M/s Aditya Enterpries vs Sushila R. Sathe

Subhash Chandra, Presiding Member

These First Appeals filed under the Consumer Protection Act, 1986 (in short, ‘the Act’) are directed against the order in complaint case no.CC/15/675 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, (in short, ‘the State Commission’) whereby the complaint was partly allowed and it was ordered as under:

i. Complaint is partly allowed;

ii. Opponent is hereby directed to hand over possession of flat admeasuring 373 sq ft carpet area (including the area of flower bed/ niche/ open balcony) to complainant in the redeveloped building at Tagore Nagar Adarsh Co-operative Housing Society Ltd., situated at Survey no.113 (part), City Survey no.337 (part), Village Hariyali, Vikhroli, Mumbai after obtaining occupancy certificate about the same;

iii. Opponent is hereby directed to hand over possession of the flat to complainant within a period of three months from the date of passing of this order otherwise opponent will have to pay costs of Rs.1,000/- per month to complainant from the date of passing of this order till handing over possession of flat to complaint;

iv. Opponent is also directed to pay compensation of Rs.1,00,000/- towards mental pain and agony and costs of Rs.10,000/- of this litigation to complainant;

v. Opponent is hereby directed to pay amount of costs and compensation to complainant within a period of one month from the date of passing of this order otherwise the amount will carry interest @ 9% per annum from the date of this order till realisation of amount by complainant.

In view of the fact that both the appeals emanate from the same order, they are proposed to be disposed of by way of a common order. For the sake of convenience, FA no.2004 of 2018 is taken as the lead case.

Appeal no. 2004 of 2018 has been filed by the appellant seeking enhancement of the award with the prayer to modify the order dated 05.10.2018 to allow the complaint in totality.

I have heard the learned counsel for both the parties and perused the records carefully.

The brief facts of the case are that the appellant was a resident of flat no. 1744 in building no.54, Tagore Nagar Adarsh Cooperative Housing Society. The said society entered into an agreement with the respondent for the re-development of the Society on 30.03.2007. The possession of an alternate flat was to be given to the Members of that Society even 24 months, i.e., on or before 22.12.2012. In the interim, the respondent agreed to give rent @ Rs.3000/- per month for 12 months in advance and to hand over the redeveloped building with flats with higher carpet area. It is the case of the appellant that there was an agreement on behalf of the appellant and the respondent on 22.12.2010 and the respondent had orally agreed to give possession of the flat on the 5th floor of the redeveloped building. However, although possession has been handed over to other tenants in the building, the same has not been done in respect of the appellant although advance rent of Rs.36,000/- had been paid to her. She had therefore, approached the State Commission with the prayer:

i. To allow the present appeal and set aside the impugned judgment and order dated 05.10.2018 passed by the State Commission, Maharashtra at Mumbai in Consumer Complaint no. 675 of 2015; and

ii. Pass any such orders or further orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances.

The impugned order is challenged on the grounds that the State Commission has erred in partly allowing the complaint no. 675 of 2015 vide impugned order and in not appreciating the case of the complainant, that as per the agreement, the respondent had agreed to provide permanent alternative accommodation to her for which purpose monthly compensation @ Rs.3000/- per month from 01.06.2015 had been handed over. It was stated that the respondent was in arrears and has not paid the due amount. It was submitted that although the State Commission held the respondents are liable for deficiency in service and directed to hand over the possession of the flat within three months after obtaining the occupation certificate and awarded compensation of Rs.1.00 lakh, it did not consider the appellant’s prayer of compensation of Rs.16,16,439/- apart from compensation of Rs.5.00 lakh. It is also contended that the impugned order erred in awarding Rs.10,000/- towards legal costs whereas the prayer was for Rs.25,000/-.

From the records it is evident that the agreement for the redevelopment was on behalf of M/s Aditya Enterprises and the Society, i.e., Tagore Nagar Adarsh Cooperative Housing Society. The residents of the said society had constituted “Tagore Nagar Adarsh Cooperative Housing Society” and had approached the respondent in respect of demolition and redevelopment building for the purpose of redevelopment and the agreement was entered into between the Society and the respondent. The claim of the appellant with regard to flat on the 5th floor is countered by the respondents on the grounds that she was not a member of the said society and was therefore, not covered under the agreement dated 31.03.2007. It is also submitted that the said building belonged to Mumbai Housing and Area Development Board (in short, ‘the MHADA’) and that after the redevelopment project was completed, the building was handed over to MHADA. Therefore, it was contended that the impugned order was not in order since it had awarded reliefs to the appellant whereas she was not a member of the society with whom the respondent had entered into the redevelopment agreement.

From the facts of this case and material on record it is seen that the appellant has not been able to produce any document to establish that she was a valid member of the said society. Neither had any document to establish her being a member of the society was having paid any member ship or maintenance fees has been brought on record in support of her claim. While she has contended that there was an agreement on behalf of her and the respondent dated 22.12.2010 with respect to the allotment of flat in the redevelopment project, the same has not been brought on record. The fact of the building has been handed over to MHADA is not very material; what is material is whether there exists any privity of contract between the respondent and the appellant as a member of Tagore Nagar Adarsh Cooperative Housing Society, which had undertaken to redevelop the project by engaging the services of the respondent. The same has not been proved by the appellant. In the absence of any privity of contract between the appellant and the respondent, the claim of the appellant cannot be countenanced.

The State Commission in its impugned order has come to the finding as below:

On perusal of the same it has become clear that complainant was in occupation of premises bearing No.1744 situated in building No.54 of Tagore Nagar Adarsh Cooperative Housing Society Ltd. Society had given this building for redevelopment to opponent. In that respect society had executed the agreement with opponent on 30/03/2007. Thereafter, opponent had approached complainant and executed agreement in favour of complainant on 22/12/2010. As per this agreement opponent had agreed to give flat admeasuring 323 carpet area along with 50 sq.ft. carpet area of flower bed to complainant in redeveloped building. They also agreed to handover possession of flat within 24 months i.e.on or before 22nd December, 2012. As per agreement opponent had paid advance rent of Rs.36,000/- of twelve months to complainant. It is the contention of complainant that opponent had orally agreed to give possession of flat to her on 5th floor of redeveloped building. However, there is no recital in that respect in agreement. In view of said agreement complainant had given possession of premises which was in her occupation to opponent on 22/12/2010. As per agreement opponent had not given possession of flat to complainant in redeveloped building. Hence complainant has filed this complaint against opponent for getting possession of flat on the basis of this agreement. Hence, we are of the opinion that complainant is consumer of opponent and she is entitled to file this complaint against opponent. Hence, we answer point no. (i) in affirmative.

As to point no. (ii):

(9) In this case it is admitted fact that as per agreement opponent has not given possession of flat to and she is not entitled to get possession of flat in redeveloped building. It is also their contention that at the time of execution of agreement complainant played fraud on opponent. Hence, opponent has challenged execution of that agreement by filing Civil Suit before the Civil Court at Mumbai. Hence, it is their contention that the agreement on the basis of which the complainant is claiming flat from opponent is sub judice before the Civil Court. Moreover, there is no documentary evidence on record to show that she was legal occupant of that premises and hence, she is not entitled to get possession of flat in redeveloped building.

(10)   On perusal of record it appears that after filing affidavit of evidence by both the opponents alleging all these facts in their evidence complainant had filed counter affidavit of evidence on record and denied all the allegations made by opponent against her. She has also filed several documents along with her counter affidavit of evidence on record in support of her contention that she was in legal possession of that premises. On perusal of these documents it appears that gas connection was given to complainant in the same premises since 31/10/1986. She has filed electric bills on record since the year 2006 to 2008 in which same address of complainant is mentioned. She has also filed election identity card on record to show that in the year 1994 also she had given the same address. She has produced copy of her bank account on record to show that she had mentioned her same address while opening the bank account. This bank account is operative since the year 1994 in her name.

(11) Looking to all these documents it has become clear that complainant was in possession of that premises since many years. It appears that opponent had knowledge about the same and hence, opponent had entered into an agreement with opponent. Opponent was in need of premises which was in occupation of complainant as the redevelopment of the building was held up. Hence, opponent executed agreement in favour of complainant on 22/12/2010 and obtained possession of premises from complainant. From the year 1986 till execution of this agreement neither MHADA nor the society had taken any objection about occupation of that premises by complainant. It appears that as now complainant has vacated her premises the society and the opponent are taking objection about the occupation of complainant in that premises. However, we are of the opinion that as opponent has executed the agreement in favour of complainant and agreed to give flat to complainant in redeveloped building opponent is now estopped from challenging the fact that complainant was not in legal occupation of that premises. In respect of execution of agreement in between complainant and opponent the matter is sub judice before the Civil Court on the ground that opponent had executed that agreement in favour of complainant on misrepresentation of fact. However, it may require years together for deciding that issue finally in the Civil Court. We are of the opinion that the complainant cannot be deprived of her right to get possession of flat from opponent till then, particularly when opponent has agreed to give the same to complainant in view of agreement dated 22/12/2010. We are of the opinion that, if at all, it has been finally decided in the Civil Court that agreement is void and cannot be executed in favour of complainant then in that event, opponent will be at liberty to recover possession of flat from complainant. Till then complainant cannot be deprived of her right to get possession of flat from opponent in redeveloped building. Hence, we are of the opinion that as opponent has not given possession of flat to complainant opponent has given deficiency in service to complainant. Hence, complainant is entitled to get possession of flat in redeveloped building from opponent along with costs and compensation.

This order does not rely upon any documentary evidence as mentioned in the foregoing discussion to establish that the appellant was a consumer qua the Society and therefore, entitled to a flat in the redevelopment project. The State Commission had erred in relying upon the document such as electricity bills, electoral identity card and copy of the bank account to conclude that the complainant was a bona fide member of the society. While these documents may prove that she was in possession of the premises it does not establish her to be a member of the society and therefore, entitled to being a consumer under the Act qua the respondent. The respondent also is not the owner of the property but is only a service provider to the society and had undertaken to redevelop the project on its behalf and therefore, any document executed between the appellant and the respondent, as claimed by the appellant, does not convey any legal rights to her as a member of the society with regard to allotment of the redevelopment flat as is being claimed. As such the order of the State Commission is clearly based on an erroneous understanding of interpretation of facts and is liable to be set aside.

In view of the foregoing and in the facts and circumstances of the case, the appeal is disallowed and the impugned order is set aside. There shall be no order as to costs.

Pending IAs, if any, also stand disposed of with this order.

FA no.890 of 2019 is also disposed of in the above terms allowing the appeal of M/s Aditya Enterprises.