PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

Both complaints have been filed by same complainant against same opposite party on behalf of different allottees involving same question of law under Section 21(a)(1) read with Section 12 (1)(b) of C.P. Act; hence, decided by common order.

2.      In Complaint No. 1196 of 2016, complainant has filed complaint on behalf of 8 complainants and in Complaint No. 1197/2016 complaint has been filed by complainant on behalf of 12 allottees with the allegation that buyers booked units with OP on different dates and made major payment, but still possession has not been handed over; so, prayed for direction to OP to handover possession of units complete in all respects, or in the alternate to provide other flat of identical size or refund with interest on deposited amount along with compensation.  As per Annexure ‘A’, consideration of units is ranging from 1946975 to 2951769 in Complaint No. 1196 of 2016 and sale consideration was ranging from 2366875/- to 5845800/- in Complaint No. 1197 of 2016.

4.      Heard learned Counsel for the complainant for admission purposes.

5.      Learned Counsel for complainant submitted that as there is deficiency on the part of OP in handing over possession of flats in the stipulated period, complaints be admitted.

6.      Learned Counsel for complainant submitted that complainant being registered Society under Haryana Registration and Regulation Act, complainant is entitled to file complaint on behalf of allottees under Section 12 (1) (b) C.P. Act.  Section 12 (1) (b) reads as under:

“12.        Manner in which complaint shall be made.—(1) A complaint in relation to 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 –

(b)    any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;”

Perusal of aforesaid provision reveals that recognized consumer association can file complaint on behalf of a consumer whether such consumer is Member of Association or not.  Thus, it becomes clear that complainant is entitled to file complaint on behalf of single consumer, but cannot file complaint on behalf of several consumers in one complaint and in case complaint is filed on behalf of several consumers in one complaint, complainant is required to file complaint under Section 12(1) (c) which runs as under:

12.    Manner in which complaint shall be made.—(1) A complaint in relation to 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 –

(c)     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;

7.      As complainant has filed complaint on behalf of number of allottees, complaint is not maintainable under Section 12 (1) (b) of C.P. Act.

8.      Learned Counsel for complainant has drawn my attention towards order of this Commission in Complaint No. 816 of 2016 – Amarpali Sapphire Flat Buyers Welfare Association &Ors. Vs. Amarpali Sapphire Developers Pvt. Ltd. & Ors. in which it was held that Section 12 (1) (b) of C.P. Act does not preclude the recognized consumer association from filing a composite complaint on behalf of more than one consumers having a similar grievance. Respectfully I differ from the aforesaid view because if recognised consumer association is permitted to file complaint on behalf of more than one consumers then no one would be required to file complaint under Section 12 (1) (c) of C.P. Act. I am of the view that recognized consumer Association can file complaint on behalf of single consumer whether that consumer is Member of that association or not, but recognized consumer association cannot file one complaint on behalf of many allottees by clubbing sale consideration for making peculiar jurisdiction of this Commission.  Perusal of sale consideration of units to the allottees in both the complaints reveals that sale consideration for each unit is less than one crore and in such circumstances, this Commission does not have pecuniary jurisdiction to entertain complaint and complaints are to be filed by complainant before State Commission having pecuniary jurisdiction to entertain the complaint.

9.      Learned Counsel for complainant has also drawn my attention towards judgment of larger Bench in Consumer Complaint No. 97 of 2016 – Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. in which it was held that for the purposes of complaint under Section 12 (1) (c ) if compensation claimed in respect of such consumers exceeds Rs. 1 crore complaint is maintainable before this Commission. Aforesaid judgment is not applicable to the present complaints as these complaints have been filed under Section 12(1) (b) and not under Section 12 (1) (c).

10.    Learned Counsel for complainant has also placed reliance on judgment of this Commission in I (1992) CPJ 182 (NC) – Public Health Engineering Department Vs. Upbhokta Sanrakshan Samiti, but perusal of aforesaid judgment does not reveal whether complaint was filed under Section 12 (1) (b) or under Section 12 (1) (c) but it appears that it was a class action so must have been filed under Section 12 (1) (c) and in such circumstances, aforesaid judgment does not help to the complainant.

11.    It is also not clear why same complainant has filed two complaints against same OP under Section 12 (1)(b) on behalf of different allottees.  He could have filed only one complaint if permitted under the law. I am of the view that complaints by complainant on behalf of more than one consumer is not maintainable under Section 12 (1) (b) of the C.P. Act and in such circumstances, complaints are liable to be dismissed at admission stage.

12.    Consequently, both complaints filed by complainants are dismissed with liberty to the complainants to file separate complaints on behalf of each allottee before appropriate Forum having pecuniary jurisdiction or to file complaint under Section 12 (1) (c ) of C.P. Act in the representative capacity for benefit of aforesaid allottees as well other allottees.