SAMIKSHA BHATTACHARYA, MEMBER
The instant Appeal has been filed by the Appellant under Section 15 of CP Act, 1986 challenging the order dated 26.06.2019 in Complaint Case being No. CC/404/2014 passed by the Ld. District Commission, South 24 Parganas.
The facts of the case, in brief, are that the respondent/complainant (hereinafter referred to as ‘complainant’) acquired a plot of land measuring an area of 200 square meter be the same a little more or less in Plot No. 01 in HIG category in Block R at Baisnabghata Patuli Area Development Project in the District of South 24 Parganas within the ambit of KMDA under the jurisdiction of P.S. Patuli, Ward No. 110, Borough No. XI by virtue of lease deed dated 09.09.2008 duly registered in the Office of ADSR, Alipore, South 24 Parganas. The complainant entered into an agreement for development on 03.05.2000 with the OP in order to raise a multi-storied building on the said land in certain terms and conditions. As per terms and conditions, the said agreement, it was agreed between the parties that the appellant/OP (hereinafter referred to as ‘OP’) will construct four storied building on the first schedule property and the complainant as the owner of the said land will be entitled to get 40% of the constructed area in the proposed building along with right, title, claim, share and interest in the land underneath the said building attributable to the said 40% of the constructed area which will be allocated in the entire first floor and on the back side of the ground floor respectively along with right, title, claim, share and interest in the common area and facilities attached to the said building. Accordingly, OP got plan sanctioned from the KMC vide building sanction plan No. 23/2004-05 (Computer No. 2003110549) dated 08.04.2004 at the said premises. It was also agreed that the complainant shall be entitled to get a sum of Rs.1,00,000/- as security deposit which is to be paid by the developer/OP. The OP completed the construction of the said building at the said premises and delivered the entire first floor measuring 1304 sq. ft. covered area and 573 sq. ft. covered area in the back portion of the ground floor at the said premises which is now renumbered as R-1/1, Baishnabghata Patuli, Block R (Old R-1) Kolkata, 700 094. The OP got sanctioned area amounting to Rs.1332 sq. ft. in the first floor, 1332 sq. ft. in the second floor,1332 sq. ft. in the third floor and 1332 sq. ft. in the fourth floor and 332 sq. ft. for the fifth floor. The OP delivered the complainant 1308 sq. ft.+573 sq. ft. i.e., 1881 sq. ft. instead of 2264 sq. ft. covered area, therefore, the complainant is entitled to get 383 sq. ft. more constructed area in the said new building at the said premises and accordingly, the complainant requested the OP to complete the construction of the said building in all manner and delivered the possession of the said 383 sq. ft. covered area in the said building. The OP has failed to respond to the request of the complainant. Due to deliberate inaction on the part of the OP, complainant was compelled to send a letter dated 16.06.2014 through his Ld. Advocate but OP did not pay any heed. Hence the application praying for delivery of the khas vacant physical possession of 383 sq. ft. constructed area/covered area at the said premises as landowner’s allocation amounting to 40% of the total constructed area and the several terms according to the development agreement dated 03.05.2000 and/or alternatively to direct the OP to pay Rs.17,00520/- together with interest till the date of possession and/or realization of money along with delivery of possession letter/certificate and to procure completion certificate in respect of the premises along with compensation of Rs.1,00,000/-.
Sole OP appeared before the Ld. District Commission and filed written version to contest the case. In his written version, the OP denied all material allegations inter alia stated that the complaint petition is bad for non-joinder and misjoinder of necessary parties. The purpose of the development agreement dated 3rd May, 2000 is for commercial purpose and the OP constructed the building in terms of the sanctioned plan and all the terms have been complied with, even the possession of the premises has been given as far as back as in the year 2006-2007. It is incorrect that the complainant is entitled to get 2260 sq. ft. and the statement made in that Paragraph 7 in the petition of complaint is incorrect and untrue.
The complainant is in possession of extra covered space consisting of one room, two bathrooms in the back portion open space of which building constructed by the OP at his own cost as per request of the complainant and such factum has been intentionally kept secret from the Ld. District Forum and not mentioned anywhere in the petition of complaint. The said portion also needs to be considered in calculating the area and in fact, the complainant having more areas than what he is entitled to and therefore, the claim of the complainant is absolutely baseless, frivolous and needs no consideration. The flats had already been sold and as such the OP has no control over the same for the present. There is no deficiency in service on the part of the OP, the dispute is completely a civil dispute in nature. The property has been developed by the complainant with an intention to commercially exploit the same therefore, the complainant has got no locus standi to maintain the complaint as he is not a consumer at all.
The case is also barred by law of limitation. Hence, the OP has prayed for rejection of the complaint with cost.
After hearing the parties, Ld. District Commission passed the order on 26.06.2019 which is reproduced as under:
“That the complaint case be and the same is decreed on contest against the OP with a cost of Rs.10,000/-.
The OP is directed to hand over the 296.73 sq. ft. Covered space in owner’s allocation of the subject building or to pay the money value at market rate which prevailed at the time of delivery of possession of owner’s allocation I.e., in the year 2006-2007 to the complainant with interest @ 10% p.a. till full realization thereof.
He I.e., the OP is also directed to supply possession letter and also completion certificate of the building to the complainant within the aforesaid period I.e., within a month of this order.
The OP is also directed to pay a sum of Rs.50,000/- as compensation for mental agony and harassment caused to the complainant within a month of this order, failing which, the compensation amount and the cost amount will also bear interest @ 10% p.a. till full realizaztion thereof.”
Being aggrieved by and dissatisfied with the above order, the appellant/OP has filed the instant Appeal on the ground that the Ld. District Commission has failed to exercise its jurisdiction vested by law and has acted with material irregularity and or illegality without considering the deeds and documents. The Ld. District Commission has passed the order without proper application of mind and wrongly held that the present complaint/respondent is a consumer. The Trial Forum ought to have considered that the status of the complainant is a lessee and also ought to have considered in the condition stipulated in the lease agreement but the Trial Forum did not consider the same either in facts, or in law.
The Trial Forum ought to have considered that the complainant has not come with clean hands and the complainant himself violated the conditions as mentioned in the lease agreement. The Trial Forum has wrongly considered the observation of the Engineer Commission Report in part and not in full where the Commission report states that there are commercial occupation like Indian Overseas Bank, ‘Sweet Shop and Restaurant Bhuter Raja Dilo Bar’. The Trial Forum has failed to consider that there is certain conditions and the lease-holder shall obey said terms and conditions. The Trial Forum wrongly allowed the complaint and the District Commission ought not to have considered the statuary bar/embargo in the instant property where the complainant is the lease-holder and the said lease deed clearly states that the complainant shall not have any right to erect multi-storied building for commercial exploitation for his monetary gain in the suit property. The Ld. District Commission ought to have considered the letter dated 17.09.2015 issued by the KMDA and the said Authority asks the respondent for illegal use in respect of his plot but the Trial Forum has not considered the same. The said lease was granted by the authority only for the residential purpose, but the complainant entered into an agreement for development for commercial exploitation, and the same fact has been established from the report of the Engineer Commissioner. The matter pertains to lease does not come under the CP Act.
The complainant has obtained the land in question from the (CMDA now, KMDA) by way of deed of lease dated 09.09.1998 and there is a bar of 5 years and the complainant has violated the said condition and the complainant has no authority to enter and sign any agreement with the third party without having permission of the authority and such agreement amounts to void agreement and on the basis of any void agreement no judicial authority take any cognizance and accordingly learned District Commission wrongly observed the dispute involved in the present case. The complainant has suppressed all the material facts. The complainant possesses the commercial area in the building in contravention and violation of KMC Building Rules where the plan was sanctioned for residential purpose. After enjoying these commercial area and profit out of it, the complainant put undue pressure upon the OP to regularize the plan, therefore, the appellant has prayed for setting aside the impugned order dated 26.06.2019 passed in Trial Forum.
The Ld. Advocate for the appellant/OP, in course of argument, has submitted that in the written version it has been specifically stated that the complainant has entered into the Development Agreement with the OP to develop the land with an intention to commercially exploit the same and as such the complainant cannot claim himself as a consumer because he is not the owner but the lesser after allotment.
The Ld.Advocate for the OP has further stated that the respondent/complainant has no authority to enter and sign any agreement with the third party without having prior permission of the authority which is a condition precedent and this Commission may consider the evidence of the statutory Government body i.e., KMDA at any point of time for proper adjudication of this matter in dispute so the law cannot be misused for the illegal gain of any particular person and if the agreement between the parties, is the alleged basis of contract from where cause of action arose, is an illegally executed document for obtaining illegal gain of any party and also by violating and contravening the statutory clause and the said agreement which contravene the legal formalities then such execution of agreement amounts to a void agreement or void contract and on the basis of any void contract this case is not maintainable. The Ld. District Commission should have let the matter upon the Civil Court for consideration of related documents filed in this case for establishing the claim of the parties. In the present case, the complainant is mere lease holder of the land and, therefore, the complainant should make the party the concerned authority but the complainant did not do so and therefore, the case is suffered by non-joinder and misjoinder of parties. When the complainant has no authority to enter into an agreement with any third party and on the basis of said agreement, no court/tribunal can take any cognizance and, therefore, the Ld. District Commission has passed the order without any lawful observation. Therefore, the OP/appellant has prayed for dismissal of the impugned order and accordingly prays for allowing the appeal.
Ld. Advocate for the respondent/complainant has argued that the complaint case was filed for delivery of khas vacant physical possession of the 383 sq. ft. constructed/covered area at the suit premises as land-owner’s allocation along with the delivery of possession letter to procure completion certificate and to pay compensation. in respect of the KMC Premises No. R-1/1, Plot No. 01 in HIG category in Block R at Baisnabghata Patuli Area Development Project in the District of South 24 Parganas within the ambit of KMDA under the jurisdiction of P.S. Patuli, Ward No. 110, Borough No. XI by virtue of lease deed dated 09.09.2008 duly registered in the Office of ADSR, Alipore, South 24 Parganas. Kolkata 700094. The complainant as land-owner of the said premises entered into a development agreement with the OPs on 03.05.2000 to construct four storied building and he was entitled to get 40% of the constructed area in the proposed building as land-owner’s allocation according to sanctioned building plan of KMC. The Ld. Advocate for the complainant has further argued that the OP has filed the instant appeal against the order dated 26.06.2019 passed by the Ld. District Commission. The said order also mentioned about the order dated 18.03.2019 passed by the Hon’ble National Commission in Revision Petition No. 2173 of 2018 which was filed against the order dated 03.07.2017 in FA No. 526 of 2017 of this Commission. The issues raised in the instant appeal were mentioned by the OP in the previous appeals for consideration before the Hon’ble National Commission in RP No. 2173 of 2017 and before this Commission in FA No. 526 of 2017. This Commission held that the complainant is a consumer and which is affirmed by the Hon’ble National Commission also relying upon the judgment passed in Faqir Chand Gulati (supra) and Bunga Daniel Babu (supra). The Hon’ble National Commission has observed that the complainant is a consumer.
The developer/OP in his letter dated 09.07.2014 addressed to KMC to the DG-II (Building Department), KMC, 5, S.N. Banerjee Road, Kolkata- 700013 admitted that he committed deviation apart from sanctioned plan and desired to regularize the same as per KMC norms.
In the Engineer Commissioner Report also, it is noted as follows:
That the Engineer Commissioner’s report inter alia states “In my opinion, the area differs from Sanction plan. The roof terrace party converted to a flat. That flat is illegally occupied by the son of Developer/appellant is also mentioned in the said report. No car parking. As per Sanction Plan total COVER AREA SHOULD BE 5123.17 Square Feet vide sanction plan No. 23/2004-05 dated 08.04.2004, C/No. 20311059 but constructed area is 6040.34 Feet.”
Ld Advocate for the complainant has submitted that OP did not prefer any revision and/or appeal before the higher forum or before any other court of law against the acceptance of the report of Engineer Commissioner Sri Swapan Kumar Sarkar nor filed any written objection as per Section 13(1) (f) of CP Act, which proves that the report is perfect and proper and the OP has got no objection against such actual physical measurement and calculation of the constructed area filed by the said Commissioner. Moreover, the Minutes of the meeting of the co-owners of the building at the said premises along with the land-owner and developer dated 19.04.2009 seen by all the co-owners where the developer/OP assured to rectify the irregularities committed by him but till date he deliberately negligent and failed to do so. Therefore, the instant appeal is not maintainable and the complainant is the consumer as the OP is the service provider and there is deficiency in service on the part of the OP which is proved not only from the Engineer Commissioner Report but also from the evidence of the OP which is self-explanatory. In course of argument, the Ld. Advocate for the complainant has cited the following judgments:
- 2008 CTJ 1038 (Supreme Court) (CP) – Faqir Chand Gulati versus Uppal Agencies Pvt. Ltd. And another.
- 1 (2011)CPJ 71 (NC) – Mopar Builders and Developers Pvt. Ltd. Versus Unity Co-Op Housing Society Ltd.
- Bunga Daniel Babu Vs Vasundhara Constructions & others in Civil Appeal No. 944 of 2016.
- 2001 Supreme Court cases (Criminal) 876 – giving false evidence is punishable under Section 193 of the Indian Penal Code 1960.
- 2006 CTJ 631 (CP) (NCDRC) – giving false evidence is punishable.
Upon hearing the parties and on perusal of the record, particularly the order the Hon’ble National Commission (RP/2173/2018) and the order of this Commission (A/526/2017) I find that the Hon’ble National Commission and this State Commission hold that the complainant is consumer relying upon the judgment Faquir Chand Gulati vs. Uppal Agencies Pvt. Ltd. & Anr. (2008) 10 SCC 245 and Bunga Daniel Balur vs. M/s. Sri Vasudeva Constructions & Ors. in Civil Appeal No. 944 of 2016 passed by Hon’ble Apex Court. It is admitted position that the complainant is the owner of the land in question on the basis of Lease Agreement dated 09.09.1988 by and between the KMDA and the complainant. It is also admitted position that the complainant has entered into Development Agreement on 03.05.2000 with the OP for erecting the multi-stoeryed building on the land in question.
Upon going through both the orders of the Hon’ble National Commission and this Commission in earlier Appeals arising out of this Case it appears to me that only the point was decided whether a land-owner can file a case before the Consumer Commission and whether landowner be termed as ‘consumer’. In the last paragraph of the judgment, the Hon’ble National Commission has observed the following:
“It is clear from the above noted judgments of Hon’ble Supreme Court that the landowner herein who has given his land for development by way of entering into a ‘Development Agreement’ with the Developer for built-up area of certain square feet and has a grievance with respect to the area since he is entitled to 40% of the allocation, definitely falls within the ratio as laid down by the Hon’ble Supreme Court. Hence we concur with the findings of the State Commission that the complainant is a ‘Consumer’ and dismiss the present Revision Petition accordingly. The District Forum shall decide the matter as expeditiously as practicable but not later than six months from the date of receipt of a copy of this order. It is clarified that we have not expressed any opinion on the merits of the case. Both the parties are directed to appear before the District Forum on 08.04.2019”
The case was remitted back to the Ld. District Commission and the Ld. District Commission has observed that complainant is regarded as ‘consumer’ within the meaning of CP Act since the issue has been put at rest by both the Hon’ble National Commission and this State Commission.
It is pertinent to mention that the Development Agreement dated 03.05.2020 was executed by and between the parties on the basis of the Lease Agreement dated 09.09.1988 by and between the KMDA and the complainant. The complainant became the owner of the land by virtue of the Lease Agreement dated 09.09.1988 by which the lease was granted for 999 years. Since the Lease Agreement is the basis towards the perpetual ownership of the complainant in respect of the land in dispute, I have gone through the lease agreement. The following points are to be noted here:
“Clause No. 2 – The lease to the intent that the obligations and covenants shall continue through the period of demise agrees and covenants with the Authority as follows:
(iii) At the own cost of LESEE who has been allotted plot, within five years from the date hereof within such further time as the Authority may at its option allow in writing on sufficient and reasonable grounds, to erect, construct and complete a house or building for being used for residential purpose with boundary walls, sewers and drains in accordance with plans, sections and specifications as may be approved by the appropriate body according to the rules and regulations framed for the purpose.
(vi) The LESEE shall not sub-let the demised land or the building to be constructed without the consent in writing of the Authority first and the Authority shall have the right and be entitled to refuse its consent at its absolute discretion.
(vii) The LESEE shall not assign or transfer the demised land or any part of the demised land and/or the structure erected thereon without the previous permission of the Authority in writing. IN case of transfer or assignment of the Lease the Authority shall have the right of pre-emption and upon the exercise of this right the building constructed by the LESEE on the land shall be taken over by the Authority at a valuation of the building to be made by the Authority. On the basis of the costs of construction of the building less depreciation at the used rate of the market value thereof, whichever is less. The value of the land will be the amount of the premium paid by the LESEE. The valuation to be made as aforesaid by the Authority shall be final and binding upon the parties hereto.
(ix) Not to use or allow to be used the land and/or the structure thereon or any part thereon for any purpose other than for residential purpose without the prior permission in writing of Authority (or other authority prescribed in that behalf).”
It is to be considered whether the lesee/complainant has obeyed the terms of the Lease Agreement. Any agreement is binding upon the parties to that Agreement or not. The argument on behalf of the complainant that he has granted the power to the Developer/OP to take all necessary sanction permission, etc. But it is the duty of the lesee/complainant whether the Authority has given the permission or consent as per terms of the Lease Agreement. The terms and conditions of the Lease Agreement should be binding upon the parties to the Agreement. In the Lease Agreement, developer was not the party. Therefore, it is the obligatory duty of the lesee/complainant to obey the terms and conditions of the Lease Agreement.
As per Lease Agreement dated 09.09.1988 entered by and between the Calcutta Metropolitan Development Authority (CMDA) and Sumit Kumar Mitra (complainant), it appears to me that complainant has not obeyed the above noted clauses of the Lease Agreement. Ld. Advocate, Mr. Barun Prasad has argued that the subject matter of the instant case is not the Lease Agreement and the subject matter of the instant appeal is shortfall of area. But this argument cannot be acceptable at all since I have to consider first whether the terms and conditions of the Lease Agreement have been followed by the lesee/complainant. The ownership of the complainant in respect of the property in question has been accrued in terms of the lease agreement. The Development Agreement was executed by and between the parties in respect of the land in question which was owned by the complainant/lessee in terms of the Lease Agreement.The Development Agreement dated 03.05.2000 was entered and executed by and between the complainant and the OP and that is based upon the Lease Agreement dated 09.09.1988. The said Lease Agreement is the basis of the Development Agreement in question. Therefore, the terms and conditions should be obeyed by the complainant. In the case in hand, complainant has not taken any permission from the Calcutta Metropolitan Development Authority (CMDA now KMDA). No document towards granting permission by the Authority comes forward to substantiate that the lessee/complainant has taken prior permission. Moreover, the lease was granted by the Authority exclusively for residential purpose. But there are several documents, particularly the show-cause notice dated 07.09.2015 issued by KMDA clearly proves that the complainant has used his owners’ allocation as commercial purpose. The property owned by way of Lease Agreement has been used for commercial purpose which is contrary to Lease Agreement. More specifically it can be said that the lessee/complainant himself uses his allocation for commercial purpose. Therefore, When the terms and conditions of the Lease Agreement have not been adhered to then this Commission cannot pass any order upon the Development Agreement dated 03.05.2000 which is based upon the Lease Agreement. Accordingly, the complainant cannot claim any relief since he has not come with clean hands. The argument on behalf of the complainant is that all the necessary permissions are to be obtained by the developer. But it does not mean that the terms and conditions of the Lease Agreement can be violated such as not taking permission from the Authority/Lessor by the complainant/Lesee, to use the owners’ allocation for commercial purpose. In spite of violation of the terms and conditions of the Lease Agreement, the complainant has filed the case praying for direction upon OP to provide him the shortfall area, alternatively, the monetary compensation for the same. A person who makes a claim in equity must come with clean hands. A person seeking to enforce an Agreement must not himself be breach of it.
The argument on behalf of the complainant is that all the points have been decided in the judgement of Hon’ble National Commission in RP No. 2173 of 2018 and the State Commission in A/526/2017. But both the Commissions have only hold that the complainant is a consumer being landowner relying upon the judgement of Faqir Chand Gulati (supra) and Bunga Daniel Babu - vs. - Ms. Sri Vasudeva Construction & Ors. It is pertinent to mention that the Hon’ble National Commission has remitted back the case to the Ld. District Commission in open remand without touching the merit of the case.
Accordingly, the impugned order dated 20.06.2019 is hereby set aside.
As per above observation, the appeal is allowed on contest.
Consequently, the Complaint Case being No. CC/404/2014 is dismissed.
