Ganpat Shivajirao Jadhav vs Vanita Ravindra Rahalkar & Anr

V.K. Jain, J

The petitioner Ganpat Shivajirao Jadhav was the trustee of a trust, namely, Sr. Citizen Trust which is respondent No.2 in these petitions. Separate agreements were executed by the trust with the complainants whereunder the trust was to construct Bungalows, each measuring 500 sq.ft. of built up area in a project, namely, Sr. Citizen's Village. The agreements were executed by the trust through the petitioner Ganpat Shivajirao Jadhav. The aforesaid cottages were to be constructed on the land belonging to petitioner. The said land at the time the agreements were executed, was an agricultural land. The petitioner was to obtain the requisite permission for construction of residential flats on the said land and then transfer the land to the trust. The construction thereafter was to be raised by the trust. The sale consideration in terms of the said agreements was paid by the complainants by way of cheques in the name of the trust though the said cheques were handed over to the petitioner. As per Clause 6 of the Agreements, the trust was to give possession of the cottages to the allottees by December, 2013. However, the construction of the cottages did not even commence by December, 2013 since the requisite permission for use of the above-referred agricultural land for residential purposes came to be granted only on 14.3.2016. Being aggrieved from the failure of the trust and the petitioner to perform the contractual obligations in terms of the agreements, the complainants approached the concerned District Forum by way of separate consumer complaints. The petitioner as well as the trust was impleaded as the opposite parties in the said complaints.

The complaints were resisted by the petitioner as well as by the trust who admitted the agreements with the complainants as well as the payments received from them. Neither the petitioner nor the trust preferred written version before the District Forum which allowed the consumer complaints and directed the opposite party in the consumer complaints as under:-

"RP No. 2752 of 2018

The complaint No. 621 of 2015 is partly allowed.

It is hereby declared that respondent Nos. 1 & 2 are held responsible for deficiency in service and for engaging into unfair trade practice, by not handing over the possession of cottage, bearing No. J.7 admeasuring 500 sq. feet, survey No. 44, situated at village Poi, Taluka, Karjat, District Raigad, in a scheme under the "senior Citizen Project Affected", within the prescribed period, to the complainant inspite of writing letters by complainant to respondents and sending notice through advocate

The respondent Nos. 1 & 2 jointly and severally shall hand over peaceful and vacant possession of cottage bearing No. J.7 admeasuring 500 sq. feet, Survey No. 44, in "Senior Citizen's Village", at Mauje Poi , Talua: Karjat, District, Raigad, with all amenities and facilities, within 30 days from the date of receipt of this order.

If the respondent Nos. 1 & 2 jointly and severally may not be in position to comply with the clause No. 3 of this order, respondent Nos. 1 & 2 shall jointly and severally to pay to the complainant, an amount of Rs.10,00,000/- (Rs. Ten lacs only), paid to them on account of purchase of cottage bearing No. J-7, alongwith interest at the rate of 14% per annum, from the respective dates as shown in the table inserted while answering point No. 1 above, till realisation of the entire amount.

The respondent Nos. 1 & 2 shall pay compensation to the tune of Rs.5,00,000/- (Rs. Five lacs only) to the complainant towards the costs of this complaint, mental and physical agony being suffered by the complainant, within 30 days from the date of this order.

Copies of this order be sent to the respective parties free of cost.

RP No. 2753 of 2018

The complaint No. 620/2015 is partly allowed.

The Opposite party No. 1 and 2 both are jointly and/or severally held guilty for deficiency in service and responsible for unfair trade practice rendered to the Complainant for not giving possession in time as agreed.

The Opposite party No. 1 and 2 jointly and/or severally shall execute and register the sale agreement in respect Cottage bearing NO. J-9 an area admeasuring 500 sq. Fts., in "Senior Citizen's Village" at Mauje Poi, Taluka Karjat, District Raigad, in favour of the complainant within 30 days from the date of receipt of this order.

If the Opposite party No. 1 and 2 jointly and severally shall handover peaceful and vacant possession of cottage bearing No. J-9, in "Senior Citizen's Village" at Mauje Poi, Taluka Karjat, District Raigad, within 45 days from the date of receipt of this order.

If the Opposite party No. 1 and 2 jointly and/or severally failed to comply point No. 3 and 4 herein above, within time prescribed, then, the Opposite party No. 1 and 2 jointly and/or severally shall arrange to register and give possession of alternate cottage equivalent same, an area admeasuring 500 sq. fts., in the same village i.e. Senior Citizens Village project within 90 days from the date of receipt of this Order.

The Opposite Party No. 1 & 2 jointly and /or severally directed to pay Rs.50,000/- (Rs. Fifty Thousand Only) to the complainant towards cost of litigation and expenses incurred within 30 days from the date of receipt of this order.

Copies of this order to be sent to both the parties at free of cost.

RP No. 2754 of 2018

The complaint No. 650 of 2015 is partly allowed.

It is hereby declared that respondent Nos. 1 & 2 are held responsible for deficiency in service and for engaging into unfair trade practice, by not handing over the possession of cottage, bearing No. J.7 admeasuring 750 sq. feet, survey No. 44, situated at village Poi, Taluka, Karjat, District Raigad, in a scheme under the "senior Citizen Project Affected", within the prescribed period, to the complainant, inspite of writing letters by complainant to respondents and sending notice through advocate The respondent Nos. 1 & 2 jointly and severally shall hand over peaceful and vacant possession of cottage bearing No. K-2admeasuring 750 sq.meters, out of Survey No. 44, in "Senior Citizen's Village", at Maje Poi , Talua: Karjat, District, Raigad, with all amenities and facilities, within 30 days from the date of receipt of this order.

If the respondent Nos. 1 & 2 jointly and severally may not be in position to comply with the clause No. 3 of this order, respondent Nos. 1 & 2 shall jointly and severally to pay to the complainant, an amount of Rs.11,00,000/- (Rs. Eleven lacs only), paid to them on account of purchase of cottage bearing No.K-2, alongwith interest at the rate of 14% per annum, from the respective dates as shown in the table inserted while answering point No. 1 above, till realisation of the entire amount.

The respondent Nos. 1 & 2 shall pay compensation to the tune of Rs.5,00,000/- (Rs. Five lacs only) to the complainant towards the costs of this complaint, mental and physical agony being suffered by the complainant, within 30 days from the date of this order.

Copies of this order be sent to the respective parties free of cost."

Being aggrieved from the order passed by the District Forum, both the petitioner as well as the trust preferred individual appeals before the concerned State Commission. The said appeals having been dismissed, the petitioner is before this Commission by way of these revision petitions. We are informed by the learned counsel for the petitioner that the trust has since been taken over by the Charity Commissioner.

The first question which arises for consideration in these petitions is as to whether the complainants were consumers only of the trust or they were also the consumers of petitioner Mr. Ganpat Shivajirao Jadhav. It is not in dispute that the agreements with the complainants were executed by the trust through the petitioner before us. It is also not in dispute that the payments from the complainants though made in the name of the trust were collected by the petitioner. It is also evident and otherwise admitted position that the land on which the cottages were to be constructed was owned by the petitioner at the time the agreements were executed. It was the petitioner who had to apply for and obtain the requisite permission for changing the use of the land on which the cottages were to be constructed by the trust. It is also an undisputed position that the requisite permission was not obtained by the petitioner even by the date on which the consumer complaints were instituted, the said permission having been obtained only on 14.3.2016. The learned counsel for the petitioner submits that the applications for grant of the requisite permission for change of the land use was in process, at the time the consumer complaints were instituted. That, however, would be of no consequence since the fact remains that the cottages had not been constructed even by the time the complaints were instituted and even as on today the cottages do not stand constructed. Therefore, neither the petitioner nor the trust is in a position to offer possession of the cottages to the complainants even as on today.

In our opinion considering the above-referred obligations of the petitioner, the complainants were consumers not only of the trust but also of the petitioner. Hence, both the petitioner as well as the trust are jointly as well as severally liable to the complainants and the direction given by the Fora below to both, the petitioner as well as the Sr. Citizen Trust was fully justified in the facts and circumstances of these cases.

Relying upon the provisions contained in Section 51 of the Bombay Public Trusts Act, 1950 the learned counsel for the petitioner submits that the consumer complaint was not maintainable without requisite permission from the Charity Commissioner. Section 51 of the Bombay Public Trusts Act to the extent it is relevant, reads as under:-

"51. Consent of Charity Commissioner for institution of suit.--

(1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. If the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is satisfied that there is a prima facie case, he may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal.

(2) If the Charity Commissioner refuses his consent to the institution of the suit under sub-section (1) the persons applying for such consent may file an appeal to the Divisional Commissioner in the manner provided by this Act.

(3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party.

(4) Subject to the decision of the Divisional Commissioner in appeal under section 71, the decision of the Charity Commissioner under sub-section (1) shall be final and conclusive."

In our considered opinion, the above-referred provision contained in Bombay Public Trusts Act, 1950 would not apply to a consumer complaint which cannot be said to be suit of the nature specified in Section 50 of the said Act. In view of the provisions contained in Section 3 of the C.P. Act, the remedy available to a consumer against the seller of the goods or a service provider is an independent alternative remedy. Therefore, we are unable to accept the contention that the consumer complaint was not maintainable without consent from the Charity Commissioner.

8 For the reasons stated hereinabove, we find no merit in the revision petitions which are accordingly dismissed with no order as to costs.

In case the petitioner is unable to comply with the order passed by the State Commission within six months from today, they shall refund an amount equivalent to the present Ready Reckoner Value of a similar flat to the complainants along with interest @ 9% per annum on that amount w.e.f. today till the date of refund. This direction is given as the petitioner who is present in the Court undertakes to refund the amount equivalent to the present Ready Reckoner Value of the flats to the complainants. in the event he is unable to comply with the order passed by the State Commission within six months of the order. The sale deed deposited by the petitioner shall be returned to him after he has complied with this order.