SUBRATA ROY vs TAPAN KUMAR BHATTACHARJEE

THIS revision application is directed against order dated 17.8.1998 passed by the Forum rejecting the application filed by the opposite party challenging the maintainability of the case.

THE facts of the case may briefly be stated as follows : THE complainant Tapan Kr. Bhattacharjee, a Member of Swapnalaya Co-operative Housing Society Ltd. for (for short Society) approached the Forum praying for a direction upon the opposite party who is the Secretary of the said Society inter alia for issuing share certificate and for supply of Bye-laws of the Co-operative Society and a certified copy of Mortgage Deed etc. etc. In this case, opposite party upon entering appearance raised objection about maintainability of the case on the ground that in view of provisions contained in Section 95 of the Co-operative Societies Act, 1983 the present dispute is a civil dispute which is required to be referred to the Registrar of the Co-operative Society and as such no proceeding under the Consumer Protection Act can be entertained. It has been further contended that in terms of provisions of Sub-section 2(b) of Section 134 of the said Act, the jurisdiction of all Civil Courts and Revenue Courts has been ousted in relation to matters covered by the meaning of ''dispute'' as defined in Sub-section 20 of Section 2 of the said Act. It is also urged that the provisions of the said Act have an over-riding effect over anything to the contrary contained in any other law for the time being in force by virtue of the provisions contained in Section 143 of the said Act. It was, further, urged that in view of the aforesaid provisions of the Act and the Rules framed thereunder, the Registrar of Co-operative Societies has exclusive jurisdiction to adjudicate the present dispute. The complainant has filed a written objection containing inter alia that Section 3 of the Consumer Protection Act is not in derogation of the Co-operative Societies Act, 1983. According to the complainant Section 95 of the Co-operative Societies Act, 1983 deals with the affairs of the Co-operative Housing Societies whereas the Consumer Protection Act deals with the goods and services and as such the Consumer Forum has jurisdiction to entertain and determine the dispute of the present nature.

Upon consideration of the materials on record and on hearing the learned Lawyers appearing for the parties the Forum negatived the contention of the opposite party with regard to maintainability of the case and clearly held that it had jurisdiction to entertain the present dispute. In that view of the matter, the Forum fixed a date for filing objection by the opposite party.

BEING aggrieved thereby, the opposite party has moved this Commission in revision. We have heard the learned Lawyers appearing for the parties and considered the submissions advanced by them. The complainant is a Member of the Society whereas the opposite party is the Secretary of the said Society. The complainant approached the Forum praying inter alia for a direction upon the opposite parties for issuing Share Certificate and to supply him Bye-laws of the Society. Therefore, it would appear that the present dispute is between a Member of a Society on the one hand and the Society on the other. Learned Lawyer appearing for the petitioner submits that the dispute between the parties comes within the definition of Sub-section 20 of Section 2 of the said Act. On a reference to the said definition of the word ''dispute'' it is noticed that the word "dispute" means any matter which can be the subject of civil litigation, and includes a claim in respect of any sum payable to or by a Co-operative Society. It has been urged by the learned Lawyer for the petitioner that dispute ought to have been referred to the Registrar of Co-operative Societies under Section 95 of the Act. He submits that provisions contained in Sub-section 2(d) of Section 134 of the said Act ousts the jurisdiction of Civil Court or Revenue Courts, relating to matters covered within the meaning of dispute as defined in the said Act. He submits further that in view of overriding effect of the Act by virtue of the provisions contained in Section 143 of the said Act the Consumer Court has no jurisdiction to entertain and determine the dispute of the present nature. According to him the West Bengal Co-operative Societies Act being a Special Act will prevail over the Consumer Protection Act, 1986 being a General Act. According to him the Registrar has exclusive jurisdiction under the Act to entertain and resolve the dispute between the parties. In support of his contention that a special law would prevail over the relevant general law he has cited (sic.) reported in (1995) 2 Supreme Court Cases 479. There is, however, no dispute with regard to the proposition of law that a special law would prevail over the general law. It is also not in dispute that the Co-operative Societies Act is a special statute whereas the Consumer Protection Act is a general law. In the Co-operative Societies Act a Forum has been constituted to determine the dispute between a Member of a Co-operative Society on the one hand and the Co-operative Society on the other hand. Therefore, in view of the decision of the Supreme Court and overriding effect of Section 143 of the Act, it seems that the Consumer Forum has no jurisdiction to determine the dispute of the present nature.

LEARNED Counsel for the opposite party submits that in view of Section 3 of the Consumer Protection Act providing for additional relief, it cannot be said that the Consumer Forum lacks jurisdiction. He submits further that a Consumer Protection Act, 1986 being a later Act would prevail over any other statute which was enacted earlier. But it must be remembered that the Co-operative Societies Act is a special Statute whereas the Consumer Protection Act is a general law. The Co-operative Societies Act having provided a Forum for determination of the dispute it is felt that it would have overriding effect over other Statutes. The learned Counsel for the opposite party has cited several decisions of different State Commissions wherein contrary view has been taken. The learned Counsel for the present petitioner also cited some cases wherein we find support of the view which we have presently taken. The cases cited by the learned Lawyer of the opposite party have been mentioned in the impugned order. Moreover, from the decision of our High Court reported in AIR 1990 Calcutta 382 (Special Bench), it appears that the dispute ought to have been referred to the Registrar of Co-operative Societies and the Consumer Forum was not justified in taking cognizance of the dispute. Therefore, having regard to facts and circumstances we are of definite opinion that the Forum erred in holding that it had jurisdiction to entertain the case. In that view of the matter, the order assailed of cannot be sustained. Accordingly, the impugned order dated 17.8.1998 is set aside and the complaint petition be dismissed. The revision case, accordingly, succeeds. Revision allowed.