| STATE CONSUMER DISPUTES REDRESSAL COMMISSION | | WEST BENGAL | | 11A, Mirza Ghalib Street, Kolkata - 700087 |
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| First Appeal No. A/18/2022 | | ( Date of Filing : 09 Feb 2022 ) | | (Arisen out of Order Dated 30/12/2021 in Case No. CC/273/2021 of District Kolkata-I(North)) |
| | | | 1. Rama Bachhar & Others | | S/o, Lt Birendra Nath Mandal. 5/1B, Tarini Charan Ghosh Lane, P.S.- Chitpur, P.O.- Cossipore, Kolkata- 700 002. | | 2. Bippro Das Roy | | S/o, Paritosh Roy. Hanpaniya, P.O.- Nagar Ukhra, Haringhata, Pin- 741 257, Nadia. | | 3. Sri Debanshu Bachhar & Smt. Kanika Bachhar | | 5/1B, Tarini Charan Ghosh Lane, P.S.- Chitpur, P.O.- Cossipore, Kolkata- 700 002. | | 4. Sri Avijit Halder & Sri Surath Chandra Halder | | 3/H/45, Tarini Charan Ghosh Lane, P.S.- Chitpur, P.O.- Cossipore, Kolkata- 700 002. | | 5. Smt. Bandana Bachhar | | 5/1B, Tarini Charan Ghosh Lane, P.S.- Chitpur, P.O.- Cossipore, Kolkata- 700 002. |
| ...........Appellant(s) | |
| Versus | | 1. Danish Mullick & Another | | S/o, Mustafa Mallick. 22/4A/8, Khagendra Chatterjee Road, P.S.- Cossipore, Kolkata- 700 002. | | 2. Sri Manik Chandra Kairi | | S/o, Lata Volanath Kairi. 1B/H/28, Dum Dum Road, P.S.- Sinthi, Kolkata- 700 002. |
| ...........Respondent(s) |
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| BEFORE: | | | | HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT | | | HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER | |
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| PRESENT: | Mr. P.K. Giri, Advocate for the Appellant 1 | | | | |
| Dated : 13 Apr 2023 |
| Final Order / Judgement | HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT - This appeal has been filed on 09/02/2022 challenging the impugned order dated 30.12.2021 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata – I (North) in connection with consumer case No. CC/273/2021.
- Heard the Learned Advocate appearing for the appellants at length and in full on the point of admission.
- Perused the materials on record including inter alia, the order dated 30.12.2021 of the Learned District Consumer Disputes Redressal Commission, Kolkata – I (North) and the memo of appeal.
- The Learned District Commission, vide its order No. 4 dated 30.12.2021, dismissed the complaint. The Learned District Commission below was pleased to refuse to admit the complaint case.
- Being aggrieved by the order of dismissal, the appellants have preferred this appeal.
- Having heard the Learned Advocate appearing for the appellants and on perusal of the record it appears to us that the property in question before us is a thika property and the complainants are intending purchasers of the flat as per the agreement for sale which was developed by the developer. It also appears to us that the Government is the owner of the said thika property in question.
- Sub section 4 of Section 5 of the West Bengal Thika Tenancy ( Acquisition and Regulation) Act, 2001 runs as follows :-
“(4) The interests of the thika tenants holding directly under the State under sub-section(1) Shall be heritable and shall not be transferable except inter sufficiently explained 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.” - From the above it is clear that the Thika Tenant or the ‘Bharatiya’ cannot sale any portion of the structure since Government is the owner of the Thika land. So, the Consumer Commissions have no jurisdiction to direct perform of the agreement, which is contrary to law. As such, we hold that the Consumer Commission cannot entertain the proceeding as it is not maintainable in respect of Thika property.
- An unreported judgment in Sri Samir Dutta Vs. Smt. Mamata Das & Anr. being C.O. No. 2602 of 2017, wherein Hon’ble High Court at Calcutta observed that :-
“in the instant lis, even if development simplicitor of a thika tenancy property can be permitted, an agreement of the present nature, which not only concerns development of such a property but transfers right, title and interest of the thika tenants in such property in favour of a complete stranger, is patently unlawful and cannot be enforced. Thus both the fora below committed a gross jurisdictional error in entertaining a prayer for and directing the performance of such an unlawful agreement on the teeth of the legal bar contemplated in Section 5 of the 2001 Act. The common agreement, that a floodgate will be opened if this Court starts entertaining grievances in spite of availability of alternative fora, cannot render toothless the power of judicial review inherent in a High Court and conferred by nothing less than the grundnorm of the country, that is, its Constitution. This Court cannot shut its eyes and relegate a litigant knocking its door for justice merely by shrinking its duty under the flimsy pretext of an “equally efficacious remedy” being available a thousand and a half miles away in the National capital. In the circumstances, in view of the judgments and orders of the fora below being wholly without jurisdiction and opposed to national policy in so far as by virtue of the same an agreement contrary to the law of the country was directed to be specifically performed, the said judgments and orders cannot but be set aside.” - This apart, it appears to us that Kolkata Municipal Corporation is the owner of the thika land and the Kolkata Municipal Corporation has not been made party in the instant case though the Kolkata Municipal Corporation is the necessary party in the present case.
- Under these facts and circumstances, and on perusal of the materials available on record we are of the view that the appeal is not maintainable in law and is liable to be dismissed in limini.
- Hence, the appeal is dismissed in limini.
- There will be no order as to costs.
- The appeal is, thus, disposed of accordingly.
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| | | [HON'BLE MR. JUSTICE MANOJIT MANDAL] | PRESIDENT
| | | | | | [HON'BLE MR. SHYAMAL KUMAR GHOSH] | MEMBER
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