BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

F.A.No.836 OF 2010 AGAINST C.C.NO.141 OF 2008 DISTRICT FORUM WARANGAL

Between:

1.   The Warangal District TNGOs Cooperative
Housing Society Limited, rep. by its President
TNGOs Home, Opp. Alankar Talkies
Hanamkonda, Warangal

2.   The Warangal District TNGOs Cooperative
Housing Society Ltd., rep. by its Secretary
TNGOs Home, Opp: Alankar Talkies Hanamkonda
Warangal

                                                        Appellants/opposite parties

        A N D

Nalla Kommalu S/o Kattaiah
aged 62 years, Occ: Retd. Employee
R/o H.No.5-12-9, Hanuman Nagar
Hanamkonda, Warangal District

                                                        Respondent/complainant

Counsel for the Appellants                     M/s SAV Ratnam

Counsel for the Respondent                   M/s A.Raghu Rama Aurova

QUORUM:          SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

THURSDAY THE SEVENTH DAY OF JUNE

  TWO THOUSAND TWELVE

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.             The opposite party has challenged the order of the District Forum by way of filing the appeal inter alia contending that the respondent is not eligible to be the member of the appellant society and as such his membership was cancelled and against the order of removal of his membership, the respondent has not raised any objection and that the respondent has been claiming registration of the plot basing on a notice issued under mistake by the appellant society.

2.             The respondent as the member of the appellant society had applied for allotment of a plot and the appellant society allotted plot bearing number 160 admeasuring 300 sq.yards at Palvelpula village , by collecting the first installment of `5,000/-. The respondent deposited the registration charges of `13,250/-on 10.02.2001. The appellant society issued notice published in Eenadu dated 28.7.2007 requesting the allottees to get the plot registered within 30 days therefrom.

3.             The respondent has contended that he had submitted application on 19.02.2004 with a request to the appellant society to register the plot allotted to him and again on 7.08.2007 he had submitted application in response to the notice dated 28.07.2007 published in Eenadu.

4.             The appellant society contended that the respondent is not eligible to be its member and he did not possess basic eligibility to acquire the plot by way of allotment from the appellant society and that the notice published in Eenadu is in regard to the members and not others . It is contended that the respondent is not a consumer within the meaning of the provisions of the Consumer Protection Act and that the complaint is not filed within the period of limitation. It is contended that before the Divisional Cooperative Officer, Warangal arbitration proceedings were initiated and  it was disclosed that during the tenure of official person in-charge in the year 1996 about 42 members irregularly, without any eligibility against byelaws entered in the enrolment of the members of the society, as per byelaws and the order of the Commissioner for Cooperation and Registrar of Coop-Societies.  All the (42) persons enrolled by the PIC are not TNGOs and as per the bye-laws they are not eligible for membership and for allotment of plots, subsequently an arbitration case has been filed before the Dy. Registrar of Co-op. Societies, Warangal on the irregular enrolment of (42) members and allotment of plots to these ineligible members by the PIC.  The DRCS/Divil. Co.op. Officer, Warangal vide his judgments, ABC Claim No.1226/97 (ARC No.1/97/C) dated 30.05.1998 has passed order that Sri G.Satyanarayana, CSR/PIC has committed grave irregularities in violation of directions of the CC & RCs and provisions of Bye-laws in admitting (42) ineligible members and allotment of plots to them.  The DRCs has also directed the society tot take action for disqualification and removal of said ineligible member from the society.   Accordingly, the CSR/PIC of the society has removed the ineligible persons from the membership of the society vide his resolution dated 18.05.1998 duly following the procedure prescribed in the bye-laws and section 21 of the APCS Act.  The Divisional Co-operative Officer, Warangal vide Lr.RC.No.1313/98-E dated 30.05.1998 has also accorded approval U/s 21 (3)ii of the APCS Act for the action initiated by the CSR/PIC of the society in removing the (259) ineligible persons from the society.    

5.             The respondent has filed his affidavit and the documents Exs.A1 to A21 and on behalf of the appellant society, the President, V.Laxman Rao has filed his affidavit and the documents Exs.B1 to B4.

6.             The District Forum has allowed the complaint on the premise that the appellant society had executed sale deed in favour of Ram Babu who is one of the members whose names were deleted and on par with the rights of Ram Babu the respondent’s right to the allotted plot would stand and that the appellant society had issued notice to the respondent requesting to get the plot registered by paying the registration charges.

7.             The points for consideration are :

1.     Whether the complaint is filed within the period of limitation?

2.     Whether the respondent is  eligible to be the member of  
        the appellant society?

3.     Whether the respondent is eligible to seek for registration
                of the plot?

4.     To what relief?

8.             POINTS NO.1&2:  The respondent claiming to be the member of the appellant society, had applied for allotment of a plot and the appellant society allotted plot bearing number 160 at Palvelpula village. According to the version of the respondent ,he had  paid the consideration of the plot and registration charges by 5.01.2001. The arbitrator passed award approving the removal of the membership of the respondent and other ineligible persons and the same was approved by the Divisional Cooperative Officer, Warangal on 30.05.1998. The respondent and other persons whose names were removed from the membership list of the appellant society, have filed writ petition No.18592 of 1998 which was disposed of on 8.11.2001.

9.             The Hon’ble High Court has passed the Judgement directing the writ petitioners who include the respondent herein to avail alternate remedy available under Section 27 of the Cooperative Societies Act and in that instance the appellate authority was required to consider the time spent by the petitioners in prosecuting the writ petition. The High Court observed:

“In the peculiar circumstances of the case, prima facie continuance of the person-in-charge appears to be clearly the teeth of the sealing fixed by the legislation under Section 32(7)(a) of the Act:  But having regard to the failure of the petitioner to seek a specific relief, and failure to implead appropriate respondents coupled with the alternative relief sought by the petitioner to pursue the available alternative remedy, I consider it appropriate to relegate the petitioners to pursue the remedy under Section 77 of the Act.  since the petitioner has filed this writ petition which has been pending in this Court for over three years, this factor may be taken as relevant circumstance by the appellate authority while considering any question of delay on the part of the petitioners in seeking such alternative remedy”.

10.            The alternative remedy as indicated in the judgment of the High Court is the appellate authority under the Cooperative Societies Act and not the Consumer Forum as observed by the District Forum. In the judgment it is clearly indicated that the writ petitioners can approach the appellate authority under Section 32(7) (a) of the Cooperative Societies Act to pursue the alternative relief. The writ petitioners have not filed appeal against the judgment in the writ petition nor they did approach the appellate authority as directed by the High Court.

11.            The respondent receiving notice and his making payment of the dues of `3,250/-  and the appellant society refusing to register the plot on the premise of the respondent being ineligible to be its member are  all the part and parcel of the matter pertaining to the subject matter of the order in writ petition filed by him and the other persons whose names were removed from the membership by the appellant society. The respondent had availed the remedy of approaching the High Court and was directed by the High Court to approach the appellate authority under Section 32(7) (a)  of the Cooperative Societies Act. Thus, the respondent cannot contend that the alternative remedy is available to him under   Section 3 of the Consumer Protection Act.

12.            Section 3 of the Consumer Protection Act has to be given harmonious construction as its indiscriminate application has given rise to several anomalous situations ending in the judgments of the High Courts and Supreme Court holding the complainant not entitled to avail remedy under the provisions of the Consumer protection Act. Section 3 of the Act cannot be applied as panacea for all the remedies. The District Forum has opined that it has got jurisdiction to entertain the complaint, as under:

“          For this our answer is that this Forum has got jurisdiction to try this matter as per Section 3 of Consumer Protection Act.  The ingredients of Section 3 of Consumer Protection Act, it clearly says that:

“          Act not in derogation of any other law:-  The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.  So the Consumer Protection Act is an addition and it is not concerned for any other law.  This act is different for any other law certainly the consumer court has power to deal with the cases and further there is a citation in 2008 (2) CPR 102 (NC). 

13.                  The order of the National Commission referred to, by the District Forum in its order dealt with a case where the franchisee was held to be a consumer under the provisions of the Consumer Protection Act. The facts of that case or the ratio laid in the decision have no application to the facts of the present case.

14.            In the circumstances where a specific order is passed by the High Court suggesting the petitioner to approach a proper forum or the bar created by a provision in special statute, section 3 of the Consumer Protection Act has no application and as such the observation of the District Forum that the alternative remedy can be availed by the respondent is unsustainable. The respondent is at liberty to approach proper forum for rederessal of his grievance and in such event the proper forum would consider the time spent in prosecuting the complaint before the District Forum and this Commission as well.

15.            In the result, the appeal is allowed by setting aside the order of the District Forum. The respondent is at liberty to approach proper forum for rederessal of his grievance and in such event the Forum would consider the time spent in prosecuting the complaint. There shall be no order as to costs.

                                                                MEMBER

                                                                MEMBER

                                                            Dt.07.06.2012

KMK*