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IN THE HIGH COURT OF CALCUTTA
Sabyasachi Bhattacharyya, J.
Samir Dutta - Appellant
Vs.
Mamata Das and Ors. - Respondents
C.O. No. 2602 of 2017
Decided On : 16-11-2017
Thika Tenancy - Consumer Disputes - West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, Section 5 - The court discussed the legal provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, particularly Section 5, which prohibits the transfer of thika tenancy interests. The court highlighted the provisions of the development agreement and emphasized that it contemplated the transfer of right, title, and interest of the thika tenants to a third party, which was deemed unlawful and unenforceable under the Act.
Fact of the Case:
The case involved a dispute over a development agreement for a property held under thika tenancy. The District Forum and State Consumer Disputes Redressal Commission directed specific performance of the development agreement, which was contested by the developer.
Finding of the Court:
The court found that the development agreement, which involved the transfer of thika tenancy interests, was unlawful and could not be enforced. The judgments and orders of the lower fora were held to be without jurisdiction and opposed to national policy.
Issues: The issues included the jurisdiction of the consumer fora to decide on the specific performance of a development agreement involving thika tenancy, the applicability of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, and the availability of alternative remedies under the Consumer Protection Act, 1986.
Ratio Decidendi: The court held that the development agreement, which transferred thika tenancy interests, was unlawful and could not be enforced. It also emphasized that the availability of alternative remedies does not bar the jurisdiction of judicial review under Articles 226 and 227 of the Constitution of India, especially in cases involving violations of fundamental rights, principles of natural justice, or orders passed without jurisdiction.
Final Decision: The court allowed the application, set aside the orders of the lower fora, and clarified that the parties could claim damages, compensation, or other reliefs before appropriate forums.
Sabyasachi Bhattacharyya, J.
1. The present application under Article 227 of the Constitution of India is moved against an order of the State Consumer Disputes Redressal Commission, West Bengal, partially affirming an order of the District Consumer Disputes Redressal Forum whereby the District forum granted specific performance of a development agreement. The present opposite parties and their brother Ratneshwar, being the owners of a piece of land along with single-storied asbestos shed building pertaining to Municipal premises No. 16/1/H/48/8, Biplabi Barin Ghosh Sarani, Police Station - Manicktala, Kolkata - 700 087, entered into a development agreement on August 14, 2009 with the present petitioner, who is a developer: Subsequently the present opposite parties lodged a complaint with the Calcutta District Consumer Disputes Redressal Forum, Unit - II, claiming a direction on the present petitioner to hand over the room in question and pay the balance amount of Rs. 1 lakh in terms of the agreement, along with Rs. 10,000/- as compensation for harassment, etc.
2. The present petitioner filed a written objection, thereby inter alia alleging that subsequent to the development agreement, he learnt that the property was a thika tenancy and hence could not be transferred due to the bar under Section 5(4) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. As such, the consumer forum proceeding was not maintainable. This apart, the present petitioner also took the defence of limitation and that the complainants were not consumers under the Consumer Protection Act, 1986.
3. The District Forum, inter alia, held:
"... Lastly after proper appreciation of the legal' position, we find that this present holding situated at 1.6/1/H/48/8, Biplabi Barin Ghosh Sarani, P.S.- Maniktala, Kolkata - 700067 is nothing but a tikha tenanted land. No doubt complainants and their brother Ratneswar Das are tikha tenants directly under State and the construction already made by the complainants on the basis of the development agreement dated 14.08.2009 after taking KMC sanctioned plan is still tikha tenanted land and complainants are residing there, op shall be treated as bharatia under the complainants and his brother in respect of his allocations; If op places any other person in the other portion of the flat, they shall be treated as bharatia under the complainants and for which complainants shall have to fix rent and that rent shall be paid by the bharatias to the tikha tenants (Complainants).
But complainants and ops have their no legal right to transfer any portion of the structure or and to anyone and no doubt complainants have not transferred any portion of the land or structure by agreement to sale or by any registered deed of sale. So, no illegal act has been done by the complainants violating the provision of WBTT (Acquisition & Regulation) Act, 2001. So, in the light of the above observation the complaint succeeds....".
4. Ultimately the District Forum allowed the complaint "on admission of the op and also on contest against the op" with cost of Rs. 10,000/-. The developer, who was the opposite party before the District Forum, was directed to hand over the case room measuring 63 sq. ft. on the ground floor of the premises to the complainants and to pay the amount of Rs. 1 lakh to the complainants within one month from the date of its order, failing which the developer was to pay penal damages of Rs. 10,000/- each month till delivery of possession of the said ground floor room to the complainants and also to pay penal interest at the rate of Rs. 800/- per month from the date of the order till full satisfaction of the amount of Rs. 1 lakh.
5. An appeal was carried against the aforesaid order of the District Forum by the developer/present petitioner before the State Consumer Disputes Redressal Commission, West Bengal which, by its judgment and order dated April 11, 2017, affirmed the District Forum's decision, except for r
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