JUDGEMENT

          Complainants by filing this complaint has submitted that op no.2 is the owner of premises No.547/A, 547/B and 547/C, Rabindra Sarani, P.S.-Shyampukur, Kolkata-700003 and one Brajeshwar Singh was a monthly tenant in respect of an area measuring 600 sq. ft. Carpet area on the 1^st Floor of premises No. 547/C, Rabindra Sarani, P.S.-Shyampukur, Kolkata-700003 under op no.2 and op no.2 while exercising their ownership right in respect of the said property entered into an agreement of development of the premises on 17.08.2002 with op no.1 with a view to develop the premises No.547/A, Rabindra Sarani, P.S.-Shyampukur, Kolkata-700003 and constructed a new building thereon after demolishing the old structure standing thereon in accordance with the building sanction plan sanctioned by the Kolkata Municipal Corporation.

          At the relevant time the op nos. 1 & 2 approached the said Brajeshwar Singh to allow construction of the proposed new building and to assist and cooperate in all respect for such construction work and accordingly the negotiation was held amongst the parties and Brajeshwar Singh agreed to allow the op nos. 1 & 2 for construction of new building and on negotiation an agreement was executed on 17.08.2009 by and between the op nos. 1 & 2 and said Brajeshwar Singh by in corporating certain terms and conditions and as per said agreement the owners and the confirming party shall specify the area to be delivered to the tenant in the plan which has been sanctioned by the Kolkata Municipal Corporation along with a map or plan as annexed and as per said agreement owners and the confirming party was given vacant area of the owners and then the tenant shall shift to the accommodation on the said premises consists of two bed room and one dining one kitchen and one bath room and privy not less than 600 sq. ft. carpet area and the self contained flat which has been agreed by the owners and the confirming party to be delivered to the tenant morefully described in the map as bordered ‘RED’ and also the owners and confirming party agreed and undertook to handover the said demarcated and specified flat to the tenant upon completion of the same within 18 months from the date of this agreement.

          The tenancy of the tenant shall continue in the alternative area in the Western side of the premises at the existing rent of Rs.175/- per month till delivery of possession in the flat of the newly constructed building and further they also agreed to undertake to handover the possession of the self contained flat measuring about 600 sq. ft. carpet area consisting of two bed rooms, one bath and privy, one kitchen, one dining space in fully completed with RED cemented floor and habitable condition on the 2^nd floor flat No.2D of the newly constructed building within 18 months from the date of this Agreement.

          In that agreement it is also noted that tenant shall have the priority and/or option to purchase the said fully completed flat measuring about 600 sq. ft. carpet area at the rate not exceeding Rs.800/- per sq. ft. and in case the measurement of the said flat exceeds the area to be allotted, the tenant shall be liable to pay at the agreed price not exceeding Rs.800/- per sq. ft. for the additional area and the owners and the confirming party agreed and undertook not to deliver possession in respect of other constructed area of the newly constructed building in favour of any proposed purchaser or purchasers before delivery of possession of the said self contained flat to the tenant.

          In pursuance of the said agreement of the op no.1 completed the construction of the building at the said premises according to building sanction plan and after completion of construction of building the op no.1 and 2 delivered possession in respect of one self contained flat being No. 2D, on the 2^nd floor at premises No. 547/A, Rabindra Sarani, P.S.-Shyampukur, Kolkata-700003 consists of two bed rooms, one kitchen, one bath and privy, one dinning space and a verandah having 600 sq. ft. together with proportionate with proportionate, undivided share of land under in the structure with all common amenities and facilities.

          The said flat is the subject matter of the case morefully and particularly described in the schedule B.  Further it is submitted that when Brajeshwar Singh possessed the said case tenanted flat died intestate on 06.06.2010 leaving behind his wife Mayawati Singh and two sons namely Rajiv Kumar Singh and Ravi Singh as his legal heirs and successors who inherited the properties left by the said Brajeshwar Singh as tenants.

          At the time of giving delivery of possession of the case property the said Brajeshwar Singh requested the op nos. 1 & 2 to execute and register the deed of conveyance in respect of the case flat in his favour.  But during that time the op nos. 1 & 2 assured him to execute the same in respect of the flat but in the mean time Brajeshwar Singh died and then as legal heirs of Brajeshwar Singh the complainants requested the ops for such execution ad registration of deed of conveyance in respect of the case flat but they avoided to do so by taking false and flimsy ground.

          In the circumstances the complainant by a letter dated 23.02.2011 requested the op no.2 to make an arrangement for execute and register of the deed of conveyance but no response has yet been made by them inspite of receiving of the said letter and in the above circumstances for negligent and deficient manner of service and also for not giving the said agreement, the complainants are filed this complaint for redressal.

          On the other hand ops by filing a written version has submitted that the present complaint is not maintainable in view of the fact that the alleged agreement as proposed to be enforced before this Ld. Forum is not genuine documents but a manufactured documents for the purpose of the aforesaid litigation and it is stated that the several pages of the said documents does not bear the signature of the parties and the same have been tampered for the purpose of procuring an order from this Ld. Forum and it is further submitted that the genuinety of the said documents i.e. alleged agreement dated 17.08.2009 is required to be tested before the competent Civil Court of law.

          Moreover, it is further submitted that there are several judicial pronouncements that the instant proceeding is not maintainable before this Ld. Forum in view of the fact that the document is specifically enforced as specific performance of contract as required by competent Civil Court.  Further it is submitted that the entire complaint is not maintainable and complainants are not consumer under the ops.  Further ops have stated specifically that the ops while exercising their ownership right in respect of the aforesaid property entered into an agreement on 17.08.2009 with the op no.1 with a view to develop the premises No. 547/A, Rabindra Sarani, P.S.-Shyampukur, Kolkata-700003 and constructed a new building thereon after demolishing the structure standing there on in accordance with the building sanction plan to be sanctioned by the Kolkata Municipal Corporation.

          But it is further submitted that at per document agreement it would be evident that the front page of 4 to 9 of the said agreement is not proportionate and tallying with the page nos. 1 to 3 and 10 of the said agreement and the copy of the agreement is not the copy from the genuine and authentic copy of the agreement executed between the parties and so the said document is fabricated one.  It is further submitted that an agreement was executed between the predecessor – in – interest of the complainants i.e. one Brajeshwar Singh and the ops and said original agreement was in the custody of Brajeshwar Singh and the present agreement is not at all the copy of the said agreement and it is further submitted that the said agreement executed  between Brajeshwar Singh and the ops as there was no such clause for giving any alternative accommodation on the said premises consisting of two bed rooms, one dining, one kitchen, one bath and privy not less than 600 sq. ft. carpet area as alleged by the complainants after the completion of the development work of the aforesaid Anup Khan, the partner of the op no.1 offered and handed over the possession of the said Brajeshwar Singh a flat in the beginning of the year 2010 at prevailing market rate of Rs.5,000/- per sq. ft. as the aforesaid area is situated in the heart of the city of Kolkata.  But Brajeshwar Singh did not show any interest over the said matter and accordingly ops sold out the aforesaid flats to the prospective purchasers and it is stated that the complainants without having any right, title and/or interest and without any agreement between the parties intended to register the property in question by paying a paltry sum of Rs.800/- per sq. ft. which is not permissible in law and agreeable by ops and on construction the complainants were given possession as tenants in the flat subject to the clauses of the West Bengal Premises Tenancy Act, 1997 which restricts the right of inheritance of tenancy for a specified period.

          It is further submitted that Brajeshwar Singh while possessing the said suit property died intestate on 06.06.2010 leaving behind his wife Mayawati Singh and two sons namely Rajib Kumar Singh and Ravi Singh as his legal heirs and successors who inherited the properties left by Brajeshwar Singh and it is specifically stated that the complainants did not file any death certificate of Brajeshwar Singh in support of their contention.  It is further stated that there is no agreement between the complainants and the ops, therefore, the question of specific performance of contract does not lie and cannot arise between the parties.  Further it is settled principal of law and accordingly the agreement without any registration is liable to be impounded as per provision of law.  It is further submitted that at any point of time complainants never requested the ops for execution the deed or for any other matter as alleged.  So the entire allegation regarding the agreement and negligent manner on the part of the ops is completely false and fabricated and practically complainants relied upon a false and vexatious, manufactured document in support of their contention to show that they have given best effort to register and purchase the suit flat.  It is specifically stated that complainants rather preferred to exercise their tenancy right over the suit property inherited from their predecessor in interest from their father and accordingly rent receipts have also been issued in the name of the complainant No.1 Smt Mayawati Singh and they have relinquished and/or waived their all rights by accepting the tenancy rights in lieu of exercising their rights to purchase the case flat by the complainant and in the above circumstances ops have submitted that the entire complaint is not valid in the eye of law and complainants are not consumer as per provision of C.P. Act 1986 and for which the entire complaint should be dismissed.

                                                     Decision with reasons

          On maturity of the case after considering the complaint and written version and particularly the admission of the complainant it is proved that complainants predecessor in the interest of Brajeshwar Singh was a tenant in respect of an area of 600 sq. ft. in the case premises under op no.2 and it is also undisputed fact is that op no.2 entered into an development agreement with op no.1 for construction of a new building after demolishing the old structure and at that time for smooth construction of the said building the tenant Brajeshwar Singh was asked to temporarily shifted from the said building and to enjoy allotted area by the owner temporarily and it was agreed in between the parties that the tenant shall be given similar type of area in the new constructed building as tenant and in respect of that understanding in between the both parties the agreement was executed on 17.08.2009 and as per agreement within 18 months Brajeshwar Singh would be placed in the new building as tenant within 18 months from that of agreement that part of clause of the agreement has been satisfied and Brajeshwar Singh shall shift to new building in his previous position as tenant and this matter has been admitted by both the parties.  It is fact that agreement was executed in between the owner and the confirming party with Brajeshwar Singh.  From the copy of the said agreement, it is clear that all the clauses except clause-7 are in respect of getting possession by the tenant in his previous position in the new building as tenant with payment of previous rent of Rs.175/- and practically the entire part of the agreement has already been matured and Brajeshwar Singh took possession as tenant in the new building and had been possessing till his death and truth is that Brajeshwar Singh died on 06.06.2010 leaving behind his wife Smt. Mayawati Singh and two sons namely Rajiv Kumar Singh and Ravi Singh as legal heirs and till now they have possessing the case premises as tenant under op no.2 on payment of rent.

          So, it is clear that as per said agreement dated 11.09.2009 Brajeshwar Singh got possession as tenant in respect of one flat of new building as he was previously tenant in the old building which has been demolished and new construction has been done and enjoyed new flat of constructed building after Brajeshwar Singh had been replaced.  So, that part of consideration was fully satisfied and against no part of the agreement except disputed clause-7 complainants have no allegation. 

          But in this case complainants have tried to enforce the clause-7 of the agreement.  So, we are reproducing the clause-7 of the agreement “Clause-7 of the agreement dated 11.08.2009 – the tenant shall have the priority and or option to purchase the said fully completed flat giving about 600 sq. ft. carpet area at the rate not exceeding Rs.800/- only per square feet, in case the measurement of the said flat exceeds the area to be allotted, the tenant shall be liable to pay at the agreed price not exceeding Rs.800/- per square feet for the additional area”.

          In this regard present Ld. Lawyer for the complainant submitted that this clause is a clause for which complainant has his right and priority to purchase it.  But ops denied the demand of the complainants when complainants prayed for implementation of that clause.  Ld. Lawyer for the op submitted if ops owner intends to sell it then the priority and option to purchase of the said fully completed flat by the complainant may arise and another factor is that it is a priority or option to purchase and then two very words are very significant in view of the fact that it is ensured that if the entire clause is interpreted in that case it is clear that in case of sale made by the owner in respect of the complainants flat what is being enjoyed by the complainants as tenant as yet under op no.2, in that case the complainants shall have the priority and option to purchase.  But now complainants have failed to prove that op no.2 is intending to sell away the flat and the said flat was allocated to the op no.2 as per agreement in favour of the op no.2. 

          Moreover that agreement is in between the tenant and the owner including the developer as confirming party only for the purpose of shiftment of the tenant from old building to some other place as alleged by the op no.2 owner at the time of demolishing the old structure and for construction of the new building and as per said new agreement for interim period complainants predecessor Brajeshwar Singh was shifted to some other rooms of the op no.2 temporarily and after construction of the new building Brajeshwar Singh was shifted to new building as tenant.  So, relationship of complainants and the op no.2 is still tenant and landlord and in respect of development construction tenant has no relationship and tenant has got a tenanted room from the owner as per agreement within time and tenant has been enjoying the same by paying rent.  So, till now complainants is tenant under op no.2.  So, under any circumstances, complainants cannot be treated as a consumer under op no.2 when their relationship is still tenants and landlord in respect of the present flat.

          Another factor is that as per provision of law if no fresh agreement is made in between the developer and the tenant subject to payment of any consideration in that case tenant cannot claim that there was a contract in between them and ops that they agreed to sell the property to the complainants by taking some consideration but no such agreement to sale is produced or proved by the complainants.  But relying upon very disputed clause-7 of the agreement we have gathered that said clause may be implemented as sale of the tenant portion to the complainant but it shall be treated agreement to sale simplicitor but not as housing construction and moreover the very language clause-7 simply speaks if the tenanted portion is allocated to the owner and owner intends to sale in that case complainants shall have to get priority or option to purchase it, but op no.2 never expressed his desires to sell it.  So, under any circumstances that clause cannot be implemented.

          Moreover, from the evidence of the op nos. 1 & 2 it is found that the said flat has already been sold to prospective buyers.  So, at best the complainants are now tenants under the said purchasers and for which the complainants may get such benefit if it is within time and if any civil suit as per contract is filed by the complainant against the ops and the purchasers who have purchased that flat and in this regard we have gathered after considering the entire materials on record that complainants have their right as tenant under op no.2.  But from the evidence of ops it is found that the flat in question has already been sold to some other person by the promoter.  But complainant has not filed any such civil suit before Civil Court for implementation of the so called clause-7 of the agreement because such a clause can only be implemented by the Civil Court not before the Forum because tenant cannot be a consumer under the land lord when land lord never intended to sell the property and even if land lord sells the property to any 3^rd party in respect of the tenanted portion in that case the tenant may invoke his right as per alleged clause before Civil Court not before the Consumer Forum because there is no question of passing of any consideration in between the parties but agreement simplicitor having no passing of consideration is always be adjudicated by the Civil Court not by the Consumer Forum in view of the fact tenant does not come under the provision of Section 2(d) of the C.P. Act 1986.

          So, considering the above materials and relying upon above finding including the admission of the complainants in the complaint we are confirming and convinced to hold that present complainants as tenant is not entitled to get any benefit from this Forum as he is not a consumer of ops landlord or the developer and fact remains in this complaint, complainants has taken a bad policy because he is already possessing tenanted portion of the new building and also he is paying very low amount of rent of Rs.175/- and in fact now the complainant has tried to grab the said property as tenant by creating pressure upon the op by filing this complaint knowing fully well that they are not consumer and further it has become the practice of the tenant when any new building is constructed in the tenanted portion by the landlord with help of the developer the tenants are creating such sort of problem and such sort of cases are handled by this Forum in so many cases and in this respect we have also considered ruling reported in AIR 1994 SC 787 and also verdict of SC Case No.291/A/2007 dated 07.07.2008 (WB) and another judgement in RP No.3302 in 2008 passed wherefrom it is found that tenant cannot claim any right as consumer under the landlord and if any agreement in between the land lord and tenant is created and if no consideration passed against that agreement in that case it cannot be treated as consumer and service provider under any circumstances because as per law the consideration must be real and that must be partly passed.  But in this case anyhow complainants have failed to prove that fact and another factor is that long back in the year 2010 that property has already been sold.  So, complainant requires to file civil suit to implement the alleged clause-7 as per provision of the specific Relief Act and only to save that civil proceeding this complaint was filed and no doubt it has been submitted by the complainant only to harass the land lord and the developers and no doubt they have not appeared before this Forum with clean hand and for which this complaint fails with such exemplary cost.

          Hence, it is

                                                         ORDERED

          That the complaint be and the same is dismissed against the complainants with cost and complainants shall have to pay penal cost on the ground no consideration for providing of any service is not at all in the agreement and for that purpose, so we have also relied upon one ruling reported in 2009 (08) SCC page 483 and Rs.10,000/- each shall be paid to the ops within one month from the date of this order by the complainants, failing which the penal action shall be started as per Section 27 of C.P. Act 1986 against them and further penalty shall be imposed Rs.10,000/- each against the complainants for adopting unfair path for filing this complaint.