State Consumer Disputes Redressal Commission
Dr. Ramprakash Mishra vs M/S Ganeshanand Builders And ... on 23 August, 2011
C-124/2006
BEFORE THE HON'BLE STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. C/06/124
1.
DR. RAMPRAKASH MISHRA
19/20,
3 rd floor ,Geetnjali Mishra Bldg,
Saibaba Road Shivaji Nagar,
Wagle Estate,
Thane
400 604.
...........Complainant(s)
Versus
1.
M/S GANESHANAND BUILDERS AND DEVELOPERS PARTNER- MAHENDRA DEEPCHAND
JAIN
103
, NEW ANAND
PARK NEAR TEEN
HATH NAKA,RAGHUNATH NAGAR THANE
2.
GANESH SURESH WAGH - PARTNER
103,New
Anand Park Near Teen Hath Naka Raghunath
Nagar Thane 400 601.
3.
THANE MUNICIPAL CORPORATION,
The
Municipal Commissioner,
TMC,
Main Office, Alemeida Rd,Chandanwadi,
Panchpakhadi,Thane(W) - 400 601.
4.
THE ASSTT. DIRECTOR, THE CITY DEVELOPMENT & TOWN PLANNING
TMC,
Main Office, Alemeida Rd,Chandanwadi,
Panchpakhadi,Thane(W) 400 601.
5.
THE EXECUTIVE ENGINEER
CITY
DEV & TOWN PLANNING DEPT. TMC THANE
6.
THE DY. ENGINEER
CITY
DEV & TOWN PLANNING DEPT. TMC THANE
7.
THE OFFICE IN-CHARGE
SAMAJ
KALYAN VIBHAG TMC MAIN OFFICE TMC, Main Office, Alemeida Rd,Chandanwadi,
Panchpakhadi,Thane(W) 400 601
8.
THE WARD OFFICER / TAX DEPARTMENT
WAGLE
ESTATE, DIV. OFFICE (TMC),
THANE
MUNICIPAL CORPORATION, WAGLE ESTATE, THANE 400 604.
9.
SHRI RAJNARAYAN MAHAVEER PATHAK
CHAWL
OWNER OF PATHAK CHAWL, M.S.
ROAD, RAGHUNATH NAGAR, WAGLE ESTATE, THANE
400 604.
............Opp.Party(s)
BEFORE:
Hon'ble
Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale Member Hon'ble Mr. Dhanraj Khamatkar Member PRESENT:
Complainant present in person.
Mr.Patkar, Advocate for opponent Nos.1&2.
O R D E R Per Shri P.N. Kashalkar Honble Presiding Judicial Member:(1)
Complainant has filed this complaint against M/s.Ganeshnand Builders and Developer impleading their partners. He also impleaded various authorities of Thane Municipal Corporation. The Complainants case is that he has been running clinic in the Rajnarayan Mahaveer Pathak Chawl for the last 15 to 16 years which is situated and located on the M.S. Road, Ragunath Nagar, Wagle Estate, Thane.
According to Complainant his premises was admeasuring 400 sq.ft. and across the road there was B.M. Engineering workshop and towards east and north all the structures were demolished by builder. He pleaded that the clinic premises was made of pacca brick work, plastered on both sides, the roof top was made of the asbestos sheets. All around his clinic there were residential rooms or chawls in which tenants/chawl owners lived. The Raghunath Nagar is a 30/40 years old in which chawls were constructed. Builder developer organized series of meetings of residents/tenants/chawl owners/structure owners at Khetan Hall, Thane. Builder developer wanted to develop the Final plot no.147 and 148 owned by Shri Himanshu/Ashok Joshi and Others. In the said meeting builder offered to give 180 sq.ft. carpet area to each and every tenant in lieu a single structure initially.
But, after some meetings he agreed to offer or give to tenants/chawl owners/structure owners an area equal to 225 sq.ft. carpet area. It appears that the builder developer asked Complainant to execute agreement for commercial purpose on `100/- of non-judicial stamp paper while for residential self contained room he had already a ready format agreement which was typed on computer on `20/- non-judicial stamp paper. After signing all agreements, the Ganeshanand Builders & Developers had promised to provide Complainant built-up accommodation area i.e. residential plus commercial premises in lieu of existing 400 sq.ft. premises to the Complainant free of cost for surrendering his structure.
The builder had agreed to provide alternate accommodation after vacating the premises. Initially he had given cheque of `30,000/- for transit accommodation that was dishonoured and after lot of hardships and anxiety the said cheque was honoured after two months. The Complainants case appears to be is that even after construction of buildings, the Complainant has not given newly built premises by Ganeshanand Builders and Developer. He expected from the builder premises of 175 sq.ft. for commercial purpose and another premises for residential purpose of 225 sq.ft. carpet area in New Anand Park project being developed by the builder developer under S.R.A. scheme of the Government. He has therefore claimed possession of those premises and also claimed `4 lac for loss of reputation, `4 lac for defamation, `5 lac for inconvenience and hardships and `3 lac for financial damages and losses by way of loss of interest and `14 lac for monthly expenses of family maintenance.
He filed this complaint running into 42 pages, which has hardly any material worth and also filed affidavit in support of complaint. He has also filed documents in various pages in support of the complaint. He also filed another affidavit by way of evidence on 15th June, 2010.
(2)Opponent No.1 filed written version and contested the complaint. According to Opponent No.1 there is no consideration paid by the Complainant and therefore, complaint is not maintainable. According to Opponent No.1, complaint is filed beyond the period of limitation. The alleged agreement which is filed on record was executed on 25.06.2003 and complaint is filed in 2006 and therefore, it is not maintainable and it is liable to be dismissed as filed beyond the period of limitation. Opponent No.1 pleaded that plot nos.147 and 148 were owned by Ashok Joshi and the said plot was encroached by various hutment dwellers.
Moreover, Opponent No.1 approached for development of said plots with the consent of slum dwellers. Opponent showed interest. Similarly, slum dwellers formed a co-operative Society named Raghunath Nagar Rahiwashi Sangh which was duly registered. They entered into agreement with owners of Raghunath Nagar Rahiwashi Sangh for development of final plot nos. 147 and 148. They applied to Social Welfare Officers, Slum Development Department, Thane Municipal Corporation for the list of slum dwellers residing on final plot 147 and 148.
Accordingly they got the list showing slum dwellers in occupation of particular hut with carpet area. They then entered into agreement with slum dwellers along with their association and agreed to provide each slum dweller room admeasuring 225 sq.ft. carpet area. They got plan sanctioned from local municipal authority and then completed the allotment of plots as per lottery system. Out of 337 members other than Complainant none had made any complaint against him. According to Opponent No.1 they had also entered into an agreement with the Complainant to provide him 225 sq.ft. carpet area in this project and he was allotted flat No.102 in building No.B-1 builtup area as per sanction plan under V.P. No.99/107B. The said room has already been handed over to him. Opponent No.1 pleaded that as per Slum Development Department, Thane Municipal Corporation, Complainants name is shown at Serial No.16 and Complainant was in possession of said room admeasuring 2.80 X 7.50 sq.mtrs. (equivalent around to 216 sq.ft.). So the Opponent No.1 has already provided the room in newly constructed building admeasuring 225 sq.ft. carpet area to the Complainant.
(3)Opponent No.1 pleaded that Complainant also demanded unlawful possession of one shop premises in newly constructed building which was refused. The Complainant had given threats to Opponent No.1 and to harass them he had filed this false complaint before this Honble Commission.
Opponent No.1 pleaded that agreement dated 25th June, 2003 filed by the Complainant is false, frivolous and bogus. On the same agreement which was not signed by the Opponent he cannot be given any accommodation in the newly constructed premises. None of the partners have signed agreement dated 25th June, 2003. The stamp paper on which agreement dated 25.06.2003 is executed is not purchased by any of the party to the Agreement. The said agreement cannot be termed as legal document in the eyes of law. The alleged agreement is not admissible in evidence in terms of Section 34 of the Bombay Stamps Act 1958. No signature of license holder is appearing on the said stamp paper. Two dates of execution have been mentioned, one on 25.06.2003 and other on 24.06.2003. One of the parties i.e. Office bearers of Raghunath Nagar Rahiwashi Sangh have also not signed agreement and therefore, the said agreement cannot be relied upon. The plan enclosed to agreement is also not signed by the parties including partners of the Opponents and therefore, Opponent No.1 pleaded that the said agreement is bogus, false and cannot be acted upon. The Opponent therefore pleaded that Complainant was having only one hut on final plot no. 147 and 148 admeasuring 2.80 sq.mtrs. X 7.50 sq. mtrs. Against the said hut opponent is ready to provide alternate room of 225 sq.ft. carpet area vide agreement dated 27.06.2003. The Opponent pleaded that the documents relied upon by the Complainant are false, frivolous and bogus. Even municipal corporation of Thane refused to accept the contention of the Complainant that he was having shop premises in the said slum area.
Complainant himself filed letter dated 07.02.2006 given by Thane Municipal Corporation in which it is specifically mentioned that they have no record to show that Complainant was having shop on final plot no. 147 and
148. Copy of which is marked as Exhibit-D to the written version. The electricity bill produced by Complainant was also for residential purpose and not for commercial purpose as alleged by the Complainant. So, he was simply having hut used for residential purpose and in lieu thereof he can only get room admeasuring 225 sq.ft. carpet area from the Opponent No.1. Opponent No.1 therefore pleaded that complaint should be dismissed so far as Complainants claim for commercial area is concerned.
(4)Other parties did not contest the complaint. The contest is only between the Complainant on the one hand and Opponent No.1 on the other. We heard submissions of Complainant in person and Advocate Mr.Patkar for Opponent Nos.1 and 2.
(5)Before proceeding further, we have to place on record the fact that this complaint was dismissed by this Commission on 28.06.2007 and this Commission was pleased to return the complaint to the Complainant for filing it in an appropriate Forum as according to this Commission Complainants claim for `39,00,000/- was inflated one. Holding that the claim of the Complainant was less than `20,00,000/- it was returned to the Complainant for filing before the appropriate Forum within four weeks from the date of receipt of the order.
Aggrieved by this order the Complainant approached Honble National Commission and the Honble National Commission allowed the First AppealNo.412/2007 on 06.02.2007 and directed this Commission to decide the question of valuation of the complaint afresh and then to decide the complaint. Accordingly the Complainant had produced the valuation report from the Architect & Government approved valuer showing the value of the claim of more than `20,00,000/- and therefore, we have decided to decide the complaint on merit in this commission itself.
(6)We heard Complainant in person and Advocate Mr.Patkar, for Opponent No.1.
(7)From the averments made in the complaint it is clear that Complainant was having some unauthorized structure in the slum which formed the part of Raghunathnagar area near Wagle Estate, Thane. As per the averment made by Opponent Nos.1, it is clear that he was one of the 337 persons who was occupying the premises or slum in those plots. Owner of the plot gave final plot nos.147 and 148 to Opponent No.1 for development. Thereafter, Opponent Nos.1 who were builders and developers had detailed discussions, various meetings with slum dwellers including the Complainant herein and the Complainant agreed to vacate his premises and builder agreed to give 225 sq.ft. area in the new building in terms of agreement dated 27.06.2003.
Copy of the agreement is on record.
The said Agreement clearly mentioned that Dr.Ramprakash Parasnath Mishra would be given 225 sq.ft. carpet area in lieu of 400 sq.ft. hut possessed by Dr.Mishra. By this agreement according to Opponent No.1, Flat No.102 was allotted in the Building B-1 constructed by builder developer. Opponent No.1s contention is that as per list supplied by Slum Development Department, Thane Municipal Corporation at entry No.16 Ramprakash Parasnath Mishra was having 2.80 X 7.50 sq.mtrs. premises in terms of hut which was equivalent to 216 sq.ft., which is clear from the list supplied by the Corporation. This list is found at Page Nos.324 to 333 of the complaint compilation. Again at Exhibit 23 at page 339 there is a letter issued by Thane Municipal Corporation addressed to the Complainant wherein Corporation had told Complainant that as per record Complainant was not occupying any commercial premises in final plot no.147 and 148 under S.R.A. Scheme. The electricity bill of which produced at page no.341 also speaks of bill being paid by the Complainant for residential consumption. These three documents clearly prove that Complainant was in possession of hut in Raghunath Nagar Zopadpatti, Wagle Estate, Thane admeasuring only 216 sq.ft. area and as per agreement between the Complainant and the Opponent No.1 M/s.Ganeshanand Builders & Developers and Raghunathnagar Rahiwashi Sangh, the registered Society of the slum dwellers, the Complainant was entitled to get premises of 225 sq.ft. carpet area. This agreement has been admitted by the Opponent in the written version and therefore, it can be acted upon. It is signed by both the partners of the Opponent. It also signed by the secretary of Raghunathnagar Rahiwashi Sangh besides it is singed by Mr.Ramprakash Parasnath Mishra, the Complainant herein. It is executed before the notary.
(8)It is the contention of Complainant that by another agreement dated 25.06.2003 the builder developer had agreed to give him shop premises admeasuring 175 sq.ft. carpet area in lieu of 400 sq.ft. shop premises given by the Complainant for development of the area under Slum Development Scheme. However, this agreement is disputed by Opponent No.1 because stamp paper of this agreement was not purchased either by Ganeshanand Builders & Developers or by Raghunathnagar Rahiwashi Sangh or by Dr.Ramprakash Parasnath Mishra, the Complainant herein. It was shown to be purchased on 23rd June, 2003 and agreement was dated 30th June, 2003 executed before notary. It is not having signature of one of the parties to the agreement i.e. Raghunathnagar Rahiwashi Sangh, i.e. of president or of Secretary and there appears simply a blank place. This agreement is not genuine agreement because primarily stamp paper was purchased by Geeta Xerox Computer and Typing. The date is appearing on stamp is 23rd June, 2003 and the date of agreement is appearing to be executed on 25th June, 2003 whereas at the last page of the agreement the date is mentioned as 30th June, 2003 but in the vernacular it has been mentioned that this agreement has been signed in presence of witnesses on 25.06.2003. So, this document on the whole appearing to be sham and bogus and this cannot be acted upon.
(9)There is a ruling of Bombay High Court in which it has been clearly laid down that an agreement which is written on the stamp paper not purchased by either of the parties to the agreement is inadmissible in evidence in the case of M/s. K.B.C. Pictures V/s. A.R. Murgadoss & Ors., reported in 2009 (2) ALL MR 108, the Bombay High Court in paragraph no.14 held as under:
Perusal of the agreement dated 29th December, 2004 shows that it has been written on a stamp paper which has been purchased in the name of Mr.S.B. Sharma. Mr.Sharma is not a party to the agreement. Under section 34 of the Bombay Stamp Act (as amended by Maharashtra Amendment Act 29 of 1994 with effect from 1st May, 1994) an instrument which is written on an impressed stamp, is required to be written on a stamp paper which is purchased in the name of one of the parties to the instrument. The present stamp paper has not been purchased in the name of any of the parties to the instrument. The agreement dated 29th December, 2004 is therefore not properly stamped and is inadmissible in evidence.
In the light of this ruling of the Bombay High Court since the agreement in question was typed on the stamp paper not purchased by either of the parties to the agreement will be rendered inadmissible under Section 34 of the Bombay Stamp Act and for this reason the agreement produced by the Complainant in respect of shop premises allegedly executed between himself, Opponents and Raghunathnagar Rahiwashi Sangh dated 30th June, 2003 or dated 25th June, 2003 is held to be not admissible in evidence and as such on the basis of that agreement no relief can be granted to the Complainant.(10)
Thus in view of the facts and circumstances of the case discussed above, we are of the view that the complaint can be partly allowed so far as residential accommodation agreed to be given to the Complainant by the builder developer is concerned. We, therefore, hold that Complainant is entitled to get a new premises having carpet area of 225 sq.ft. in the building constructed by builder developer. He is also entitled to get compensation since he has not been given the said premises i.e. Flat No.102 in B-1 Building, Wagle Estate, Thane. The compensation is required to be given because Complainant has been suffering mental harassment and agony for having been denied possession of Flat no.102 in newly constructed building of B-1 by the builder developer and as such we propose to award him compensation of `50,000/- on this count. The Complainant was required to file this complaint in 2006 and for the last five years he has been fighting this case in this Commission. He must be given litigation costs of `5,000/- on that count. In the result, we are inclined to allow the complaint partly. Hence, we pass the following order:
O R D E R
(i) Complaint is partly allowed.
(ii) Opponent Builder is directed to give possession of Flat No.102 in B-1 Building, Wagle Estate, Thane, immediately as per agreement dated 27.06.2003.
(iii) Opponent Builder is further directed to pay `50,000/-
as compensation for mental harassment and `5,000/- as costs to the Complainant.
(iv) Inform the parties accordingly.
Pronounced on 23rd August, 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member [Hon'ble Mr. Dhanraj Khamatkar] Member ep