HANUMANT KRISHNAJI SAWANT vs PARAMOUNT BUILDERS

WE are proceeding to dispose of these two matters with common judgment, since the factual aspects involved therein are identical, except the complainants in the respective complaints are different individuals. O.Ps. are common and nature of transactions obtained in both the matters also are identical as also reliefs claimed and nature of grievance made.

O.Ps. are not present although the matters are correctly listed on today''s Board. The consumer disputes herein are pending since 1999 and transactions in the subject matter herein dates back to the year 1993. These being consumer disputes, it is statutory and obligatory to ensure their disposal with expeditious despatch. We, therefore, proceed to dispose of these matters on consideration of the material in the proceedings and on hearing the learned Advocate for the complainants.

O.Ps. have filed their written statements as also supplementary written statements and we have perused the same. (For brevity''s sake complainants are referred to as ''Flat Owners'' and respondents as ''Builders''). Few relevant facts :

IT is noticed that the complainants were occupants and tenants of the respective premises which they occupied as tenants of Mrs. Dumbai Sabastine Francis and Another located at Vile Parle (East) known as Anthony Misquitta Chawl. Somewhere in the year 1993, the Builder came forward and entered into an arrangement with the then owners i.e., Dombai Sabastine Francis and others and undertook the development scheme, whereby it was agreed between the Builders and said owners, as also tenants as tri-party deal which are embodied in the agreement executed somewhere in August, 1993, being Annexure to the respective complaints. Certain salient aspects of the agreement may be stated as under : (1) The Builders agreed to accommodate all occupants like the complainant herein the newly constructed building by providing an area of 203 sq. ft. carpet in lieu of old premises. (2) Tenants/occupants like the complainant would vacate the premises in their respective places immediately, so as to facilitate the Builders to undertake development. (3) Builders would accommodate the tenants/occupants during the transit period at suitable places. (4) Builders would provide premises to the complainants in the newly constructed building in lieu of old premises.

Case further proceeds that agreements were executed somewhere in the month of August, 1993, and on execution of the agreement, the complainants/flat purchasers handed over their old premises to the Builders. Builders at the same time also provided old occupants like the complainants herein, alternate accommodation as by way of transit camp, where it is stated they continued to stay till now. The complainants have come forthwith with grievances such as- (i) That Builders did not discharge their statutory and contractual obligation to construct new building and hand over the possession thereof to the complainant and that construction as put up is incomplete and as such not fit for occupation and no one had gone to occupy the same. (ii) It is further stated that the Builders did not complete the construction as also arrange for basic amenities in the complex. (iii) The complainants are immensely suffering, since the transit accommodations made available are not fit and suitable for habitation with their families which causing mental agonies etc.

IT is in these circumstances that the complaints have been filed inter alia claiming reliefs as under: (1) Direct the Builders to hand over possession of the contractual premises and after completing the construction, as also after obtaining occupation certificate from the local authority. (2) In the alternative pay adequate damages which every one has claimed to the extent of Rs. 12,00,000/- stated to be market price of the equivalent premises. (3) Compensation for mental agony and cost of proceedings.

O.Ps. have filed written statements as also stated supplementary written statements as well and they have in the first instance raised several contention of preliminary nature such as- (i) Complainants not falling under the category of consumers, so as to file the complaints before Consumer Forum. (ii) There being no justification or cause to the complainants to file the complaints. (iii) That the complaints have been filed under instigation of some one else.

As far as merits are concerned, the Builders have denied they being deficient or otherwise. It is stated that they completed the construction of the Building and offered premises to the respective complainants, but for the reasons best known to the complainants, they have not accepted the same. On the basis of the pleadings, the following points would arise for considera-tion : (1) Whether the complainants prove that they are consumers so as to maintain the complaints herein as a consumer dispute? (2) Whether the complainants prove the Builders/O.Ps. being deficient in rendering services to them? (3) Whether the complainants are entitled to the claim of damages and compensation made? (4) What relief? Our findings on the above points are as under : (1) Point No. 1 Yes (2) Point No. 2 Yes (3) Point Nos. 3 and 4 As per final order. As stated the factual aspects involved in both the matters are identical and we deal with each of the above points as under : Point No. 1:

THIS aspect need not detain us any longer. It is clearly borne out from the record and as clearly adverted herein above that the nature of transactions in the matters herein are that O.Ps. had undertaken to develop a scheme of constructing new building in place of old one, after its demolition and have agreed to accommodate the complainants herein, in the newly constructed building, who were occupying their respective premises in their old structure as tenants in the respective premises. The element of consideration involved is, as it clearly reveals from the agreement in question that the tenants/complainants would vacate their tenanted premises and hand over the same to the Builder, whereupon the Builder on demolition would construct a new building and provide accommodations to the complainant with an area of about 203 sq. ft. carpet area each. All these facts have been mentioned in the agreements, execution of which has not been denied. All these facts considered together would clearly spell out that the transaction is having trappings and elements which would squarely fall under the category of housing construction as definition under Section 2(i)(o) of Consumer Protection Act, 1986, and as such, is a kind of service the Builders/O.Ps. have agreed to provide to the old occupants of their respective premises in the newly constructed building in lieu thereof. That being so, we do not find any merits in the contention raised challenging the status of the complainant as a consumer and proceed to reject the same and hold that the complainants are consumers within the meaning of Section 2(i)(o)(ii) of Consumer Protection Act, 1986. Point No. 2:

THE facts already mentioned above while giving factual narration clearly bear out that the complainants were occupants of respective premises which they vacated, in lieu thereof the Builders were to provide them suitable premises in the newly constructed building in place of their old premises. This would clearly show that the complainants who were tenants who vacated their old premises and handed over the same to the Builders. This is further borne out from the fact that the Builders have accommodated the tenants in the transit camp.

However, the Builders have not completed the construction of building in all respect and consequently the complainants were not in a position to occupy the said premises. As such, failure on the part of the Builders would constitute deficiency in service being failure to discharge contractual obligation as also statutory obligation under the Maharashtra Flat Ownership Act, 1963.

IT is, therefore, held that O.Ps. are deficient and point 2 answered accordingly. Point No. 3: Since deficieny against Builders/O.Ps. stands proved as provided under Section 14(1)(d) the victim/consumer like the tenants herein, have to be adequately compensated by payment of damages suffered, as also for mental agony which they had undergone. Point No. 4:

THE complainants have asked in the first instance for possession of the agreed premises from the Builder after completing construction and making them inhabitable condition and in our view, such relief is fair and just in the circumstances. In the alternative complainants have claimed a sum of Rs. 12 lakhs in lumpsum, being the market value of premises equivalent to those which the builders have agreed to provide them. Since there is no concrete data made available for the basis, we have to assess the same on taking into consideration probable market value in that locality. Taking into consideration that the property is situated in Vile Parle suburb, which is otherwise well developed suburb in Greater Mumbai, we are of the view that sum of Rs. 7,50,000/- will be fair and reasonable, being the market value equivalent to the premises offered to each of the complainants in the complaint. We order accordingly. The complainants were forced to occupy the transit accommodations which they say are not suitable and comfortable and as a result thereof they have been suffering a lot. We order a sum of Rs. 25,000/- to each of the complainants towards mental agony etc. We also order a sum of Rs. 5,000/- as cost to each of the complainants. Further, since we have ordered the Builders to make available and deliver the complainants the premises in the newly constructed building or in the alternative pay the damages as indicated herein above, we also make it clear that on Builders/O.Ps. complying with either of the two above, the complainants shall forthwith hand over the possession to the O.Ps. which they are occupying in respective transit camps. Such premises be handed over to the Builders/O.Ps. within four weeks of the compliance of the order. ORDER (1) Complaint Nos. 453/1999 and 454/1999 stand allowed. (2) O.Ps./Builders are ordered and directed to hand over the possession of the premises to each of the complainants as per respective agreements of the complainants with the area of 203 sq. ft. capet, afte completion and on obtaining Occupation/Completion Certificate from the Local Authority. (3) O.Ps./Builders should comply with the said order within six weeks of receipt of the order herein. (4) In the alternative the O.Ps./Builders are ordered to pay a sum of Rs. 7,50,000/- to each of the complainants in Complaint Nos. 453/1999 and 454/1999 with interest at the rate of 9% p.a. from the date of filing of the complaints i.e., 6.10.1998 till realisation. (5) O.Ps./Builders shall pay a sum of Rs. 25,000/- to each of the complainants towards mental agony. (6) O.P./Builders shall also pay Rs. 5,000/- to each of the complainants towards cost of the proceedings. (7) Office to furnish copies of the order to the parties. (8) We are providing six weeks time to the O.Ps./Builders for compliance of the order from receipt of the order herein.

Complaint allowed.