State Consumer Disputes Redressal Commission
Mr. Vinubhai S Vora vs Mahavirdham Co-Op Hsg Society Ltd on 5 February, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/15/649
(Arising out of order dated 20/04/2015 in CC/15/161 D.F.Thane)
Mr.Vinubhai S.Vora
R/o.C-8, Mahavirdham CHS Ltd.
Achole Road, Nalasopara -East
Tah-Vasai, District Thane (Palghar)
Pin Code 401 209 .....Appellant
Versus
Mahavirdham Co-op.Housing Society Ltd.
Through Shri Chetan Bowelkar, Treasurer
A-11, 2nd floor, Old Mahavirdham CHS Ltd.
Achole Road, Nalasopara -East
Tah-Vasai, District Thane (Palghar)
Pin Code 401 209 .........Respondent
BEFORE: Smt.Usha S.Thakare, Presiding Judicial Member
D.R.Shirasao, Judicial Member
PRESENT:Mr.Pravin Tembhekar-Advocate for appellant
None present for respondent
ORDER
Per Hon'ble Smt.Usha S. Thakare, Presiding Judicial Member
1. Original complainant Mr.Vinubhai S.Vora has filed appeal bearing no.A/15/649 being aggrieved by the order passed by Learned District Consumer Disputes Redressal Forum, Thane in consumer complaint no.161/2015 on 20/04/2015.
2. Complainant Mr.Vinubhai S.Vora had filed consumer complaint bearing no.161/2015 by alleging deficiency in service against the opponent/ respondent. The complainant/appellant is 72 years old retired person and he is resident of Mahavir Dham Co-op.Hsg.Society Ltd. The respondent is a Co-operative Housing Society. Appellant is the owner of flat no.C-8 Mahavirdham Co-op.Hsg.Society Ltd. He is member of the said society since 1995. Since August 2013, the respondent society started levying the 1 service charges on per square feet basis to all flat holders by passing a resolution in Annual General Meeting to that effect. The appellant received maintenance bill bearing no.4429 for the period August 2013 to January 2014. He was surprised to see the bill of maintenance charges. It was told that it is based on the resolution passed by the society in Annual General Meeting. It is the grievance of the complainant/appellant that action of the respondent in levying the service charges on the basis of per square feet is violation of Model Bye-laws of Co-operative Housing Society. The respondent cannot pass any arbitrary and unreasonable resolution. It is alleged that the opponent /respondent is guilty of deficiency in service and unfair trade practice.
3. The Learned District Forum heard learned counsel Mr.Pravin Tembhekar for the complainant and passed order on 20/04/2015. It is observed by the Learned District Forum in order that the complainant/ present appellant had filed complaints before the Deputy Registrar, Vasai on 25/06/2014 and on 17/10/2014. Deputy Registrar took cognizance of the complaints and issued letter to original opponent/ present respondent. The learned District Forum observed that section 3 of Consumer Protection Act, 1986 granted additional rights to the District Forum but the complainant cannot seek remedy before two authorities. The learned District Forum arrived at the conclusion that consumer complaint is not tenable before the District Forum and, ultimately, dismissed the consumer complaint. At the same time, direction was given to the complainant/appellant to do the follow-up before Registrar of Maharashtra Co-operative Societies. Being dissatisfied with the order, original complainant has preferred the present appeal.
4. Heard learned counsel Mr.Pravin Tembhekar for the appellant. No one appeared for the respondent though duly served. It is vehemently urged on behalf of the appellant that order passed by the Learned District Forum is illegal and incorrect. It is against the provisions of law. It is requested that 2 order passed by the Learned District Forum may be set aside by allowing the present appeal to avoid injustice. The documents on record show that the complainant/appellant is the owner of flat no.C-8 of Mahavirdham Co- op. Hsg.Society Ltd. He is member of the respondent society. The appellant received the maintenance bill bearing no. 4429 for the period August 2013 to January 2014 for an amount of Rs.4800/-. It is brought to our knowledge that monthly bills of previous maintenance charges are at Exhibit B-1 and B-2. On enquiry, the appellant came to know that resolution was passed by the society to collect maintenance charges as per area of the flat on the square feet basis.
5. It is true that on receiving the maintenance bill bearing no.4429, the complainant had written letter on 25/11/2013 to the society and raised the grievance of charging of maintenance charge on square feet basis. He had requested for corrected maintenance bill. No action was taken by the respondent society. Ultimately, the complainant approached to Deputy Registrar, Vasai and filed the complaints on 25/06/2014 and 17/10/2014. The letters are at Exhibit B-7. Deputy Registrar issued direction dated 03/11/2014 as per Exhibit B-8 asking respondent to take proper action on the complaint dated 17/10/2014 and to inform the Deputy Registrar about the action taken by the respondent society.
6. It is vehemently urged that when the respondent society ignored request of the appellant and ignored the direction of the Deputy Registrar, notice was sent to the respondent and consumer complaint was filed.
7. Perused the complaints sent by the appellant to the Deputy Registrar. They are in the form of letters. On perusal of those letters, it cannot be said that the appellant adopted a remedy before the Deputy Registrar under provisions of law to initiate proceedings against the respondent society. By way of letters, the appellant raised the grievance before the Deputy Registrar (Societies). Those letters were never treated as proceedings before the court of law or before the Co-operative Court.
38. It is very much clear that the respondent society levied maintenance charges to the appellant on square feet basis. Levying maintenance charges on square feet basis is against the provisions of law and against the interest of the consumers.
9. The Registrar of Co-operative Societies did not take cognizance of the grievance of the appellant. When consumer complaint was filed, legal proceedings were not pending before the Registrar. Appellant in regular course complained to the Registrar. The simple direction was given to the respondent society to look into the matter. The Registrar of Co-operative Societies has disposed of the complaint by referring it to the society itself and closed the matter. No appropriate legal course was followed. No legal proceedings were adopted by the Registrar. The different prayers are made by the complainant before the Learned District Forum by filing consumer complaint. The consumer complaint is tenable before the Learned District Forum. Learned District Forum committed an error in holding that the complainant/ appellant adopted one remedy before the Registrar. It is settled principle of law that the society cannot levy maintenance charges on square feet basis. It appears that the respondent society has charged maintenance on square feet basis to the complainant/appellant. The law of position is made clear by the Hon'ble Bombay High Court while deciding the case of Venus Co-operative Housing Society and another v/s. Dr.J.Y. Datwani and others in order dated 30/07/2002 while deciding Writ Petition no.1948 of 1997. Levying the maintenance charges on the basis of area of the flat is held as invalid and inoperative.
10. Learned District Forum committed an error in rejecting the consumer complaint filed by the complainant/appellant. Learned District Forum failed to consider the prayers of the appellant made before the Sub Registrar and before the Learned District Forum. The order passed by the Learned District is illegal and incorrect. In view of the above discussion, we are of the view that consumer complaint is maintainable before the District Forum.
4As a result, appeal deserves to be allowed. Hence, the following order:-
ORDER
1. Appeal is hereby allowed.
2. Order passed by the Learned District Forum in consumer complaint no.161 of 2015 dated 20/04/2015 is hereby set aside.
3. The consumer complaint is maintainable. The consumer complaint is remitted back to the District Forum for decision on merits after giving opportunity to the opponent.
4. Both the parties to appear before the Learned District Forum for hearing on admission on 20/02/2018.
5. Accordingly inform to the Learned District Forum.
6. Copies of the order be furnished to the parties.
Pronounced on 05th February, 2018.
[USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [D.R.SHIRASAO] JUDICIAL MEMBER Ms 5