The brief facts of the case is that  the complainant  is one of the owners in possession of the flat in question and there was a Flat Owners’ Association of the said Apartment led by the Secretary, Supriyo Rana who is the opposite party No.1 of this case and Treasurer of the said Association who is the opposite party no. 2, Debangshu Nandi of this case and the duration of the executive committee of the Association in question regarding all works of the apartment has already expired and the funds of the said Association is operated by the Treasurer/ opposite party no. 2 at the instance of the opposite party no. 1/ Secretary.

The complainant also states that since expiry of the portfolio of opposite party no. 1 as Secretary and of the portfolio of opposite party no. 2 as Treasurer, the opposite party no. 1 has no legal capacity to conduct the association and the opposite party no. 1 is bound to answer of all the questions so long he was on chair as Secretary regarding any dispute either fund or other affairs of the Association and the opposite party no. 1 has no Locus Standi to lead the Association whimsically with his self decision and the opposite party no. 1 with his self interest and monitory benefits and without the knowledge and consent of the flat owners including the complainant, allotted quotations to his nominated persons for maintenance of the apartment viz. placement of C.C. Camera. Outside color wash, two-wheeler shed inside the apartment, unnecessary placement of iron gates for the four blocks of the apartment, water pump installation and its repairing works and removal of engineers of the works of the lift of the apartment and other affairs etc. and the opposite party no. 1 has not yet submitted accounts of the Income and Expenditure for maintenance of the noted above so long he was in the portfolio of the Secretary and the opposite party no. 1 in collusion with opposite party no. 2 is not contacting with the flat owners including the petitioner for taking final decisions in any event on the basis of resolution of the meetings of the Association held so many times and with regard to the resolution of the meeting of the association, it was resolved that opposite party no. 1 shall be liable to deliver the copy of bye-laws of the resolution taken in the meeting of the association, to all the flat owners including the complainant also, in which the secretary and treasurer was agreed to provide service by way of delivery of copy of resolution in question but they failed to provide the same. Probably, all the flat owners and particular the complainant are under full dark as to what and under what circumstances, expenditure had been borne by the opposite party no. 1 at the instance of opposite party no. 2 for the development of the flat owners in connection with their respective flats including maintenance and other affairs of the apartment.

The complainant also states that on 2.7.2017 an emergent meeting was convened of the flat owners at the instance of the opposite party nos. 1 and 2 in which the opposite party no. 1 was bound to submit the accounts of the association which he miserably failed to furnish of the same although he told that he would furnish the same within a couple of days from that date of meeting but could not comply with and having no other alternative one steering committee amongst the flat owners of the apartment by expunging the persons like opposite party nos. 1 and 2 had been formed for the temporary conduct of the association in question and both the opposite parties are binding upon to discharge their liability regarding all aspects of the flat owners association inclusive maintenance as well as income and expenditure of the association and development so long they were on chairs of the portfolios as secretary and treasurer and there is deficiency of service on the part of opposite party. members as secretary and treasurer for the development of the association particularly maintenance for the flat owners association and they were agreed to provide service for the same which come under the purview of the Consumer Protection Act but they failed to comply with their service noted above and hence, the present case if preferred to.

Complainant filed the complaint petition praying to pass necessary order giving directions upon the opposite parties to furnish all the affairs in writing along with its’ extracts as per resolution of the meeting of the flat owners’ association so far held already under the leading part of both opposite parties as Secretary and Treasurer, with necessary explanation in support of evidentiary papers and documents and money receipts within a time to be limited by the Ld. Court and i.d. necessary legal action be taken against both of them and to pass such orders as the Ld. Forum shall deem fit and proper for the interest of justice.

The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties submit that in fact a panel was formed comprising of Ajay Das Mahapatra, the president and the opposite party nos. 1 and 2 as secretary and treasurer to carry on the proper functioning of the said housing complex by an election held on 6.4.2014 and thereafter the said committee carry on the functioning of the said housing complex by taking resolution from time to time for the maintenance and welfare of the housing complex on different affairs with the consent of other flat owners including the complainant by maintaining proper accounts and the said committee carry on their job peacefully till 31.3.2015 but on and from 31.3.2015 the opposite party no. 2 refuses to carry on his job as treasurer as the complainant brutally misbehave with him in vulgar language on the ground of changing the security guard and on and from 1.4.2015 the said Ajay Das Mahapatra used to carry on the responsibility of two posts including the post of president and treasurer and during the tenure of Ajay Das Mahapatra the resolution for painting and C.C.TV was passed on 26.1.2016 and in the said resolution there is no sign of the opposite party no. 2 as Ajay Das Mahapatra was then the acting treasurer and other works for the welfare of the complex as well as lift engineers were removed on consent for not doing their job properly under the tenure of Ajay Das Mahapatra and the said Ajay Das Mahapatra give up his job of acting treasurer on 31.3.2017 and handed over the entire statements to the opposite party no. 2 and on and from 1.4.2017 the opposite party no. 2 rejoin in his job as treasurer and from the statements of accounts as given by Ajay Das Mahapatra it reveals that the complainant after consenting in the resolution of 26.1.2016 have not made his share of payment amounting to Rs.23,820/- though other flat owners have given their share of money as it was settled in the said resolution that C.C.TV is to be installed for the welfare of the complex from the surplus of money and after 1.4.2017 it was observed that the complainant used to consume alcohol daily inside the open complex and thereby create chaos inside the complex till the dead of night which is quite unbearable for everyone to reside with their family members and by the installation of C.
C.TV the mis-chiefs of the complainant will be highlighted and as such the complainant raised objection against the C.C.TV and the opposite party nos. 1 and 2 agitated against the drinking of the complainant and due to the stopping of drinking of the complainant inside the complex, the complainant out of grudge has filed this false case stating false statement and moreover the proof of his falsification is that he has good relation with his other co-owner, Avijit Bhattacharjee though the said Avijit Bhattacharjee has lodged a FIR against the complainant being Uttarpara Police Station Case no. 792 of 2017 u/s 420/406/120B I.P.C. and the said opposite parties resigned from their job on 19.6.2017 due to the misbehavior and false blaming of the complainant though he himself has cheated his co-owner and as such there is no deficiency on the part of the opposite party nos. 1 and 2 as secretary and treasurer.

Complaint filed evidence on affidavit which is nothing but replica of complaint petition which is needless to discuss.  Opposite party No.2 files examination in chief in affidavit which is also the replica of the written version.

 Complainant files written notes of argument. Heard the argument advanced by the Ld. Advocate of the complainant in full.

             After perusing the complaint petition, written version, evidence on affidavit and hearing the parties it is transparent that the complainant being the flat owner is the member of flat owners association and alongwith with other flat owners he elected the opposite party as the treasurer and Secretary of owners association and the complainant used to pay the maintence charges for his flat and also attend the periodical meetings. Dispute cropped up when the opposite party being the Secretary and treasurer of impugned flat owners association failed to provide service in respect of maintenance of flats as it is alleged by the complainant. But during the preceding the complainant failed file evidence of other flat owners to corroborate his allegations. There may be any allegations against the Secretary and the Treasurer but the complainant should put his grievances during the period of periodic meeting in presence of other flat owners. The opposite in their written version alleged regarding the misbehavior of the complainant within precincts of flats and the complainant has been implicated in criminal case lodged by other flat owner. But by filing any evidence the complainant failed to disprove the allegations leveled against him. The portfolio holders of the flat owners association are also the other flat owners but they are not salaried person responsible to provide service in lieu of consideration.

            While so, on perusal of the Written Version filed of the Opposite Party, it is stated that the complainant is not a Consumer as defined sec 2(d) (ii) of the Consumer Protection Act 1986 and the complainant has not approached this forum with clean hands. Since the complainant being a member of the Association has failed to comply with the provision of the rules framed by the elected committee through resolution taken time to time for maintenance and welfare of the housing complex on different affairs with the consent of the flat owners. It is transparent from the case record that the office bearers of the Association are not paid any consideration for their voluntary services. The maintenance charges collected by the association for the welfare of the flats as well as maintence.

 It is the trite law that in Case of any dispute between the Executive Committee and the other owner, the matter will be referred to an Arbitrator in writing. The Arbitrator, an independent person who was no connection either with the Society or Owner, is obliged to act as per provisions contained in Arbitration Conciliation Act.  and his decision is binding on the Executive Committee and owner both. It is stated that the office bearers of the Association are not paid any consideration for their voluntary services.

 At the outset, in careful perusal of the rival submissions put forth on either side, it is an admitted fact that the complainant is the resident of Abhipsa Apartment, Uttarpara, Hooghly and the complainant is the member of the Opposite party Association.

 At this juncture, we have to be taken into consideration is as to whether the complainant is a Consumer U/S 2 (d) (ii) of the Consumer Protection Act, 1986. It is pertinent to note that complainant is a member of the opposite party Association. But such fact has been suppressed by the complainant. At the outset, it is learnt the complainant being the member of the Association he ought to have governed by the Bye Laws of such Association. Furthermore, the office bearers of the Association rendered their service on voluntary basis and free of charge, that is they are not paid any consideration. Not only that, if the complaint is not fully satisfied at the maintenance work he ought to have to raise his voice in periodical and meeting of the Association. In fact, at no point of time, the complainant who attended the recent periodical meeting, he has not brought any issues either in the meeting or in writing to the association. Moreover, it goes without saying, that the complainant being a member of that association, he also a party to it.

Further, it is brought to the knowledge of the forum that the amount paid by the complainant towards the maintenance charges for providing necessary security since, major portion of the share is being used to meet expenses incurred for rendering common amenities like water supply, street lights, lights in common areas collection and removal of garbage, sewage, cleaning, maintenance of common properties etc. and the same to be keep in mind for consideration.

There is no jural relationship of consumer and service provider in between the complainant and the opposite party in accordance with the provisions of Consumer Protection Act,1986.

          In the light of the above facts and observation it is crystal clear that the complainant is not a  “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986 and not moved with clean hands and also not proved the deficiency of service against opposite party. Hence, there is some meaning on the averments made by the opposite parties in the written version and the same cannot be easily thrown out in the basket though remained Ex-parte subsequently.

ORDER

       Hence, ordered that the complaint case being No.161/2017 be and the same is dismissed on contest against the opposite party, with no order as to cost.

       The Opposite Parties are exonerated from their liability.

       Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.