Monopolies and Restrictive Trade Practices Commission
Ms. Sudha Jain vs Pragatisheel Samoohik Sehkari Krishi ... on 7 August, 1997
Equivalent citations: (1998)2COMPLJ373(MRTPC)
ORDER
Sardar Ali, Member
1. This order shall dispose of compensation application filed by Ms. Sudha Jain, R/o. Terapant Niketan, Flat No. P, Sagar Apartments, 6, Tilak Marg, New Delhi (hereinafter referred to as "the applicant"), under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as "the Act"), against Pragatisheel Samoohik Sehkari Krishi Samiti, Salarpur, 4047, Naya Bazar, Delhi-110 006 (hereinafter referred to as "respondent No. 1"), through its Honorary Secretary, Shri Padam Chand Gupta (hereinafter referred to as "respondent No. 2").
2. During 1981, respondent No. 1, who is also providing services of immovable properties to the consumers, floated a scheme for providing farm houses in an area located at NOIDA--Uttar Pradesh by the name of "Pragati Bagh". Since the applicant was interested in such a farm house, she deposited Rs. 20,135 (Rs. 20,000 cost of land, Rs. 100 share money and Rs. 35 admission fee) on January 9, 1982, and the receipt for the aforesaid amount was issued by the respondent. On March 1, 1982, vide their circular No. PS/04/CIR/82, the respondents informed the applicant that they had purchased 1600 bighas of land by executing sale deeds and arranged for 900 bighas of land under agreements for which sale deeds were to be executed by March, 1982. On October 8, 1982, the respondents asked the applicant to pay Rs. 15,000 towards cost of land by October 31, 1982, which was paid on October 25, 1982, by the applicant and acknowledged by the respondent, vide receipt No. 1766, dated October 30, 1982. The respondents sent another circular bearing No. PS/05/CIR/82, dated November 9, 1982, that they have purchased 2,500 bighas of land and development charges for the same were being worked out and applicants/members will be informed accordingly. Since the cost of half a hectare of land at that time in that area was Rs. 50,000, the final demand for payment of balance Rs. 15,000 was sent by the respondent on December 26, 1982. The applicant paid Rs. 21,000 on December 18, 1984 (Rs. 15,000 towards cost of land and Rs. 6,000 towards development charges). A further amount of Rs. 300 was also paid by the applicant on January 15, 1985, towards miscellaneous charges and the respondents have issued receipts for the aforesaid payments which are on record. Since the layout plan of the land does not meet the requirements of the Government with regard to roads. the respondents had to revise the layout plan and asked the applicant to forward a list of fresh group consisting of five members which was sent on June 1, 1986. Possession of the land was to be delivered within two years from the date of enrolment of membership on January 29, 1982, but till 1991 nothing could be heard from the respondents. Since the applicant had paid the entire amount towards cost of land as far back as in 1984, she sought information about the correct position of the society and requested the respondents to hand over the possession of the plot. In response to the letter of the applicant, the respondents, vide their letter dated June 1, 1991, informed that the land of the society has been attached by the District Magistrate, Ghaziabad. The applicant asked the respondents to send the papers of litigation which were never sent by the respondent. Instead of handing over the possession of land in question, the respondent on August 31, 1991, informed the applicant that some litigation is pending in the Supreme Court and as such allotment of plots is not possible. After waiting for 10 years, the applicant, vide her letter June 12, 1992, requested the respondent to refund the amount paid by her together with interest at 24 per cent. Instead of refunding the amount, the respondent informed the applicant, vide their letter dated September 16, 1993, that since the matter was under litigation and the amount received from the applicants had been spent towards purchase of land, the amount could not be refunded. The applicant left with no other alternative, sent a legal notice of date October 13, 1993, but nothing could be achieved.
3. The Commission has ordered to issue notice to the respondent returnable on January 16, 1995. The respondents filed their reply admitting receipt of Rs. 5,06,135 towards cost of land and development charges but denied the averments made in the compensation application since according to the respondents, actual facts have been suppressed by the applicant and the case is under litigation.
4. The applicant also filed her rejoinder rebutting the stand taken by the respondents in their reply.
5. On completion of pleadings, the following issues were framed :
1. Whether the respondents are or have been indulging in the unfair/restrictive trade practices as alleged in C. A. ?
2. If the answer to the foregoing issue is in the affirmative, whether the restrictive/unfair trade practices are prejudicial to public interest ?
3. Whether as a result of the unfair/restrictive trade practices, the applicant has suffered any loss ?
4. To what relief, if any, is the applicant entitled ?
6. The applicant filed her affidavit in evidence along with certain documents in support. Shri Padam Chand Gupta, Hony. Secretary of the respondent, has also filed his counter-affidavit in evidence.
7. We heard the arguments of Shri Sanjeev Sabharwal, advocate for the applicant, and Shri O.P. Dua, advocate, for the respondent. Liberty was given to both the parties to file their respective written synopses within two weeks in support of their oral arguments. Written synopses have only been filed by Shri O.P. Dua, advocate, for the respondents. We have also gone through the averments made by the applicant, reply of the respondents, rejoinder of the complainant, affidavits of Ms. Sudha Jain, the applicant and Shri Padam Chand Gupta, Hony. Secretary of the respondent and the written synopsis filed by Shri O.P. Dua, advocate, for the respondents. Taking cognizance of the various facts placed before us, the following emerged :
The applicant in her evidence almost repeated the facts contained in the complaint and alleged that the respondent even after receiving 100 per cent, payment during 1984 has not so far delivered possession of the land resulting in the imposing of unjustified costs on her. The respondent thus manipulated the conditions of delivery which is a restrictive trade practice within the meaning of Section 2(o) of the Act. It has also misrepresented about the time of delivery of the possession of farm land and made the applicant part with the cost of land deceptively within the meaning of Section 36A of the Act. Since the aforesaid restrictive/unfair trade practices have caused pecuniary and non-pecuniary losses to her, she is entitled to the compensation as prayed.
8. On the other hand, after going through the records, it is found that respondent No. 1 is a registered co-operative farming society bearing registration No. 2794, dated December 23, 1981, and it has about 600 members in NOIDA--Uttar Pradesh. The applicant is a bona fide member of one share of the society and paid her share towards cost of the land from time to time. The applicant falls in the category under Section 77(1)(a) and (b) of Chapter XI of the U. P. Co-operative Societies Act which reads as under :
"77. Registration of co-operative farming societies.--(1) Where any ten or more persons-
(a) holding bhumidari or sirdari rights in land in a circle, and desiring to pool it ; or
(b) intending together to obtain in the name of the society land in a circle, by purchase, lease or otherwise."
9. Also Section 79 of the aforesaid Act describes the consequences of registration as under :
"79. Consequences of registration.--(1) When a co-operative farming society is registered under Section 77, all land in the circle held by a member, whether as bhumidar or sirdar, other than land in the possession of his asami, till such time as it is so held by the asami, shall be deemed to have passed into the possession, control and management of the co-operative farming society, which shall thereupon hold such land in accordance with the provisions of this chapter and may use the same for any of the purposes mentioned in Sub-section (1) of Section 77."
10. According to Section 90 of the above Act, the provisions of Chapter XI are to prevail over other laws. Since the applicant is a member of a co-operative farming society which is located in the vicinity of NOIDA--Uttar Pradesh, we hold that the provisions of the U. P. Co-operative Societies Act, 1965, are mandatory and the members of the society in question are to be governed by the aforesaid provisions.
11. After going through the records, we also found that the land purchased by the society is under litigation. The District Magistrate, Ghaziabad, served a show-cause notice to the society to the effect that the entire land holding of the society which was in excess of 12.5 acres was threatened to be vested in the State of U. P. and, consequently, a case was instituted against the society, vide No. 3 of 1987, under Sections 154(2) and 167 of the U.P.Z.A. & L.R. Act which is still being contested. In the meanwhile, the Allahabad High Court decided in Kasturi Samyukt Sehkari Krishi Samiti Ltd. v. State of U.P. (Petition No. 7111 of 1988), holding that the provisions of Section 154(2) and Section 167 of the U.P.S.Z. & L.R. Act do not apply to a co-operative farming society. The respondent society filed a Writ Petition No. 3193 of 1989, in the High Court of Allahabad. The D. M., Ghaziabad, was directed by the High Court of Allahabad to decide the case in question within one month, vide its order dated December 18, 1989. The D. M., Ghaziabad, in pursuance of the above orders, adjourned (he case of the respondent till the disposal of an appeal filed by the U. P. State in the Supreme Court of India bearing No. 1618 of 1990 against the judgment of the Allahabad High Court cited above. The Supreme Court dismissed the above mentioned appeal on December 4, 1991. Consequently, the respondent society approached the D. M., Ghaziabad, and prayed for final disposal of its case in accordance with the order passed by the Supreme Court. Since the case was not disposed of by the D. M., the respondent society filed another case in the Allahabad High Court and the High Court of Allahabad, vide its order dated July 16, 1992, issued directions to the D. M. to dispose of the case of the respondent society within one month but nothing was done till December, 1992. The respondent society left with no other alternative, filed another petition in the Allahabad High Court praying for quashing the proceedings pending before the D. M., Ghaziabad. The case was fixed for final disposal on March 30, 1993, but since no counter was filed, the case is pending till date. The D. M., Ghaziabad, on April 7, 1993, passed a judgment vesting 812 hectares of the society's land in the State of U. P. and only 12.5 acres of land have been left with the respondent society. This impugned order of the D. M., Ghaziabad, has been challenged by the society, vide its fourth Writ Petition No. 37574 of 1994, in the Allahabad High Court in which a stay order has been granted, vide order dated November 24, 1994, and the case is still pending.
12. From the above, it emerges that as on date, moneys collected from the members have been spent for purchase of 900 bighas of land for cooperative farming. The respondent society is in possession of only 12.5 acres of land and 812 bighas of its land have been vested in the State of U. P. It is battling legally against the D. M., Ghaziabad's order dated April 7, 1993, in order to safeguard the interests of its members.
13. According to the provisions of the U.P. Co-operative Societies Act, for the purposes of co-operative farming, the land is to be controlled and managed by the society and the bye-laws of the respondent society allow pooling of money and material to achieve the object of co-operative farming distinct from individual ownership.
14. From the foregoing, it emerges that the entire land has been purchased by the respondent in the name of the society from the moneys collected from its members and the applicant undertook to abide by the Act and rules of the U. P. Co-operative Societies Act and the bye-laws of the respondent society. It is also found that the delay in giving possession of farm land to the members is not due to manipulation/deceptive intention of the respondents but is due to attachment of the entire land except 12.5 hectares to the U. P. State in accordance with the order of D.M., Ghaziabad, for which the respondent is battling legally, we hold that the compensation application is not maintainable. Accordingly, we dismiss the same in the light of the provisions of the U. P. Co-operative Societies Act and the bye-laws of the respondent society, unintentional delay on the part of the respondent and the case being under litigation.