KARMACHARI GRAH NIRMAN SAHAKARI SAMITI MYDT. vs NIRANJAN LAL MEHAR

APPEAL No. 494/1995 arises out of the order dated 6.6.1995 passed in Case No. 201 of 1995 by the District Consumer Disputes Redressal Forum, Raipur (for short the ''District Forum''). While the APPEAL No. 495 of 1995 arises out of the order dated 8.6.1995 passed in Case No. 232 of 1995 by District Forum, Raipur. Both appeals are being disposed of by this common order.

THE facts giving rise to these appeals are thus : the opposite party/appellant is a housing co-operative society registered under M.P. Co- operative Societies Act, 1960. Complainants in the two complaint cases are the members of the Society. THE complainant Niranjanlal Mehar deposited Rs. 11,410/- in the year 1989 for the allotment of the plot, while the other complainant Ramesh Chandra Paul deposited Rs. 21,410/- for allotment of the plot but the Society did not allot the plot to the two complainants inspite of their best efforts for no fault of the complainants. THErefore, the complainants filed separate complaints. Niranjanlal filed Complaint No. 201 / 1995 and Ramesh Chandra Paul filed Complaint No. 232/1995 alleging deficiency in service and made a prayer for refund of the amount with interest and compensation. THE complaints were resisted. THE District Forum repelled the contention that the jurisdiction of the District Forum is barred in view of Section 82 of the M.P. Co-operative Societies Act, 1960 and the remedy for complainants is to raise the dispute under Section 64 of the M.P. Co-operative Societies Act before the Registrar, Co-operative Societies. On merits, the deficiency in service was found, therefore, ordered the opposite party to refund the amount- deposited by the complainants with interest thereon at the rate of 18% p.a. from the date of deposits. Mr. S.C. Dwivedi, learned Counsel for the appellant contended that the M.P. Co- operative Societies Act is a special law, while the Consumer Protection Act of 1986 (for short the ''Act'') is a general law. The M.P. Co-operative Societies Act provides remedy in relation to disputes between the members and the Society to be raised under Section 64 of the M.P. Co-operative Societies Act before the Registrar of the Co- operative Societies. Against the order of the Registrar an appeal lies under Section 77(1) and a Second Appeal under Section 77(2) of the M.P. Co-operative Societies Act. Therefore, the jurisdiction is exclusively barred in relation of the disputes falling within the ambit of Section 64. Counsel cited a decision of the National Commission in case of Dilip Bapat & Another v. Panchawati Co-operative Housing Society, I (1991) CPJ 462=1991 (1) CPR 277.

Mr. Deepesh Joshi, learned Counsel for the respondent in Appeal No. 494/1995 contended that the Consumer Forum has jurisdiction to decide disputes in regard to services rendered by the Co-operative Society for consideration under the Act. He placed reliance on a decision rendered by this Commission in Appeal No. 335/1996, Ravindra Pathak v. Lokmanya Sahakari Grih Nirman Society Ltd., decided on 26.7.1997. by MPSCDRC

SECTION 82 of the M.P. Co-operative Societies Act bars the jurisdiction of Civil or Revenue Courts in respect of the matters enumerated in Clauses (a) to (d) of Sub-section (1) of SECTION 82. The submission of Mr. Dwivedi, learned Counsel is that a dispute between a member and the Society is covered in Clause (c) which speaks of any dispute, required to be referred to the Registrar or his nominee or Board of nominees. SECTION 64 of the M.P. Co-operative Societies Act deals with the ''Disputes'', which reads thus: "64. Disputes-(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a Society or the liquidation of a Society shall be referred to the Registrar by any of the parties to the dispute if the parties thereto are among the following : (a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or a nominee, heirs or legal representatives of any deceased agent or deceased servant of the society, or the liquidator of the society; (b) a member, past member or a person claiming through a member, past member or deceased member of a society or of a society which is a member of the society; (c) a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions and any person claiming through such a person; (d) a surety of a member, past member or deceased member or a person other than a member who has been granted a loan by the society, whether such a surety is or is not a member of the society; (e) any other society or the liquidator of such a society; and (f) a creditor of a society. (2) For the purposes of Sub-section (1), a dispute shall include - (i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not; (ii) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand be admitted or not; (iii) a claim by a society for any loss caused to it by a member, past member or deceased member, any officer, past officer or deceased officer, any agent, past agent or deceased agent, or any servant, past servant or deceased servant, or its committee, past or present, whether such loss be admitted or not; (iv) a question regarding rights, etc., including tenancy rights between a housing society and its tenants or members; and (v) any dispute arising in connection with the election of any officer of the society or representative of the society or of composite society : Provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programme till the declaration of the results. (3) If any question arising whether a dispute referred to the Registrar is a dispute the decision thereon of the Registrar shall be final and shall not be called in question in any Court."

From a bare reading of Sub-section (1) of Section 64, it is clear that if any dispute touching the constitution, management or business of a society or the liquidation of the society shall be referred to Registrar by any of the parties to the dispute, if the parties belong to the categories mentioned in Clauses (a) to (f) of Sub-section (1) of Section 64, the jurisdiction of Civil or Revenue Court would be barred under Section 82 of the M.P. Co-operative Societies Act. The disputes which are not covered under Sub-section (1) of Section 64, the jurisdiction would not be barred. In the case in hand the dispute relates to deficiency in service falling within the ambit of Section 2(1)(g) and (o) of the Act. Such a dispute is not covered under Sub-section (1) of Section 64 of the M.P. Co-operative Societies Act, nor the Registrar on a reference being made under Section 64 can grant the relief for deficiency in service alleged against Co-operative Society. Moreover, Section 3 of the Act clearly lays down that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The Act gives the consumer an additional remedy besides those that may be available under the existing laws in the present cases, M.P. Co-operative Societies Act. Therefore, even for arguments sake, even if, the remedy is provided under Section 64 of the M.P. Co- operative Societies Act that would not be a bar to the entertainment of the complaint by the Redressal Agency constituted under the Act.

THIS Commission in case of Ravindra Pathak (supra), after referred to the decisions of the National Commission in Dilip Bapat''s case (supra), Airport Co-operative Group Housing Society Ltd. v. Kamlesh Kumar Agrawal & Others, I (1996) CPJ 248 (NC)=1996 (1) CPR 93. and the decision of the Supreme Court in Fair Air Engineers Pvt. Ltd. & Another v. N.K. Modi, III (1996) CPJ 1 (SC) has taken the view that if the complainant/consumer is aggrieved on account of deficiency in service on the part of the opposite party, which happens to be a Co-operative Society, the complainant can invoke jurisdiction of the Consumer Forum for adjudication of his complaint in view of Section 3 of the Act. The provisions of M.P. Co-operative Societies Act must be construed as not ousting jurisdiction of the District Forum which co-exists as an additional remedy for the consumer, who has a grievance on account of deficiency in service on the part of the opposite party/Co-operative Society. This Commission then considered the grievance of the complainant and observed .in paras 6, 8 and 10 thus : "6. The complainant-appellant has submitted that the grievance of the complainant is in respect of loss and injury suffered by the complainant on account of negligence and deficiency in the performance of the services of the opposite party/Co-operative Society, which were hired for consideration. Such services have been classified for a special protection under the Consumer Protection Act, 1986 and in such case the aggrieved consumer is entitled to invoke the jurisdiction of the District Forum for seeking reliefs as specified under the Act. In support of his submission, the complainant has cited a decision of the Karnataka State Commission in the Trinity House Building Co-operative Society Ltd. & Anr. v. Sri Wilson Peters, reported in 1996 (1) CPR 669 wherein Section 3 of the Consumer Protection Act, 1986 has been considered in conjunction with Section 70 of the Karnataka Co-operative Societies Act, 1959 which is analogous to the provisions of M.P. Co-operative Societies Act. The question raised was whether Section 70 of the Karnataka Co-operative Societies Act bars jurisdiction of Consumer Forums. Karnataka State Commission has decided this question in favour of the complainant holding that Section 70 of the Karnataka Co-operative Societies Act does not bar jurisdiction of the Consumer Forums. In the said case reference has also been made to a decision of the Maharashtra State Commission, Bombay in Dilip Bapat & Another v. Panchaivati Co-operative Housing Society (supra), wherein it has been held that even though the complaint falls within the jurisdiction of Co-operative Societies Court under Section 91 of the Co-operative Societies Act, the Consumer Forum would have jurisdiction to entertain a complaint and could adjudicate upon it as regards the grievance of deficiency in service rendered by the Co-operative Society for consideration under the provisions of the Consumer Protection Act. Another decision of the Karnataka State Commission which has been cited by the complainant-appellant is in the case of State of Consumer & Citizens Forum v. The Karnataka Power Corporation, reported in 1994 (1) CPR 130 in which negativing the contention of the opposite party/Co-operative Society that the complaint of consumer was untenable as per provisions of Section 70 of Karnataka Co-operative Societies Act, it has been held that loss or injury caused by the opposite party on account of negligence and deficiency in performance of service hired for consideration is covered by the Consumer Protection Act and the aggrieved consumer is entitled to invoke jurisdiction of Redressal FORA. It has further been held that the Registrar of Co-operative Societies had jurisdiction to entertain complaint, if dispute is in respect of business of society arising between the society and member and not grievance of complainant in respect of loss and injury on account of negligence and deficiency in performance and that the aggrieved consumer is entitled to invoke jurisdiction before Consumer Forum and such complaint is maintainable. 8. It has been pointed out that National Commission in the case of Airport Co- operative Group Housing Society Ltd. (supra), has affirmed the decision of the State Commission, Delhi, whereby the complainant was compensated for deficiency in service on the part of the appellant-opposite party/Co-operative Group Housing Society. The concluding part of the order of the National Commission reads as under : "On these facts the State Commission rightly came to the conclusion that the complainant was entitled to the allotment of a flat at the 2nd draw of lots and that the name of the complainant was improperly excluded by the said Society. So far as the quantum is concerned the assessment by the State Commission is fair. The amount of the complainant was improperly withheld and utilised by the Society from 19th July, 1990 till 3rd March, 1992. The State Commission calculated interest @ 18% per annum from 19.7.1990 to 3rd March, 1992 on the sum of Rs. 2,34,419/-, amounting to Rs. 68,210/-." 10. Thus after considering the various decisions including those of the Supreme Court and of the National Commission discussed in the preceding paragraphs, we are of the view that the earlier decision of this Commission in the case of Bnrhanpur Cloth Corporation (supra) does not lay down the correct law. We accordingly hold that the Consumer Courts do have concurrent jurisdiction as a co-existing additional remedy, to decide a complaint of the consumer raising a dispute of deficiency in service on the part of the Co-operative Society."

In case of V. Kalavathy v. Pondicherry Co-operative Central Land Development Bank Ltd., III (1998) CPJ 54, the State Commission of Union Territory of Pondicherry, wherein also the dispute raised by a member against the Co- operative Society in relation to deficiency in service was observed that in view of Section 3 of the Act, Section 84 of the Pondicherry Co- operative Societies Act, 1972 does not bar the jurisdiction of Consumer Forum, as a careful reading of para 11 of the decision of National Commission in Dilip Bapat''s case would show that the National Commission gives a finding that the case it was dealing with was not a consumer dispute, therefore, excluded by the clauses contend in the Act itself. In fact in that case there was dispute over payment of some amount due to escalation of the cost of construction. There was no deficiency in service or defect in any of the goods pleaded. Therefore, that matter was obviously not a consumer dispute as stated by the National Commission. Then the National Commission proceeds incidentally to observe that the matter not being a consumer dispute may be agitated before the Co-operative Court. The observation does not mean that all matters co-operative of their nature, relating to Co-operative Societies are not within the jurisdiction of this Commission, therefore, repelled the contention.

U.P. State Consumer Disputes Redressal Commission in case of Jain Brick Field & Another v. The Co-operative Electric Supplying Society Ltd., II (1996) CPJ 195, considered the question in view of Section 70 of the U.P. Co-operative Societies Act, which required that a dispute between a member and Society shall be referred to arbitration, the jurisdiction of Consumer FORA in relation to consumer dispute is not barred. To say so the decision in Triveni Karmachari Sahakari Avas Samiti and Others v. National Consumer Disputes Redressal Commission, New Delhi, 1995 (II) Lucknow Civil Decisions was relied wherein the learned Single Judge of Allahabad High Court has taken the view that the decision of National Commission in Dilip Bapat''s case does not oust the jurisdiction of the Redressal Agencies under the Act in Consumer Disputes between a member of Society and the Society itself as it is obvious that remedies provided to the consumers for the redressal of their grievances under the provisions of the Act are in addition to any remedy provided elsewhere under any other statute. In the circumstances, the decision in Dilip Bapat''s case (supra), cannot come to the rescue especially when absolutely no reasons have been given in support of the passing observation occurring in the said judgment to the effect that the dispute raised by the .complainant in that case was not a consumer dispute under the Act and the right for a member of a Co-operative Society to agitate his grievance is the Co-operative Court under the Co-operative Societies Act.

IN view of the above, we respectfully agree with the view taken by this Commission in case of Ravindra Pathak (supra), and hold that the jurisdiction of the Consumer Forum co-exists as an additional remedy in relation to deficiency in service and is not barred under Section 82 of the M.P. Co-operative Societies Act. As an upshot, we are of the view that the District Forum has not committed any illegality in directing the appellant/opposite party to refund the amount so deposited with interest at the rate of 18% from the date of deposit. However, in the circumstances, following the decision of National Commission in case of Haryana Urban Development Authority v. Smt. Veena Kakkar, II (1995) CPJ 43 (NC), we direct that complainants would not be entitled to costs throughout.

In the result, the appeals are partly allowed. The order of the District Forum passed in the two cases is modified to the extent that the complainant of each case would not be entitled to costs. A copy of this order be conveyed to the parties and copy be sent to the District Forum alongwith the record of each case. Appeals partly allowed.