State Consumer Disputes Redressal Commission
Mr.Kapildev Chugh vs Paradise Chs Ltd. on 9 October, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. FA/14/101
(Arisen out of Order Dated 19/10/2013 in Case
No. CC/11/52 of Additional District Thane)
Mr.Kapildev Chugh
Flat no.46, 4th
floor, Band Stand Co-op.Hsg.Society
Kane Road, Band Stand, Bandra
Mumbai 400 050
...........Appellant(s)
Versus
Mr.P.K.Alexander
Secretary
Paradise CHS Ltd.
Sector 7, Sanpada,
Navi Mumbai 400 705
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE
R.C.CHAVAN PRESIDENT
HON'BLE MR. Dhanraj
Khamatkar Member
For the Appellant:
Appellant in person
For the Respondent:
Mr.P.V.Desai -Advocate
ORDER
Per Honble Mr.Justice R.C.Chavan, President This appeal filed by the complainant questions an order dismissing his complaint no.52/2011 passed by Additional District Consumer Disputes Redressal Forum, Thane on 19/10/2013. Facts which are material for deciding this appeal are as under:-
2. Complainant is a member of the respondent society represented by its Secretary-Mr.P.K.Alexander. The complainant owns flat no.H-5/2:2 in the respondent society but does not stay in that flat. He in fact stays in flat no.46, Building A, Band Stand Co-op.Hsg.Society at Bandra, Mumbai. According to complainant he had given the flat on rent. Maintenance charges which the society was entitled to levy were Rs.400/- per month, which were increased to Rs.600/- per month from October 2000. As per bye-laws of the society non occupancy charges should have been Rs.120/- per month but they were increased to Rs.400/- per month. The society also went on charging compound interest @ 21% p.a. on the arrears generated because of the wrong billing. The complainant claims to have written to the Joint Registrar of Co-operative Societies, who directed the society to correct the bills. From 01/08/2001, the non occupancy charges were reduced to 10% of service charges. The society filed writ petition against Joint Registrars order. The society lost in the High Court and filed an appeal in the Honble Supreme Court, where the matter is still pending. It is not in dispute that an interim order was passed by the High Court when the matter was entertained and at the time of dismissal of societys petition, the High Court directed to continue the interim order. While admitting S.L.P. the Supreme Court too directed that interim order to continue. The complainant is not a party to this proceeding. According to complainant though he wrote several letters to the opponent society, they have refused to answer his letters. He therefore filed the complaint for correction of maintenance bills submitted from 1999 onwards. He also claimed that interest is not payable.
He sought compensation of Rs.50,000/- for mental harassment and also a direction to the society to implement the bye-laws. This complaint was filed on 13/04/2011.
3. Complainant sought amendment of the complaint in respect of certain events, which took place during the pendency of the complaint. Though it seems that the amendment application was allowed, the amendment was actually not carried out in the complaint.
4. The opponent society filed written version stating that the complaint had been filed only to harass the society. It was stated that the matter about non occupancy charges is pending before the Honble Supreme Court and, therefore, no order could be passed in the matter in face of interim order being continued. It was stated that there was no deficiency in service. It was also stated that there was no relationship between the complainant and the society as consumer and provider of service. It was stated that maintenance charges were increased from Rs.200/- in the year 1995 to Rs.400/- by resolution of the General Body and they were subsequently increased to Rs.600/-. It was stated that as per the Government of Maharashtra order dated 09/03/1995, non occupancy charges could be equal to the original maintenance charges, which the society claims to have been charging.
The society agreed that the non occupancy charges were revised as per model bye-laws prescribed under G.R. dated 01/08/2001. However, it was stated that said Government Resolution was challenged by filing writ petition by the society and the High Court granted an interim relief authorizing the society to continue to charge non occupancy charges upto 10% of gross rental earning and that the society had been charging non occupancy charges as per said order dated 18/10/2003. The society stated that while dismissing the petition by an order dated 02/03/2007, the interim order was continued and while admitting S.L.P. Supreme Court had continued the interim order. According to the society, bills issued were as per guidelines of the statutory auditor and had been duly certified and, therefore, if the complainant was aggrieved, he had to approach proper authority.
It was stated that the complaint was not within the jurisdiction of the consumer forum.
5. After considering the pleadings and material placed before it, forum came to pass the impugned order. Aggrieved thereby, complainant is before us.
6. We have heard the appellant/complainant in person as also learned advocate for the respondent society. We have also gone through the material on record including written notes of arguments filed by both the parties.
7. The question raised by the appellant is about levy of non occupancy charges by the society. By Government order dated 09/03/1995, the Government had prescribed that the non occupancy charges would not be more than 100% of the original charges.
Original charges are understood to mean the maintenance charges which the society is entitled to levy from the owner of the flat, if he himself occupies the flat. It appears that the society by resolution at the General body meeting decided to levy additional 50% of monthly charges to be billed as non occupancy charges.
By resolution of General Body dated 15/08/1996, non occupancy charges were fixed at Rs.200/- on members, who sublet the flat to persons other than family members. By resolution dated 30/05/1999 those charges were increased from Rs.200/- per month to Rs.600/- per month equal to 100% of original charges. The society observed that the bye-law 45(c) stood amended under the Government order dated 09/03/1995. Government of Maharashtra considered the Government Order dated 09/03/1995 and issued a fresh order dated 01/08/2001, whereby Government stipulated that non occupancy charges should not exceed 10% of the service charges. It cannot be disputed that implementation of this resolution is stayed in view of the pendency of S.L.P. before the Honble Supreme Court. Therefore, liability of the complainant has to be worked out with reference to order dated 09/03/1995 and resolutions passed by the society, which were in force when the writ petition was filed. It is the case of the society that in view of interim order dated 18/10/2003, the society was at liberty to collect non occupancy charges @ 10% of the gross rental earning as agreed between the members and the user of the premises. Thus, what the society was entitled to is 10% of the rental income or license fee, which the owner of the flat was to collect from the occupant. The society has however levied non occupancy charges of Rs.1200/- per quarter for quarter ending 01/07/1999, Rs.1800/- for quarter ending 01/10/2000, Rs.900/- for quarter ending September 2011 and Rs.900/- for quarter ending December 2006 and so on. It is the complainants grievance that this could not have been done by the society. According to the complainant, the society has to charge only 10% of service charges minus CIDCO taxes in view of resolution dated 01/08/2001.
8. As already pointed out the complainant cannot take advantage of resolution dated 01/08/2001 in face of High Courts interim order and continued by the Honble Supreme Court. It seems that the society has been charging 50% of the service charges or may be about 100% or service charges as non occupancy charges. According to complainant, there was no agreement for payment of 10% of the rental as non occupancy charges and, therefore, what the society has been levying is excessive. This in our view is an incorrect way of reading the interim order of the High Court. In terms of the interim order of the High Court, the society was entitled to charge Non occupancy charges @ 10% of the gross rental earning as agreed between the member and user of the premises. There is no question of there being any agreement between the member and the society about levying of those charges. The words as agreed between the members and user of premises clearly indicate that they refer to rent or license fees agreed between the user and the member and not any agreement between society and the members. The copy of the interim order which has been placed by the appellant has a missing line in para 3, as is clear from the fact that there could not be a sentence reading In the interregnum the petitioner shall be at a liberty to collect non occupancy charges at (missing part) agreed to between the members and the users of the premises. The missing line is, as stated by the respondent, namely, that rate of 10% of gross earning as which would then complete the sentence.
9. Complainant has nowhere stated that non occupancy charges levied were in excess of 10% of his gross rental earnings from his tenant or licensee and, therefore, the whole complaint is thoroughly misconceived and based upon insistence on implementation of resolution dated 01/08/2001, which has been stayed by the High Court and the stay has been continued by the Supreme Court. In view of this, we find no error in the order passed by the District Forum and dismiss the appeal.
Pronounced on 9th October, 2014.
[HON'BLE MR. JUSTICE R.C.CHAVAN] PRESIDENT [HON'BLE MR. Dhanraj Khamatkar] Member Ms.