National Consumer Disputes Redressal
Mr. Ansar Pasha vs M/S Tata Motors Ltd. on 15 July, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION
PETITION NO. 337 OF 2011
(From
the order dated 29.09.2011 FA No.
A/10/1205 of the State Consumer Disputes Redressal Commission,
MAHARASHTRA)
Mr. Ghansi Ram Lal Shah
R/O at 7th Floor, Siddha Paras,
Opp. Jaya Prabha Hotel, Plot No. 2,
Pushpa Park, Daftary Road,
Malad (East)
Mumbai- 400 097. Petitioner.
Versus
1. Smt. Supriya Suhas Sarmalkar
2. Mr. Vivek Suhas Sarmalkar
3. Mr. Tejas Suhas Sarmalkar
All
temporary residing in
Temporary Share in the compound of the
Building- Siddha Paras,
Opp. Jaya Prabha Hotel, Plot No. 2,
Pushpa Park, Daftray Road,
Malad (East),
Mumbai-400-097. .Respondents
BEFORE:
HONBLE MR.JUSTICE V.B. GUPTA, PRESIDING
MEMBER
HONBLE MR.SURESH CHANDRA, MEMBER
For the
Petitioner(s) :
Mr. A. D. Timboli, Advocate.
Dated
: 6th September, 2011.
ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER Petitioner has filed this petition challenging order dated 7.12.2010 passed by State Consumer Disputes Redressal Commission, Mumbai (for short as State Commission). Vide impugned order, appeal of the petitioner was summarily rejected by the State Commission at the admission stage itself.
2. Brief facts as emerge from record are that complainant/respondents No. 1 husband was in occupation of a room bearing No. 1, at Moreshwar Choudhary Chawl, Daftray Road, Malad (East), Mumbai. Respondents No. 2 and 3 are sons of respondent No.1. Petitioner-builder entered into Development Agreement with the respondent No. 1 on 5.1.2002 to develop entire chawl and to allot Flat No. 102, admeasuring 275 sq. ft. in carpet area in newly constructed building in lieu of old tenanted premises. Pettioner also agreed to provide alternate accommodation to the respondents till new building was constructed. As per agreement, respondents vacated the tenanted premises and shifted over to alternate accommodation provided by the petitioner. Thereafter, petitioner demolished the erstwhile tenanted room and constructed six storied building known as Siddha-Paras. Respondents then insisted them to put in Flat No. 102 as per development agreement. Petitioner avoided to put them in possession. In May, 2007, petitioner sent message to the respondents to surrender their rights over Flat No. B/102. Respondents realized that petitioner was not willing to perform his part of contract and served notice dated 09.07.2007 to the petitioner which was replied by the petitioner and he suggested to sort out the matter amicably but no steps were taken. Thereafter, petitioner instituted a suit before Small Causes Court for eviction of the respondents from the temporary alternate accommodation. Respondents pleaded that statutory obligation under Maharashtra Ownership Flats Act, 1963 was being violated by the petitioner. Thereafter, respondents filed consumer complaint against petitioner seeking vacant and peaceful possession of Flat No. B-102 in Siddha_Paras Building and also claimed compensation of Rs. 30,000/- for breach of agreement.
3. In written statement petitioner took up the stand that present dispute cannot be decided by Consumer Forum since it was dispute between landlord and tenant. Petitioner also raised objection regarding limitation to file the complaint. Petitioner also pleaded that in terms of Clause 15 of Development Agreement, respondents were duty bound to deposit with the petitioner, maintenance and other charges. Thus, respondents have committed breach of agreement and therefore, they were not entitled to get reliefs as sought by them.
4. District Forum vide order dated 29.9.2010, allowed the complaint of the respondents partly and passed the following order;-
The Opposite Party is hereby directed to hand-over, to the Complainants jointly, vacant & peaceful possession of a flat bearing No. B/102, in the building Siddha Paras, as described in the Development Agreement dt. 05/Jan/2002.
The Opposite Party shall also pay to the Complainants jointly, costs in sum of Rs. 10,000/-.
The Opposite party shall comply with the foregoing order within a period of eight weeks from the date of receipt of copy of this order failing which, the Opposite Party, shall also be liable to pay to the Complainants jointly, an amount in sum of Rs. 5,000/- per month as from the date of expiry of stipulated period of eight weeks till the date of handing over the possession of the flat to the complainants.
It is hereby made clear that handing over the possession of Flat No. B/102 by the Opposite Party to the Complainants shall take place simultaneously with vacating and handing over possession of temporary alternate accommodate by the Complainants in favour of the Opposite party.
The Complainants shall also deposit with the Opposite Party, an amount in sum of Rs. 18,000/- while taking over possession of the flat in question.
Rest of the claims of the Complainants stands rejected.
5. Aggrieved by the order of District Forum, petitioner filed appeal before the State Commission, which summarily dismissed its appeal.
6. It is contended by learned counsel for counsel for the petitioner that respondents are not consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986(for short as Act) as there was no consumer and buyer relationship between the parties.
There existed relationship of landlord and tenant between the parties, as per agreement dated 05.01.2002.
7. Other contention is that complaint filed by the respondents is barred by limitation, as limitation period started when petitioner served notice dated 25.11.2004 upon the respondents.
8. Execution of agreement dated 05.01.2002 is admitted between the parties. There are finding of facts by the Fora below that petitioner is guilty of deficiency in service.
9. In the agreement dated 05.1.2002, petitioner has been referred to as developer of the property in question. Once the petitioner becomes developer then relationship of landlord and tenant, which was earlier there between the parties ceased to exist. In this regard it would be relevant to go through the findings of the District Forum, which reads as under:-
Now admittedly there had been Development Agreement dtd. 5/1/2002, a copy of which is produced on the record by the Complainants, alongwith list of documents at Exhibit-A. The complainants are seeking relief, as against the Opposite Party-Builder-Developer; on the basis of this Development Agreement. No doubt, in the development agreement, the Complainants are referred to as the tenants and the Opposite PartyBuilder/Developer, has been referred to as the owner/landlord However, the foundation of the complaint is the terms incorporated in the Development Agreement dated 5.1.2002, based upon relationship as the flat-purchaser and the Builder/Developer. The complainants have not filed this complaint, as against the Opposite PartyBuilder/Developer; in his capacity as landlord, and therefore, relationship of landlord & tenant, which previously existed is immaterial. Under the Development Agreement dtd. 5/1/2002, a new relationship came into existence, as the flat-purchaser and the Builder/Developer, Consideration of the said development agreement was the original tenanted room occupied by the Complainants, which they vacated pursuant to the development agreement. It be further noted that as per clause No. (07) of the development agreement, the Opposite Party Builder/ Developer, specifically agreed to allot Flat No. B/102 to the Complainants, on ownership basis, free of any cost. Rights of the Complainants qua that flat emanate from the above-referred term incorporated in the development agreement. As pointed out above, relationship of landlord & tenant got subsided/vanished/extinguished on execution of Development agreement dtd. 5/1/2002 and a new relationship got blossomed in place of old relationship of landlord &tenant. This is further articulated by the fact that the Opposite PartyBuilder/Developer; not only entered into an agreement with the complainant, but got possession of the tenanted room from the complainants and accommodated the complainants in an alternate temporary accommodation. Thus, the agreement was not only executed, but partly performed by either of the party and that part was performed by the Opposite Party, in his capacity as the Builder/Developer and not as a landlord. No landlord on earth would provide an alternate accommodation to the tenant on vacating tenanted premises. All these facts are sufficient to expose the contentions of the Opposite PartyBuilder/Developer; and this further show that the contention is wholly unsustainable and based upon misconstrued interpretation of the development agreement. The statement in commentary relied upon by the Learned Advocate for the Opposite Party shows that a tenant under a lease agreement had approached the Honble National Consumer Disputes Redressal Commission claiming compensation on the ground that the landlord had failed to render service to him. That is not the case here and the Complainants have not approached this Forum, in their capacity as the tenants of the Opposite PartyBuilder/Developer; as the landlord. Therefore, that statement in the commentary would not be applicable to the present case. Hence, we hold that the complaint as filed is maintainable before this Forum under the Consumer Protection Act, 1986.
10. As far as period of limitation is concerned, District Forum dealt with this issue also and observed;
By the by, the opposite PartyBuilder/Developer has also raised an objection to the effect that the complainant as filed is time barred. Now, the Complainants are seeking direction, as against the Opposite PartyBuilder/Developer; as the flat purchasers and the dispute between the parties pertains to newly constructed flat in a building constructed by the Opposite Party, as a Builder/Developer. Therefore, obviously, the provisions contained in the Maharashtra Ownership Flats Act, 1963; a Builder/Developer is burdened with certain obligations, which he has to discharge as provided therein. Thus, the relief sought by the complainants is in the Form of a direction, as against a Builder/Developer, to perform statutory obligation arising from the contract dtd.5/1/2002 entered into between the parties on account of which, provisions contained in the Maharashtra Ownership Flats Act, 1963; become applicable. There is no period of limitation prescribed to file a complaint against a Builder/Developer, because the cause of action is always continuous, and therefore, provisions contained in Section-24A of the Consumer Protection Act, 1986; would not be applicable. Therefore, we hold that the complaint as filed is well within the period of limitation.
11. The State Commission also concurred with the view of District Forum and observed;
We are finding that order passed by the Forum below is just and proper, it does not call for any interference by this Commission. We are finding that the appeal is devoid of any substance. As per development agreement and the promise given to the tenants, the builder developer is duty bound to give vacant possession of the flat agreed to be given to the tenants, who vacated and surrendered their tenanted premises in terms of development agreement. After construction of Siddha-Paras building it was the duty of the Appellant to give peaceful and vacant possession of the flat in question to the Respondent which he failed to do and therefore the Complainants/ Respondents were forced to file the consumer complaint. We are finding that the complaint has been rightly allowed by the Forum below by passing impugned award. The said award is sustainable in law. We are finding no substance in this appeal.
12. As per record, in May 2007, petitioner sent message to the respondents to surrender their rights over the flat in question. When respondents realised that petitioner was not willing to perform his part of contract, they served notice dated 09.07.2007 upon the petitioner, which was duly replied by the petitioner, who suggested to sort out the matter amicably. The complaint thus filed in 2008, is within the period of limitation.
13. As per development agreement dated 5.1.2002, petitioner was duty bound to give vacant possession of the flat agreed to be given to the respondents who had vacated and surrendered their tenanted premises. However, after construction of the building, petitioner failed to give the vacant possession of the flat in question to the respondents. Thus, petitioner is guilty of deficiency in service since he failed to carry out the statutory obligations cast upon him, as per Development Agreement made between the parties.
14. Present revision petition has been filed under Section 21(b) of the Act. It is well settled that power of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.
15. Recently, Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
16. In view of the concurrent findings of the two fora below, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act. Moreover, the fora below have given cogent reasons in their order, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction. It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.
17. Under these circumstances, present petition is without any legal basis and is merit-less and the same is dismissed with punitive costs of Rs. 50,000/-.( Rupees Fifty Thousand only).
18. Petitioner is directed to deposit the costs by way of two cross cheques i.e. one for a sum of Rs. 25,000/-( Rupees Twenty Five Thousand only) in the name of Consumer Legal Aid Account and the second one for the sum of Rs. 25,000/-( Rupees Twenty Five Thousand only) in the name of respondent No. 1, within four weeks from today. However, cheque of respondent no. 1 shall be paid to her only, after expiry of the period of appeal or revision preferred, if any.
19. In case, costs are not deposited within the prescribed period, petitioner shall be liable to pay interest @ 9% p.a., till realization.
20. Pending miscellaneous application also stand dismissed.
21. List on 17th October, 2011, for compliance.
J. (V.B. GUPTA) PRESIDING MEMBER ...
(SURESH CHANDRA) SSB MEMBER