State Consumer Disputes Redressal Commission
Mumbai Metropolitan Region ... vs S.S.Ahmed on 18 February, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE FIRST APPEAL NO.1181/2007 Date of Filing:- 20/09/2007 IN CONSUMER COMPLAINT NO.266/1997 Date of Order:-18/02/2009 DISTRICT CONSUMER FORUM, MUMBAI SUBURBAN Mumbai Metropolitan Region Development Authority, Bandra Kurla Complex, Bandra (East), Mumbai-400 051 ... Appellant (Org. Opponent) -Versus - S.S.Ahmed, R/at 702, Akash Apartment, Agripada, Mumbai-400 011 ... Respondent (Org. Opponent) Corum :- Mr.P.N.Kashalkar, Honble Presiding Judicial Member, Smt.S.P.Lale, Honble Member.
Present :- Mr.Akhilesh Dubey, Adv. for the Appellant.
None present for the Respondents.
O R A L O R D E R Per Mr.P.N.Kashalkar, Honble Presiding Judicial Member 1) Being aggrieved by the
judgment and award passed by Mumbai Suburban District Consumer Forum, Bandra in Consumer Complaint No.266/1997 decided on 29/6/2007 whereby, the Forum below allowed the complaint and directed that the possession should be given of the allotted tenement by the O.P./M.M.R.D.A. on the lease of 30 years and should pay interest at the rate of 12% per annum on 1,72,250/- from 1/1/1994 till actual payment or alternatively on the said amount to pay interest at the rate of 18% per annum from 19/4/1993 and also directed O.P. to pay Rs.50,000/- towards mental agony and Rs.5,000/- towards cost to the complainant, the Org.O.P./M.M.R.D.A. has filed this appeal challenging the said judgment and award.
2) Facts to the extent material may be stated as under :
3) The complainant had filed consumer complaint against M.M.R.D.A. alleging deficiency in service against it. Complainant pleaded in his complaint that as per public advertisement he had booked a tenement No.12 in Building No.D-2, at Wadala Truck Terminus on 8/2/1985 being developed by M.M.R.D.A. (then Bombay Metropolitan Region Development Authority, Bandra-Kurla Complex, Mumbai) Initially, he deposited booking price and he was to get lease for 80 years. The complainant paid Rs.1,72,250/- in installments to M.M.R.D.A. However, on 31/3/1996, he received letter from M.M.R.D.A. that those who have paid full amount they would get tenement booked for a period of 30 years on lease. The complainant found that M.M.R.D.A. had unilaterally changed the terms and conditions and complainant felt cheated because while inviting applications, the terms mentioned were different than the terms mentioned in letter dated 31/3/1996. Hence, he filed consumer complaint and claimed refund of amount with interest at the rate of 21% per annum and also claimed compensation and cost.
4) The O.P. filed written statement and raised objection that son had booked the flat and father was filing consumer complaint. Father has no locus standie to file this complaint. But, it admitted that the son of the complainant had booked tenement No.12 in D-2 building at Wadala Truck Terminus premises in the scheme floated by it. In 1985, lease was to be for 80 years but then government changed its decision and allowed the lease to be given to the tenements for 30 years only. It pleaded that government has every right to do so and M.M.R.D.A. being agency was bound by the policy changes effected by government. Accordingly, they had written letter to the complainant that lease period would be 30 years instead of 80 years. The M.M.R.D.A pleaded that the construction of tenement is already over and after obtaining occupation certificate from B.M.C. it would be in a position to give premises to the complainant. It pleaded that there was no deliberate default on the part of it. It therefore prayed that complaint should be dismissed with cost.
5) On the basis of affidavits and documents placed on record, the Forum below held that M.M.R.D.A. was guilty of deficiency in service and complainant was entitled to get possession of the tenement besides compensation and cost and as such it passed award as reproduced in opening para of this judgment. Aggrieved thereby, the M.M.R.D.A. has filed this appeal.
6) We heard submissions of Mr. Akhilesh Dubey, Adv. for the appellant and none appeared for the respondent but on previous date we had heard Mr.S.Thakkar, Adv. for the respondent.
7) In the course of argument, learned counsel for the appellant Mr.Dubey vehemently submitted before us that respondent has already taken possession of suit tenement from the appellant on 11/6/1999 and therefore the complainant was not entitled to get interest because pending complaint (it was filed in 1997) he had taken possession and he should have simply withdrawn the complaint. Mr.Dubey submitted that in the circumstances the complaint was uncalled for and even lease was actually executed in favour of complainant and therefore the complaint should have been dismissed by the Forum below. Mr.Dubey further submitted whatever delay occurred in giving possession to the complainant of the tenement in question was due to fact that B.M.C. had not granted occupation certificate for a pretty long time and unless occupation certificate is received, no tenement can be given to the persons for occupation. So, in giving delayed possession O.P./appellant can not be held to be guilty of deficiency in service. Mr.Dubey further submitted that much before the impugned order was passed, Government of Maharashtra had already extended period of lease from 30 years to 80 years and therefore there was no question of M.M.R.D.A. refunding lease premium paid by the complainant. Mr.Dubey further submitted that during the pendency of the complaint respondent wrote letter to the appellant on 10/1/1998 to settle the matter out of court and to hand over possession to him and accordingly possession was given to the complainant on 11/6/1999 and therefore complainant should have withdrawn the complaint in terms of settlement.
8) We are finding that counsel for the respondent had no effective reply to the points raised by the counsel for the appellant. The stand taken by the appellant is correct that delay in giving possession occurred because B.M.C. had not issued occupation certificate and as such public body, M.M.R.D.A. can not give possession of the premises without occupation certificate issued by competent local authority and appellant had not control over B.M.C. in the matter of issuance of occupation certificate. Therefore, delay in giving possession occurred beyond the control of M.M.R.D.A. and there was no deficiency in service as such, so far as delay is concerned. There was proper justification for giving delayed possession to the respondent and other persons. So far as second ground is concerned, Mr.Dubey rightly pointed out that initially M.M.R.D.A. published an advertisement and offered tenement at Wadala Truck Terminus giving lease for 80 years. But, then Government of Maharashtra changed its decision/policy. So, as per government of Maharashtras directive they told tenement holders that the tenements would be available on lease for 30 years only in place of 80 years as advertised earlier. But, then Government of Maharashtra ultimately agreed that the tenements of Wadala Truck Terminus would be given on a lease of 80 years and accordingly lease period has been extended to 80 years. But the Forum below erroneously allowed the complaint and even directed that possession should be given to the complainant of the tenement booked with a lease period of 30 years. So, approach of the Forum below was patently divorced from the facts on record. The lease of 80 years is being granted to all the tenement holders by M.M.R.D.A., the appellants herein. During pendency of the complaint possession has been taken by the complainant on 11/6/1999.
In fact, he should have immediately withdrawn the complaint after taking possession but he continued the complaint and Forum below erroneously allowed the complaint granting some reliefs to the respondent. Mr.Dubey relied upon the judgment of Honble Supreme Court delivered in Bangalore Development Authority VersusSyndicate Bank reported in 2007 INDLAW (SC) 524 wherein Honble Supreme Court made following observations.
As already noticed, where the grievance is one of delay in delivery of possession, and the development authority delivers the house during the pendency to the complaint at the agreed price, and such delivery is accepted by the allottee-complainant, the question of awarding any interest on the price paid by him from the date of deposit to date of delivery of possession, does not arise. The allottee who had the benefit of appreciation of price of the house, is not entitled to interest on the price paid.
9) Thus, relying of the ratio of Apex Court, we are finding that the complaint was erroneously allowed by the Forum below because delay in giving possession was justifiable one. Secondly, the complainant had no cause of action to complain when appellant in concurrence of government of Maharashtra had agreed to execute lease in favour of respondent for a period of 80 years. The complainant already taken possession in the year 1999 and continued with the complaint right upto 2007 when the Forum below delivered the judgment. It appears the respondent wanted to derive advantage unlawfully. Once he accepted possession of the tenement that too for a lease period of 80 years during the pendency of the complaint, the question of awarding any interest on the price paid by him from the date of deposit till the date of delivery of possession does not arise as has been held by Honble Supreme Court in the ruling mentioned supra. Thus, in the facts and circumstance, we are finding that the Forum clearly erred in law in allowing the complaint and passing award in favour of the complainant/respondent. Hence, by allowing this appeal the order passed by the Forum below will have to be quashed and set aside. Hence, we pass following order.
O R D E R 1) Appeal is allowed. 2) Impugned judgment and award passed by the Forum below in Consumer Complaint No.266/1997 is hereby quashed and set aside. 3) Complaint stands dismissed. 4) Parties are left to bear their own costs. 5) Copies of this order be sent to the parties free of cost. ( Smt.S.P.Lale ) (P.N.Kashalkar ) Member Presiding Judicial Member Malve/