State Consumer Disputes Redressal Commission
Rosendo Dos Remedios Furtado vs 1.The Administrator Of Communidade, on 31 July, 2009
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA. Present: Smt. Sandra Vaz e Correia Presiding Member Smt. Caroline Collasso Member Appeal No. 25 of 2009 Rosendo dos Remedios Furtado Afonso Residency, D-1, Amaral, Taleigao, Ilhas-Goa. Appellant (Original Complainant) v/s 1.The Administrator of Communidade, Central Zone, Panaji-Goa. 2. The Communidade of Nerul, Murda-Goa. Respondents (Original Opposite Parties) Appellant present in person Dated: 31-07-2009 ORDER
[Per Smt Sandra Vaz e Correia, Presiding Member]
1. The complainant assails the order dated 23-03-2009 passed by Consumer Disputes Redressal Forum (District Forum) North Goa in Consumer Dispute no. 162/2002.
The respondents are the opposite parties.
2. At the outset, we notice that the name of the second respondent is erroneously shown as Comunidade of Neura, Murda Goa instead of Comunidade of Murda, Merces, Ilhas Goa which is the original opposite party no. 2. We direct that the cause title be corrected accordingly.
3. The appellant/original complainant is the cabeca-de-casal in the inventory proceedings no. 80/1978 initiated in the Court of Civil Judge Senior Division upon the death of his parents Mr Alvaro dos Remedios Furtado and Mrs Sabina Aspulqueta Nazare e dos Remedios Furtado. Mr Alvaro dos Remedios Furtado held certain shares in the Comunidade of Murda, Ilhas, the second respondent herein. The complainant approached the then incumbent first respondent Mr Carmo de Noronha in 1982 for payment of dividends on the said shares and was authorized to receive the dividends on the shares. The complainant again moved the first respondent on 07-02-2001 and the second respondent on 28-03-2001 requesting payment of the dividends and arrears amounting to Rs.102,873/-. The complainant furnished more documents to the first respondents in support of his claim to receive the dividends and continued his correspondence in the matter. On 26-10-2001, the complainant was informed that his brother Mr Blasio dos Remedios Furtado had lodged an objection to the payment of dividends to him, whereupon the complainant filed his rejoinder to the said objections with documents. However, the first respondent rejected the objections of said Blasio vide letter dated 20-12-2001, but failed to issue any directions to make payment to the complainant. Aggrieved, the complainant preferred the complaint before the Consumer Disputes Redressal Forum (District Forum) North Goa registered as Consumer Dispute no. 162/2002. The foregoing, in brief, is the conspectus of the case of the appellant/original complainant.
4. Per contra, it is the first respondents case that the complainant was not a consumer under the Consumer Protection Act and that no services of whatsoever nature were hired by the complainant from the opposite party. On merits, it was contended that the inventory proceedings case had concluded before the Civil Court and hence the question of the complainant continuing to hold himself out as the cabesa de casal did not arise. The agreement entered into by the parties before the Court indicated that the task of partitioning the estate of late Alvaro was entrusted to Mr Blasio dos Remedios Furtado and therefore the question of paying the dividends to the complainant did not arise. It was submitted that the court orders produced by the complainant were not final.
5. The District Forum considered the case of the parties and came to a finding that the complainant was not a consumer and the reliefs sought did not come within the purview of the Consumer Protection Act. It also held that the issue of partition and allotment of the estate of late Alvaro was pending before the Civil Judge Senior Division, Panjim.
6. We heard the appellant present in person at the time of admission. Records and proceedings of the trial forum were called and perused and we gave due consideration to the grounds set out in the memorandum of appeal and the submissions of the appellant. The appellant contends that the District Forum erred in holding that he was not a consumer within the meaning of S. 2 (d) of the Act whereby, according to him, service includes not only day-to-day buying and selling activity undertaken by a common man but even such activities which are not otherwise of commercial nature yet partake of a character on which some benefit is conferred on the consumer. He placed reliance on Lucknow Development Authority vs. M K Gupta (1994) 1 SCC 243. He further submitted that the District Forum ought to have considered the provisions of Art 2085 of Portuguese Family Laws in force read with sub-Art 1 of Art 25 of the Code of Comunidades which provide that the cabesa de casal shall receive the proceeds of dividends of Comunidade shares during the pendency of the inventory proceedings.
7. The moot question in this appeal is whether payment of dividends by Comunidades to its components (shareholders) comes within the purview of service envisaged under the Consumer Protection Act 1986. This question has been settled by this Commission in Rosendo dos Remedios Furtado vs. Administrator of Comunidades & others (Appeal no. 40/2007) wherein the issue was considered at length and it was held as follows:-
11.
For determining whether a complaint is maintainable against a person or entity is to be decided on the basis of the nature of duty and function, and whether such duty or function is a service or facility for consideration.
12. It is pertinent to look into the history, constitution and functions of the Comunidades. The institutions of Comunidades of Goa are a variant of the system of gaunkari (or village republics) in existence for hundreds of years that were codified by the Portuguese Government into the Legislative Diploma no. 2070 dated 15-04-1961, now commonly known as the Code of Comunidades. The Comunidades were essentially agrarian societies who derived their income from leasing their vast lands for agricultural purposes; though in recent years much of the earnings are from compulsory acquisition of their land, lease of land for housing, bank interest, etc. Article 5 of the Code of Comunidades provides that the Comunidades are under the administrative tutelage of the State while Article 153 grants extensive powers to the State Government (then Governor General) in the administration of Comunidades. There are 223 Comunidades existing in Goa. The surplus generated by each Comunidade is distributed annually to its components as jonos and dividends in accordance with the formula prescribed in Article 1(3) of the Code. Though initially the Comunidades comprised only of Gaonkars or male descendants of original inhabitants of the village, many floated accoes or shares to fund their activities. The profits or surplus generated by the Comunidade is distributed to its components as per formula prescribed in Map no. 8 read with Article 1 (3) of the Code of Comunidades.
13. In our considered view, there is no element of service in payment of dividends by Comunidades to its shareholders. The activities and functions undertaken by Comunidades in relation to shares and payment of dividends thereon do not come within the realm of financial business neither is there any commercialism involved. No doubt its components are eligible to receive jonos or dividends against their shares; however to hold that they have availed of or hired the services of the Comunidade for a consideration for receipt of such payments would be rather far-fetched.
14. Hence, we hold that the Complainant is not a consumer qua the Opposite Party no. 2 Comunidade of Nerul and that payment of dividends by Comunidades to its components (shareholders) does not come within the purview of service envisaged under the Consumer Protection Act. The complaint was rightly dismissed by the District Forum.
8. In view of the foregoing, there is no merit in the appellants claim for direction to the respondents to pay the proceeds of dividends against the shares to him; likewise, there is no merit in his appeal either.
9. In the result, this appeal stands dismissed. In the circumstances, no costs.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member