Order No- 7

Dated -15.03.2016

The record is put up for order in connection with a petition filed by the OPs challenging the maintainability of the case.

Complainant has filed this case against one Debargha Dey, General Secretary, R.A.A.F.O.A. praying for insuring justice which solve the discrimination by introducing the maintenance on the basis of sq. ft. the cause of action on 12.02.2015 when the service charges of the complainant against the flat no-5 and 7, A block, first floor, enjoyed (water pipe line supply and night soil etc.) maintenance single for double flats and etc.

OP has alleged that the instant case is barred by the provision of the C.P. Act, 1986 as amended up-to-date. The OP is the General Secretary of the “Rahara Arabinda Arena Flat Owner’s Association” lying and situates at old Calcutta Road, Rahara Bazar, P.O.-Rahara, P.S.-Khardah, Kolkata-700118, within the local limits of Khardah Municipality, ward no-5 and guided by the rules and regulations of the Association consisting of the flat owners of this housing complex and the complainant is one of the flat owners as well as a member of the said associations.

OP also alleged that the body of the Association is constituted by Election which held every three years and the complainant being a flat owner cast his vote and elects the members of his choice like other flat owners. This multi-storied building was built upon a piece and parcel of land measuring more or less 7 bighas 2 cottahs belonged to the Khardah Municipality, and subsequently the said Khardah Municipality entered into a Joint Venture Agreement with M/s. Arabinda Land & Housing Complex(P) Ltd in the year 1997 and constructed number of residential flats and shops. In the said agreement the Khardah Municipality was the vendor and M/S. Arabinda Land & Housing Complex (P) Ltd was the developer.

OP has alleged that before formation of the Association, the Chairman of the Khardah Municipality was the President of this Housing Complex. The Khardah Municipality for being the owner of the land upon which the building is standing and its Chairman previously was the President of the said Housing, so the Municipality had a vital role in the important matters of the Association and the present committee has to take advice and permission from the said Municipality as the when it becomes necessary. In the said housing complex the complainant and the OP are having the same status and both are service provider to each other and therefore, question of deficiency of service does not arise.

OP also alleged that the committee is formed by election and so the committee as a whole are duty-bound to all the flat owners and the said committee has to act according to the guidelines framed by the members in the Annual General Meeting, extra Ordinary General Meeting and the complainant personally remains present in the said meetings by putting his signature in the notice of the Association. The committee of the said Association cannot do any work or works without the decision of the majority members.

OP further alleged that in view of the facts and circumstances it is clear that the complainant has filed this case with an intention to abuse the process of law and, therefore, the instant case filled by the complainant is not maintainable in law and equity. So the instant case is liable to be dismissed.  

Question is whether the case is maintainable in its proper form?                Contd..2/-

-:2:-

Decision

It appears that complainant is the member of the OPs and considering the entire materials on record we are of the view that complainant is not a consumer under the C.P. Act, 1986 under the facts and circumstances of the case.  Admittedly the body of association is constituted by election which held every three years and complainant being flat owners cast is vote and elects the member of his choice that other flat owners. Bedsides that it appears from the written version of the OP that Chairman of the Khardah Municipality were the President of the housing complex. So the Municipality had a vital role is the important matter of the association and present committee has to take advice and permission from the Municipality as and when it becomes necessary.  It appears that complainant and the OP have same status and both are service provider to each other and, therefore question of deficiency in service does not arise.

Accordingly we hold that complaint is not maintainable and should be dismissed against the OPs.

Hence,

It is ordered,

that the complaint be and same is dismissed as not maintainable on contest against the OPs.

Parties to bear their own cost.

Member                                       Member                                               President

Dictated & Correct by me.