(Per Hon’ble Shri Dhanraj Khamatkar, Presiding Member)
(1) This appeal takes an exception to an order dated 12/04/2004 in Consumer Complaint No.27/2003, Mr.Rajendra M.Kowli vs. 1. Mr.P.G.Desai Administrator and ors., passed by District Consumer Disputes Redressal Forum, Central Mumbai District (‘District Forum’ in short).
(2) The facts leading to this appeal can be summarized as under:-
The complainant is one of the members of ‘Andrade House Co-operative Housing Society Ltd.’ being owner of the flat no.24 in the said society. The complainant had filed the consumer complaint alleging deficiency in service on the part of the opponent no.1 in the capacity as an administrator of the ‘Andrade House Co-operative Housing Society Ltd.’ and the opponent no.2 is Dy.Registrar, G/N Ward, Co-operative Housing Societies, Mumbai who has appointed the opponent no.1 as an administrator of the said society. It is the contention of the complainant/appellant that as an administrator, it was the duty of the opponent no.1 to take necessary steps for getting conveyance of the property in favour of the society as also to decide other source of income without touching pocket of any member, so as to raise the funds for the said society. He was also responsible for the maintenance of the society and the building. However, the opponent no.1 has not discharged his duties diligently and incurred expenses on heavy items which were not required and were not as per the request of the complainant. Hence, the complainant filed consumer complaint with following prayers:-
(i) To direct the opposite party no.1 to reimburse the balance amount of 4 lacs after deducting the difference between the cost of the new pipes and cost of existing pipes from the ‘cost of contract’ (plus cost of old pipes) with interest @21% p.a.
(ii) To direct the opposite party no.1 to reimburse the sum of `4,50,000/- being the difference between cost of the quality and quantity of civil work (plaster, painting etc.) with interest @21% p.a.
(iii) To order and direct the opposite party no.1 to pay the sum of `5,00,000/- towards the damages that has been caused to the complainant and to property of the co-operative housing society by alleged change of user and/or illegal user, transfer etc. together with interest @21% p.a.
(iv) To further direct the opposite party no.1 to reimburse the sum of `3,50,000/- being the increase in maintenance charges which has been caused because of mis-handling the suit of Bank’s ratable value together with intest @21% p.a.
(v) To direct the opposite party no.1 to pay `15,000/- to the complainant being the cost of this complaint.
(3) The opponent no.1 had contested the complaint by filing written version challenging the maintainability of the complaint on the various grounds including the jurisdiction of the Forum. It is contended by the opponent no.1 that the society is under the control of administrator since prior to October 1996. The opponent no.1 was appointed as an administrator as per the order of the Dist.Dy.Registrar dated 20/04/1998. It is further contended by the opponent no.1 that because of attitude on the part of the members of the society, particularly the complainant, the opponent no.1 had tendered resignation on 16/01/2001 and thereafter by an order dated 12/02/2001 one Mr.Omprakash Kishanlal was appointed as an administrator. However, the appointment of Mr.Omprakash was terminated by an order dated 17/10/2001 and again the opponent no.1 was appointed as an administrator.
(4) The opponent no.1 has moved an application before the District Forum praying for deciding the complaint by framing the preliminary issues about the jurisdiction of this Forum and maintainability of the complaint. He stated that the grievances raised by the complainant are regarding the business of the co-operative housing societies and that as per the provisions of Sec.91 of the Maharashtra Co-ope. Housing Societies Act, such grievances and the dispute are to be agitated before the Co-operative Courts. It is further submitted that the complainant has impleded the opponent no.1 in his official capacity as an Administrator and not in his individual capacity and that as per the settled position of law, the Administrator steps into the shoes of the Managing Committee. The opponent no.1 further contended that the prayer clauses are to be claimed by the co-operative housing society only and not by any individual member. Therefore, the opponent no.1 had prayed that the complaint may please be dismissed.
(5) The District Forum after going through the complaint, written version filed by the opponent no.l, and the pleadings of the advocates came to the conclusion that the complainant is not a consumer and dismissed the complaint. Aggrieved by the said order, the original complainant filed the present appeal.
(6) We heard Mr.Anand V. Patwardhan-advocate for the appellant and the respondent no.1-Mr.P.G.Desai, who is present in person. Opponent no.2 preferred to remain absent, though duly served.
(7) On perusal of the complaint, it is seen that it is filed by Rajendra M. Kowli, who is one of the members of Andrade House Co-operative Housing Society Ltd. However, in para no.25 of the complaint, the complainant has stated that the said act of the opposite party amounts to deficiency and for which complainant (for his society) is entitled to have damages from the opposite party. From this, it is clear that the complainant/appellant has prayed for damages from the opponent no.1/respondent no.1 for the society. However, nowhere it is stated in the complaint that he has filed the complaint in a representative capacity or other members have authorized the complainant to file the complaint. The other members of the society either have not authorized the complainant to file the complaint against the opponent no.1 & 2 or the complaint is not a representative complaint. The prayers cannot be entertained. The learned District Forum has gone through the authorities adduced by the complainant to prove that he is a consumer are not relevant in the matter.
(8) Further, the opponent/respondent no.1 had filed his written arguments stating that he has acted as an official in good faith as per resolutions passed by the General Body Meeting held severally during the tenure of respondent no.1. Respondent no.2 even has given directions u/s.79 of M.C.S.Act, 1960 vide his order dated 19/06/2003 for carrying out building repairs, painting works, audit of the Accounts and after completion to hold elections of the Managing Committee. He further stated that the society of which the complainant is a member could not function properly and since 1996 the society was under the control of administrator. He has drawn our attention to the letter dated 02/06/2011 of the society addressed to Dy.Registrar stating the facts about the expenditure and the accounts during the period of administrator and has stated that the same were audited and approved by the General Body Meeting of the Society and as such there is no any substance in the complaint of the appellant. Apart from this complaint, the appellant had filed Writ Petition No1313/2004 before the Hon’ble High Court, Mumbai, Review Petition No.29/04 in Writ Petition No.13/13/04. On the order in Revision Application No.518/04, again Writ Petition No.1782/09 was preferred by the appellant/complainant.
(9) From the aforesaid facts, we find that there is no jurisdictional error and illegality or infirmity in the order passé by the District Forum. We hold accordingly and pass the following order.
ORDER
(1) Appeal stands dismissed.
(2) No order as to costs.
(3) Inform the parties accordingly.
Pronounced on 30th September, 2013.
