of the residential unit in the said plot towards the complainant/appellant on 19.09.2016, on execution and registration of relevant deed and the relationship of consumer and service provider exists in between the appellant and respondent no.1.

The appellant/complainant, by filing grounds of appeal, has contended further  that the Ld. DCDRC has failed to appreciate that the respondent No.1 of this appeal, Biswa Bijoy Ghosh has intentionally paralyzed the dispute resolution process of the Apartment owner’s association in connivance with the other respondents  Nos. 2 and 4 and contended that DCDRC dismissed the CC/224/2022 at admission stage on the grounds that are  untenable and inappreciably unsustainable in the eye of law.

It is pertinent to hold that a brief reflection on the complaint case deserves to be reproduced below.

It appears from the gist of the complaint case No. 224/2022 filed by the complainant/appellant, Sudeshna Dutta that she had purchased flat No. FF-04 having super built up area of 556 sq. ft. approx. built up area 463 sq. ft. situated In the  Block B on the first floor of the building constructed in the respondent no. 1’s (Biswa Bijoy Ghosh) purchased bastu land measuring 19,647 sq. ft. more or less, comprises in R.S. Khatian No. 271 and 1081, L.R. Khatian No. 4920, R.S. Plot No. 444, L.R. Plot No. 658, J.L. No. 100, Mouza Bandhgora, P.O. and P.S. Bolpur, Dist. Birbhum against  consideration  of Rs. 14,00,008/- and registration of said flat on due execution of deed was done on 19.09.2016 before the appropriate authority.

It is the specific continuation  of  the complaint/appellant of CC/224/2022 and this Appellant Sudeshna Dutta that in her said flat, her living room and kitchen has got only one window which is located at one side of the terrace and the same is inaccessible as per advertised lay out  and sanctioned plan.  This is asserted in this case by the complainant that during her absence, the respondent no. 2 of the appeal Kartik Mohan Ghosh  who is owner of another flat located in the said building, raised construction of tin shed at the other side of the said open terrace in the building where the complainant/appellant’s flat is situated . The  complainant’s assertion is that the said construction  was in grave violation of the terms of agreement of sale of plot to the complainant/appellant and it was not allowed as per contents of the concerned Deed of Sale of the plot executed, registered in favour of the complainant and lay out plan of this building was thereby violated by the OP No. 2/Respondent no. 2 for his such act and it is contended by the complainant/Appellant that though there was no access of the Respondent No.2  Kartik Mohan Ghosh in the said open terrace through his apartment, yet he  has raised illegal construction of the tin shed on the  other side in that open terrace and, thus impaired the easementary right of the complainant/appellant of natural light and air to her flat scheduled to come through that open terrace and in that way reduced thoroughly her purchased flat to be inhabitable.

The complainant/appellant had objected to this act of the OP No. 2/Respondent No. 2, Kartik Mohan Ghosh and informed the Ops for  redressal and for retrieval  of the previous privilege  she was enjoying from the  open  terrace as terms of executed and registered Sale Deed of the said flat in the plot, purchased by her, but they had not taken any step to mitigate rather are, apprehended to have connived with the Respondent No. 2 over this issue and extending  no help and  redressal of  the complainant’s  grievances. So, the complainant has filed CC/224/2022 but by pronouncing the impugned order dated 22.12.2022, the Ld. Concerned DCDRC did not admit CC/224/2022 on the ground that since the OP No. 1 sold and delivered possession of the Flat to the complainant as service provider to the complainant, on receipt of consideration  price and on execution and registration of  Sale deed of such flat  in favour of the complainant on 19.09.2016, so their his  duties  and responsibilities  and  the Ld. DCDRC held further that the complainant could file complaint against the OP No. 1 within 2 years from 19.09.2016 and at the time of filing  this CC on 02.12.2022 the OP No. 1 of the CC Biswa Bijoy Ghosh has no liability and obligation to discharge any duty towards  the complainant in respect of the flat and the relevant issues arising therefrom.

This  appears also from the assailed order dated 22.12.2022 passed in CC/224/2022 that the Ld. Commission held that the nature of disputes arose in between the complainant and OP No.2 of the CC/224/2022 does not attract the applications and scope of  C.P. Act and on holding this the Ld. Commission had rejected  the admission of CC/224/2022.

                                                    POINT FOR CONSIDERATION

It is now to be ascertained as to whether the instant appeal is sustainable in the eye of law and to determine as to whether the impugned order dated 22.12.2022, passed in CC/224/2022 by the Ld DCDRC, Purba Bardhaman is entertainable in the eye of law, as legally appreciable and correct.

                                                          DECISION WITH REASONS

The factual matrix and the submissions of the complainant/appellant Sudeshna Dutta reflect categorically that she had purchased the flat in concern built up in the landed property of the respondent No.1 Biswa Bijoy Ghosh, so categorically described in the schedule of the complaint of CC/224/2022 as well as in the instant appeal besides being contained in the concerned executed and registered sale deed of the concerned plot purchased by the complainant from Biswa Bijoy Ghosh on execution and registration of the sale deed on 19.09.2016.

It is specific case of the complainant that she had taken the possession of the Flat in concern at Alapon Apartment vide Flat No. FF4 on the first floor, Block B, in concern from the OP No. 1/Respondent No. 1 Biswa Bijoy Ghosh together with undivided and impartible share and interest in the land described in the schedule of the Sale Deed dated 19.09.2016.

It is claimed by the complainant that her living room and kitchen that has got only one window and that is located at one side of the open terrace and the same is inaccessible as per advertised lay out and sanctioned plan.

It is specific contention of the complainant/appellant of this Appeal that the Op No. 2/respondent No. 2 of CC/224/2022 Sri Kartik Mohan Ghosh, owner of a flat  (constructed building), taking the advantage of her absence from her possessed flat in the concerned plot, constructed a tin shed at the other side of the open terrace, in gross violation of the stipulations relevant terms and the conditions of the  sale deed of the plot of the complainant.

It is the definite assertion of the complainant/appellant that how the concerned OP No. 2 /respondent No. 2, Kartik Mohan Ghosh was permitted  to get access in the concerned open terrace which is beyond the scope of the lay out of the Block B of the concerned “Alapan Apartment” was not known to her specially when neither the entry in the open terrace nor the access in it through the apartment of the OP No.2/Respondent No. 2 to the said open terrace was permissible as per terms of the Sale Deed of the flat entered into by the OP No. 1/respondent No. 1 and the Op No. 2/appellant No. 2 of this Appeal, specially when the open terrace does not form a part of the saleable portion in terms of approved lay out.

It is assailed  by the complainant/ appellant that by so doing i.e. by constructing tin shed in the open terrace, the OP No. 2 has managed to open a door/entrance from the unit of the respondent  No.2 to use the open terrace according to his convenience and as a result  of  such action adopted/ taken  by the Op No.2/respondent No.2,  the window of the dining  and the bath room of the flat of the appellant  were obstructed and the privacy of the both rooms of the complainant/appellant has been violated and she has lost her easementary right  of open air and light in her flat for raising of such unauthorised construction of a tin shed in the open terrace of the flat in concern in the close proximity of the complainant’s/appellant’s flat.

It is pressed by the complainant/appellant that her raising series of protests  and pleadings  to the other OPs, mainly to the OP No.1, for taking up proper steps against the OP No. 2/respondent No. 2’s making such unauthorised  construction of tin shed in the open terrace adjacent to the complainant’s flat in the building, developed in the  Op No. 1’s land, fell into the deaf ears of the other OPs of this complaint. So, she has considered such  inaction of the OPs No. 1,3,4 as an example of their connivance with the OP No. 2 in such illegal activity of the OP No.2 in the open terrace of such flat complex and so the complainant had filed the CC/224/2022 which was not admitted by the  Ld. DCDRC of Purba Bardhaman, so this Appeal was preferred. OP side contended that the allegations so alleged by the complainant are not coming within the purview of the C.P. Act for consideration, so the impugned judgement dated 22/12/2022 passed in CC/224/2022 deserves no interference. On consideration of submission of both sides, we find  that the nature  of the complications, as described in the CC/224/2022, arose in between  different owners of different flats in the housing complex which was raised in the previously purchased land of the OP No.1 who had, on executing  Sale Deed and effecting registration of  the same on 19.09.2016, disposed of and delivered possession of the flats among the owners of the respective flats that also includes the complainant and OP No. 2 of this complaint/appeal, as well. The matter in issue in this complaint lies among the owners of different flats in the housing complex once developed by the OP No. 1 of this Appeal.

Nothing significant has been forthcoming from the four corners of the case record to show that there was any commission of deficiency in service or rendering any unfair trade practice perpetrated by the OP No. 1 against the complainant/appellant by his activities. Even if for argument’s sake if it is  taken  into consideration that a tin shed was raised in the  open terrace of the flat by the OP No. 2 i.e. the owner of another flat in that  housing complex  wherein the complainant is owner of other flat, affecting thereby easementary rights of the complainant thereby, it is beyond the scope for consideration as per C. P. Act. Besides no adequate  and prima facie materials are forthcoming here from the available materials on record to substantiate at this stage the allegation of the complainant/appellant that the OPs No. 1,3,4 had connived with the OP No.2/Respondent No. 2 of this appeal to facilitate his raising  alleged illegal construction in the open terrace of the flats, at the cost of the complainant and her easementary rights emanating from  such open terrace. Scanning of the existing facts and nature of the dispute involved in this Appeal lends ground to hold that the matter in  issue  involved  in this case is basically a problem of civil nature and dispute in true sense existing in  between some owners of different  flats of a housing complex and for this there remains no scope for the application of the relevant provisions of the C. P. Act to sort out  andr resolve the problems involved in this complaint, in practical sense with the Aid of the C.P. Act.

It further transpires that the complainant’s purchased flat was disposed of by the Op No. 1 of the CC/224/2022 in favour of the complainant/appellant against his receipt of proper consideration from the complaint and by execution and registration of relevant deed in respect of such flat on 19.09.2016 and the Ld. Concerned DCDRC is found correct in holding that if there existed any dispute in the said flat among the owners of different flats existing the said flat complex, the complainant Sudeshna Dutta should have to take steps  and raise that dispute against the OP No. 1 within two years from 19.09.2016. It was not so done by the complainant in this case, as the record reveals.

Determination of dispute of raising of allegedly illegal construction in the open terrace of a flat complex by one of the owners of  a flat situated in the building complex of such flats, at the cost of another flat owner of that building complex and settling of dispute  touching easementary right of a  particular flat owner of the housing complex are not appearing to be coming  within the purview of the C. P. Act of 2019 to be effectively dealt with.

In this backdrop, I find no convincing ground to entertain the instant Appeal or to interfere with the impugned order passed in CC/224/2022, on 22/12/2022 or to set aside the said impugned order dated 22.12.2022 passed by the Ld. DCDRC Pubra Bardhaman in CC/224/2022  and the said order stands uninterfered.

Hence, it is

ORDERED

That the instant appeal (A/11/2023) be and the same is dismissed on contest but without cost the order dated 22.12.2022 passed in CC/224/2022, by the Ld. DCDRC Purba Bardhaman stands   and interfered and affirmed.

Let copy of this judgement be handed over to the contesting parties of this Appeal free of cost forthwith.

Let a copy of this judgement passed in A/11/2023 be furnished as early as practicable to the Ld. DCDRC, Purba Bardhaman for perusal and information.