National Consumer Disputes Redressal
Mahakali Grih Nirman Sahkari Sanstha ... vs Balram Rai on 26 May, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3539 OF 2009 (Against the Order dated 19/06/2009 in Appeal No. 423/09,3043/08 of the State Commission Madhya Pradesh) 1. MAHAKALI GRIH NIRMAN SAHKARI SANSTHA MYDT. Through The President Dinesh Trivedi S/o. S.S. Tirivedi T-2, Mandakini Colony Near shri Mandir Kolar Road. Bhopal M.P. ...........Petitioner(s) Versus 1. MOHAN KUMAR RAI S/o. shri Narmanda Prasad Rai R/o. Post Amrawad Bari Tah. Bareli Raisen M.P ...........Respondent(s) REVISION PETITION NO. 3540 OF 2009 (Against the Order dated 19/06/2009 in Appeal No. 3045/2008 of the State Commission Madhya Pradesh) 1. MAHAKALI GRIH NIRMAN SAHKARI SANSTHA MYDT. 45, Zone I M.P. Nagar Bhopal Earlier in the Society Was E-8. Near Rajiv Gandhi patrakarita Vishwadidyalaya Trilanga Bhopal M.P ...........Petitioner(s) Versus 1. BALRAM RAI S/o. Shri Pannalal R/o. Plot No. 71-G/2, durgesh Vihar J.K. Road. Bhopal M.P ...........Respondent(s) REVISION PETITION NO. 3541 OF 2009 (Against the Order dated 19/06/2009 in Appeal No. 422/09,3046/08 of the State Commission Madhya Pradesh) 1. MAHAKALI GRIH NIRMAN SAHKARI SANSTHA MYDT. T-2. Mandakini Colony near Shiv Mandir Kolar Road Bhopal M.P. and Through theCise President ...........Petitioner(s) Versus 1. SUDHIR KUMAR GUPTA S/o. Shri Prabhu Dayal Gupta R/o. shriRakesh Gupta uma Electronic Institute Hig-102. Pushpam apartment Opp. Bharat Talkies Behind Capital Hotal Bhopal M.P ...........Respondent(s) REVISION PETITION NO. 3542 OF 2009 (Against the Order dated 19/06/2009 in Appeal No. 421/09,3044/08 of the State Commission Madhya Pradesh) 1. MAHAKALI GRIH NIRMAN SAHKARI SANSTHA MYDT. ...........Petitioner(s) Versus 1. SHOBHA KATARE ...........Respondent(s)
BEFORE: HON'BLE MRS. REKHA GUPTA,PRESIDING MEMBER
For the Petitioner : Ms Sonal Bangia, Advocate For the Respondent : MR. RAJUL SHRIVASTAV
Dated : 26 May 2017 ORDER
REKHA GUPTA, PRESIDING MEMBER
The present revision petitions have been filed against the judgment dated 19.06.2009 of Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal ('the State Commission') in First Appeal nos. 423, 421 and 422 of 2009 and 3043, 3045, 3044 and 3044 of 2008.
2. In these revision petitions the facts are similar and common question of law is involved, hence, I propose to pass a common order. The facts of case are taken from RP no. 3539 of 2009 as a lead case.
3. The facts of the case as per the respondent/ complainant are that the respondent was the member of the petitioner/ opposite party Society and the amount paid by the respondent had been admitted by the petitioner.
4. Apart from the above admitted fact, it was contended by the respondent in his complaint that he became the member of the Society on 28.05.1989 by paying a sum of Rs.100/- as part payment and Rs.5/- towards the Membership charges. The petitioner's society has neither allotted the plot in his favour nor has the sale deed has been executed in his favour. It was also contended by the respondent that it came to his knowledge in December 2006, that the petitioner had started allotting plots in favour of some third parties. On 15.12.2006 he requested the petitioner Society for allotment of the plot, as he had already deposited the complete amount and the development charges, but despite the said act, the Society did not allot the plot in his favour, which was a deficiency in service. Hence, a complaint was filed before the District Forum, Bhopal with the following prayer:
(a) Direct the opposite party to deliver the vacant possession of 1000 sq ft plot situated at Bawadia Kala, E 8 Arera Colongy, Bhopal and execute the conveyance deed in respect of the said plot;
(b) Award for a sum of Rs.5,25,000/- in favour of the complainant;
(c ) Interest @ 18% per annum from the date of filing of this complaint till actual realisation on the said amount;
(d) Cost of this complaint may also be awarded to the complainant; and ( e) Any other relief the Hon'ble Forum may deem fit under the circumstances in favour of the complainant in the interest of justice and fair adjudication of the law may also be awarded,
5. The petitioner in their reply stated that the respondent had never been allotted any plot of 1000 sq ft. They contended that the respondent has neither contacted them during the last six years nor has he deposited the development charges as demanded. The respondent has malafidely filed this complaint. In the year 2001, the Society had fixed the development charges at Rs.81/- per sq ft and the members who had deposited the development charges, had been allotted the plots. The respondent had not deposited any amount towards development charges. It has also been contended by the petitioner that as the cost of the plot has been increased and hence, the development charges has been fixed at Rs.125/- per sq ft and the respondent was asked to deposit the development charges and the lease rent in one instalment. But till date, the respondent has not deposited the complete development charges and hence, the respondent had no right to get a plot allotted in his favour and the complaint filed by the respondent deserves to be dismissed as not sustainable. Hence, prayed for dismissal of the complaint.
6. The District Consumer Disputes Redressal Commission, Bhopal (MP) ('the District Forum') vide its order dated 07.11.2008 while allowing the complaint observed as under:
"Hence, in these circumstances, the complainant is the member of the Society and he has right to get a plot in her favour. It is not clear whether any notice has been sent to the complainant regarding depositing of complete development charges. In these circumstances, the opposite party has committed deficiency in service in not sending the notice of depositing of payment of outstanding amount and in not allotting the plot in favour of the complainant. Thus, it is necessary to direct the opposite parties to deposit the balance development charges from the complainant and got the sale deed of plot admeasuring 1000 sq ft situated at Bawadia Kalan, Bhopal executed in her favour. As the complainant filed this complaint just to get relief and the opposite party society sustained mental harassment in not allotting the plot and hence, in these circumstances, the complainant is entitled to get Rs.5000/- towards mental harassment and Rs.1000/- towards the cost of litigation from the parties.
Therefore, the complaint filed by the complainant is admitted and it has been directed against the opposite parties that:
Allot 1000 sq ft plot in favour of the complainant after depositing of balance development charges from her and execute the sale deed within one month.
Pay a sum of Rs.5000/- towards mental harassment to the complainant.
Pay a sum of Rs.1000/- towards the cost of litigation".
7. Aggrieved by the order of the District Forum the petitioner filed an appeal before the State Commission. In their appeal before the State Commission the following grounds have been given:
2. Firstly, it has been brought to the notice of the Hon'ble Commission that the Ex-President of the Society, i.e., the opposite party no. 2 Shri Ramesh Kumar Ginnare was suspended from the post of President of the Society for a period of three years by the order of the Deputy Registrar, Cooperative Societies, Bhopal dated 09.04.2008 and thereafter, Election Officer vide its meeting dated 10.05.2008, elected Mr Dinesh Trivedi as the President and Mr Navneet Raghuwanshi the Vice-President.
3. After holding the post of President and the Vice-President of the opposite party Society, they demanded the complete record of the Society from the Ex-President of the Society, i.e., the opposite party no. 2 - Ramesh Kumar Ginnare, but neither he furnished any of the record of the Society in compliance of the order issued by the Deputy Registrar, Cooperative Societies, Bhopal dated 19.05.2008 nor gave any information pertaining to the Society.
4. The Ex-President of the Society, i.e., the Opposite party no. 2 Ramesh Kumar Ginnare and Ex-President Mohan Singh Thakur deputed Shri Rohit Kumar Shroti as their Advocate in their personal cases and the current cases of the Society, who would have not conducted the cases properly till the disposal of the case after the removal of Shri Ramesh Kumar Ginnare from the post of President and hence, the opposite party Society failed to deal their cases properly, because the New Working Committee do not have any information about the pending cases. Apart from this, in another case of Chandra Kukreja vs Mahakali, an Ex parte order passed on 16.12.2008 against the opposite party Society and when the said information was brought to the notice of the opposite party Society, the Society immediately preferred an application for dismissing the Ex parte order. In this case also, an ex parte decision has been taken against the opposite party Society. In another cases also in complaint no. 994 of 2007 (Balaram Rai vs Mahakali Grih Nirmal), 989 of 2007 (Mohan Kumar Rai vs Mahakali Grih Nirman) and 995 of 2007 (Sudhir Kumar Gupta vs Mahakali Grih Nirman) ex parte orders have been passed, as the opposite party Society did not initiate any action in these matters. During the aforesaid reasons, the opposite party Society vide its letter dated 11.12.2008, sought complete information about the cases held by the earlier advocate Shri Rohit Shroti but the said information could not be obtained.
5. The Ex-President of the Society, i.e., the Opposite party no.2 has been personally made a party to the litigation and after his removal, no action has been initiated by him due to his personal reasons and hence, no action has been taken in this case and the address of the opposite party Society is 45 Zone 1, M P Nagar, Bhopal and the President and Vice-President at residing therein.
6. That due to the aforesaid reason, the opposite party Society could not put their defence and the respondent/ complainant vide her letter dated 11.12.2008, informed the opposite party Society about the decision being passed, then the said fact came to the knowledge of opposite party Society and immediately thereafter, the opposite party Society applied for the certified copy of the order on 18.12.2008, which has been obtained to them on 30.12.2008.
8. Apart from the aforesaid facts and grounds, the lower court in its order did not pursue the documents and evidence filed on record properly, that the respondent/ complainant deposited a sum of Rs.105/- in the year 1989 and thereafter, the opposite party Society demanded the development and other charges since 2001, which was not paid. It was also clearly informed on behalf of the Society that no plot of 1000 sq ft was being allotted to the complainant. If the opposite party Society did not allot the plot then what was the reason for not filing the case since long time, which is beyond the period of limitation.
9. As the complainant was failed to deposit the development charges with the opposite party Society and hence, the Society failed to deposit the development charges and cost of the plot, for which a case was registered before the Collector, Bhopal and direction to deposit the development charges were issued vide order dated 13.10.2008.
10. In compliance of the orders of the Lower Court, the opposite party Society wants to clear the fact that the Ex-President, i.e., the opposite party no. 2, in the lower court, wrote that the Society did not allot any plot to the complainant, then on what grounds, the lower Court passed the impugned order of allotment of the plot in her favour. Earlier President of the Society, Shri Mohan Singh Thakur made above 800 members in the Society by obtaining some money from them and these persons also did not deposit the development charges with the Society and hence, on what grounds, they have the right on the plot. After the suspension of Ex-President of the Society and Working Director Mohan Singh Thakur on 09.04.2008 due to collusion with his brother in law are not furnishing the records and by misusing the receipts of the society, they obtained the money from different members on 07.05.2008, 08.05.2008 and 09.05.2008 in the name of the Society and mentioned the plots in it, which clearly prove that these persons obtained the money for their personal use by mis-utilising the receipt of the society, which is recoverable. On the basis of the said receipts, the current President and Vice-President have submitted an application before the concerned police Thana and the investigation is being done in the said matter."
8. The State Commission vide their order dated 19.06.2009 while disposing the appeal by modifying the order of the District Forum held as under:
"3. The stand of the opposite party was that the complainant was never allotted any plot admeasuring 1000 sq ft. It was stated that the complainant never made any contact with the society in the past six years and despite demand having been made for deposit of development charges, the charges were not paid. It was stated that in 2001 the development charges were taken at the rate of Rs.81/- per sq ft but now because of escalation in the price the complainants were asked to deposit the development charges at the rate of Rs.125/-. It was also stated that the complainants have not deposited the development charges till date.
5. Learned Counsel for the complainant submits that since the society was defunct, there was no occasion for the complainants to deposit the charges, but now all the members are willing to pay the charges demanded by the society. Therefore, no dispute survives as the complainants have also shown their readiness and willingness to deposit the amount with the society. Accordingly, the direction of the District Forum that after receipt of development charges plot admeasuring 1000 sq ft be allotted and registered in the name of the complainant within one month, does not suffer from any infirmity and calls for no interference.
6. Learned counsel for the opposite party submits that a sum of Rs.5000/- has been granted by the District Forum in each case for mental agony is not justified. One cannot overlook the fact that for six years the complainant did not pursue their right and now there was escalation in the prices that the complainants started demanding for allotment of plot. Under these circumstances sum of Rs.5000/- awarded for mental agony deserves to be deleted. Accordingly the direction nos.1 and 3 issued by the District Forum in paragraph 9 of its order are unaltered, while the direction no. 2 for payment of Rs.5000/- as mental agony is set aside."
9. Hence the present revision petition.
10. I have heard the Counsel for the parties. Learned counsel for the petitioner has contended that the complainant filed an application under Section 13 (3) (B) of the Consumer Protection Act, which was fixed for hearing on 23.09.2008 and at that relevant time, the complainant was fully aware about the address of the petitioner Society and the fact of their removal of the President of the opposite party no. 2 Society in the Forum, yet no correction was made in the address of the Society and in the name of the President as well, so that the Society could get the information about the pendency of the said application and an ex parte order was passed on the date of hearing on 23.09.2008 and the ex parte final order was passed on 07.11.2008. The State Commission, Bhopal has committed material irregularity in not going through the pleadings of the Petitioner that no development charges have been paid nor the complete cost of the plot has been deposited by the Respondent despite due service of demand notice. Members, who had fulfilled the obligation by depositing cost of land and development charges, were allotted the plots. The respondent since deliberately neglected to deposit the amount could not as of right ask for the allotment of the plot. The State Commission, Bhopal has erred in law in holding that the petitioner Society was defunct and that an administrator has been appointed. After elections, a new body was formed and thereafter the Society sent notices to the members for deposit of the development charges as per the prevailing market rate. Despite receiving the notice for payment of development charges, the same were not paid. The omission of the respondent to pay the amount disentitles him for the allotment of the plot. As a matter of fact members who have paid were allotted plots. Therefore, now no plots are available with the petitioner Society. As of today all the plots of the Petitioner Society have since already been allotted to the eligible members prior to the order of the District Forum, Bhopal, as they have paid the complete cost of the plot including the existing development charges. Therefore, the order passed by the State Commission, Bhopal suffers from a basic infirmity and calls for interference by way of this revision before the Hon'ble Commission. The complainant has to be blamed for his own conduct because he did not pursue his right for the last six years with the petitioner and therefore as on today, in absence of the availability of plots, no plots can be allotted to the complainant/ respondent.
11. Learned counsel for the respondent/complainant on the other hand argued in favour of the impugned order. The issue involved is about development charges. Earlier, the respondent/ complainant were not willing to pay the enhanced revised development charges, and now that they are willing to pay the enhanced development charges as per the District Forum order the plot should be allotted to him.
12. Without going to the merits of the case, it is proposed to first deal with the preliminary objection of the petitioner that the State Commission has passed an ex parte order against them, even though the complainants were fully aware of the change in the address of the petitioner Society and also removal of the President of the Society yet they failed to inform the District Forum for necessary corrections in the address of the Society and also in the name and the address of the President. As a result, the Society could not got any information about the pendency of the case and the dates on which hearings were to be held and hence could not be represented.
13. It is seen from the complaint that it had been filed by Mr Mohan Kumar Rai in complaint no. 989 of 2007 against Mahakali Grah Nirman Cooperative Society Limited through President at the following address - E 8 Near Rajiv Gandhi Patrakarita Vishvidhyalaya, Trilanga, Bhopal and Mr Ramesh Prasad Ginnare, Son of Shri Champalal Ginnare, President, Mahakali Grah Nirman Cooperative Society Limited, E 8 Near Rajiv Gandhi Patrakarita Vishvidhyalaya, Trilanga, Bhopal (MP). As per the appeal filed before the State Commission, OP no. 2, i.e., Mr Ramesh Prasad Ginnare, President of the Society was suspended from the post of President for a period of three years by the order of the Deputy Registrar, Cooperative Societies, District Bhopal vide order dated 09.04.2008 and then in a meeting held on 10.05.2008 Mr Dinesh Trivedi was elected as President and Mr Navneet Raghuwanshi was elected as its Vice President. However, no action was taken by the complainants to implead the new President and given the revised address of the petitioners which as per the Memo of parties:
Mahakali Grih Nirman Sahkari Sanstha Mydt Through the President Dinesh Trivedi 'Son of Shri S S Trivedi T 2 Mandakaini Colony Near Shiv Mandir Kolar Road Bhopal (M P) ; and Mr Navneet Raghuwanshi Son of Shri S S Raghuwanshi Resident of 5 C, 5D Parika Phase II Chuna Bhatti, Kolar Road Bhopal (MP) (Address of the Mahakali Sansatha 45 Zone I, MP Nagar, Bhopal) Earlier in the lower Court Address of the society was E 8, Near Rajiv Gandhi Patrakarita Vishwavidyalaya, Trilanga Bhopal (MP)
14. It is seen from the order of the State Commission that they have not taken any notice of the issues raised in the appeal and have not addressed the same. They have confined their discussion to the development charges that were to be paid by the complainant and thereafter merely recorded as under:
"Learned counsel for the complainant submits that the Society is now defunct, there was no occasion for the complainant to deposit the charges, but now all the members are willing to pay the charges demanded by the Society, therefore, no dispute survives as the complainant have also shown their readiness and willingness to deposit the amount with the Society".
15. They have not taken note of the fact that as per the grounds in the appeal, while the District Forum's order was passed on 07.11.2008, OP No. 2 the President already stood suspended vide order dated 09.04.2008 of the Deputy Registrar of Cooperative Society, Bhopal and which was before passing of the final order. Mr Dinesh Trivedi had been selected as President and Mr Navneet Raghuwanshi as the Vice President in their meeting dated 10.05.2008. Thus due to the omission of respondent/ complainants in bringing the same to the notice of the District Forum and impleading the President and the Vice President elected on 10.05.2008, the petitioners/ OPs have been denied their right to defend themselves before passing of the order dated 07.11.2008 by the District Forum. In their order the District Forum merely recorded that "arguments of the complainant were heard and perused the documents. At the time of arguments the OP is absent".
16. In view of the above and in the interest of justice the revision petitions are allowed, the impugned order as also the order of the District Forum are set aside and the revision petition nos.3539, 3540, 3541 and 3542 of 2009 are remanded back to the District Forum for fresh adjudication after hearing both the parties. As this is an old case pertaining to the year 2007, the District Forum shall make an endeavour to dispose of the complaint within a period of three months.
17. The parties shall appear before the State Commission on 26th July 2017.
...................... REKHA GUPTA PRESIDING MEMBER