MRS. SAMIKSHA BHATTACHARYA, MEMBER

          The instant RP is directed by the Revisionist/O.P against the Order No. 4 dt. 18/04/2019 passed by Ld DCDRF, Howrah in M.A. Case No. MA/19/2019 in connection with Complaint Case No. CC/424/20-18.

          O.P filed an application dt. 31/01/2019 before the Ld. DCDRF praying for dismissal of the  complaint.  O.P has filed the petition stating that complainant is a tenant and owner of a shop room and he runs plywood business in his shop room.  O.P also stated that since said shops is used for commercial purpose in view of 2(1)(d) of C.P.Act the Complainant is not a consumer.

          Ld. District Forum observed that Complainant has made out a prima facie case that he is a consumer under the O.P.  So at this stage without taking into evidence, it cannot be held that the case is not maintainable as alleged by O.P.  Accordingly Ld. Forum dismissed the petition dated 31/01/2019 filed by O.P.

         Ld. Lawyer for Complainant opposes the submission of O.P.  that the Complainant runs his business for commercial purpose and submits before this Commission that the complainant is running his business for his livelihood and therefore the case is maintainable.

      Upon perusal of materials on Record, we have noticed that in Para 2 of complaint Petition Complainant states ‘That your Complainant has plywood business shop run by him for earning his bread and butter and it is not a commercial but purely for his  own earning’.

          So the complainant is consumer under Explanation clause of Section 2(1)(d) of C.P.Act 1986..

          Now the question whether the relationship between the Complainant & O.P. is a landlord tenant relationship or consumer & service provider relationship. In the present complaint the Complainant surrendered his tenancy which must be considered as consideration.  Surrendering tenancy for the purpose of construction of multistoried building is nothing but consideration.

          In page 13 of the Agreement dated 12.12.2011 it was clearly mentioned that ‘The second part shall deliver vacant possession of his Tenanted portion to the First Party at the expiry of 20^th May 2015. Here 2^nd party means the Complainants and the 1^st party means the Opposite Party.  It was also mentioned that the Complainant will be given possession of or accommodation in the new building within a period of six months. 

        Therefore the present Complainant can be termed as consumer since he surrendered his tenancy as a consideration for the ownership of the  shop room as per Agreement.

          Ld. Lawyer for Revisionist cited two judgments : Laxmichand Shah Vs. Sakarben Kanji Chandan (2001) 9 SC Page 604 and Laxmi Singhanigh Vs. Rani Devi Lohia, 1992 (1) N.C where the tenanted property should not come under the purview of C.P Act, 1986.  These two judgments cannot be applicable here since after surrendering tenancy that property is no more the tenanted property. 

          Ld. Lawyer for O.P. drew our attention by showing the Memorandum of Agreement dated 12/12/2011 executed between O.P. & the Complainant.  As per Agreement dated 12-12-2011 it was agreed that the Complainant shall be delivered back with his suitable tenanted accommodation at the same position and place in the ground floor as per site plan annexed with this agreement of the new building admeasuring an area of 72 sq. ft. proposed to be built at 182, G.T.Road (S) Shibpur, Howrah-711102 before the expiry of six months from the date of his vacating the existing tenanted accommodation in the old and existing premises i.e. on or before 20^th May, 2015.  The Complainant also agreed to accept occupation of the area in the said proposed new building comprising 10% less than the area presently occupied by him because of the fact in order to raise the new building the Developer/Landowner will have to leave space as sanctioned by the Howrah, Municipal Corporation.

       Due to dearth of space in his existing shop room Complainant entered into an additional agreement dated 20-05-2015 whereby Complainant decided to take further additional area admeasuring 30 sq. ft. @ Rs. 5000 per sq. ft.

        But in the petition of complaint Complainant prays for a direction upon O.P to hand over the schedule property by executing and registering the deed of sale of total portion of schedule-B within schedule-A

         In the petition of complaint schedule ‘B’ describes all that part and parcel 26.16% share in land comprised in the said immovable property, being equivalent to 2130.35 Sq. Ft. in land together with the proportionate share in the structure equivalent to 392 sq. ft. thereof. In the Agreement dated 12-12-2011 Schedule B describes the same area whereas Complainant is entitled to area measuring 72 sq. ft. and an additional area of 30 sq. ft.  Therefore the Ld. Lawyer for O.P. argued that the prayer of the complainant is not as per Agreement and for that reason the case is not maintainable. 

          In our view the argument by the Revisionist for the above noted reason is beyond the scope of O.P/Revisionist.  Our concern is only with the order No. 4 dated 18-04-2019 passed by Ld. District Forum, Howrah.  O.P filed the petition challenging the maintainability of the case on two fold grounds: One is tenant is not a consumer since there is no consideration and secondly Complainant is running his business for commercial purpose, so the Complainant is not a consumer.  These two points are categorically clarified in this order.  Therefore Complainant comes under the purview of C.P Act 1986 and the case is maintainable.

            Therefore the Ld. Forum rightly held that the case is maintainable.

             In view of above we affirm order No. 4 dated 18-04-2019 passed by Ld. DCDRF, Howrah.

             Thus the Revision Petition being No. 51 of 2019 is dismissed and disposed of.

              The parties are directed to appear before the Ld. DCDRF, Howrah on 20-03-2019.