State Consumer Disputes Redressal Commission
Nasirul Alam vs Burdwan Development Authority on 23 October, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/647/2016 (Arisen out of Order Dated 28/06/2016 in Case No. Complaint Case No. CC/1/2011 of District Burdwan) 1. Nasirul Alam S/o Lt. A.Alam, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. 2. Dr. Aminul Islam S/o S.M.G. kaiser, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. 3. Nuruddin Ahmed S/o Golam Mohiuddin, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. 4. Dr. Subhash Chandra Saha S/o Lt. Muktipada Saha, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. 5. Mrs. Poly Sinha Roy W/o Lt. Susanta Kr. Sinha Roy, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. 6. Salma Sinha Dutta D/o Lt. Susanta Kr. Sinha Roy, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. 7. Reshma Sinha Roy D/o Lt. Susanta Kr. Sinha Roy, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. 8. Debasish Bhuniya S/o Sahadev kr. Bhuniya, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. 9. Mohobubal Hoque S/o Lt. Abdul Kader, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. 10. Anita Majilya W/o Samiran Majilya, Burdwan Residency, 60, B.B. Ghosh Road, Jail Khana More, Town, P.O., P.S. & Dist. Burdwan, Pin -713 101. ...........Appellant(s) Versus 1. Burdwan Development Authority New Administrative Building, 5th Floor, Kachari Road, Burdwan, Pin-713 101, rep. by its Chairman. 2. Dheeraj Promoters(An Associate of Poddar Project Ltd.) 9A, Lord Sinha Road, Kolkata - 700 071. 3. Chairman, Burdwan Municipality Burdwan, Pin - 713 101. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Debdas Rudra, Mr. Subrata Ghosh, Advocate For the Respondent: Mr. Barun Prasad, Mr. Subrata Mondal, Advocate Dated : 23 Oct 2017 Final Order / Judgement
Date of Filing - 22.07.2016 Date of Hearing - 11.09.2017 The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Complainants to impeach the Judgement/Final Order dated 28.06.2016 passed by the District Consumer Disputes Redressal Forum, Burdwan (for short, Ld. District Forum) in Consumer Complaint No. 01/2011 whereby the consumer complaint initiated by the Appellants under Section 12 of the Act was dismissed on contest without any order as to costs.
The Appellants herein being Complainants (08 in numbers) lodged the complaint before the Ld. District Forum with prayer for several reliefs, viz. - (a) for not providing the facility of children play area, jogging area; (b) for not constructing the incomplete boundary wall; (c) for not providing the license of the lift; (d) for not providing completion certificates; (e) for not providing fire fighting equipments; (f) for not removing illegally constructed privy adjacent to A-Block; (g) for not providing water purifying plan for complex etc. and claimed Rs.2,00,000/- each for the complainants amounting to Rs.16,00,000/- and litigation cost of Rs.30,000/-.
By the impugned order, the Ld. District Forum dismissed the complaint on contest against the respondents on contest without cost with an observation that the Ld. District Forum has no pecuniary jurisdiction to entertain the complaint and also for non-compliance of the mandatory provision of Section 12(1)(c) of the Act.
I have scrutinised the materials on record and considered the submission advanced by Mr. Subrata Ghosh and Mr. Barun Prasad, Ld. Advocates appearing for the appellants and respondent no.2/builder respectively.
The provisions of Section 11(1) of the Act deals with the pecuniary jurisdiction of the District Forum, which provides -
"11. Jurisdiction of the District Forum. -
Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 'does not exceed rupees twenty lakhs'.
In the case of Ambrish Kumar Shukla & Ors. -vs. - Ferrous Infrastructure Pvt. Ltd. reported in I (2017) CPJ 1 (NC) the Larger Bench of the Hon'ble National Commission while discussing on the point has observed thus-
"It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased or the servicers to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint ....".
Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed which determines pecuniary jurisdiction of the District Forum exceeds rupees twenty lakhs, the Ld. District Forum has no jurisdiction to entertain the complaint. In the instant case, the complainants have claimed Rs.19,50,000/- as compensation without adding the value of the goods of other co-owners and it is quite apparent that if the value of the co-owners or co-sharers allocation and the compensation are added together, it will certainly exceeds rupees one crore.
Therefore, the Ld. District Forum did not commit any irregularity by holding that it has no pecuniary jurisdiction to entertain the complaint.
Now, we will discuss as to the provisions of Section 12(1)(c) of the Act which deals with filing of complaint by more than one consumer. In this case, eight persons have lodged the complaint. So, Section 12(1)(c) of the Act comes into play which reads as under:-
"Manner in which complaint shall be made.
A complaint in relation any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by -
.......
........
One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of or for the benefit of, all consumers so interested".
Admittedly, 96 persons purchased the flat from the opposite party. This indicates that other flat owners are either satisfied with the construction made by the developer or not interested to lodge complaint. In any case, perusal of prayer clause would show that the relief has not been claimed for other similarly placed persons. The interpretation and scope of Section 12(1)(c) of the Act was the subject matter of adjudication before Three-Member Bench of the Hon'ble National Consumer Commission reported in I (2017) CPJ 1 (Ambrish Kumar Shukla & 21 Ors. - vs. - Ferrous Infrastructure Pvt. Ltd.). While dealing with the scope of Section 12(1)(c) of the Act, the Hon'ble Commission has observed thus -
"The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them, therefore, will not be maintainable. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 08 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining aggrieved persons will be compelled either to file individual complaint or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. The term 'persons interested' and 'persons having the same interest' used in Section 12(1)(c) means the persons having a common grievance against the same service provider. The use of the words 'all consumers so interested' and 'on behalf of or for the benefit of all consumers so interested', in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking common relief and consequently having community of interest against the said service provider".
The materials on record indicate that the complainants have not filed any application for leave before the Ld. District Forum to file the complaint in a representative capacity in accordance with the provisions of 13(6) of the Act. It should be noted here that the out of 96 flat owners, only 8 flat owners have lodged the complaint.
Under the garb of Section 12(1)(c) or Section 13(c) of the Act which are primarily meant for common services, e.g. facility of lift, deficiency in maintaining common areas or common facilities, complaint regarding goods are not maintainable before a Consumer Forum particularly, when the flats were booked for different amount on different dates under different terms and conditions. If complaint pertaining to deficiency in goods pertaining to many complaints is allowed in one complaint, it will create serious problem as observed by a Larger Bench of Hon'ble National Consumer Commission in the case of Ambrish Kumar Shukla & 21 Ors. (supra).
Therefore, the Ld. District Forum was quite justified in passing the order impugned in dismissing the complaint. However, the Ld. District Forum should have given an opportunity to the complainants to lodge the complaint afresh in the appropriate jurisdiction after observing the formalities in filing a complaint under Section 12(1)(c) of the Act which is a pari materia to Order -1 Rule 8 of Civil Procedure Code.
In view of the above, the appeal is dismissed on contest. There will be no order as to costs.
The impugned Judgement/Final Order is hereby affirmed.
However, this order will not debar the Appellants/Complainants to approach a competent Court/Forum in accordance with law and in the process they may seek assistance of the decision of Hon'ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works - vs.- P.S.G. Industrial Institute) to overcome the hurdle of limitation as embodied in Section 14(1) of Indian Limitation Act.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Burdwan for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER