West Bengal

Darjeeling

CC/8/2019

Mumtaz Banu - Complainant(s)

Versus

Secretary, Anjuman E Islamia, Anjuman Guest House - Opp.Party(s)

12 Sep 2024

ORDER

 

                                            Govt. of West Bengal

                District Consumer Disputes Redressal Commission, Darjeeling

                         24, M.C. Road, Chota Kak Jhora, Darjeeling.

                                P.O & Dist. Darjeeling. Pin-734101.

 

                             Consumer Complaint No:- 08/2019

 

Date of Filing                                                             Date of Disposal

  03.05.2019                                                                    12.09.2024

  Complainant                          Vs                                Opposite Parties

Smt. Mumtaz Banu,                                     1. The Board of Members/ President

W/o. Sri.Shah Azim,                                         /Secretary, Anjuman-E-Islamia,

R/O. Dr. Zakir Hussain Busty,                            Anjuman Guest House, Lal Dhiki,

P.O, P.S & District. Darjeeling.                          P.O, P.S & District:- Darjeeling.

PIN – 734101.                                                      Pin-734101. ( Ex-Parte)

2. Sri. Abdullah, Estate Manager, Anjuman-E-Islamia, Darjeeling Waqf Estate( E.C No:- 7321 of 1940), Jama Masjid Complex, Botanical Garden Road, Darjeeling, Pin- 734101.

3.The Board of Waqf, West Bengal, through its Chief Executive Officeer,6/2, Madan Street, Kolkata- 700072.

4.Janab Abu Nasir Siddique, S/O Late Al Haj N. Ghulam Hussain, Mariam Cottage, P.O, P.S & Dist:- Darjeeling-734101.

5. Janab Altaf Fazill, S/O Janab Saifuddin Fazill, Dr.Zakir Hussain Busty, P.O, P.S & Dist:- Darjeeling.Pin-734101.

 

 

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6. Janab Anirul Hassan, S/O Late Abdul Hassan, Goodie Road, P.O, P.S & Dist:- Darjeeling, Pin-734101.

 

7. Janab Ali Akhtar, S/O Late Hedayat Ali, Meadow Bank,1st Floor, No:7, P.O,P.S & Dist:- Darjeeling, Pin-734101.( Since Deceased)

(Abated vide Order No:- 64, dated 19.04.2024).

 

8.Janab Abdul Mashid Butt Badami,S/O Late Ghulam Mohd. Butt, M/S Eastern Arts, Chowrasta, P.O, P.S & Dist:- Darjeeling, Pin-734101.

( Ex-Parte)

 

9. Janab Md. Rafique, S/O Late Md. Shareef, Dr. Zakir Hussain Busty, P.O,P.S & Dist:- Darjeeling,Pin-734101.( Since Deceased)

Abated vide order No: 44,dated 15.02.2022)

 

10.Janab Zaheeruddin Ahmed, S/O Late Md. Nasir, Dr. Zakir Hussain Busty, P.O, P.S & Dist:- Darjeeling, Pin-734101.

 

                                                                                                                    Cont......P/3

 

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11. Janab Zahid Mahmood Khan, S/O Late Mir Abdul Raheem, Dr. Zakir Hussain Busty, P.O, P.S & Dist:- Darjeeling, Pin-734101.

 

12. Mr. Moinuddin Mohammad, Resident of Jamratan Cottage, R.N.Sinha Road, P.O, P.S & Dist:- Darjeeling, Pin-734101.

( Ex- Parte)

 

13. Sri. Sadip Lama, M/S Yashshree Company @ Yashashree Builders/ Developers, Contractor & Builder,Anjuman-E-Islamia Market Complex, Plot No:- 14, S.D. Lama Road, Near Jama Masjid, P.O, P.S & Dist:- Darjeeling,Pin-734101.

( Ex- Parte)

 

, Madan Street,Kolkata-700072.

                                               

Present:-   Sri. Siddhartha Ganguli................Hon’ble President-in- Charge.

                Smt. Bhawana Thakuri................ Hon’ble Member( Female).

 Ld. Advocate for the Complainant:-Smt. Sujata Agarwal, Smt. Sarita Kumari Suman & Sri. Rajeswar Sharma.

Ld. Advocate for the O.Ps:-Sri. J.H.L.Rai, Smt. Prerana Pradhan& Hasang Bhutia.

 

 

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F I N A L   O R D E R

Dated:- 12.09.2024

      An application has been filed by the Complainant U/S 12 of the C.P.Act,1986 against the O.Ps alleging deficiency in service for not providing tenanted portion of flat/shop to the Complainant, measuring about 150 sq.ft in the newly constructed multi-storeyed building, known as Anjuman Building, located at Plot No:- 13/13A, P.O, P.S & Dist:- Darjeeling and therefore, the Complainant has prayed for a direction to be given upon the O.Ps (i) either to allot the flat or to refund the amount of Rs. 4,50,000/( Rupees Four Lakh Fifty Thousand Only) deposited by the Complainant as Salami along with interest @ 18% p.a which should be calculated from the date of deposit till realization and further prays for a direction to be given upon the O.Ps (ii) to pay Compensation to the tune of Rs. 2,00,000/( Rupees Two Lakh Only) for causing great mental harassment, agony and also for deficiency in Service and also prays for a direction to be given upon the O.Ps (iii) to pay litigation cost amounting to Rs.30,000/( Rupees Thirty Thousand Only) and further prays for (iv) any other relief or reliefs as the Complainant is entitled to.

       The sum and substance of the case of the Complainant is that the Complainant was a tenant under the O.Ps  and the Complainant was acquiring  a shop more or less 150 sq.ft  in a building namely Anjuman Building –C comprised under plot No. 13/ 13A P.O. P.S & District:- Darjeeling. The O.Ps, being the Board of Members, President and Secretary of the society  of Anjuman –e- Islamia,Waqf of Estate ( E.C No. 7321) having its office at Jama Masjid Complex , Botanical Garden Road, Darjeeling with the collaboration of O.P No. 13, namely  M/S Yashashree Builders decided to develop the land and

 

 

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      construct a multi-storeyed building over the land after demolishing the existing old dilapidated structure and as per the verbal assurance and mutual agreements with the O.Ps, it was agreed that the complainant would be provided more or less the same area in the newly constructed building which the complainant had being occupying as a tenant for Salami and nominal rates and upon getting such promise the complainant vacated the tenanted premises.

      It is further stated that by the complainant that on 17/01/2013 the complainant and O.Ps entered into an agreement with respect to the portion measuring more or less  150sq.ft for which the complainant was entitled to and it is also stated that prior to entering into that agreement, the complainant had made a payment of Rs. 4,50,000/( Rupees Four Lakh Fifty Thousand Only)   to the O.Ps in two instalments , as stated in detail in the complaint as Salami for acquiring a flat  measuring more or less 150sq.ft on the first floor of the newly constructed multi-storeyed complex. It is stated that the O.Ps issued the money receipts duly signed by the Secretary of Anjuman e- Islamia Darjeeling for such payment.

      It is the allegation of the complainant that till the date of presentation of the case neither the possession of the flat measuring about 150sq.ft on the first floor in the newly constructed multi-storeyed building, as mentioned above, was given to the complainant nor the advance salami amount was returned to the Complainant by the O.Ps. The complainant requested several times verbally to the O.Ps, but was in vain. Finally, on 03.04.2019 the complainant had sent legal notice through Advocate Mrs. Sujatha Agarwal of Darjeeling District Court, but the O.Ps did not respond to the said legal notice.

      The complainant further stated that the O.Ps were negligent and deficient in service for not providing the promised portion of flat in the newly

Cont......P/6

 

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       constructed building after receiving salami amount and therefore, finding no other  alternative  the complainant is compelled to file this case before this Forum (now Commission) with the reliefs as stated hereinabove.

       The Complainant, along with the Complaint petition, filed the following documents by making annexure.

List of Documents filed by the Complainant:-

Original Copy of Agreement Dated 17.01.2013
Original Money receipts of Rs.3,00,000/ dated 16.01.2012.
Original Money receipts of Rs.1,50,000/ dated 05.06.2012.
Copy of Legal Notice dated 03.04.2019.

 

      It is seen from the case record that initially the case was filed against one Opposite Party, being the Board of Members/ President/ Secretary of Anjuman-e- Islamia, Anjuman  Guest House, Lal Dhiki, P.O, P.S & Dist: Darjeeling as O.P No:1.Subsequently, the Estate Manager, Anjuman-e- Islamia was added as O.P No:2, being Order No:04, dated 01.07.2019.It is further seen from Order No:- 11, dated 12.03.2020 that upon prayer of the Complainant 8( Eight) Nos. of Opposite Parties were added numbering from O.P No:- 3 to 10.Further, it is seen that the Complainant had made another prayer for addition of the Board of Waqf, W.B represented by the Chief Executive Officer, of 6/2, Madan Street Kolkata as one of the O.Ps and this Commission by its order being Order No:14, dated 15.10.2020 allowed such prayer and added the Board of Waqf as one of

 

 

 

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      the O.Ps, as O.P No: 1A. It is further seen that O.P No:12, Mr. Moinuddin Mohammad was added being Order No:16,          dated 01.12.2020. Further, it is seen from Order No:- 19, dated 03.03.2021, that one Sadeep Lama, the Contractor of the building, was added as O.P No:13. Further, it is seen from Order No:32, dated 21.03.2022 that the Board of Waqf, West Bengal, represented by the Chief Executive Officer was added again as O.P No:3. Again it is seen from Order No: 39 dated 28.09.2022 that the Chief Executive Officer, Board of Waqf was added as O.P No:14.

      It is very much confusing to note that the Board of Waqf, W.B, represented by the Chief Executive Officer, 6/2, Madan Street, Kolkata- 700072 was added thrice by different orders and practically O.P No:1A or O.P No:3 or O.P No:14 are virtually same and identical Person/ Authority. During the continuance of the proceedings of the case, it is seen that several times amendments were made and Opposite Parties were added one after another and the Complainant  also filed Amended Version of Complaint one after another after each amendment but none of the parties raised such a question or drew our attention that the serial numbers or sequence of the Opposite Parties as it appeared in the cause title of the Amended Complaint is defective as per the Amended Version of the Complaint. Even after going through each of the Amended Version of Complaints filed by the Complainant it is seen that the contents of the pleadings are different, though no amendment was sought for correction or addition or alternation of the fact of the case. The Complainant also failed to mention the correct sequence or serial number of the Opposite Parties in the Amended Version of Complaint.

      Now, we think that in order to overcome from that anomalies and for passing proper order and disposal of the case, giving another opportunity to

 

 

 

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      the Complainant to amend or correct the serial numbers or sequence of the O.Ps in the cause title of the Complaint and file Amended Version of Complaint afresh would be nothing but sheer wastage or misuse of time. Therefore, it would be wise or desirable to consider the O.P No:1A or O.P No:3 or O.P No:14 as one and identical person/ Authority. Therefore, O.P No:1A or O.P No:3 or O.P No:14 be treated as one and identical person/ Authority.

      Further, during continuance of the case the O.P No: 7 & 9 died and  no substitution petition has been made as per Order-22, Rule-4 of the Code of Civil Procedure, 1908 within the stipulated period of time against O.P No:9 and therefore this Commission by its order Abated the O.P No:9 from this case and passed order accordingly. Further, one application for substitution of legal heirs of O.P No:7 was filed by the Complainant, but it was “not pressed” and thus rejected. Therefore, this Commission by its order Abated the O.P No:7 from this case and passed order accordingly.

       It is further seen from the case record that the O.P No:1 and O.P No:13 did not file any Written Version against the Complaint of the Complainant and the instant case has been proceeded Ex-Parte against O.P No: 1& 13.

       Further, upon scrutiny of the case record it is found that O.P No:- 8 was added as a party to the case and notice was sent  to him by post, being Postal Receipt No:- EW882485398IN. But despite receiving notice O.P No:8 did not turn up before this Commission and nothing is found in the case record about his presence.  No W/V is found in the case record. Therefore, this case be decided ex-parte against O.P No:8.

      Further, upon scrutiny of the case record it is found that O.P No:-12 entered appearance through his Lawyer Mr. J.H.L.Rai on 03.03.2021 and prayed for time for filing W/V on his behalf. But subsequent to that the said

 

 

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      O.P did not file any W/V. No W/ V has been found or available in the case record. In absence of such we are bound to decide the case Ex- Parte against O.P No:12.

       It is noteworthy to be mentioned here that the O.P No:2 entered appearance in the case on 26.06.2019 by an application for impleading him as a party to the case and subsequent to that on 01.07.2019 he was added as O.P No:2 in this case and on 02.09.2019 O.P No:2 has submitted his W/V. On 26.06.2019 the O.P No:2  while appearing before the Forum(now Commission) submitted by filing a petition that there is/was no existence of O.P No:1 at all. The Complainant did not raise any objection to it. Even after knowing such factum, the Complainant did not bother to make any application for expunge the O.P No:1 from the case and/or amend the Complaint in that regard. Consequently, the instant case has been proceeded ex-parte against the O.P No:1. It is strange that if there is no existence of O.P No:1, then who had received the notice on behalf of O.P No:1? How did the O.P No:2 voluntarily appeared in this case? Wherefrom he got the news about the existence of the case? Even from order No:56, dated 06.10.2023, it is seen that the postal item was received by O.P No:1. The Complainant on 19.12.2019 has filed one petition containing the names and addresses of the President/Secretary and other officials of the Board of Members of Anjuman-e- Islamia for the period 2012-2013.Therefore, it can be presumed that there was someone who had received the notice for or on behalf of O.P No:1.

      After going through the case record, it is seen that the O.P No:2 has filed Written Version for and on behalf of ANJUMAN-e -ISLAMIA, DARJEELING WAQF ESTATE. The O.P No:2 has denied all the material allegations leveled against him and stated that the complaint is not maintainable in law and on the facts of the

 

 

 

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       instant case and the Complainant is not a Consumer as defined under the provisions of the Consumer Protection Act, 1986 as amended till date (hereinafter referred to as the “said Act of 1986”). There was and is no deficiency in service within the meaning of the Act of 1986 and there is no cause of action whatsoever and howsoever did and does.

       The O.P No:2 further stated that the Complaint is barred by limitation and by principle of estoppels, acquiescence and waiver. The complainant is guilty of suppression of relevant facts and solemnly making untrue statements. The alleged purported agreement dated 17.01.2013 is invalid and unenforceable in law and equity against the added opposite Party who is not a party to the said agreement and the subject matter of the said agreement did not and does not belong to the alleged society rather same belongs to the Waqf Estate. The Complainant is an employed person as she is working as a Teacher in a reputed “Himalayan Nursery School” in Darjeeling and she has also purported agreement dated 17.01.2013 was not and is not intended for personal consumption of the Complainant. The recitals contained in the said purported agreement are concocted, fraudulent and based on untrue and incorrect factual aspects prevailing at the time of execution of the said purported agreement.

 

      The O.P No:2 further stated that the added Opposite Party is a Waqf Estate ( Waqf other than Waqf-al-al-Aulad i.e., public Waqf) and the same was enrolled against E.C. No. 7321/1940 in the register of the  Board of Waqf, West Bengal and consequently management of its properties are governed by the provisions of the said Waqf Act, 1995 and the Board of Waqf, West Bengal has superintending powers thereon. The properties inter alia Jama Masjid and its Southern adjoining plots of land bearing Plot Nos.  13 & 13A, Daroga Bazar corresponding to Municipal Holding No. 1, Masjid Road, P.S. Darjeeling Sadar together with    “Anjuman-e-Islamia Junior High Madrasah” pucca structure

 

 

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       and existing road-facing incomplete three storied building erected on a portion thereof by demolishing old corrugated tin shed wooden structure thereof are absolutely belonging to the Waqf Estate.

       It is further stated by the O.P No:2 that at the time of demolition of roadside old structure at Holding No. 1, Masjid Road, there were 13 shop rooms occupied by old tenants under the added opposite party. Before vacating their respective shop rooms, each old tenant was provided temporary accommodation in a roadside wooden structure erected for temporary purpose on the land of the estate and till date they are in occupation and enjoyment of the said temporary accommodation for their respective commercial purpose. Since the Complainant was never ever tenant of any one of the shop rooms in old structure, she was not provided with the said temporary accommodation. The said incomplete building was erected encroaching courtyard of Madrasah inside the Jama Masjid compound to be used as market complex without intimating and obtaining sanction and/or approval of the Board of Waqf West Bengal ( Board) by the erstwhile Committee Mutawalli constituted by the Board whose term was expired and had no authority to deal with the said property.

 

      It is further stated by the O.P No:2 that  about Rs.2,19,97,800/- ( Rupees Two Crores  Nineteen Lacs Ninety Seven Thousand Eight Hundred only) mostly in cash was collected by the contractor Mr. Sadip Lama of Jayshree Company directly from different individuals including the complainant and two employed sisters viz Firoza Banu, Complainant in pending Consumer Case No. 5 of 2019 and Jahida Khatoon , Complainant in Consumer Case No. 6 of 2019 at the behest of the office bearers/Members of the said then defunct Committee Mutawalli while acting as office bearers of the society in public and not for the Waqf Estate

 

 

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      against unidentified shop room spaces in the proposed market complex and the receipt of the said deposit amount has been admitted by the contractor in a meeting held on 01.06.2016 attended by the Complainant purportedly representing alleged tenants.

       It is further stated by the O.P No:2 that  the erstwhile Committee Mutawali had also without having authority and without obtaining approval of the Board developed estate`s another plot of the land being Holding No 14, H.D Lama Road by constructing multi-storied commercial building through the same contractor Mr Sadip Lama / Jayshree   Company and encumbered and wrongfully alienated the Waqf property without the authority of the law.

       It is also stated by the O.P No:2 that the Members and the Office Bearers of the aforesaid Committee had wrongfully acted as officer bearers/ members of the society registered under the West Bengal Societies Registration Act, 1961 and fraudulently dealt with the above mentioned properties with third parties not as Waqf property but allegedly as secular property of the purported society and thereby alienated and encumbered the said property causing huge wrongful loss to the added opposite party.

       It is also stated by the O.P No:2 that in the backdrop above , the Board has intervened and stopped further work of construction at the said incomplete building and the District Magistrate, Darjeeling was assigned the responsibility of Administrator of the added Opposite party and S.D.O Sadar, Darjeeling as Executive Officer and Mr Abul Haque as office Secretary in terms of the order of the Board.

It is further stated by the O.P No:2 that at the behest of the Board , enquiry into the matters of constructions of buildings at Holding No .14, H.D. Lama Road and 1, Masjid  Road, Darjeeling ( Plots Nos. 31 & 13 A, Daroga Bazar) were

Cont......P/13

 

 

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      conducted and thereafter the Chief Executive Officer of the  Board  lodged a complaint dated 20/06/2014 with the Bowbazar Police Station, Kolkata which was transferred and Darjeeling Sadar P.S. Case No.38 of 2014 dated 18/07/2014 was registered under sections 420/406/409/468/471/120B of I.P.C read with 55A of the Waqf Act, corresponding to G.R Case  No:- 286/2014, now Spl. Case No:- 02 of 2018 is pending before the  Additional District Judge, 1st Court, Darjeeling against all office bearers  and the members of the said erstwhile Committee Mutawalli . In the said case charge sheet has been filed against the accused named in FIR and also against the above named contractor.

       It is further stated by the O.P No:2 that in order to protect the interest of the added opposite party and considering that the construction of the said incomplete building was done after obtaining sanctioned of the building plan from Darjeeling Municipality the Board vide CEO`s letter dated 21-02-2017 on the report of present Supervisory Committee had granted permission to complete construction at the earliest and based on the aforesaid permission the contractor was requested resume work and complete construction pending revision of rate of construction as sought by him but till date the contractor on one pretext and other failed and neglected to complete the construction taking advantage of objections against resumption of work made by erstwhile office bearers viz .., Akhtar Ali and Rashid Butt, accused persons in the above referred police case.  Recently, a comprehensive notice dated 01-08-2019 has been served upon the contractor asking inter alia to complete construction and prevent damage to the existing incomplete structure and adjoining Madrasah building due to rain water.

      It is further stated by the O.P No:2 that  the complainant was and is well aware that the Opposite party named and described in the cause title of the said complaint did not and does not exist at all.  Since the subject matter property in

Cont......P/14

 

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      the complaint belongs to the added opposite  party, an application for adding as party was voluntarily moved for and on behalf of the added opposite party and the same was allowed by this learned Forum now( Commission).

      The O.P No:2 further denied para-wise and stated that the Complainant was not a tenant under the O.Ps acquiring more or less 150 sq.ft or any area in the said complex as alleged. The allegation is vague, baseless and untrue. The Complainant was never ever a tenant of `  Anjuman Building C` as alleged.  No such building did and does ever exist at all. It is also denied and disputed that the Anjuman –e- Islamia at Darjeeling is a society as alleged or at all. 

      The O.P No:2 further stated that the Waqf Estate together with its properties including land / building comprised Plot Nos.13 & 13 A, was enrolled in 1940 with the Board of Auqaf, West Bengal under the  name and style of `` Anjuman –e – Islamia ‘’ Darjeeling  also known as Anjuman-e- Islamia  Darjeeling Waqf  Estate against E.C. No 7321 of 1940. It is denied and disputed that the opposite parties had lawful authority and entitlement to deal with the Waqf property being old dilapidated structure comprised Plot Nos.13 & 13 A, P.O. & P.S Darjeeling belonging to the added Opposite Party in any manner whatsoever and howsoever.  It is emphatically denied and disputed that the complainant had occupied any floor area as a tenant and had vacated the tenanted premises as alleged or at all.  The added opposite party has no knowledge about verbal assurance and mutual agreements of the opposite parties as alleged and the same are not binding upon the added Opposite party. As per record, Complainant was never ever tenant of any floor area or room in the aforesaid structure as such question of vacating the same did not and could not arise at all.  The allegation is concocted, baseless, untrue and fraudulent. It is further denied and disputed that the opposite parties had lawful authority and the entitlement to enter into any

Cont......P/15

 

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      agreement or deal with in any manner the said property being above mentioned Plot Nos. 13 & 13 A, Daroga Bazar (Holding No 1 , Masjid Road ) Darjeeling or portion thereof and the purported agreement dated 17-01-2013 allegedly  concerning 150 sq. ft was and is not binding on and/or enforceable against the Waqf Estate, the added opposite party.  He also denied that there was or is any municipal plot No: as 13/13A, Darjeeling.

      The O.P No:2 further stated that  the opposite parties had no lawful authority and entitlement to receive money or issue receipts as alleged or at all. It is denied and disputed that the purported receipts were signed by the Secretary, Anjuman –e- islamia Darjeeling as alleged or at all.  The purported receipts are invalid, untenable in law and not binding upon the added opposite party.  It is further reiterated that the alleged payment of large amount of booking of space not in existence evidently made in cash which is not permitted in law and such payment was made to the contractor, Mr Sadip Lama, as has been admitted by him in a meeting held on 01-06-2016 attended by the complainant as representatives of alleged tenants.  The payment was not made to the added opposite party.

      The O.P No:2 further that the property in question belongs to the added Opposite party and the opposite parties had and have no authority to and entitlement to deliver procession of alleged flat  premises 150 sq. ft ., and the opposite parties and/or contractor above named were and are liable to refund money. He further stated that the alleged claim of refund of money is hopelessly barred by limitation and stated that there was no question of deficiency in service on the part of the O.P No:2 and the case of the Complainant is liable to be dismissed/rejected.

      Further, the O.P No:- 14, being the  Chief Executive Officer of  Board of Waqf  (Same as O.P No: 1A or O.P No:-3)has filed Written Version on 12.12.2022 and

Cont......P/16

 

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       submitted that  there is no privity of Contract with the Complainant and the dispute is not a consumer dispute at all. He denied all the allegations leveled in the Consumer Complaint and put responsibility to O.P No:1-13.Further he stated that the Complainant is not a consumer; if the alleged agreement is considered as valid. No relief can be given by this Commission to the Complainant.

       It is further stated by the O.P No:14 (Same as O.P No: 1A or O.P No:-3)that a criminal proceeding was initiated and the same is pending for adjudication before the Ld. Special Judge)(1st Court) at Darjeeling, being Special Case No:02 of 2018.The said Complaint is based on the misappropriation of funds regarding the suit property. Ultimately, the O.P No:14 (Same as O.P No: 1A or O.P No:-3)stated that the case is not maintainable and is liable to be dismissed as the Complainant is not a consumer as per the definition U/S-2(1)(d) of the C.P.Act,1986.

      It is seen from the case record that O.P No:4, 5,6,7,9,10 &11 have appeared before this Commission and filed their Written Version Jointly.

      The gist of the Written Version of the above noted O.Ps are that the Complainant is not a tenant under Anjuman-e- Islamia, Darjeeling at Building “C” situated at Darjeeling Municipal Holding No:1, Masjid Road, Plot No:13, Darjeeling. It is denied that the Opposite Parties are the Board Members of the Society under the name& style Anjuman-e- Islamia.  The O.Ps, as noted above were the Members of the Executive Committee of the society fromOctober,2002 to 16th June,2014.The O.Ps, except  No:6, handed over the charge of the Society with all its assets and liabilities to the District Magistrate, Darjeeling, vide letter dated 02.06.2014. As directed by the Dist Magistrate, the S.D.O, Sadar, Darjeeling took over the charge of the society on 16.06.2014.

      It is admitted that the O.Ps( Except No.6) during the period of holding the office as its Board Members resolved to reconstruct the dilapidated premises

Cont......P/17

 

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      of the society situated as noted above premises, plans for which for reconstruction were submitted to the Darjeeling Municipality and the Darjeeling Municipality approved the plan as per the existing Municipal Laws. Records of such sanction plan were handed over to the S.D.O, Sadar, Darjeeling on 16.06.2014.

       It is denied by the O.Ps that the Complainant was a tenant at the old dilapidated building. After the start of the construction work, the Complainant showed her interest to obtain a shop and approached the society for such allotment of space to be constructed. No proof or any document has filed by the Complainant to show that she was an old tenant. It is stated that M/S Yashree Company, being the lowest bidder was engaged to reconstruct the building. It is further stated that previously there were 11(eleven) old tenants only and not the Complainant. In the plan sanctioned by the Darjeeling Municipality, more or less 80(Eighty) shops would have been constructed. It was publicly notified, calling upon interested persons to book spaces for shops on payment of advances. The Complainant, accordingly, paid advance to book space which was duly received by the then Secretary, Janab Moinuddin and official receipts were issued to her, which the Complainant has submitted before this Commission.

       It is further stated that while construction work was going on smoothly, some general body Members of the Anjuman-e-Islamia lodged a Complaint with the Chairman, West Bengal Board of Waqf, Kolkata vide representation dated 30.10.2012 The C.E.O of the Waqf Board, on the very next day issued a letter to the the D.M, Darjeeling directing him to stop construction work and the order of the D.M was complied with and the work had been stopped. It is further stated that the Management of the Society was handed over to the D.M, Darjeeling in

Cont......P/18

 

 

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      terms of Art-43 of the constitution of Anjuman-e-Islamia. Immediately after taking over the charge of the Society from the O.Ps, the D.M, Darjeeling issued an order being No:- 366/C, dated 17.06.2014 prohibiting any construction at the site until the formation of a new Committee of the Society. The D.M, Darjeeling constituted a new Committee vide his order No:- 376/C dated 20.06.2014. Even after the formation of the new Committee, the D.M, Darjeeling being the Administrator and the S.D.O, Sadar, Darjeeling, being the Executive Officer of the Society failed to start the construction work.

      It is further stated that in the year 2016, the Board of Waqf, W.B constituted a new Committee Vide its Memo No:- 4507(1-8) dated 05.10.2016. Since then the said Committee formed by the Board of Waqf, W.B the D.M, Darjeeling and the S.D.O, Sadar, Darjeeling being the Chairman and Vice Chairman respectively is running the day today affairs of the Society and managing its finances and operating the bank accounts and the O.Ps have no locus standi over the affairs of the Society. The onus in connection with the construction of the building in question lies on this Committee which has been named” Supervisory Committee of Anjuman-e- Islamia, Darjeeling. It is the duty and obligation of this Supervisory Committee to start the Construction work, complete it and handover the shops thus constructed to the persons who have made advances including the Complainant.

       It is further stated that the O.P No:6,( Actually would be O.P No:7 ) Janab Ali Akhtar, S/O Late Hedayat Ali, is nowhere attached with the decision to construct the building at the above noted premises because of the fact that he tendered his resignation from the post of Secretary of the Society on 15.08.2011 and handed over the charge to Janab Moinuddin, the joint Secretary of the Society. His resignation was duly accepted by the Executive Committee on 06.10.2011 and a letter of acceptance was communicated to him. The said person submitted his resignation from the post of Mutawalli vide his letter dated 06.10.2011 and

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      communicated to the Board of Waqf, W.B by post. Further, it is stated that said O.P No.6 ( Actually O.P No:7) has been unnecessarily dragged into the case and he is an octogenarian suffering from various old age diseases. The other O.Ps are also senior citizens and reputed persons of the society. Meanwhile a meeting was convened by the Complainant and several persons were present and she was satisfied with the decision of the said meeting. It is further admitted that the Complainant has paid the advance amount and it was duly received and official receipts were issued to the Complainant by Janab Moinuddin, the then Secretary of the Society at that point of time.  The builder also conceded the fact that he had received Rs. 2,19,97,800/ from the persons who had booked spaces including the Complainant. He is waiting for the green signal from the Board of Waqf, W.B and the D.M, Darjeeling to start with the construction work. As soon as he receives such green signal, he will start the work; complete it and handover the shops to the persons from whom advances have been received including the Complainant.  The O.Ps along with their W/V submitted some copy of documents in order to substantiate their Version, which are lying with the case record. Finally, the O.Ps supported the Complainant’s case and admitted the advance payments made by the Complainant.

       During hearing of the case the Complainant has adduced Evidence by filing Written Affidavit-in- Chief. Questionnaire was put by the contesting O.Ps and the Complainant gave Written Reply. On the other hand, the O.Ps did not adduce any evidence. Argument was heard in presence of both sides. Parties prayed for treating their respective Complaint Petition and W/V as their B.N.A and this Commission allowed it. The proceeding of the case has been concluded as per the provision of the C.P.Act,1986.

      Now, from the Complaint petition, Written Version of the O.Ps, evidence adduced by the Complainant and other materials on record, the following points have been framed:-                                                                                     

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        Points to be Decided:-

Is the Complainant a ‘Consumer’ under the O.Ps as per the definition of Consumer as defined U/S-2(1)(d) of the C.P.Act,1986?
Is this Case maintainable before this Forum(Now Commission) in the eye of law?
Is the dispute involved in the case a consumer dispute?
Are the O.Ps deficient in providing service towards the Complainant?
Is the Complainant entitled to get any relief as prayed for?

 

 

DECISION       WITH       REASONS

      All the points have been taken together for the sake of brevity, avoidance of repetition of facts and for convenience of discussion.

       It is evident from the Complaint petition, evidence of the Complainant and the agreement dated 17.01.2013 that the Complainant was a tenant under the O.Ps and the Complainant was acquiring  a shop more or less 150 sq.ft  in a building namely Anjuman Building –C comprised under plot No. 13/ 13A P.O. P.S & District:- Darjeeling. The O.Ps, being the Board of Members, President and Secretary of the society  of Anjuman –e- Islamia,  Waqf of Estate ( E.C No. 7321) having its office at Jama Masjid Complex , Botanical Garden Road, Darjeeling with the collaboration of O.P No. 13, namely  M/S Yashashree Builders decided to develop the land and construct a multi-storeyed building over the land after demolishing the existing old dilapidated structure and as per the verbal assurance and mutual agreements with the O.Ps, it was agreed that the complainant would be provided more or less the same area in the newly constructed building which the complainant had being occupying as a tenant for Salami and nominal rates and upon getting such promise the complainant vacated the tenanted premises.  It is further stated that by the complainant that on 17/01/2013 the complainant and O.Ps entered into an agreement with respect to the portion measuring more or less 150 sq.ft for

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      which the complainant was entitled to and it is also stated that prior to entering into that agreement, the complainant had made a payment of Rs. 4,50,000/-( Rupees Four  Lakh Fifty Thousand Only)  to the O.Ps in two instalments , as stated in detail in the complaint  as Salami for acquiring a flat  measuring more or less 150 sq.ft on the first floor of the newly constructed multi-storeyed complex. It is also seen that the O.Ps issued the money receipts duly signed by the Secretary of Anjuman e- Islamia Darjeeling for such payment.

      It is further seen from the evidence of the Complainant that till the date of presentation of the case neither the possession of the flat measuring about 150sq.ft on the first floor in the newly constructed multi-storeyed building, as mentioned above, was given to the complainant nor the advance salami amount was returned to the Complainant by the O.Ps. The complainant requested several times verbally to the O.Ps, but was in vain. Finally, on 03.04.2019 the complainant had sent legal notice through Advocate Mrs. Sujatha Agarwal of Darjeeling District Court, but the O.Ps did not respond to the said legal notice.

      We have scrutinised the documents submitted by the Complainant wherefrom it is detected by us that the Complainant and the O.Ps had  entered into an “Agreement for Allotment of Shop on Tenancy” dated 17.01.2013 and it is stated in page- 2 of the said document that the Complainant was an old tenant under the O.Ps and she had vacated the premises in mutual agreement and verbal assurance of the O.Ps and the O.Ps made assurance that more or less the same area would be provided to the Complainant on the same floor in Salami and nominal rates. It is further seen from the said document that an amount of Rs.4,00,000/( Rupees Four Lakhs Only) was fixed as full amount of Salami and further it is detected by us from the documents filed by the Complainant that the Complainant had paid Rs. 4,50,000/-( Rupees Four Lakh Fifty Thousand Only) in total in two instalments prior to entering into the

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       agreement. No explanation is given as to why the Complainant has paid the extra amount of Rs.50,000/ to the O.Ps. Here, the genesis of the case is the ‘Agreement’ made between the parties dated 17.01.2013 which clearly postulates that such an agreement was ‘An Agreement for Tenancy’ and the Complainant had paid the above noted amount to the O.Ps as Salami. The term ‘Salami’ cannot be equated with the term ‘Consideration’. Salami is an amount which the Land Owner demands from the Tenants at the time of entering into tenancy as security or for other purposes which is refundable at the end of tenancy. Under no circumstances ‘Salami’ can be treated as ‘Consideration’. The crux of the matter is that whether the Complainant is a Consumer under the O.Ps? For the purpose of becoming a consumer, a person must pay something i.e consideration amount to the seller or service provider.  A person cannot be a consumer if he pays nothing or gets something free of charge. Therefore, consideration is a sine qua non or an essential element.

      From the definition of Consumer, as defined U/S-2(1)(d) of the C.P.Act, 1986,"consumer" means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person;

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      Explanation : For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.

      Nowhere in the C.P.Act,1986 the term consideration is defined. Even if we guess the meaning of ‘consideration’ from the Indian Contract Act,1872 then it is clear that consideration is something which is valuable in the eye of law and need not necessary to be only of money or money’s worth. Now, if we assume that the Complainant was an old tenant under the O.Ps and upon agreement and assurance from the O.Ps she had vacated the occupied premises to the O.Ps for development and for getting the same space in the newly constructed building, then surely it can be presumed that the Complainant had paid the ‘consideration’ which is equivalent to the ‘occupied space’ held by the Complainant in the old building under tenancy, even if the Complainant did not pay anything. Not a single scrap of paper has been filed by the Complainant in order to prove that she was an old tenant under the O.Ps. The O.P No:2 and other contesting O.Ps in their W/V have clearly denied the fact that the Complainant was a tenant in the old building. Therefore, in our view the Complainant has failed to prove that she was an old tenant under the O.Ps as claimed. So, the question of handing over vacant possession to the O.Ps for erecting building does not arise at all.

      Now, if we concentrate on the agreement as aforesaid it is seen that the Complainant has entered into an agreement for allotment of a shop on tenancy in the newly constructed building and paid some amount as Salami. It is clearly manifested from the said Agreement in Para-4 that “ the aforesaid premises shall exclusively be in the form of tenancy and the record of right and title shall remain in the name and style of Anjuman –e- Islamia.”

 

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      So, from the very nature of the agreement it is crystal clear that the agreement dated 17.01.2013 was an “Agreement for Tenancy” and not for “Agreement for Sell. Had the Complainant been entered into an agreement for sell of the flat/shop in question with the O.Ps and paid or promised to pay something as consideration in lieu of the agreement for tenancy then she could have raised her voice before this Commission if the possession was not handed over to her after payment of full consideration amount to the O.Ps, subject to fulfilment of the other provisions of the C.P. Act.

       It is the settled principle of law that tenancy dispute cannot be adjudicated in the Consumer Fora. In order to be successful in a Consumer Case, the Complainant has to satisfy at first that he or she is a ‘consumer’ under the O.P/s and the dispute is a ‘consumer dispute’ and there are/were some ‘defects in goods’ or ‘deficiency in Service’ on the part of the O.Ps. The burden of proving of the case lies upon the Complainant only. But here in this case, the Complainant has miserably failed to prove that she is a Consumer under the O.Ps. Since, there was no hiring of service for consideration within the meaning and scope of the Consumer Protection Act,1986 the complaint is not maintainable. The disputes inter-se the O.Ps regarding the Mutawalliship or the Board/Committee of the Anjuman-e-Islamia has no relevance over here. The dispute of building construction in between the builder with the Board/ Committee is also not relevant over here while adjudicating the case in hand. It is also seen from the Version of O.P No:2 & the C.E.O of Board of Waqf that a criminal case is pending against the accused persons. Practically this Forum (now Commission) has nothing to comment about such things.

      It is seen from the case record that the O.P No:4, 5,6,7,9,10 &11 have appeared before this Commission and filed W/V jointly. They were the Members of the Executive Committee of the Society at the relevant period of time and they had handed over their charge to the District Magistrate, Darjeeling and subsequently, the S.D.O, Sadar, Darjeeling took over the charge

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      of the society. At present they are not associated with the said Anjuman-e- Islamia. Though they admitted the fact of receiving money from the Complainant but denied the fact that the Complainant was an old tenant under the O.Ps in the old building.

        In a case titled as Laxmiben Laxmichand Shah  Vs Sakerben Kanjicharan & Ors, reported in (2001)9 SCC-604, it was held by the Hon’ble Supreme Court that  the tenant is not a Consumer. “The Appellant approached the National Consumer Disputes Redressal Commission claiming compensation the ground that the Respondent had failed to render services to the Appellant. The National Commission found that the Appellant was not tenant of the Respondents and that as per the terms of the lease Agreement dated 15-12-1967, there was no provision in the said agreement wherein the Respondent agreed to render any sort of services to the Appellant. In the grounds of appeal in this Court, it was contended that the Appellant had hired the services of the Respondent landlord in respect of cleaning, repairing and maintenance of the subject building for consideration. But we do not find any such clause in the terms of the lease. The National Commission was therefore right in coming to the conclusion that the Appellant was not a consumer as defined in the Consumer Protection Act,1986. On the facts of this case, therefore, it is clear that the Appellant is not a consumer. The appeal is therefore, dismissed”.

       In view of the above discussion, we are of the considered opinion that the Complainant is not a Consumer under the O.Ps and the dispute is not a ‘consumer dispute’ at all. The case of the Complainant is not maintainable before this Commission and the Complainant is not entitled to get any relief as prayed for. The Complainant has failed to prove her case and accordingly the case of the complainant deserves to be dismissed.

       It is to be mentioned that the instant case was filed under the provision of the C.P.Act,1986 and it was proceeded under the same law.

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Hence,

 It is ordered that the Consumer Complaint, being No:- C.C-08 of 2019 is dismissed ex-parte against O.P No:-1,8,12 & 13  and on contest against O.P No:-.2,3,4,5,6,10,11,14. No order is passed against the deceased O.Ps being No:- 7,9.

 No order as to cost.

 Let free copy of this Final Order be sent to the parties concerned as per the provision of C.P.R,2005.

 

      Member                                                      President-in- Charge

      D.C.D.R.C                                                              D.C.D.R.C

      Darjeeling                                                             Darjeeling

 

 

       Typed & Corrected by

 

  …………………………………………

      Bhawana Thakuri

      Member,( Female)

      D.C.D.R.C, Darjeeling.