B.C. Gupta ORDER
Dr. B.C. Gupta, (Presiding Member)
These three appeals have been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 27.01.2016, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in consumer complaints No. CC/15/586, CC/15/748 & CC/15/749, filed by Srishti Cooperative Housing Society Limited against the appellant builders, Azure Tree Townships LLP. The complaints were filed alleging deficiency in service rendered by the OP builders to the complainant society and its members, as a result of statutory and contractual breach on the part of the OP Builders. Directions have been sought through the consumer complaints to the builders to remove defects in construction and to carry out repairs etc. Directions have also been sought for making payment of certain amounts alongwith interest towards compensation for delay of 15 months in handing over the possession. The particulars of the claim attached with the consumer complaint in one case shows that the total amount claimed is 98,68,432/-.
1. During the pendency of the complaints before the State Commission, two interim applications were filed by the OP Builders before that Commission, challenging the maintainability of the consumer complaints. In one of the applications, the pecuniary jurisdiction of the State Commission to take cognisance of the complaints was questioned. The appellants/OPs took the plea that it was necessary to consider value of the flat also for the purpose of deciding the pecuniary jurisdiction. In case, the value of the flat was taken into account, the case was beyond the pecuniary jurisdiction of the State Commission. It was stated however, by the complainants that although the possession of the respective flats had already been handed over, the relief was being asked only on account of deficiency in service on certain issues. The value of such relief demanded was less than 1 crore.
2. In another application challenging the maintainability of the complaints, the OPs sought directions to the other party to seek permission of the State Commission under section 12(1)(c) of the Consumer Protection Act, 1986, for filing a joint complaint.
3. The State Commission vide impugned order dated 27.01.2016 held that the matter was within their pecuniary jurisdiction. The State Commission also held that the complaints had been filed by the Society for its members and hence, there was no question of attracting section 12(1)(c) of the Act. The State Commission vide impugned order decided to admit the complaints after rejecting both the applications, challenging their maintainability.
4. During hearing before me, a reference was made to a larger three-Member Bench, already constituted to go into similar issues. The following issue was, inter alia, referred to the larger bench:-
"(i) In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also executed, but some deficiencies are pointed out in the construction/development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction."
5. The larger bench decided the issue vide their order dated 07.10.2016 in "Ambrish Kumar Shukla v. Ferous Infrastructure Ltd." [CC No. 97/2016] and observed as follows:-
"It is the value of goods or service as the case may be and not the value or cost of removing the deficiency in service which is to be considered for the purpose of determining the pecuniary jurisdiction."
6. It is evident from the order passed by the three-Member Bench of this Commission that in the present case, the total value of the flat including the amount involved in removing the deficiencies or providing amenities etc. was to be taken into consideration for the purpose of the pecuniary jurisdiction.
7. During arguments before us, the learned counsel for the petitioner- builder stated that in view of the findings given by the three-Member Bench of the Commission in "Ambrish Kumar Shukla v. Ferous Infrastructure Ltd." (supra), the pecuniary jurisdiction to decide the matter was not with the State Commission. The order passed by the State Commission should, therefore, be set aside and the complainants should file their complaints before the appropriate forum/commission.
8. The learned counsel for the respondent, however, argued that in so far as the application filed by the OP Builders regarding the applicability of Section 12(1)(c) in the matter was concerned, the said argument is not tenable, because in the present case, the complaints had been filed by a cooperative society, and not by a group of consumers. The learned counsel argued that the instant complaints had been filed by a cooperative society under section 12(1)(a) of the Act, and the cooperative society itself came under the definition of 'person' as defined in section 2(1)(m) of the Act. This contention of the complainants had been upheld by the State Commission as well and hence, the complaints were maintainable without recourse to section 12(1)(c) of the Act. The learned counsel argued that as per section 12(1)(c), a group of consumers having same interest could join hands to file a complaint. However, a cooperative society, consisting of many members was competent to file the present complaints on behalf of its members as per section 2(1)(m) of the Act.
9. The learned counsel for the complainants further argued that this Commission, exercising powers under section 21(b) of the Consumer Protection Act, 1986 was competent to call for records and pass appropriate orders in these cases. This Commission should, therefore, direct the State Commission to send record of proceedings in the consumer complaints and then proceed further in accordance with provisions of the Act. The learned counsel has further drawn attention to section 24 of the Code of Civil Procedure, 1908 relating to General Power of Transfer and Withdrawal of cases. As per section 24(5) of the said Code, "A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."
10. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.
11. A careful perusal of the complaints at hand reveals that the complainant is a Cooperative Housing Society which has been authorised through a resolution passed in a Special General Body Meeting of the Society to collectively represent the interests of its members. It is stated that the complaints have been filed by the complainant society on its own behalf as well as on behalf of its members. The copies of individual agreements for sale executed by the OP Builder with the members of the complainant society have been attached with the complaint. It is evident, therefore, that the complainant society has filed the consumer complaint in question to look after the interests of its members. There is no direct evidence to show that the complainant society itself is a 'consumer'. Evidently, this is a case where the society is acting as a voluntary consumer association and has filed the consumer complaints as a 'recognised consumer association' within the meaning of section 12(1)(b) of the Consumer Protection Act, 1986.The term 'voluntary consumer association' has been defined in a recent order passed by a three-Member Bench of this Commission in " Moulivakkam Trust Heights Flats Affected Buyers Association v. M/s. Prime Sristi Housing Pvt. Ltd. & Ors." [CC/560/2014 with connected association matters decided on 05.05.2017], and the complainant Society is covered in the definition as such. There is no question of any permission being granted for filing the complaints under section 12(1)(c) of the Consumer Protection Act, 1986, therefore, in the present cases. The averments made by the appellants/OPs before the State Commission stating that the complainant should have obtained permission under section 12(1)(c) before filing the present complaints, is not valid in the eyes of law. Further, the averment made by the learned counsel for the respondent as well that the present complaint should be taken to have been filed under section 12(1)(a) of the Act, is also not valid because the Cooperative Society by itself is not a consumer in the present case, rather they have filed the consumer complaints on behalf of its members. It has been mentioned in the complaints that individual members had executed different individual agreements with the OP builder.
12. In so far as the issue of pecuniary jurisdiction is concerned, a three-Member Bench of this Commission have already decided vide their order dated 07.10.2016 in "Ambrish Kumar Shukla v. Ferous Infrastructure Ltd. " (supra) as stated above that the value of the flat is also to be taken into consideration while deciding the pecuniary jurisdiction of the consumer fora. Once, the said value is taken into account, the cases go beyond the pecuniary jurisdiction of the State Commission.
13. Now further, coming to the arguments taken by the learned counsel for the appellant that this Commission should call for record of the State Commission and take cognisance of the matter, it shall be worthwhile to quote section 21(b) of the Consumer Protection Act, 1986, which states as follows:-
"(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity."
14. Further, the provision regarding the transfer of cases has been stated in section 22B of the Act, which states as follows:-
"22B. Transfer of cases - On the application of the complainant or of its own motion, the National Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the District Forum of one State to a District Forum of another State or before one State Commission to another State Commission."
15. It is made out from section 22B of the Act that this Commission may transfer any complaint pending before District Forum of any State to that of another State, or before one State Commission to another State Commission. There is no provision for the transfer of proceedings from State Commission to the National Commission. Further, as laid down under section 21(b) of the Act, this Commission has powers to call for records and pass appropriate orders in consumer disputes, where it appears to this Commission that the State Commission have exercised jurisdiction not vested in it, or has failed to exercise a jurisdiction so vested or has acted illegally or with material irregularity. In the present case, the consumer complaints are still pending before the State Commission and they have not exercised their jurisdiction or failed to exercise the said jurisdiction in terms of section 21(b) of the Act. We are, therefore, not in agreement with the contention raised by the complainants that this Commission should call for records from the State Commission and then proceed further in the matter of deciding the consumer complaints.
16. Based on the discussion above, it is held that the State Commission have taken an erroneous view that they had the pecuniary jurisdiction to decide the complaints. The order passed by the State Commission is, therefore, set aside and it is held that the said complaints were not maintainable before the State Commission for lack of pecuniary jurisdiction. The matters are remitted back to the State Commission for taking further necessary action as per law by directing the complainants to file their complaints before appropriate forum/commission of the competent jurisdiction. These first appeals are, therefore, decided accordingly.
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