DATE OF FILING : 18.09.2014.
DATE OF S/R : 02.12.2014.
DATE OF FINAL ORDER : 25.08.2015.
Rajendra Das alias Rajendra Prasad,
son of late Sarjoo Das,
residing at 9, Dharmadas Ganguly Lane, P.O. & P.S. Shibpur,
District Howrah,
Pin 711102. ………………………………………………………… COMPLAINANT.
- Versus -
1. Syed Intekhab Alam,
son of Syed Abdul Rahim,
residing at 87, Basiruddin Munshi Lane,
P.S. & District Howrah,
PIN 711101.
2. Samar Kanti Ghosh,
son of late Paresh Ghosh.
3. Debi Ghosh,
w/o. late Haradhan Ghosh,
both residing at 9, Dharmadas Ganguly Lane, P.O. & P.S. Shibpur,
District Howrah,
PIN 711102. ………………………………………………OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Rajendra Das alias Rajendra Prasad, praying for a direction upon the o.p. no. 1, Syed Intekhab Alam, to provide him a room having carpet area of 126.6 sq. ft. at the ground floor of 9, Dharmadas Ganguly Lane, P.S. Shibpur, Howrah, and to provide common bath and privy at the back side of the holding removing the same from adjacent area of room and compensation of Rs. 50,000/-.
- The case of the petitioner is that he is a premises tenant under o.p. nos. 2 & 3, Samar Kanti Ghosh and Debi Ghosh, for over 20 years with common bath and privy at a monthly rental of Rs. 121/- for the tenanted area 137,7 sq. ft. The o.p. no. 1 is a local promoter who entered into an agreement with o.p. nos. 2 & 3 being land owner for developing the land in the tenanted property and a tripartite agreement was signed wherein the o.p. no. 1 agreed to handover one furnished room of 126.6 sq. ft. in the ground floor with common bath and privy to the petitioner and the rent was fixed at Rs. 196/- and thinking of better living standard the petitioner agreed to the same. Violating the terms of agreement the developer provided only 95.28 sq. ft. of land and refused to provide room as per terms of agreement and thus the petitioner was compelled to file this case.
- The o.p. no 1 contested the case by filing a written version wherein he denied the allegations made against him and submitted that he promised the tenants that he would erect common bath and privy and he complied the agreement and the petitioner has not come in clean hands and suppressing facts. Everyone got his or her flats with full satisfaction. The petitioner already took possession and the petitioner files the false case, which should be dismissed.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps.?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of his case the petitioner submitted affidavit as well as the agreement between the parties i.e., landlords and tenant wherefrom it is clear that the tenant would get one bed room with common user of bath and privy in the ground floor measuring 132 sq. ft. as noticed from page 3. It is also mentioned in para 5 that the first party would give possession to the second party after deducting 20% of the super built area of the existing tenanted room.
- It is stated in the deed of agreement that the tenanted space is 137.7 sq. ft. in the ground floor and thus after deduction of 20% of the floor area the same comes to 110 sq. ft. but the petitioner submits that he got only 95.86 sq. ft. i.e., about 14 sq. ft less area.
- In their written version as well as written argument filed the o.ps. submitted that they provided almost the same area as agreed between them along with bath, privy and the petitioner has already taken possession of the tenanted room and no objection raised like other tenants also and he has no right to file a case under the C.P. Act, 1986 as he is not a consumer. Ld. counsel referred before this Forum a judgment of the Supreme Court being 2001 (9) SCC page 604 wherein the Apex Court opined that a tenant cannot be a consumer when there is no terms in the agreement for tenancy that the tenants pays for cleaning, repair and maintenance of the building by the authority and in the absence of any such term in the tenanted agreement, the tenant cannot be stated as a consumer. In the case the Supreme Court opined that in the ground of appeal filed before the Court, it was contended that the tenant hires services of the respondent landlord in respect of cleaning, repairing and maintenance of the building for consideration but the Apex Court did not find any such clause in the terms of the lease and thus affirmed the judgment of the National Commission opined clearly that the appellant tenant was not a consumer.
- In the instant case also the petitioner simply filed his rent receipt showing payment of rent being monthly rent of Rs. 100/-. No tenancy agreement has been filed and there is no mention in the rent receipt that he pays some money for cleaning, repairing or maintenance of the building and thus the petitioner having paid no consideration. The facts of the present case tallies with the above referred case. It is true that in the instant case the developer / promoter developed a land and constructed a house and allotted flats to the tenants. By the term service it is meant that service of any description like banking, housing construction etc. but the services which are paid free of costs of under personal service are excluded from the purview of the Act. In the case of housing, a flat owner purchases a flat on payment of consideration but here the other tenancy of the tenants was replaced by a new one for which he paid no fresh consideration and he was provided with alternative accommodation elsewhere when the construction was made. But here though service is given it was a free service and without payment of any consideration and thus the petitioner cannot be a consumer.
- Our National Commission in 2015(1) CPR page 19 opined that the complainant does not file within the purview of consumer when he has not made any payment. Thus, this Forum on scrutiny of the present case and finding that the petitioner being a tenant having paid no consideration cannot be termed as a ‘Consumer’ and thus the dispute between him and the o.ps. cannot be said to be a consumer dispute and on that point the case would fail. Thus, there is no need to discuss whether there was any deficiency in service on the part of the o.ps. and so the petitioner is not entitled to get any relief.
In the result, the application fails.
Hence,
O R D E R E D
That the C. C. Case No. 516 of 2014 ( HDF 516 of 2014 ) be dismissed on contest without costs against the O.P.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
