Rajeshwari vs ELDECO HOUSING INDUSTRIES LTD.

ALL the above three revisions arise out of a common order dated 3.2.2000 passed by District Consumer Forum-I Lucknow in Complaint Case Nos. 573/1998, 444/1998 and 478/1998. The dispute involved in all the three complaints is identical in nature and the legal points involved are also of similar nature. Hence all the three revisions are being taken up together for adjudication. 1. The facts of the case in all the three complaints are that various complainants belonging to Abhishek, Udyan II Colony, Raebareili Road, Lucknow lodged claims before the District Consumer Forum that they had purchased houses from the opposite party in Abhishek Colony after making full payment of price. The land was allotted to the opposite party by Lucknow Development Authority in Sharda Nagar, Lucknow for constructing two mini cities known as Udyan I and Udyan II. This agreement was made in order to safeguard the interests of the allottees of the houses, so that basic minimum civic facilities are provided. ALL the complainants are residing in Abhishek Part of Udyan II Colony. The opposite party Eldeco Housing had agreed to provide sparkling marbel chips, mosaic flooring with white and grey cement, cement plaster 1:5 on walls and 1:4 on ceiling and on this condition the houses were purchased. On occupation of the houses, the complainants found that gas pipe line has not been laid and sub-standard material has been used in all the houses. The Association of the complainants made several attempts to get the defects rectified from the opposite party and ultimately a meeting of the office bearers of the Association comprising of the complainants and other residents was held on 24.9.1995 in which the Managing Director of Eldeco Housing and other officers had also participated. In the meeting the Managing Director of Eldeco Housing promised to remove defects and provide some leakproof chemical on subsidised rates to the residents of the colony for repairs of leakage. The opposite parties were also to provide labour but these promises have not been fulfilled and in the process every allottee including the complainants have suffered loss because of the deficiency on the part of opposite party. The complainants, therefore, lodged claims for removal of defects, payments of damages and return of the maintenance charges along with cost etc.

IN Complaint Case No. 444/1998 the number of complainants is 9, in Complaint Case No. 478 of 1998 the number of complainants is 9, and in another complaint, the number of complainants is 6. The opposite party raised a preliminary objection before the District Consumer Forum that a joint complaint has been made whereas separate complaint cases should have been lodged by every complainant as the houses allotted to the complainants are different and the possession was given on different dates. Therefore, a joint complaint is not maintainable in all the three cases. The District Consumer Forum allowed all the complainants to file a joint complaint but the order of the Forum was set aside by this State Commission as the order passed by the Forum was signed by Single Member alone and the matter was remanded for a fresh decision by the District Forum.

The District Forum heard the two parties and came to the conclusion that common interest of the complainants is not involved in the complaints as the possession was given on various dates and the controversy in the complaints relates to respective houses of the complainants and, therefore, joint complaint was not maintainable. The Forum, therefore, directed that the case of each of the complainants should be heard separately and the complainants are required to file separate complaints.

AGGRIEVED by the order of District Consumer Forum the complainants have come in these revisions. We have heard the learned Counsel for the two parties. The learned Counsel for the revisionists has argued that the order of the District Forum is passed on misinterpretation of law and incorrect appreciation of facts. All the revisionists in the three complaint cases purchased same type of houses from the respondent. The size of the plots and shape and design of all the houses are exactly the same. In addition to this, all the houses were constructed during the same period of time and the same type of material was used by the builder-respondent. Even the price fixed for each house was same. Same type of harassment is being faced by the complainants inasmuch as the use of sub-standard material in construction of the house was common to all houses and the same remedy has been sought from the opposite party. The shortcomings and the defects were also the same. Boundary walls and roofs are also common and defect in one house results into seepage in all other houses. Therefore, there is a common interest involved in all the complaints in this scheme of group of housing. The joint complaints have been filed to minimise the multiplicity of litigation and unnecessary harassment. On the contrary learned Counsel for the opposite party has argued that common interest is not involved in the complaint case filed by several persons in one complaint. The houses allotted and the date of possession given to various complainants are also different. Therefore, the cause of action does not arise for all the complainants on the same date. In the circumstances the complainants should have filed different complaints in respect of the alleged defect in their own houses and Section 12C of the Consumer Protection Act was not attracted.

WE have also examined the records of the revisions. From the record we find that the various complainants who have been allotted houses and lodged claims before the Forum for recovery of damages etc. are the allottees under the housing scheme of not only the same colony but the houses which have been enumerated in the complaint cases are all situated in Udyan II only allotted to the complainants by the opposite party. Even the area and the price are the same. The specifications in respect of area or in respect of plots are also the same. Even presuming that the possession was taken on different dates, it cannot be said that the cause of action is split because the houses have same specifications, same coast and similar defects as alleged. Proceedings before the Redressal Agencies under the Consumer Protection Act are not shackled by any technicalities of the Civil Procedure Code and consequently technical arguments on the splitting of a cause of action etc. are somewhat alien to the consumer jurisdiction. Section 12C of the Consumer Protection Act reads as follows : "Manner in which complaint shall be made.-A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by,- (a) & (b) ** ** ** (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or" In this case we find that the allegations contained in the complaints clearly speak that the interest of the complainants is common in nature and, therefore, for the benefit of all the complainants, filing of a joint complaint was quite in order. It has not been rebutted by the learned Counsel for the revisionist that the Association of complainants had represented to the opposite party for removal of defects and return of the maintenance charges in Venus Traders v. Rathi Roadways, I (1994) CPJ 136 (NC)=(1993) CLC 542 (TNSC), the Commission has held that "Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumer''s association can espouse his cause. Where a large number of consumers has a similar complaint one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf. The idea was to help the consumers in getting justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for ''business-to-consumer'' disputes and not for ''business-to-business'' disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal".

In view of the above findings, we are of the firm view that the allegations made in the complaints by various number of complainants are identical in nature and arise out of a common interest and, therefore, this aspect of the matter was not clearly understood by the learned District Forum and the Forum erred in ordering the filing of separate complaints by each consumer, which would have meant multiplicity of litigation and unnecessary harassment defeating the cause of the consumers as espoused under the provisions of Consumer Protection Act. Therefore, the order of the District Consumer Forum is liable to be set aside and the revisions are liable to the allowed. The complainants need not file separate complaints and the prayer for filing the joint complaint is liable to be allowed. ORDER The revisions are allowed. Orders passed by the District Forum during the course of adjudication in Complaint Case Nos. 573/1998, 444/1998 and 478/1998 are set aside and filing of joint complaint in the three complaint cases is allowed. The Forum will proceed to adjudicate the complaints as per provisions of the Consumer Protection Act. Revisions allowed.