<br /> O R D E R <br /> <br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> <br /> These are the complaints filed by the complainants against the same OP with similar grievances and for the same reliefs are taken together for disposal by a common order in order to avoid repeatation of the facts. <br /> <br /> The grievances of the complainants in these cases are that OP is a club registered under the Karnataka Society registration Act, 1960 for promoting several activities including sports, etc. That the OP published a notice in the notice board on 01-12-2007 by virtue of a resolution passed by its Managing committee to fill up the existing vacancies of life member ship, resident Membership, Membership under 14-A and Long term temporary membership. Accordingly they applied for membership on 25-01-2007 by paying membership fee of Rs.1.5 lakh for life membership, Rs.1.00 lakh towards resident membership. The Op after receipt of the applications and membership fee called them for interview. That they were interviewed and after preparing a waiting lists addressed them letters to inform their acceptance of membership. Accordingly they informed their willingness of acceptance of membership of OP club in writing. To their surprise OP sent letters to them conveying the decision of the Managing committee took in their meeting on 23-06-2009, that the waiting list of members prepared is cancelled by sending cheques for refund of membership fee they had paid. Then they addressed letters to the OP during August 2009 informing them that the OP has operated the waiting list prepared by giving membership to the some of the applicants who were in the waiting list. Therefore have contended the action of the present managing committee in returning their membership fee by cancelling the waiting list is illegal and improper. Thereafter they approached Ops several times to reconsider their case but of no use. The complainants further questioning the act of the OP in cancelling the waiting list and refunding the money have stated that the OP has caused deficiency in his service and have therefore prayed for a direction to the OP to enroll complainants No:1, 2 and 5 of the 1st complaint as resident members and complainant NO:3 of the same complaint as life member and to pay Rs.3,00,000/- as compensation. The complainants of the 2nd complaint have prayed for to enroll complainant No:1 and 2 as resident members and complainants No: 3 to 6 of the same complaint as life members. The complainants of the 3rd complaint have prayed for a direction to enroll complainants No: 1 and 5 as resident members and complainants No:2 to 4 of the same complaint as life members besides awarding compensation. <br /> <br /> OP has appeared through his advocate and filed version which is common in all these three cases is narrated in brief as under: <br /> <br /> That the complaints are mis-conceived that criteria for eligibility and admission of members are governed by Rule 4 to 7 of the bye law. As per the rules Managing committee has the sole discretion to select members to select from time to time. Applications were invited by then Managing committee and these complainants were applicants among others. As there were no vacancies the committee through its resolution dated 23-03-2008 prepared a waiting list which shall be in force till the completion of the term which expired on March 2009. Under bye law there is no provision for maintaining a waiting list. Even otherwise that waiting list was valid only upto the tenure of the then Managing Committee which lasted during March 2009. In view of the fact that there is no provisions for maintaining waiting list of the members, the subsequent committee which came to power has cancelled the same as it is bound by rules and bye law. The complainants since were not given the membership are not consumers under section 2(d) of the Consumer Protection Act 1986 as they had neither hired or availed any service of the OP and therefore no deficiency is caused as defined under sec 2(1)(g) and 2(1)(o) of the Act. That the complainants have not paid any consideration for the service hired. The complainants therefore until they are admitted as members cannot maintain complaints and even though the General body ratified the waiting list, but in view of the resolution of the Managing committee restricting the period of waiting list to a certain time, as such cancellation of waiting list is therefore according to them is legal. That the complainants therefore are not consumers and this forum has no jurisdiction to entertain the complaints and thereby has prayed for dismissal of the complaints. <br /> <br /> In the course of enquiry into these complaints, the complainants and Op have filed their affidavit evidence re-producing what they have stated in their respective complaints and versions. The complainants along with the complaints have produced copy of the notice issued for calling applications for membership, copy of notices of the OP issued indicating membership fee, copy of applications they have filed to the OP, copy of interview letters they received from the Ops, copy of intimation of the OP keeping these complainants in waiting list of the OP and copy of the letter that the OP addressed to them enclosing the cheques towards refund of membership fee paid by each of these complainants. Complainants have also produced copies of relevant resolutions passed by the committee of the OP which contain list of the members who are shown in the waiting list which contain the names of these complainants. OP has produced copies of resolutions the then Managing committee of the OP passed, copies of letters that these complainants addressed to them, copy of show cause notice issued to the Secretary of the OP by the office bearers of the OP besides producing copy of resolutions dated 23-06-2009 and 26-06-2009 besides copies of some more correspondences. OP has also produced a copy of its bye law. Counsel for the both the parties have filed their written arguments. We have also heard them in brief and perused the records. <br /> <br /> On the above contentions and materials placed before us, following points for determination arise: <br /> <br /> 1. Whether the complainants prove that they are consumers as defined under the Consumer Protection Act 1986 and that the OP has caused deficiency in their service in cancelling the waiting lists prepared and operated by the previous Managing committee of the OP ?<br /> <br /> 2. To what relief the complainants are entitled to ?<br /> <br /> Our findings are as under:-<br /> <br /> Point No: 1 in the affirmative. <br /> Point No: 2: see the final order.<br /> <br /> REASONS: <br /> <br /> It is the grievance of the complainants that the OP had selected them has members of that club prepared a waiting list vide resolution dated 25-04-2008 which has been approved by the General body meeting of the club in its meeting held on 15-03-2009. But thereafter the Op after keeping their money for more than one and half years returned the membership fee by cancelling their list without assigning any reasons and therefore have contended that the OP has caused deficiency in its service. Whereas the Op has taken the stand that admission of members is governed by the provisions of the bye law and it is the prerogative of the managing committee of the club to extend membership of the club and therefore justified its action in returning the member ship fee paid by these complainants. The learned counsel appearing for the complainants in his written arguments and also in his further submission submitted that the OP on its own called for the applications from the intended applicants for selection of members. Accordingly when these complainants applied for providing membership by paying necessary membership fee they where interviewed and on their satisfying all the requirements of the OP they where selected has members, but they were placed in the waiting list to be taken has members as and when vacancies arise and therefore the committee without assigning any reasons cannot arbitrarily refund the membership fee and thereby he by placing reliance on the decisions reported in AIR 1998 Punjab and Haryana, then AIR 2007 SC page 1819, AIR 1994 SCC page 243 argued that the complainants are consumers and thereby has prayed for allowing the complaints. <br /> <br /> The learned counsel representing the Op argued that the complainants have not acquired the membership of the OP club, that means they are not given the membership, no consideration is passed, and therefore stated that the complainants are not the potential users and they cannot be called has consumers as defined under sec 2(d) of the Consumer Protection Act and the complainants are therefore not maintainable. It is further argued that though the managing committee of the Op had selected these complainants and prepared a waiting list of them to accommodate them has members as and when vacancies arises, but the committee had fixed time for maintaining the waiting list till the term of the then managing committee and cannot be continued evenafter the expiry of the term of the new managing committee and therefore the Managing committee which came to the power subsequently has cancelled the waiting list and returned the membership fee of these complainants and argued that there is no provision in the bye law to maintain a waiting list and accordingly the subsequent committee of the OP has returned the membership of he complainants and argued that the complaints therefore are not maintainable and to dismiss them. The Learned counsel for the OP in support of his arguments relied upon a decision of a Hon’ble Supreme court reported in 2008 (3) LLN 605, another decision reported in the same citation at page 621, ILR 2007 Karnataka page 2946 and two more decisions on the same points. <br /> <br /> Rule 6 of the bye law of the Op club governs admission of members. Rule 6 (d) is the relevant rule applicable to the facts of this case is reproduced as under:: <br /> <br /> “Any applicant whose application for membership is favorabally considered under this category by the Managing committee shall be provisionally admitted subject to final confirmation at the discretion of the Managing committee after a period of three months”<br /> <br /> <br /> This provision as stated above rules as how a member can be admitted to the club. Of course Rule 7 reads that admission to the club membership vests entirely with the Managing committee. In the instant cases there is no dispute that the Managing committee of the OP in its meeting held on 30-07-2007 decided to fill up existing vacancies of various categories of memberships called for the applications, in response to which these complainants applied besides paying the prescribed membership fee and the then committee even called them for interview to these complainants and thereafter finally selected and communications were sent to these complainants during April 2008 informing them that their names have been placed in the waiting list which could be cleared as and when the vacancies arise and requested the complainants to communicate their acceptance. Accordingly the complainants individually conveyed their acceptance to the OP and thereafter the Op finalized the waiting list of these complainants as resident membership and life membership as desired by these complainants accordingly. The complainants have produced a copy of the resolution passed by the Managing committee of the OP which is written both in Kannada and English which is as under: <br /> <br /> ««zsÀ ¸ÀzÀ¸ÀåvÀéPÉÌ DAiÉÄÌ ªÀiÁrzÀ ¸À¨sÀÉAiÀÄÄ ºÉZÀÑ£À MvÀÛqÀ¢AzÀ F PɼÀPÀAqÀ CfðzÁgÀgÀ£ÀÄß F PɼV£ÀAvÉÉ ªÀÄÄAzÉ SÁ° DUÀĪÀ ¸ÁÞ£ÀUÀ½UÉ ¨swðªÀiÁqÀ®Ä PÁ¬ÄÝj¹vÀÄ. PÁ¬ÄÝj¸ÀĪÀ ¸ÀªÀÄAiÀĪÀ£ÀÄß PÁAiÀÄðPÁj ¸À«ÄwAiÀÄ ªÀÄÄA¢£À §zÀ¯ÁªÀuÉAiÀĪÀgÉ«UÀÆ PÁ¬ÄÝj¸À§ºÀÄzÉAzÀÄ wêÀiÁð¹vÀÄ. ¸ÁݤPÀ:CeÉêÀ ¸ÀzÀ¸ÀåvÀéPÉÌ CAiÉÄÌAiÀiÁzÀªÀgÀ£ÀÄß ªÀÄÆgÀÄ wAUÀ¼ÀÄ vÁvÁÌ°PÀ ¸ÀzÀ¸ÀåvÀé£ÀÄß ºÉÆA¢zÀÄÝ: ªÀÄÆgÀÄ wAUÀ¼À £ÀAvÀgÀ SÁAiÀÄA DVAiÀÄÆ ¸ÀzÀ¸ÀåvÀéªÀÅ 16-04-2008 jAzÀ¯Éà eÁjUÉ §gÀĪÀAvÉ wêÀiÁð¤¸À¯Á¬ÄvÀÄ.<br /> <br /> “In view of the pressure and overwhelming demand for membership, the applications mentioned intra have been placed under waiting list, to be granted membership as and when the vacancies arise in future. The selected members under resident/life membership shall be on probation for a period of three months. On successful completion of the said probation the membership will be confirmed with effect from 16-04-2008.” <br /> <br /> <br /> Under this resolution the Op prepared a list of resident membership and life membership. Complainants No:1, 2 , 4 and 5 of the 1st complaint are reserved as the resident membership whereas for 3rd complainant reservation life membership was reserved. Similarly complainants No:1 and 2 of the 2nd complaint were reserved with resident membership, and complainants No:3 to 6 of the said complaint were reserved with life membership. In the 3rd complaint, 3rd and 4th complainants were reserved with life membership and other complainants are included in the waiting list of resident membership. Before we take up for consideration whether these complainants are selected as members of Op club or left as the aspirants or applicants for membership, it is necessary to read the contents of the 9th Management committee meeting held on 25-04-2008. On perusal of the resolution reproduced above in kannada reads that these complainants who are shown in the waiting list are reserved for filling up the vacancies that would arise and it further reads that the complainants who have been selected has life members are selected as temporarily for three months and after three months of their selection they would become permanent members, as further says that the committee given effect to the membership with effect from 10-04-2008. Here we emphasise the words used as “ ¸ÀzÀ¸ÀåvÀéªÀÅ ” in Kannada and the word “Membership” in English and question the OP as to what they mean by that. That what Rule 6 of the bye law reproduced above also says that membership shall be given provisionally subject to confirmation. The committee therefore selected as per rule only and prepared the waiting list finding the vacancies and probable vacancies. Therefore on going through the contents of this resolution it can easily be understood that these complainants were selected as members but they where made to wait until the vacancy arise. In the English version of resolution in the middle we see the sentence the selected members under resident/life membership shall be on probation for a period of three months, and on successful completion of probation the membership will be confirmed with effect from 16-04-2008, which leaves no doubt to hold that the complainants were selected as members but the entry to these members to the club as permanent members was post phoned till the vacancy arise. Therefore the contention of the counsel for the Op that the complainants were only the applicants they have not been selected members holds no water. If the Op had not selected these complainants as members it could have only said or resolved that their applications for giving membership are kept pending for consideration on a future date. Considering the object of calling for applications was to fill up the existing vacancies and when the complainants were interviewed and their claims were processed and the committee after accepting membership fee paid by them granted membership but made them to wait until the vacancy arise. Without selecting them as members, OP could not have prepared the waiting list of the different membership. Therefore we must understand that the waiting list prepared by the Op is the waiting list of the members to become operational one on a future date and it was not the waiting list of the applicants for future processing. Therefore on reading this resolution and the communications of the Op sent to these complainants to convey their acceptance and the complainants sending letters of acceptance un-erringly prove that the complainants were given membership of the Op club and when the complainants sent letters of acceptance that completed the course of selection and the contract become concluded and final. The subsequent committee which came to power without assigning any reasons, by a stroke of a pen return membership fee of these complainants by sending cheques. The present committee of the OP has not assigned any legal or acceptable reasons for cancellation and returning the membership fee of these complainants. <br /> <br /> The OP has not disputed the fact that there were vacancies of the membership in the club, correctness of calling for the applications from the interested persons receiving membership fees and even selection of these complainants by interviewing them. It is not the contention of the Op that the then managing committee has done any thing wrong except contenting that there is no provision under bye law for keeping a waiting list and to continue the waiting list beyond their term. The subsequent committee in its meeting held during June 2009 when took up the representations of some of the complainants and others who were in the waiting list for re-considerations of cancellation had held that the previous committee could prepare waiting list and limit their term of office only and the present committee has no locus-standi to keep waiting list alive beyond the term of previous committee and therefore have resolved that waiting list prepared by previous committee cannot be continued and to be ended. The present committee in their meeting on that subject No:6 also after deliberating about this issue found to have resolved that no further enrollment will be done by the present managing committee from the waiting list prepared by the then Managing committee as all the candidates selected by the previous committee have joined and no vacant slots are available from the selected candidates. But the committee has not at all given statistics or details of vacancies of membership available in the club when applications were called for. What we mean to say is the opponent should have placed before us number of vacancies that were available under each category when the vacancies were notified and applications were called for so as to make it clear to the applicants about the actual requirements and to know their position. The Opponent found to have kept these complainants in darkness about the number of vacancies and also this forum even thereafter it is found the previous committee operated the waiting list through its meeting held on 31-08-2008 and gave membership to one R.S.Ramesh, R.V.Vinayakundan, H.Anand has life members and G.Sundaresh as resident member who were wait listed alongwith these complainants. The contention of the OP and their counsel that the previous managing committee cannot prepare a waiting list beyond the period of tenure and that the subsequent committee is not bound by that decision cannot be heard. Because if that is allowed to be adopted and done, it would leads to arbitrariness and high handedness. If every new committee which comes to power annals or gives a go by to the decisions of the previous committee and policies of the previous committee then the interest of that organization or institution will be in peril and the interest of the persons concerned who will be affected cannot be checked. Further if such a system is allowed to be practiced every new managing committee would take decisions which is beneficial to them and which suits them by cancelling the decisions of earlier management. It looks the previous managing committee had called for the applications from the intended persons to fill up the existing vacancies and prepared a waiting list after selecting them as members in anticipation of certain vacancies in order to avoid such frequent selection process and even operated which cannot be held has illegal or improper and committee has crossed its limits. No doubt the previous committee itself has said that the period of waiting be fixed but have to safe guard the interest of the bonafide members. OP has not pointed out any such illegality or impurity committed by the previous managing committee in calling for the applications, selection of the applicants and wait listing them. If the OP had really found that wait listing of these complainants was against the bye law, malafide or any other reasons could have quoted the same and after giving any opportunity to these complainants could have taken a decision to cancel the waiting list and to refund their money. Even if the Op had found any such lapses on the previous Managing committee it should have acted in a legal way and not in arbitrary manner as has been done now. The decisions relied upon by the learned counsel for the OP in this regard are not applicable to the facts of these cases, Because in the 1st case the Hon’ble Supreme court has held that the subsequent Government can rectify illegalities committed by the previous Government. In the decision of the High court of Karnataka it has held that allotment if it is found contrary to the regulations it does not give any right and therefore it can be cancelled. Similar is the view of the other cases as such the OP gets no support from these decisions. The then committee of the OP called for the applications for membership in the year 2007 prepared the waiting list and communicated to the complainants during April 2008 which was accepted by these complainants during May 2008, such a selection which was done under long process cannot be undone by subsequent committee without assigning any legal grounds through their communication sent during August 2009 which in our view is arbitrary and amounts to deficiency in their service. Acceptance of the membership fee from these complainants for providing membership is the consideration paid by these complainants which was utilized by this Ops for more than one and half year. Even the subsequent committee in their communication dated 04-08-2009 have referred to the payments made by these complainants as membership application fee which was refunded. Therefore for consideration paid by these complainants OP took decision to provide service of the club, membership was given to them which is accepted by the complainants which has ended all process and is binding on the OP. Hence we find all the requirements of the definition of the consumer and service in the cases on hand as such we have no hesitation to hold that OP is deficient in not continuing these complainants as members waiting for their opportunity to utilize the service of the Op as and when the vacancies arise. With the result we answer point No:1 in the affirmative and pass the following order. <br /> <br /> <br /> O R D E R<br /> <br /> Complaints are allowed. OP is directed to prepare a list of resident members and life members vacancies as on 22-07-2009 on which date they decided to cancel the waiting list and shall accommodate these complainants to those respective vacancies not withstanding the fill up if done any. If these vacancies are not adequate to accommodate all of them then the OP shall continue the list of such complainants until they are accommodated as and when vacancies arise. <br /> <br /> OP shall prepare the above lists and start operating accordingly within 30 days from the date of this order failing which it shall pay damages of Rs.2,000/- each to each of these complainants per month until that is complied. <br /> <br /> If the complainants have received back the membership fee from the Op they shall pay back within 15 days from to day. It is made clear that these complainants are accommodated in the OP club as one time arrangement in the circumstances of this case it shall not become precedent and OP shall follow a settled procedure as per bye law in filling up its vacancies. <br /> <br /> Op shall pay cost of Rs.2000/- each to each of these complainants. <br /> <br /> Keep the original copy in CC No: 2139/09 and the copies in CC No: 2143/09 & 2144/09. <br />