PONDICHERRY CO-OPERATIVE HOUSING SOCIETY LTD. vs K.MOHANRAJ

THE opposite party appeals.

THE complainant registered himself as a member of the Pondicherry Co-operative Housing Society Limited, the opposite party, and paid on 24.4.89, 28.7.89 21.4.90 and 26.9.90, a total amount of Rs. 20,000/- against the promise of allotment of a housing plot by the Society. THE plot was allotted to the complainant and it could not be handed over for the purpose of construction since all the administrative formalities were not over. THE difficulties arose mainly on account of the fact that the land was one for agricultural purpose and its conversion into housing plots entailed several administrative formalities. Aggrieved by the long delay of five years the complainant has approached the District Forum with the following prayers : (1) to include the complainant in the new scheme of allotment of flats at Vengata Nagar forthwith by drawing lots; (2) to pay to the complainant the sum of Rs. 20,000/- (Rupees twenty thousand only) (this amount being paid by the complainant to the opposite party) alongwith interest thereon @ 12% per annum from the date of receipt till the date of payment; (3) to pay the complainant Rs. 2,00,000/- (Rupees two lakhs only) as damages for the inconvenience, mental agony, monetary loss suffered by the complainant and for unfair trade practice and deficiency of service on the part of the opposite party; and (4) Payment of the cost of this complaint.

The opposite party challenged the jurisdiction of the Forum and further contended that there was no deficiency in service on their part since the matter was stalled by the administrative hurdles inspite of their strenuous efforts.

The District Forum after hearing both the parties and perusing the evidence, produced by them, by order dated 30.11.95 directed the Opposite party to refund Rs. 20,000/- with interest @ 16.5% from the date of payment and to pay a compensation of Rs. 5,000/- with cost of Rs. 500/-.

THE points raised before us by the learned Counsel for the appellant are as follows : (1) THE District Forum has no jurisdiction; (2) THEre is no deficiency in service by the opposite party; (3) THE Forum has awarded interest at the rate of 16.5% whereas the claim is only for 12%; and (4) THE District Forum has decided about the continuance of the complainant in the Society which was not a subject-matter of the proceeding.

Point No. 1 :-As per the contention of the learned Counsel for the opposite party, Sections 84 and 144 of the Pondicherry Co-operative Societies Act, 1972 embodied a bar to the jurisdiction of the machinery created, under the Consumer Protection Act. This question was gone into in detail by this Commission in Appeals No. 14 and 15 of 1996 by order dated 18th April, 1996. After a careful consideration of the provisions of both the sections and the provisions of the Consumer Protection Act it was concluded that there is no provision in the Co-operative Societies Act barring the jurisdiction of the machinery under the Consumer Protection Act which is an additional Forum which parties can approach for remedy. The learned Counsel for the opposite party does not dispute the fact that the matter is one which would be within the jurisdiction of the District Forum as delineated in the Act but would contend that such jurisdiction is ousted by the provisions of the Co-operative Societies Act. In support of this stand he brought to our notice two judgments which according to him would fortify his stand. The first judgment is one by the Madhya Pradesh State Commission in Vurhanpur Cloth Corporation v. State of M.P., III (1995) CPJ 239. That is a cursory judgment in which all the aspects of the matter have not been gone into and we do not find it possible to follow it, since we are not persuaded by the reasons contained therein. The second judgment relied upon is one by the Supreme Court in the Chairman, Thiruvalluvar Transport Corporation v. The Consumer Protection Council, I (1995) CPJ 3 (SC). In that case it was held that in a case of claim for compensation arising out of a motor accident covered by the jurisdiction conferred on a Claims Tribunal constituted under the Motor Vehicles Act, 1988, the machinery created under the Consumer Protection Act does not have jurisdiction. The question is whether that ruling can be extended to the Co-operative field. To buttress his plea that it should be extended, the learned Counsel for the appellant would argue that the Consumer Protection Act is a general law whereas the Co-operative Societies Act is a special law and therefore the provisions of the special law should prevail. This contention would be acceptable but for the provisions contained in Sections 1(4) and 3. Section 1(4) of Consumer Proection Act which reads as follows : "Section 1(4) :-Save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all goods and services."

The learned Counsel for the appellant did not produce any notification of the Central Government excluding the services of Co-operative Societies from the ambit of the Act. Section 3 : reads as follows : "The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."

The law maker was aware that there were a number of special laws affording possibilities to aggrieved persons to approach the authorities created under those laws. While enacting Section 3 the law maker wanted that those persons be able to approach the Fora created under the Consumer Protection Act in addition to the remedies already available. The Consumer Protection Act is a general law of a special nature which is not amenable to the general preposition put forth by the learned Counsel for the appellant to the effect that the special law prevails over the general law. Further, a close perusal of the judgment of the Supreme Court relied upon by the learned Counsel for the appellant would show that in that case the question whether the special law would prevail over the Consumer Protection Act did not in fact arise for the simple reason that the dispute in question did not come at all within the jurisdiction of the machinery created to the Consumer Protection Act. Obviously in such a case, the authorities created under other laws will have alone jurisdiction. When, on the contrary the matter comes also within the jurisdiction of the machinery created under the Act, the District Forum would have jurisdiction unless there is an express bar in any other law. No such bar exists in this case. The contention of the appellant is, therefore, repelled.

POINT No. 2 :-As far as this point is concerned the effort of the learned Counsel was to persuade us that the Pondicherry Co-operative Housing Society has been taking strenuous efforts to get their plan approved and that they did not succeed so far inspite of their efforts, that they have not lost hope and that, therefore, there was no deficiency in service. It was also added that the complainant, a member of the Society, was aware of all the difficulties. But they were not able to establish their last statement. For the mere fact of being a member, the complainant cannot be presumed to know before hand all the hurdles to be overcome. There is no statement by the appellant even to the effect that at the time of entering into contract for allotment of a plot the complainant has been clearly made aware that the project involved difficulties and that it will take many years to materialise. The complainant is not, therefore, concerned of the steps, however, genuine that may have been taken subsequently by the opposite party. Therefore, the finding that there was a deficiency in service on account of long delay arrived at by the District Forum is unquestionable. Point No. 3 :-It is seen from the complaint that the complainant prayed for interest @ 12% and from the order it is found that the Forum has accorded interest at the rate of 16.5% p.a. This is obviously ultra petita, that is to say, giving more than what was asked which is not allowed in law. The cannot be upheld. Point No. 4 :-The operative portion of the judgment contains the following sentences : "The complainant''s membership in the Society continues to be effective since the order is only regarding refund of the land price paid by him for the land allotted to him. This order shall not in any way effect his membership, seniority or priority which he is entitled to as per the bye-law of the Society." This is a matter which was not agitated before the Forum and was not a subjectmatter of the dispute. Therefore, these sentences have necessarily to be deleted. But it is, however, observed that the mere fact of having filed a complaint before the District Forum and obtained a compensation will not automatically entail the severance of link between the complainant and the Society. That link has to be severed if desired, in accordance with the provisions of the Pondicherry Co-operative Societies Act, 1972 at the instance of any of the parties. Further, if the complainant wishes within a period of three months to give up the benefit of this judgment and continue in the scheme, as if this proceedings has not taken place, the same will be considered by the Society.

IN the result, the appeal is allowed in part. The return of money and payment of compensation of Rs. 5,000/- are confirmed. The rate of interest is reduced to 12%. The following sentences are deleted from the operative portion of the order of the District Forum : "The complainant''s membership in the Society continues to be effective since the order is only regarding refund of the land price paid by him for land allotted to him. This order shall not in any way effect his membership, seniority or priority which he entitled to as per the bye-law of the Society."

No costs. Appeal partly allowed. ____________