State Consumer Disputes Redressal Commission
Nishat Anjum vs Younus Ali Khan on 26 March, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. 20/FA/08 DATE OF FILING:17.01.2008 DATE OF FINAL ORDER: 26.03.2009 APPELLANT Nishat Anjum S/o Md. Jalaluddin Residing at 283/2, Bellilious Road P.S. & Dist. - Howrah RESPONDENT/COMPLAINANT 1) Younus Ali Khan S/o Late Yaqub Ali Khan 284, Bellilious Road P.S. & Dist. Howrah PROFORMA RESPONDENT 2) Sri Rabindra Nath Dey S/o Late Haradhan Dey 284, Bellilious Road P.S. & Dist. Howrah BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY FOR THE APPELLANT : Mr. Samrat Mukherjee, Advocate FOR THE RESPONDENT : Mr. Subir Sanyal, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed challenging order dated 14.12.07 passed by District Consumer Disputes Redressal Forum, Howrah in CC No.HDF/41/2007 whereby the complaint was allowed and the OP1 was directed to deliver vacant possession of the schedule flat to the complainant within 60 days and to pay compensation of Rs.10,000/- and cost of Rs.2,000/-.
Facts in brief are that the complainant entered into a written argument on 01.3.04 for vacating his tenanted premises temporarily for construction of a new multi-storied building by the OP and to be shifted to the alternative accommodation within the local area provided by the OP Developer. The complainant accordingly vacated the tenanted premises on 04.8.04 and shifted to the alternative accommodation. Under the said agreement the OP agreed to reinstate the complainant in the newly constructed building as tenant within 12 months from the date of taking possession by the OP Developer. Demolishing the old building the OP completed the multi-storied building over the said property and inspite of request by the complainant, the OP is not giving possession of the flat to the complainant and, therefore, the present complaint had to be filed praying interalia for direction to the OP to deliver possession and or reinstate the complainant in the schedule mentioned property, compensation and cost.
Heard Mr. Samrat Mukherjee, the Ld. Advocate for the Developer/Appellant and Mr. Subir Sanyal, the Ld. Advocate for the Tenant Complainant/ Respondent.
The Ld. Advocate for the Appellant/Developer contended that the complainant being a tenant in the premises and having not paid any consideration whatsoever and not having hiring the services of the Developer/Appellant, is not a consumer under the Consumer Protection Act and, therefore, the complaint itself is not maintainable. It has been argued by Mr. Mukherjee that there is no jural relationship between the tenant and the developer. Reference was made to the judgment dated July 10, 2008 in Civil Appeal No.3302 of 2005 Faqir Chand Gulati-Vs-Uppal Agencies Pvt. Ltd. decided by the Apex Court and it is argued by Mr. Mukherjee, the Ld. Advocate for the Appellant that the said judgment referred by the tenant/complainant in the Forum below, has no application as the said judgment laid down the proposition that in a Housing Construction/Development Agreement the land owner having hired a service of a developer, is a consumer and the developer is a service provider. It is contended that in the present case the tenant/complainant having not hired the services of the appellant/developer, he cannot be treated as a consumer. It is further argued that every agreement is not a contract and in the present case the agreement though was entered into but the same has not attained the status of a contract.
Mr. Subir Sanyal, the Ld. Advocate for the Respondent contended that the tenant vacating the tenanted premises under the agreement, is the consideration and therefore he is entitled to relief of reinstatement in the reconstructed building as tenant. Mr. Sanyal, the Ld. Advocate referred to the case of Faqir Chand Gulati (Supra) for showing what the term Consideration means. It is argued that the tenant having vacated the premises to enable the construction of the multi-storied building, thus provided the consideration in return of which under the agreement the tenant is entitled to reinstatement.
We have considered the contentions of the parties. Admittedly the term consideration has not been defined in the Consumer Protection Act, 1986, therefore, the definition of consideration as available from the Contract Act, 1872 has to be applied in the present case and Section 2(d) of the Contract Act is as follows:
When, at the desire of the promisor, the promisee or any other person had done or abstained from doing, or does or abstains from doing, or promise to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the purpose.
From the perusal of the said definition it is apparent that for entering into a contract consideration is a must but it need not be monetary consideration. If a party to the contract undertakes to do something or to abstain from doing something, the same also amounts to consideration. In the present case the tenant/complainant having vacated the premises temporarily shifting to an accommodation provided by the developer OP, provided the consideration and, therefore, is entitled to the relief under the agreement. Such relief is of reinstatement of the tenant/complainant in the newly constructed building in the premises. The agreement categorically provides the following provisions:
(1) That at present, the party of the second part/tenant is in occupation of two rooms, one Common Kitchens, Common Privy and Common Varanda on ground floor of the said holding no.284. Belilious Road, P.S. & Dist. Howrah 711 101, and the said room has more particularly described in Schedule A hereunder under the landlord/owner of said holding i.e. Robindra Nath De and others at a monthly rent of Rs.200/-
payable according to the English Calendar month.
(2)That the party of the second part/tenant has voluntarily agreed to vacate his tenanted premises temporarily as well as shift some other place on removal of all his goods, articles, belongings etc. therefrom at any other rental premises which will be provided by the developer/first party within the local area as his alternative accommodation and the first party developer shall pay the monthly rents on behalf of the tenant for the said temporary period.
(3) That the party of the second part/tenant has agreed to vacate the concerned tenanted portion mentioned in the schedule hereinunder temporarily within 15 days from the date of demand to be made by the first party/developer.
(4) That it is agreed by the parties hereto that after making construction of ground floor and third floor, the party of the first part/developer shall reinstate and/or accommodate the tenanted possession of the tenant hereto in the manner as described in schedule B hereunder within 12(twelve) months from the date of taking possession by the first party/developer.
# # # # (8) That the second party/tenant shall continue to pay the monthly rents to the confirming party/landlord or his authorized agent as usual for the said period of temporary vacation.
# # # # (10) That after taking possession of the newly made room on third floor the tenant shall use the same only for residential purpose and ground floor room for professional work obeying all the rules and regulations of the prevailing Tenancy Act.
In the above circumstances we are unable to accept the contentions of the appellant as argued by the Ld. Advocate and we hold that the complainant is a consumer and is entitled to maintain the present proceeding. No other point having been argued we affirm the impugned judgment and appeal is dismissed and there will be no order as to costs.
(A.K. Ray) (Justice A. Chakrabarti) MEMBER PRESIDENT