Manoj D Randive vs Dev -Ashish

LEARNED Amicus Curiae has fairly conceded that petitioner is not a consumer. Arguments heard. Order after lunch. Above noted revision petition was received by post by the Registry. Since there were certain defects as pointed out by the Registry, we appointed Ms. Girija Wadhwa, Advocate as Amicus Curiae to assist this Commission.

PETITIONER /Complainant had filed a Consumer Complaint before Consumer Disputes Redressal Forum, Bandra (East), Mumbai on the allegations that his late mother entered into an agreement with respondent no.2 -M/s.Ashish Builders on 15/10/1990 to purchase a flat situated in building known as Dev -Ashish Co -op.Hsg.Society and paid the entire consideration. Possession of the flat was received by her as per the order passed by this Commission in Appeal no.A/96/528 on 30/05/1997. In the meantime, Housing Society of the flat purchasers from the said building viz. respondent no.1 -Dev Ashish Co -op.Hsg.Society (herein after referred as ''Society'') was registered on 14/02/1997. Petitioner Manoj was the nominee and power of attorney holder of his mother. An application was made by him for his mother for the membership of the society and made an enquiry about the corporation taxes and other charges. The Society did not part any information to him as well as refused to accept the maintenance charges, corporation taxes, etc. from him. However, he paid charges of ?1,342.50ps. by cheque but said cheque was returned. It is further alleged that on 11/11/1997, society declined to make his mother as its member but demanded an amount of ?17,286/ - as arrears w.e.f. 01/04/1994. It is also alleged that respondent no.3 -Mr.Vivek M.Dharia, who possesses flat no.5 situated above the flat of his mother, renovated his flat and as a result of which, there was leakage in their flat. He also claimed that respondent no.2 did not execute the conveyance in favour of the society. Therefore, he filed consumer complaint on 16/06/2007 inter -alia claiming the following reliefs: - "(A) To direct the respondents to repair complainants grossly damaged flat from inside and outside, free of cost. (B) To direct OP no.3 to repair their own flat, which is leaking everywhere and damaging complainant''s flat. (C ) To direct OP no.1 and OP no.2 to grant Share Certificates of deceased Smt.Vimal D.Randive to the complainant immediately. (D) To direct the OP no.2 to pay complainant ?35,000/ -with compounding interest @ 15% p.a. w.e.f. 29/06/1992. (E) To direct OP no.2 to take Completion Certificate and Occupation certificate from the Bombay Municipal Corporation immediately. (F) To direct OP no.2 to convey the land, by ''Deed of Conveyance'' in favour of respondent no.1 immediately. (G) To direct each respondent to pay complainant ?1,00,000/ - being compensation towards harassment and mental tension given to the complainant. (H) Cost of the complaint."

DISTRICT Forum vide order dated 27.02.2007, dismissed the complaint of the petitioner against which petitioner filed appeal before the State Commission, Mumbai, which also dismissed the appeal vide impugned order dated 05.10.2012. Being aggrieved, petitioner has filed this revision petition.

WE have heard learned Amicus Curiae and gone through the record.

DURING the course of arguments, learned Amicus Curiae has fairly conceded that petitioner is not a ''consumer''.

PETITIONER in its complaint has nowhere averred as to how he is a ''Consumer''. Thus, there is no relationship of ''Consumer'' and ''Service Provider'' between the parties. There is nothing on record to show that petitioner is member of the Co -operative Society.

STATE Commission in its impugned order has observed; "Forum dismissed the consumer complaint which lead to this appeal, supra. Admittedly, the dispute as to the membership of the society is taken up to the appropriate authorities under the Maharashtra Co -operative Societies Act and, as such, untill the mother of the complainant or complainant himself gets the membership of the society, there is no inter -se relationship between the appellant and society respectively as a as ''consumer'' and the ''service provider''. Therefore, the consumer complaint as against the society, particularly, referring to the complaint of repairs cannot be entertained. Similarly, as far as execution of the conveyance in favour of the society is concerned, it is the society who would be the aggrieved party in case such conveyance is not executed by respondent no.2 -builder. Society had no complaint about it. Appellant or his mother cannot raise a grievance in their individual capacity for non execution of the conveyance in favour of the society by the builder. As far as repairs due to alleged renovation by respondent no.3 Mr.Vivek M.Dharia are concerned, it is for the society to take necessary steps but since admittedly, appellant or his mother were not given any membership to the society, bye -laws of the society could not be applied in the present case on the basis of which, perhaps, it could be alleged that the society has committed deficiency in service in terms of Consumer Protection Act, 1986. Since appellant or his mother were not given any membership of society, grant of share certificate of the society in their favour does not arise.

As far as relief claimed in respect of Completion Certificate or Occupation Certificate is concerned, in view of the totality of the circumstances of the present case, we find dismissal of consumer complaint even for this relief cannot be faulted with. For the reasons stated above, we find appeal is devoid of any substance and we hold accordingly.

However, before parting with the order, we would like to observe that mother of the appellant consequent to her agreement to purchase the flat with respondent no.2 - builder and developer was put in possession at the intervention of this Commission. In this background, it is for the society to take a reasonable view, to act as an elder brother, even if appellant''s conduct is rather found objectionable by it (as submitted at bar by the Ld.counsel of the society) and to act reasonably to resolve the issue of membership of appellant or his mother so that functioning of the society as such would be smooth and will ensure cordial relationship with its members.

We only hope that parties concerned to take note of this sentiment expressed by this Commission. Hence the following order: - ORDER Appeal stands dismissed."

IT is apparent from the above order that State Commission had taken a very generous view in favour of the petitioner. Despite this, petitioner has challenged the impugned order. This shows that only intention of petitioner is to abuse the process of law and cause harassment to the respondents.

UNDER section 21 (b) of the Consumer Protection Act, 1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

IT is well settled that Section 21 (b) of the Consumer Protection Act, 1986 under which this petition has been filed by the petitioner confers very limited jurisdiction on this Commission. Hon''ble Supreme Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., 2011 3 Scale 654 has observed; " Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

IN view of the above discussion, we do not find any illegality or material irregularity in the impugned order, which may call for any interference by this Commission in exercise of revisional jurisdiction. Hence, present revision petition stands dismissed with the parties bearing their own costs.