National Consumer Disputes Redressal
Jagdish Singh Chauhan vs Ecil Co-Operative Group Housing ... on 18 September, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1802 OF 2018 (Against the Order dated 20/02/2018 in Appeal No. 293/2011 of the State Commission Delhi) 1. JAGDISH SINGH CHAUHAN A-402, SECTOR 10/33, DWARKA, NEW DELHI-110075 ...........Petitioner(s) Versus 1. ECIL CO-OPERATIVE GROUP HOUSING SOCIETY LTD. THROUGH ITS SECRETARY, SECTOR 4, PLOT NO. 17, DWARKA, NEW DELHI-110078 ...........Respondent(s)
BEFORE: HON'BLE MR. ANUP K THAKUR,PRESIDING MEMBER HON'BLE MR. C. VISWANATH,MEMBER For the Petitioner : IN PERSON For the Respondent :
Dated : 18 Sep 2018 ORDER The present Revision Petition is filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 against Order passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the "State Commission") in F.A. No. 293/2011 dated 20.02.2018.
According to the Petitioner, he was given possession of Flat No. B-63 in the Respondent Society on 08.12.2002 after clearing all dues. As per the demand of the Managing Committee of the Respondent Society, Petitioner paid in advance Rs. 7,500/- towards maintenance and Rs. 5,485/- towards ground rent. Managing Committee of the Respondent Society charged Rs. 1,70,000/- from the Complainant, towards land cost instead of Rs. 1,54,370/- and Rs. 8500/- towards iron grills instead of Rs. 5,000/- . They had also charged more towards maintenance, water and electricity charges, though they were to maintain the building and essential services of the said Society on no profit and no loss basis. The Petitioner made oral as well as written requests on several occasions, but no reply or action was taken by the Respondent Society. The Respondent is thus guilty of unfair trade practice amounting to deficiency of service. Inspite of specific requests and orders of Hon'ble CIC, no information was supplied to him and water and electricity supply of the Flat of the Petitioner was cut on 29.07.2008, causing him irreparable physical, mental and financial loss of about 15 Lakhs. Hence, Complaint was filed by the Petitioner before the District Forum claiming compensation or damages and to restore electricity and water supply in Flat No. B-63 of the Respondent Society.
Respondent has filed his written statement in the District Forum, stating that the Petitioner has been allotted Flat No. B-63 and was put in possession of the same on 08.12.2002. He paid maintenance and ground rent only once at the time of taking possession, let alone charging any excess amount from him. Also, all essential services were being maintained on no profit no loss basis. There is no deficiency in service on their part. All amounts paid had gone into the account of the society and not into the account of any member of the Managing Committee. The same charges are levied to all members and the Petitioner is not being singled out. Members of Co-operative Society are not consumers. The Managing Committee serves on honorarium basis without any monetary benefit. All the allegations are false and vexatious. It was further contended that Consumer Court has no jurisdiction to decide the said Complaint and the same was barred under Section 70 and 132 of Delhi Co-operative Societies Act 2003. Hence, Complaint was not at all maintainable as the Complainant was not a consumer within the definition of Section 2 of the Consumer Protection Act, 1986. It is further stated that after handing over possession, repair of the individual Flat was not the responsibility of the society or the Managing Committee and no water or electricity supply was cut on 29.07.2008.
The District Forum vide order dated 07.06.2011, dismissed the Complaint on the ground that only oral allegations were made by the Petitioner and nothing was proved by way of evidence. The Petitioner filed an Appeal before the State Commission against the orders passed by the District Forum. State Commission, vide order dated 20.02.2018, dismissed the appeal of the Petitioner and confirmed the order passed by the District Forum.Being aggrieved by the order of the State Commission, the Petitioner filed the present Revision Petition.
Heard the Petitioner in person. He contended that the State Commission has not considered the documents placed on record. He has also placed a bunch of citations for consideration. No evidence was produced that the Petitioner has paid any excess amount towards maintenance charges. He has also not sought recovery of any excess amount paid.
We have gone through the orders passed by the State Commission as well as by the District Forum in this matter. The District Forum observed that the Petitioner failed to produce any relevant evidence which could prove that he has paid excess amount towards maintenance charges, iron grill etc. Moreover, it was found that the Petitioner has not prayed for any recovery of amount which he has paid in excess to the Respondent. It was also not proved by the Petitioner through evidence that the Respondent was responsible for maintenance of flat after taking possession of the same.
Further, State Commission has gone into the orders dated 02.08.2009, wherein the Petitioner was directed to pay the amount twice, once by way of award and second time while disposing of the order u/s 37 of the Co-operative Societies Act, vide letter dated 16.03.2017. Finally, State Commission has also not found any infirmity in the order passed by the District Forum.
The Petitioner herein has relied upon 6 judgements in the present Revision Petition which are as follows:-
"In Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha(Dead) Through LRs and Ors., I (2004) CPJ 1(SC) Petitioner has relied on para19 of the judgement in which it was stated that "National Commission was right in holding that the view taken by the State Commission that the provisions under the Act relating to reference of disputes to arbitration shall prevail over the provisions of the 1986 Act is incorrect and untenable".
In Budh Singh Vs. Jan Vihar Cooperative Housing Society Ltd. & Anr. IV (2009) CPJ 237, it was held that under law, whenever there is any deficiency in the management of affairs of a Society, every member has right to seek redressal of grievance as a Consumer, as maintenance and other services are provided against consideration. Hence, it is a Consumer Case and is being rightly dealt by Consumer Courts.
Magma Fincorp Limited Vs. Ashok Kumar Gupta III (2010) CPJ 384 (NC) in which it was stated that if Complainant has not participated in arbitration proceedings then award of Arbitration will not be binding upon him. The facts and circumstances of the present case are entirely different from the above stated case law. The only related issue in the above stated case was with regard to Arbitration but in the present case the Complaint was dismissed by the District Forum on the ground of lack of evidence.
In H.K.N. Swami Vs. Irshad Basith (Dead) by LRs. (2005) 10 Supreme Court Cases 243, Supreme Court held that the First Appeal has to be decided on facts as well as on law. In the present case, both District Forum as well as State Commission have given detailed orders regarding dismissal of the Complaint. Thus, in our view, decisions in both the Foras have been taken on facts and law.
In Madukhar and Others Vs. Sangram and Others (2001) 4 Supreme Court Cases 756, Supreme Court held that it is the duty of the Court to deal with all the issues and evidence led by the parties, before recording its findings. In the present case, District Forum has clearly stated that Petitioner has not proved his allegations against the Respondent by way of any evidence. S.P. Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs. and others AIR 1994 Supreme Court 853, it was held that law is settled on the point that a Judgement or decree obtained by playing fraud on the Court is a nullity and non-est in the eyes of law. Such a judgement/decree by the first court or by the highest court has to be treated as nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. This case was dismissed by the District Forum on the ground of lack of evidence and we do not find any illegality in the order passed by the District Forum. It cannot be stated that judgement or decree obtained from the Foras were obtained through any fraud.
Having heard the Petitioner and on careful consideration of the entire record, we are convinced that the District Forum as well as State Commission have thoroughly gone through all the evidence and given justified reasoning while passing their orders. They have taken into consideration all points relevant for the disposal of the matter. I.A. No. 11871 of 2018 filed by the Petitioner seeking exemption from filing typed copies is disposed accordingly with the present Revision Petition.
In view of the above, the present Revision Petition is dismissed and orders passed by both District Forum as well as State Commission are confirmed.
...................... ANUP K THAKUR PRESIDING MEMBER ...................... C. VISWANATH MEMBER