Vithal Manik Patil vs Lily Peter Lewis. (Deceased)

V. K. Jain, J

The complainant was a tenant of late Shri Atmaram Narayan Vaity, the predecessor-in-interest of the respondents No. 1 to 8, in respect of a room on the second floor of building in Mulund (East), Mumbai. The landlords of the complainant were desirous of constructing a four storied building on the plot adjoining to the plot on which the said property was situated. A tri-partite agreement was, therefore, executed between the appellant in F.A. No. 258 of 2016, namely, Mr. Vithal Manik Patil on the one hand, Mr. Atmaram Narayan Vaity, the landlord and the complainant whereunder, a residential flat admeasuring 532 sq. ft. of carpet area was agreed to be given to the complainant in the building, which Mr. Vithal Manik Patil was to construct on the adjoining plot owned by late Shri Atmaram Narayan Vaity. The said agreement to the extent it is relevant reads as under:-

"AND WHEREAS THE tenant is inoccupation of a tenement No. 18, on Second floor (East Side) in the said Vaity Bhavan, situated on the said land admeasuring 590 sq. feet carpet area paying a rent of Rs. 159.49 paisa per month and the husband of the present tenant of the said tenement late Mr. Peter Ignatius Lewis has died on 27.1.83 and thereafter his wife has become the tenant of the said tenement legally which tenancy the landlord are the Builders and Developers ..(illegible)... hereby accept as valid and effective.

AND WHEREAS the landlord and the builders and developers are desirous of constructing a building in accordance with the Plan to be approved thereof and annexed hereto and agree to give to the tenant a flat on second floor, admeasuring 638 sq. feet carpet area bearing flat no. 1 in consideration of the tenant surrendering her right, title and interest in the tenancy in respect of tenement no. 18 second floor Vaity Bhavan presently under her occupation and presentation without receiving any consideration therefore gave and except as provided hereinafter.

AND WHEREAS the landlord and the Builders & Developers are desirous of carrying out the construction on the said land after getting the same approved by the Municipal Corporation of Greater Bombay which approval should be produced to the tenant therefore the tenant allows the landlord the builders & developers to demolish the existing Balcony attached to the kitchen of the tenement and to construct a wall closing the window of the tenement in kitchen room and the bed room without in any way harming or causing damage to the internal walls of the kitchen and other rooms of the tenement, and before the tenant vacates the tenements and hand over vacant possession of the said tenement to the landlords and or to the Builders.

The landlord and Builders & Developers hereby declare that they have submitted a plan under Inward No. 3117 dated 11.10.1983 to the Municipal Corporation of Greater Bombay which is pending approval and further declare that they are not in position to proceed with the construction under the balcony of the building in which the tenant is in use and occupation is demolished and further close permanently the window of the kitchen and bed room of the tenement by putting a brick wall and also close the door of the kitchen leading access to the balcony by putting up a brickwall and for this purpose the tenant has agreed to sign a......(illegible)...... for being submitting to the Municipal Corporation of Greater Bombay.

The landlord hereby covenant with the tenant that in consideration of tenant surrendering to him and/or to the said Builders & Developers the present tenement No. 28 on the 2nd Floor, admeasuring 590 sq. feet carpet area in the Vaity Bhavan and Builders & Developers shall proceed with the construction on the said land of the said building in accordance with the plan to be approved thereof pending Inward No. 32 dated 11.10.1983.

Without making any changes in the said building plan of reducing the area of the flat No. 1 agreed to be allotted to the tenant a floor plan of which is annexed hereto marked in Red Colour and complete construction of the said building within 24 months from the date of demolishing of the Balcony and close of windows of kitchen and bed room and access door to the balcony, unless otherwise mutually varied in writing and hand over vacant possession of the said flat no. 1 of 538 sq. ft. carpet area on the second floor of the newly constructed building immediately on getting either the occupation certificate of building completion certificate, and other necessary approvals from the Municipal Corporation of Greater Bombay without demanding any further consideration from the tenant.

The landlord and the Builders and Developers hereby agree and undertake to complete the construction of the said building on the said land within 24 months from the date of the demolishing and closing of the balcony door and kitchen and bedroom windows and also hand over vacant possession of flat No. 1 on the second floor admeasuring 532 sq. feet carpet area to the tenant within that period unless circumstances beyond the control of the landlord and Builders and Developers intervene and parties hereto mutually consent in writing for extension of the period for handing over vacant possession of the flat No. 1 in newly constructed Building.

Since despite demolishing the balcony of the flat occupied by the complainant and closing the windows of his kitchen and bedroom, the possession of the flat in the building constructed on the adjoining plot was not given to him in terms of the above referred tri-partite agreement, the complainant approached the concerned State Commission by way of a consumer complaint.

The complaint was resisted by the landlords as well as by the builder. However, the execution of the tri-partite agreement was not disputed either by the builder or by the landlords in their respective written versions filed before the State Commission. On the other hand, they rather tried to shift the blame on each other. It was also submitted in their written version that the said tri-partite agreement had not been registered with the concerned Sub-Registrar. They also took the preliminary objection that the complainant was not a consumer and the matter did not fall within the domain of the consumer forum.

Vide impugned order dated 10.02.2016, the State Commission directed as under:

"a) The opposite party no. 1 to 8 are held jointly and severally responsible for deficiency of service and unfair trade practice hence they are ordered to provide to the complainant a flat admeasuring 632 Sq. Feet carpet area as agreed in the development agreement in the vicinity of Vaity Bhavan Building Navghar Road, Mulund, Mumbai - 81

OR

Opposite party shall if no flat is provided to the Complainant, shall be jointly and severally responsible to pay sum of Rs.63,20,000/- to the Complainant with just and reasonable interest at the rate of Rs. 9% per annum on the unpaid sum from the date of the complaint till entire payment of the sum to the complainant.

b)Costs of the complaint is quantified in the sum of Rs.10,000/- only payable jointly and severally by Opposite Parties No. 1 to 8 to the complainant."

Being aggrieved from the order passed by the State Commission, the landlords and the builder are before this Commission by way of these two separate appeals.

The first question which arises for consideration in these appeals is as to whether the complainant can be said to be a consumer of the appellants or not. It is contended by learned counsel for the appellants that this was a matter between the landlords and the tenant and, therefore, out of the purview of the Consumer Protection Act, 1986. We, however, find ourselves unable to accept the said contention. Though the complainant was a tenant of the predecessor-in-interest of the appellants in F.A. No. 717 of 2016, he also became his consumer, in view of tri-partite agreement whereunder they alongwith builder Mr. Vitha Manik Patil, agreed to provide a residential flat admeasuring 532 sq. ft. of carpet area to the complainant in the adjoining building which Mr. Vithal Manik Patil was to construct on the land owned by the landlords of the complainant. Since Mr. Vithal Manik Patil was also a party to the said tri-partite agreement, it was a joint obligation of both i.e. landlords as well as the builder to provide a flat admeasuring 532 sq. ft. of carpet area in the adjoining building to the complainant. That having not been done, the complainant was entitled to approach the concerned State Commission by way of consumer complaint.

We, therefore, no hesitation in holding that the complainant was entitled to a residential flat admeasuring 532 sq. ft. of carpet area in the newly constructed building on the adjoining plot having No. CTS A-27 and A- 27/1.

It transpires during the course of arguments that no flat in the said newly constructed building is available for being provided to the complainant. Though the order passed by the State Commission requires the appellants to provide an alternative flat in the vicinity to the complainant, the said direction may not be practical since there may be dispute not only with respect to the locality and location but also the specifications of the alternative flat which may be offered to the complainant, in case such a flat is found. Therefore, the appropriate course of action in these circumstances would be to award appropriate monetary compensation to the complainant in order to enable him to purchase another flat. This said course of action is acceptable to the complainant, who is present in the court.

We set aside the impugned order and remit it back to the State Commission for the limited purpose of deciding a fair and just compensation, which should be paid to the complainant in the light of the Ready Reckoner rate in respect of the flat, which was to be provided to the complainant. The Ready Reckoner rate, as on today, shall be considered by the State Commission for the purpose of deciding the quantum of compensation payable to the complainant.

Since the flat, which was to be handed over to the complainant, has been disposed of by the builder, who is appellant in F.A. No. 258 of 2016, the compensation so determined by the State Commission shall be deposited by him with the State Commission within six weeks of such determination. The vacant possession of the flat, which the complainant is occupying in the old building, shall also be delivered by the complainant to the builder Mr. Vithal Manik Patil, by depositing its keys with the State Commission within six weeks of the deposit of the compensation. Thereafter, the State Commission shall release the compensation to the complainant and hand over the keys of the vacant flat to the builder, Mr. Vithal Manik Patil. If Mr. Vithal Manik Patil has any claim against the landlords on account of his having payment of such compensation, he can avail such remedy as may be open to him in law against the landlords.

The parties are directed to appear before the State Commission on 12.04.2019 for proceeding for the purpose of determination of compensation in terms of this order. The determination of compensation by the State Commission in compliance of this order shall be made within three months of the parties appearing before it.

Both the first appeals are accordingly disposed of.