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2011(4) CPR 235 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
V.B. Gupta, Presiding Member and Suresh Chandra, Member
Mr. Ghansi Ram Lal Shah —Petitioner
versus
Smt. Supriya Suhas Sarmalkar
& Ors. —Respondents
Revision Petition No. 337 of 2011
Decided on 6.9.2011
Counsel for the Parties:
For the Petitioner(s):Mr. A. D. Timboli, Advocate.
IMPORTANT POINTS
Developer cannot resile from agreement.
Headnote:(i) Consumer Protection Act, 1986—Sections 2(1)(d), 15 , 17, 19 and 21—Real estate—Possession of flat not given despite agreement—District Forum directed petitioner-developer to hand-over possession of flat alongwith compensation—Once petitioner becomes developer then relationship of landlord and tenant, which was earlier there between parties ceased to exist—As per development agreement petitioner was duty bound to give vacant possession of flat agreed to be given to respondents who had vacated and surrendered their tenanted premises—However, after construction of building, petitioner failed to give vacant possession of flat to respondents—Petitioner is guilty of deficiency in service since he failed to carry out statutory obligations cast upon him—Petition dismissed with punitive costs of Rs. 50,000/-. (Paras 8 , 9 , 13 , 17 and 18)
(ii) Consumer Protection Act, 1986—Section 21(b)—Revision—Ambit—Power of National Commission as a Revisional Court are very limited and have to be exercised only if there is some prima facie jurisdictional error in impugned order— In view of concurrent findings of fora below, no jurisdiction or legal error has been shown to call for interference in exercise of power under section 21 (b). (Paras 14 to 16)
B.V. 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/respondent’s 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 c
