State Consumer Disputes Redressal Commission
City & Industrial Development ... vs Dr.Vijay Kumar on 6 July, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 316 OF 1999 Dt. of filing : 15/02/1999 IN CONSUMER COMPLAINT NO.521 OF 1995 Dt. of order : 06/07/2010 DISTRICT CONSUMER FORUM : THANE City & Industrial Development Corporation, having its office at CIDCO Bhawan, Belapur, Navi Mumbai 400 614. Appellant/org. O.P. V/s. Dr.Vijay Kumar R/at 18A, Annapurna, Anushakti Nagar, Mumbai-400 094. Respondent/org. complainant Quorum : Shri P.N. Kashalkar, Honble Presiding Judicial Member
Mrs.S.P. Lale, Honble Member Appearance : Mr.Prakash Kadam, Advocate for the appellant.
Mr.Shirish Deshpande, Advocate for the respondent.
-: ORAL ORDER :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member Being aggrieved by the judgment and award passed by District Consumer Forum Thane in consumer complaint No.521/1995 dated 07/11/1998 org. O.P./CIDCO has filed this appeal. By allowing the complaint, Forum below in its impugned judgement and award directed O.P./CIDCO to pay Rs.1,34,150/- with interest @ 18% p.a. with effect from 02/11/1993.
The facts to the extent of material may be stated as under :-
Complainant obtained membership of Divyajyoti co-op. Housing Society which was allotted a CIDCO plot No.51 in Sector-29 at Vashi, Navi Mumbai. He obtained membership from ex-member. According to the complainant as per Societys bye-laws introduced specially by O.P. transfer required permission of CIDCO for which transfer charges are required to be paid by the intending member. According to the complainant till June 1993, transfer charges was around Rs.30,000/-. Complainant was asked to pay transfer charges of Rs.1,64,150/- by the O.P. in November 1993. Again in April 1994 O.P. lowered the transfer charges to Rs.30,000/- which was the same as was prevalent in June 1993. Complainant pleaded that to transfer memberships which took place in his Society, transfers were effected by paying only amount of Rs.30,000/- per transfer. The grievance of the complainant in the Forum below was that increasing transfer charges during the period October 1993 to March 1994 from Rs.30,000/- to Rs.1,64,150/- was unfair trade practice adopted by the O.P. and therefore, he filed consumer complaint and asked for refund of Rs.1,34,150/-. Before filing complaint he had made representation to the CIDCO. But, CIDCO by letter dated 29/08/1994 regretted to refund the said amount as demanded by the complainant and therefore, complainant filed consumer complaint.
O.P. filed written statement and contested the complaint. According to the O.P. the Board of Directors of O.P. declared transfer charges as per B.R. No.5830 dated 11/12/1992 and at that time recovery of transfer charges was made from the members at the rate of Rs.30,000/-. O.P. further clarified that the Board of Directors vide B.R. No.6124 dated 22/10/1993 further revised the transfer charges and fixed rate of built up apartments including co-op. Societies flat at Rs.1,64,150/-. However, Board Resolution dated 22/10/1993 was stayed vide B.R.No.6197 dated 26/11/1993 and again rates previously in force vide B.R.No.5830 dated 11/12/1992 were made applicable. O.P. appointed a Committee for deciding policy in respect of transfer charges. Therefore, according to O.P. since revised rate of transfer charges were stayed vide B.R. No.6197 on 26/11/1993 and the old rate vide B.R.No.5830 dated 11/12/1992 were revived and as per Boards Resolution the transfer charges were rightly recovered from the complainant.
On the basis of affidavits and documents placed on record, Forum below held that O.P. had charged transfer charges as per Board Resolution No.6124 dated 22/10/1993 and it had admitted position that O.P. vide Board Resolution No.6197/93 stayed operation and effect of Board Resolution No.6124 dated 22/10/1993. So, Forum below was of the view that the amount of Rs.1,64,150/- collected by CIDCO from the complainant should have been confined to Rs.30,000/- and not Rs.1,64,150/- collected from the complainant. O.P. was not justified in levying so much charges to the complainant vide BR No.6124 dated 22/10/1993 and therefore, Forum below held that there was deficiency in service on the part of CIDCO and further held that action of the CIDCO was arbitrary vis--vis complainant and therefore, it allowed the complaint and directed the CIDCO to refund amount of Rs.1,34,150/- with interest @ 18% p.a. As such org. O.P. has filed this appeal.
We heard Mr.Prakash Kadam, Advocate for the appellant and Mr.Shirish Deshpande, Advocate for the respondent.
We are finding that the award passed by the Forum below allowing the complaint and directing refund of Rs.1,34,150/- per se is bad in law and cannot be allowed to sustain in law. What is pertinent to note is the fact that collecting transfer charges from members intending to transfer existing flat to the purchaser is the policy decision to be taken by the Board of Director of the CIDCO and from time to time in the meeting of Board of Directors, resolutions are passed fixing the transfer charges recoverable from the members in the event of transfer of flat from any Society to which CIDCO plot was allotted. Complainant had purchased an apartment from the ex-member of Divyajyoti co-op. Housing Society. Transfer charges payable to the new member is as per Board of Directors resolution passed from time to time by the CIDCO Authority. What is pertinent to note is the fact that when complainant had sought membership, at that time as per Board Resolution No.6124 dated 22/10/1993 amount payable was Rs.1,64,150/- though this resolution was stayed by B.R. No.6197 dated 26/11/1993 and again rates made applicable were in terms of B.R. No.5830 dated 11/12/1992. At what rates transfer is to be effected is the policy decision of the Board of Directors of CIDCO. The Consumer Fora has no authority to look into the policy decision taken by the CIDCO Authority. It is pertaining to pricing policy. It is decision which is required to be taken by the Board of Directors of CIDCO and Consumer Fora cannot intrude into this discretion to be taken by the Board of Directors of CIDCO. The resolution passed by Board of Directors cannot be called in question in any Consumer Fora and that decision will have to be left to the discretion of CIDCO Authority. What we have to see is whether as per resolution in force on a particular day, amount was properly collected from any consumer or whether there had been any excess amount collected from intending member. We are finding that the amount collected from the respondent was as per resolution in force at the time he sought transfer of flat in his name from ex-member. The fact that subsequently resolution in question was stayed and old rates were made applicable is no ground to hold that there was arbitrariness on the part of CIDCO Authority. The transfers effected after 22/10/1993 and before 26/11/1993 were governed by B.R.No.6124 dated 22/10/1993. After this B.R.No.6124 was stayed vide B.R. No.6197 dated 26/11/1993 and again old rates of Rs.30,000/- were made applicable and approved. So, case of the complainant was governed by B.R. No.6124 dated 22/10/1993. So, no fault can be found in this behalf on the part of CIDCO and it is discretion of the CIDCO Authority at what rate the transfer of flats is to be allowed. Transfer is to be allowed in terms of resolution in force at the time of seeking transfer by any new member from existing member. The Consumer Fora is entitled to examine if rates applicable were properly applied or not. But, they cannot question the legality or propriety and alleged arbitrariness in the resolution passed by Board of Directors of CIDCO. That is not the job of any District Consumer Forum and the Forum below unnecessarily examined that question and simply held that there was arbitrariness on the part of CIDCO Authority in charging rates as made applicable to the complainant in terms of B.R. No.6124 dated 22/10/1993. In our view the Forum below exceeded its jurisdiction vested in it and erroneously directed the appellant/CIDCO to refund Rs.1,34,150/- to the complainant as collected from the respondent as transfer charges. We hold that collection of transfer charges made by the appellant/CIDCO was strictly in accordance with Board Resolution in force at the time the respondent sought transfer of flat from ex-member in his favour. So, order passed by the Forum below will have to be quashed and set aside by allowing this appeal. Hence, we pass the following order :-
-: ORDER :-
1. Appeal is allowed.
The impugned order dated 07/11/1998 is quashed and set aside. The complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Copies of the order be furnished to the parties.
(S.P. Lale) (P.N. Kashalkar) Member Presiding Judicial Member