Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member
This consumer complaint directed to claim relief against the Opponent No.1 – Mr. Dinesh Kalyanji Gala, the Opponent No.2 – Mr. Shantibhai Velji Chhedda and the Opponent No.3 – M/s. Gala Realtors Pvt. Ltd., the following reliefs:-
“(a) The Hon’ble Commission direct/order/decree to the opposite parties jointly and severally pay a term of Rs.40,60,000/- (Rupees Forty lakhs sixty thousand only) along with the interest @ 25% p.a. to the complainants.
(b) The gala No.1 and 2 to be given in the ground floor itself not in any place by opposite party No.1 and 2 to the complainants and also the expenses which incurred against to file case/complaint will be paid by the Opposite party No.1 & 2.
(c) Such other and further order that this Hon’ble Court may deem fit and proper be granted.”
[2] It is the case of the Complainants, Mr. Dattaram Sakharam Pawaskar and his wife Smt. Sarita Dattaram Pawaskar (hereinafter referred to as ‘the Complainants’ for the sake of brevity) that they were the owners of commercial Galas No.1 and 2 which were situated on piece and parcel of land together with slum bearing CTS No.231 (Part) and 232 (part) at Village Kirol, Taluka Kurla, Near Thakur Industries, Kalai Kirol Vidyavihar (West), Mumbai – 400086, known as ‘Shri Ambika Darshan Cooperative Housing Society (Proposed) [hereinafter referred to as ‘the proposed Society’ for the sake of brevity] within registration sub-district and District Mumbai, City Mumbai Suburban. The Complainants made further statement as under:-
“3. Both Commercial Gala No.1 and Commercial Gala No.2 are members of society known as Shri Ambika Darshan Co-operative Housing Society (proposed). Gala No.1 and Gala No.2 are having similar fabrication business and the complainant No.1 and 2 are the owner and proprietor of the same business and their monthly income that business if Rs.50,000/- per month. Hereto annexed and marked Exhibit-A Colly is the copy of license and income proof papers showing monthly income of the complainants.
4. The above said proposed society or the commercial Gala No.1 and Gala No.2 are declare as a slum area by the Deputy Collector of Kurla.
5. Commercial Gala No.1 as Laxmi Stores 37.14 Sq. mtrs. Carpet and Commercial Gala No.2 is known as Vishal Engineers 27.36 sq. mtrs. carpet. Both of commercial Gala No.1 and Commercial Gala No.2 are reflected as a Sr. No.43 and 44 in Annexure No.II which is issued by Deputy Collector of Kurla which is hereby Exhibited and marked along with this complaint as Exhibit-B.
6. The Opposite Party No.1 Proprietor M/s. Raj Biotech Private Limited along with his sub developer, also they are the proprietor of M/s. Gala Realtors Pvt. Ltd. were appointed as a developers of the above said both the commercial Gala No.1 and 2 by the opposite party No.2, therefore both the Commercial Gala No.1 and 2 declared as eligible by the Commercial authorities which is reflected in Sr. No.44 and 44 in Annexure-II which is issued by the Deputy Collector of Kurla Mumbai. Hereto annexed and marked Exhibit-A1 is the copy of Annexure-II issued by Dy. Collector Kurla.”
[3] It is further contended by the Complainants that they are the members of the proposed Society, supra. At the outset it may be mentioned that the proposed Society is registered in the year 2005 and its registration number is M.U.M./S.R.A./H.S.G./(T.C.)/11009/2005. The Complainants in their capacity as the members of the then proposed Society entered into an agreement with Opponent No.1 – Mr. Dinesh Kalyanji Gala in the month of June-2005. Agreement covers land project accepted by the Slum Rehabilitation Authority (hereinafter referred to as ‘the SRA’ for the sake of brevity) and the developer appointed by the said authority viz. the competent authority was to develop the property. As per those agreements, it was obligatory on the part of the Opponent No.1 – Mr. Dinesh Kalyanji Gala to provide free of cost commercial premises in lieu of and as mentioned at Serial No.43 and 44 of the Annexure-II issued by the Deputy Collector, Kurla; each admeasuring 37.14 sq. meters (carpet) and 27.36 sq. meters (carpet) respectively. As per the agreement, it was obligatory on the part of the Opponent No.1 – Mr. Dinesh Kalyanji Gala not to demolish the commercial premises together with residential premises except for extreme necessity. In case, commercial premises were to be demolished, the premises-holders had to make their own alternate arrangements and then, the developer had to pay compensation of `3,000/- per month firstly for a period of four months and if the accommodation is still not provided then to pay monthly rent/compensation @ `10,000/- for each commercial premises. It is alleged that Opponent No.1 – Mr. Dinesh Kalyanji Gala did not abide by the terms and conditions of the agreement, supra and also did not commence the work of construction of building within a period of fifteen days from the date of agreement. The Complainants claimed that in the above-referred commercial Gala Nos.1 and 2 they were respectively carrying on the businesses of Laxmi Stores and Vishal Engineering and which were fetching them a profit of `50,000/- per month. The galas Nos.1 and 2 were demolished by the Opponent No.1 – Mr. Dinesh Kalyanji Gala in the month of June-2005 and thus, the Complainants claimed loss of profit from those commercial establishments which they have assessed at `29,00,000/- and claimed the same in this complaint. They further submit that as per the agreement, the Opponent No.2 – Mr. Shantibhai Velji Chhedda agreed to pay compensation of `10,000/- per month for each commercial galas Nos.1 and 2 and, therefore, a further claim of `11,60,000/- on that count is made in this complaint. Thus, total monetary claim is of `40,60,000/-.
[4] It is also contended on behalf of the Complainants that the Opponent No.3 – M/s. Gala Realtors Pvt. Ltd., had issued a notice to the Opponent No.1 – Mr. Dinesh Kalyanji Gala under Section-53(1) of the MaharashtraAct1966 (hereinafter referred to as ‘the MRTP Act’ for the sake of brevity) to demolish the unauthorized work of composite building premises of basement for parking rehab Wing-A from ground floor to seventh floor and Wing-B from ground floor to fifth floor which were constructed beyond the approved plans/without further commencement certificate under Section44/69 of the MRTP Act from SRA. Opponent No.3 – M/s. Gala Realtors Pvt. Ltd., also filed complaint at Ghatkopar Police Station on 14/10/2008 against the Opponent No.1 – Mr. Dinesh Kalyanji Gala. The Opponent No.1 – Mr. Dinesh Kalyanji Gala thus, due to his own default has caused tremendous delay in completion of the work vis-à-vis construction of a new building within the stipulated period of four months as per the agreement. Based upon these facts, the reliefs as mentioned earlier are claimed.
[5] At the outset it may be further mentioned that the agreements dated 10/6/2005 to which the Complainants made a reference earlier are the triparty agreements. The Complainant No.1 – Mr. Dattaram Sakharam Pawaskar is described as a ‘slum dweller’ on the slum property (commercial) described in the agreement as ‘Shri Ambika Darshan Cooperative Housing Society (Proposed), on first part; M/s. Raj Buildtech Private Ltd., as the party second party and M/s. Gala Realtors Pvt. Ltd., is another party. Thus, the proposed Society, M/s. Raj Buildtech Private Limited (a private limited company) i.e. two parties referred in the agreement, are not the parties made in this consumer complaint and it adversely affects the claim of the Complainants. Opponent No.1 – Mr. Dinesh Kalyanji Gala is described in the complaint as a proprietor of M/s. Raj Buildtech Pvt. Ltd. However, M/s. Raj Buildtech Pvt. Ltd., being a private limited company, such description prima-facie, appears to be not correct. Moreover, in the agreement, M/s. Raj Buildtech Pvt. Ltd., is described as an independent party. A private limited company is a distinct and separate juristic person as per the provisions of Section-2(1)(m) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for the sake of brevity).
[6] Opponents filed their written version dated 16/3/2011 and opposed the complaint. According to them, they denied the status of the Complainants as ‘the consumers’ within the meaning of the Act. At the second instance, it is submitted that the proposed Society is the owner of ‘Ambika Darshan’ building viz. newly developed building and since the Complainants are claiming commercial units from the said building and since the Society is not made a party, the complaint is liable to be dismissed. It is also clarified that the Opponent No.1 – Mr. Dinesh Kalyanji Gala is the Director of the Opponent No.3 – M/s. Gala Realtors Pvt. Ltd. and M/s. Raj Buildtech Pvt. Ltd., is a partnership firm. Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956 or the relevant Maharashtra law on slum areas (improvement and clearance) did not approve the Opponent No.1 – Mr. Dinesh Kalyanji Gala or the Opponent No.3 – M/s. Gala Realtors Pvt. Ltd., as the Builder/Developer for construction of the building – ‘Ambika Darshan’. The firm, M/s. Raj Builders, was power-of-attorney holder of the land-owner, M/s. Khandelwal Laboratories Ltd., a company incorporated under the Companies Act, 1956. The firm, M/s. Raj Builders was thereafter converted into a private limited company, namely – M/s. Raj Buildtech Pvt. Ltd., who became the builder and developer under the said slum improvement project.
[7] It is further contended by the Opponents that the names of the Complainants were not mentioned in the scheme approved by the competent authority viz. SRA under Annexure-II for the redeveloped building and the Complainants are not entitled for the commercial units, as claimed.
[8] According to the Opponents, in the redeveloped building, at the request of the Complainants, the proposed Society handed over two units situated on the first floor of the building ‘Ambika Darshan’ to the Complainants on 26/3/2006. Amounts of compensation in lieu of transit camps demanded by the occupants was to be paid to the proposed Society and accordingly, it was paid to the Society and thus, the claim made on this count in the complaint, does not survive. The claims made are false. It is also contended that as per SRA approved Annexure-II (Exhibit-B to the complaint) owner of Laxmi Stores viz. unit No.44 was Kalyani Narshi and not the Complainants and thus, the claim made by the Complainants is not maintainable. It is also categorically denied that Opponent No.1 – Mr. Dinesh Kalyanji Gala is the proprietor of M/s. Raj Buildtech Pvt. Ltd., alongwith his sub-developer and they are the proprietors of the Opponent No.3 – M/s. Gala Realtors Pvt. Ltd., as alleged.
[9] Heard Adv. Dinesh P. Sarvagod on behalf of the Complainants and Adv. S. B. Sharma on behalf of the Opponents. We have also perused the record.
[10] There is hardly any evidence led on behalf of the Complainants which could be accepted to hold that there is deficiency in service on the part of the Opponents Nos.1 to 3 within the meaning of the Act. The complaint as framed is for monetary relief and as such, cannot be termed as a ‘consumer complaint’. Claim for recovery of amount for loss incurred in business cannot be a ‘consumer dispute’. The Complainants referred to the agreements to claim compensation @ `10,000/- per month from the Opponent No.2 – Mr. Shantibhai Velji Chhedda. However, the Opponent No.2 is not a party to the agreements referred, supra, and as such, per-se, no such claim can be made against him.
[11] According to the Complainants, commercial galas Nos.1 and 2 were perhaps declared as slum area. The building, ‘Ambika Darshan’ is developed under the Slum Areas (Improvement and Clearance) scheme and is controlled by competent authorities under relevant slum areas (improvement and clearance) Act, either Central or local. Therefore, it is the Society who could be an owner of the building, ‘Ambika Darshan’ and the entire development being controlled by competent authorities the allotment is also controlled by the competent authority and the proposed Society. Therefore, issues of not handing over the commercial premises in the newly developed building, ‘Ambika Darshan’ based upon the above-referred agreements dated 10/6/2005, cannot be converted into a ‘consumer dispute’ to claim the reliefs as tried to be done by the Complainants in the present complaint. Furthermore, the possession of the building appears to have been delivered to the Society in the year 2005. It is also alleged by the Opponents that premises situated on the first floor of the building were handed over by the Society to the Complainants at their own request. Under the circumstances, filing of present complaint on 26/2/2010 is per-se not maintainable since barred by limitation and since there is no application seeking condonation of delay.
[12] The complaint entirely rotates around the premises which are commercial premises and redevelopment of the commercial premises declared as ‘slum area’. There is no averment in the complaint that the case of the Complainants is covered by explanation to Section-2(1)(d)(ii) of the Act. At the latter stage, the Complainants tried to file an affidavit to bring their case within the explanation, supra. However, such effort is of no significance in absence of any averment to that effect in the complaint. For this reason also, the Complainants cannot be terms as ‘consumers’ within the meaning of the Act. Moreover, the development after getting it declared as a slum area is for commercial purpose and for this reason also it being not a ‘housing construction’, it will not be a ‘service’ within the meaning of Section-2(1)(o) of the Act in respect of which any deficiency in service can be alleged. Useful reference on the point can be made to earlier decision of this Commission in Consumer Complaint No.18 of 2010, Mr. Rahul Parikh Vs. Shelters Makers (I) Pvt. Ltd., decided on 1/9/2010 ~ IV-(2010)-CPJ-19.
[13] From the copies of the documents and the representation made by the Society on 20/2/2006 signed by its Member and addressed to the Executive Engineer/competent authority under the Slum Areas (Improvement and Clearance) Scheme (ZOPU) and further communication dated 30/6/2009 addressed to the Manager/Director of SRA, it could be seen that the Society categorically informed to these authorities that they have no grievance against the Opponent No.1 – Mr. Dinesh Kalyanji Gala, who had paid the compensation as agreed. They had no grievance about the quality of construction work of the building, ‘Ambika Darshan’ and it is the Complainants who are making false complaints which is delaying the issuance of ‘No Objection Certificate’ by the authorities. It also affirm the fact of handing over possession of the premises from ‘Ambika Darshan’ to the Complainants and how, the Complainants are raising false claims about not handing over the possession of the premises. This also throws light on the activities of the Complainants and falsity of this complaint.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
Consumer Complaint No.26 of 2010 stands dismissed.
Complainants to bear their own costs and shall pay costs of `10,000/- to each one of the Opponents Nos.1 to 3.
Pronounced on 07th August, 2013
