Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this compliant submitted that complainants were the erstwhile tenant having a running Goldsmith shop at premises no.158A, Beliaghata Main Road, Kolkata – 10 under the OPs and that business is the only avenue of the complainant for their livelihood.  Complainants were approached by the owners (OPs) for development of the existing building and structure after demolishing the same and to make it a commercially viable project to serve their project and to provide accommodation or rehabilitate the complainants in their own position.

          After the said offers have been made by the OPs to the residents or tenants to purchase their respective flats/shops at a price to be determined acceptable to them some of the tenants entered into an agreement with his owner-promoter/developer for purchasing their respective portion with certain terms and conditions stipulated therein and as per the offer made by the Ops entered into an agreement dated 04-01-2007 with the Ops inter alia for sale and delivery of the shop room and to register the deed of conveyance against due consideration.

          In the said agreement dated 04-01-2007 it was agreed by and between the parties, i.e. the owner/promoter and the purchaser that the OPs shall provide and sell 212 sq. ft. shop room (carpet area) at a price of Rs.70,000/- which the complainant had accepted such proposal, the Ops have agreed to give possession of the shop after two months of the completion of the construction.  Due to demolition of the building the complainant had to shut down the Goldsmith shop till the shop is handed over as per agreement.

          It was also agreed that the payment for the price of the shop room will be made at the time of registration and execution of the deed of Conveyance.  It was further agreed that till completion of the construction of the shop the complainant will be compensated for demolition of his shop and for loss of his earning Rs.10,000/- per month as it was a running Goldsmith shop, the OPs agreed to pay Rs.10,000/- for suspension of day to day business work, due to demolition for development and promotion of the building.  Thereafter, complainants were handed over the shop room on 05-11-2008 during the period only Rs.69,000/- had been paid by the OPs out of Rs.2,30,000/-  and complainant is still entitled to get dues to be paid by the OPs.

          OPs handed over less area than what was to be allotted to the complainants and in order to make demolition of the building OPs are allotted to keep their furniture and other goods in a small godown as allotted.  In the said godown many valuable papers and documents are lying.  The OPs have put a padlock and the complainants cannot or do not have any access to the said godown so OPs should be directed to hand over the key till full and final settlement of the issues involved in this case.

          OPs are trying to dupe by not giving 212 sq. ft. in lieu they have given possession of 148 sq. ft. which is less than the area agreed upon.  The OPs have given possession of 148 sq. ft. i.e. less 64 sq. ft.  the complainants are entitled to 212 sq. ft. carpet area as per agreement.

          Finding no other alternative complainant issued a legal notice requesting to fulfill the agreement of allotment of 212 sq. ft. inter alia to execute and register the deed of conveyance. 

          Further OP blocked the passage for to and fro movement to the shop and there is obstruction caused for free ingress and egress of the complainants to the common bath and privy as per the agreement signed by all the parties.

          For deficient and negligent manner of service complainant are compelled to file this complaint for relief.

          On the other hand, OPs by filing written statement submitted that the present case is not maintainable and complainant is not consumer in the eye of law.  It is further submitted that for the criminal act of the complainant including other tenants OP1 lodged a written complaint to the local Beliaghata P.S. and further submitted that the entire complaint is frivolous and baseless. 

          OPs have further submitted complainants’ father was the actual tenant and after his demise complainants have been allowed to be the tenant and after his demise the complainants have been allowed to be the tenant under the OP1 on written request dated 22-12-2000 of their mother namely Smt. Gopala Bala Basak at a rental of Rs.175/- per month.  It is submitted that the agreement dated 04-01-2007 was made between the parties on co-operation for the newly constructpremises by promoter and there was no whispering as to offer and in respect of rehabilitation of the complainant with subject to the sanction of Plan by the KMC and accordingly on 07-01-2007 complainant handed over the vacant possession of the shop room to the developer.

          Although complainant made the agreement on 04-01-2007 with the OP1 only as owner/landlady not as Promoter and there was condition that the alleged specified area may be given on approval of sanction plan of KMC what the complainant has deliberately suppressed in the present complaint and OP1 was agreed to sell out the shop room occupied by the complainant as he is existing tenant under the OP1.  Surprisingly, the complainant has concealed the fact of getting space inside the said premises for running his business temporarily therefrom which the complainant has enjoyed peacefully during that time, even that initially the OP1 agreed to pay Rs.10,000/- as compensation per month to the complainant, after lapses of two months the value of compensation was revised between parties and on and from March, 2007 the OP1 had paid Rs.7,000/- per month as compensation to the complainant up to October, 2007 as agreed upon by the parties.

          It is further mentioned that on and from 08-10-2007 the complainant took possession forcibly from the developer without obtaining permission from the OP1 of his alleged shop room in previous space, keeping the control in his hand of the temporary space given to him for his business though the complainant at the time of handing over possession of the tenanted shop room prepared written document of the same and the said document is also filed.

          It is further submitted that though the complainant has got the possession of the newly constructed shop room but he has not been paying any rent since February, 2007 and is still legally entitled to get rent of Rs.5,775/-(Rs.175/- x 33 months) but complainants are not paying the said rent.  But complainant has suppressed all the material facts before this Forum and trying to enjoy illegal benefits.  Another factor is that complainant has taken a shoproom or space of 163 sq. ft. but as per KMC rule his shoproom would be 148 sq. ft. and the allegation as to free ingress and egress to and from the common bath and privy is absolutely false because complainant is enjoying the same as before as per agreement. 

          OP has further submitted that only for the purpose of grabbing the property as well as money of the OP complainants on several occasions trying to grab it and did not pay any heed about the clause and condition of the agreement though OP on several occasions requested the complainant to do the needful but complainant did not pay any heed to that.

          Fact remains OP is an aged of about 84 years old and she has been suffering from various ailments and she is unable to move frequently without help of others and taking this advantages complainant adopted such tactics only to create a pressure so that the complainant may get the entire house property without any materials and prayed for dismissal of the complaint.

Decision with Reasons

After hearing the argument of the Ld. Lawyer for the complainant and also the OP and further considering the entire complaint it is proved beyond any manner of doubt that complainants the tenant under the OP till now.  There is no paper to show that the complainant’s tenancy right has been terminated and the relationship between the parties have been determined and cancelled by any document or by any means.  Complainant has also not denied the status in respect of the shoproom as tenant under the OP.  It is further confirmed by the documents as produced by the complainant as agreement between the complainants and the OPs and that agreement is dated 04-01-2007.

          Practically in this case Ld. Lawyer for the complainant again and again read the line of the agreement and tried to convince that after construction of the new building in place of old one complainant has got their tenanted portion but after getting that portion in new construction building they are not tenant but this Forum has failed to realize how tenancy right of the complainant is vanished but as per agreement it is proved that complainant was and is tenant under the OP and temporarily he was placed in another room selected by the OP wherefrom he is running busi9ness and as per agreement the complainant would get the shop room as per KMC Rules in the newly constructed building as tenant and admittedly complainant got it may be by force or otherwise but fact remains complainant as tenant delivered khas possession for construction and this part of agreement is well performed so till now the complainant is tenant under the OP.  Most interesting factor is that Ld. Lawyer for the complainant submitted one ruling reported in Iv (2008) CPJ Page 215 NC and tried to convince that as per this ruling this agreement shall be taken into consideration and complainant is entitled to get relief.  But we have failed to understand how the ruling can be applied.  The spirit of the ruling or this verdict may be applied where it is found that tenant who handed over possession with condition of replaced in the new building has not been replaced but if the tenant is already replaced in that case ruling is not applicable.  So, considering the present ruling and present fact and the material and position of the complainant we are confirmed that probably the ruling was placed for some other purpose but our eyes caught it and we requested the Ld. Lawyer for the complainant to go through the ruling and to establish the status of the present complainant in the new building when the Ld. Lawyer for the complainant stopped to argue repeatedly when realized the truth that the ruling is not applicable in this case.  But it was placed and repetition of argument was made but when the Forum pointed the Ld. Lawyer for the complainant the admitted position of the complainant.  Ld. Lawyer for the complainant realized that as tenant they have no grievance as replaced tenant in the new building that was completed in the year 2008 i.e. on 08-11-2008 i.e. admitted by the complainant in complaint at para 8.  So, we are convinced that complainant as tenant is replaced as per agreement.  So, in this regard there is no problem but after considering the material on record and considering the present position we have found that complainant is a tenant and also is a defaulter and they are not paying any rent in respect of the tenancy to the OP what is undisputed fact when complainants have failed to prove by any cogent evidence that their tenancy right is determined and relationship of tenant and landlord has not been ended.  So, it is proved that the complainants are the tenants of the OPs.  Further it is proved that the present tenants (complainants) were placed in an accommodation of the OPs at the time of their shiftment from the old building for construction of the new building thereon and complainants as per complainant’s version they are already in the original position in the new building as tenant and they are running their business but truth is that complainant as tenant has not handed over that accommodation (interim accommodation) so it is proved that complainant is enjoying tenanted portion and another room or godown in which the complainant was placed by the landlord for ad interim period i.e. during construction of new building has not been vacated by the complainant.  So, it is clear such a complainants/tenants are dishonest and they are harassing an old lady aged about 84 years who is landlady who is not getting any rent at the same time her another room is also occupied by the complainant.  But complainant has no right to enjoy that area or room or godown because complainant already took possession of his previous shoproom.  Fact remains as per agreement during stay of the complainant in separate godown or room as intermediate shop for construction of the new building got Rs.7,500/- and receipts prove that.  Moreover, it is proved and fact remains it is a contract in between tenant and landlord.  Fact remains complainant took possession of his tenanted shop room in the new building as per agreement on 05-11-2008 and this complaint was filed on 20-07-2009 but fact remains it is not a contract in between the developer and the tenant.  Developer is third person who had constructed it and truth is that the developer has not yet handed over the allocated portion as per developer’s agreement in between the OP and the developer truth is that owner is out of the new building but tenant has got his possession.  So, it is clear that this tenant has taken a bad path with connivance with the developer and tried to remove the landlord from the seen and not to give her any chance to enjoy allocated portion and we have come to learn that these OPs are on the street and they are also fighting for their allocated portion against the developer before State Commission and no doubt considering this fact it is clear that probably this complaint is filed at the instance of the developer and developer is back behind the game and giving support to the tenant to vanish the landlord anyhow and for which this agreement which is apparently an agreement in between the landlord and the tenant cannot be invoked before the Consumer Forum for getting any relief because a tenant cannot be a consumer under any circumstances even if landlords agrees to sale the tenanted portion, then it is simply a sale simplicitor and that cannot be treated as housing construction because the landlord is not the promoter and or the developer.  Promoter and Developer is the third party against whom this OP has filed suit before the State Commission for getting a possession of their allocated portion as per developer’s agreement in between landlord and developer or promoter.   So, considering that fact we are convinced to hold that present complainant as tenant is not entitled to get any benefit from this Forum as he is not consumer under OPs landlord and fact remains this complaint has taken a dog in the manger’s policy because he has taken possession of the tenanted portion of the new building and also occupying interim allocated portion of the landlord in both the cases without paying any rent.  So, such a tenant is distinguished as Goldsmith in true sense and they know how gold can squeeze from the customers and in the present case the present goldsmith have taken the unfair trade practice and snatching everything from the landlord with convenience with the promoter or developer and i.e. truth in view of the fact against developer OPs have been bound to file this case for getting their possession in respective agreement of development.  In the result, complaint fails and practically the entire complaint is false, frivolous, vexations and for which complainant should be imposed penalty because the complainant is not consumer in view of ruling reported in AIR 1994 SC 787 and also the unreported verdict in RP No.3302 of 2008 passed on 10-11-2008 and SC Case No.291/A/2007 dated 07-07-2008.

Hence,

Ordered

That the case be and the same is dismissed against the OPs with cost and complainant shall have to pay a penal cost of Rs.10,000/- (Rupees Ten thousand only) each to the OPs within one month from the date of this order failing which penal action shall be started for which further penal action as per provision of Section 27 of the C.P. Act, shall be imposed and it shall be imposed Rs.10,000/- (Rupees Ten thousand only) each against the complainant.