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Ganesh Developers & Builders & Ors vs. Hill View Welfare Association dated 2012-08-16


I.A. No. 1 OF 2012
I.A. No. 2 OF 2012
(Stay & Delay)
(Against the order dated 17.2.2012 in C.C. No 1 of 2011. of the 
Uttarakhand State Consumer Disputes Redressal Commission, Dehradun)
1. Ganesh Developers & Builders
    6, Cross Road, Dehradun
2. Shri Vijay Tayal,
   R/o 73, Neshvilla Road,
   Dehradun, Uttarakhand
3. Shri Sanjay Vasudev
    R/o Vikas Lok, Lane – B,
   Opp. Kewal Vihar, Sahastradhara Road
   Dehradun, Uttarakhand
4. Shri Pradeep Kumar Vashisht,
    Resident of 5, Main Street
    Ashirwad Enclave, Dehradun,
5. Shri Shyam Gujral,
    Chauhan Market, Near Prince Chowk,
    Dehradun, Uttarakhand                                  ........ Petitioner (s)     
Hill View Welfare Association
Hill View Apartments,
Sahastradhara Road,
Dehradun through its President
Dr. S.P. Kuriyal and Secretary P. K. Sinha,
Hill View Welfare Association,
Hill View Apartments, Sahastradhara Road,
Dehradun                                                            …….Respondent (s)
For the Petitioner (s)    :    Mr. Gopal Jha, Advocate
Pronounced on  16th August, 2012
1.      Ganesh Developers and Builders, petitioner No. 1, the builder had constructed flats known as ‘Hill View Apartments’, Sahastradhara Road, Dehradun.  Hill View Welfare Association, the respondent purchased flats from the petitioner.  There were some shortcomings in the buildings.  The petitioner denied the said allegation. The respondent filed a complaint before the State Commission praying for an amount of Rs.98,41,000/- or in the alternative, the petitioner should be directed to repair the shortcomings in the building.
2.      The petitioner filed preliminary objection challenging the maintainability of complaint on two counts.  Firstly, the complainant was not a ‘consumer’ and secondly the complainant did not disclose the date of cause of action.  The State Commission dismissed those objections.
3.      Against the said order, the present revision petition has been filed.  The first submission made by learned counsel for the petitioner was that the complainants are not ‘consumers’.  It was alleged that the Society is not a consumer.  Society did not hire or avail the services for any consideration as provided under Section 2(1)(d) clause (ii) of the Consumer Protection Act, 1986.
4.      Learned counsel for the petitioner in support of his case has cited an order of State Commission reported in Indradhanush Coop. Housing Society Ltd. v/s Talak Homes & Estates decided on 11.10.2006 in complaint No. 35 of 2001 by the Goa State Consumer Disputes Redressal Commission.  He also pointed out that contrary orders lead to confusion and should not be allowed to stand and operate otherwise their implementation become impossible.  This was held in HSDC vs. Kaptan Singh & Ors. IV(2010) CPJ 301 (NC).
5.      The last order should have been produced before the State Commission.  Contradictory orders of Goa State Consumer Disputes Redressal Commission and another impugned order passed by the State Commission Uttarakhand, Dehradun have already cropped up.  The State Commission in the impugned order has held that the order cited by the petitioner regarding Goa State Consumer Disputes Redressal Commission was not applicable to his case.  The State Commission placed reliance on the Apex Court authority reported in the case of Lucknow Development Authority v. M. K. Gupta (1994) 1 SCC 243. 
6.      In Chandigarh Housing Board vs. Avtar Singh and Ors. (2010) 10 SCC 194. It was pleased to hold :-
“42. Thus, even though no formal contract had been entered into between the Chandigarh Administration and the Board on the one hand and the members of the Societies on the other hand, the former exercised sufficient degree of control over the latter.  By making applications for allotment of land, the Societies will be deemed to have hired or availed the services of the Chandigarh Administration and the Board in relation to housing construction as elucidated and explained in M.K. Gupta case and Balbir Singh case.  If the Scheme had been faithfully implemented and the land had been allotted to the Societies, their members would have been the actual and real beneficiaries.  Therefore, they were certainly covered by the definition of “consumer” under Section 2(1)(d)(ii), the second part of which includes any beneficiary of the services hired or availed for consideration which has been paid or promised or partly paid and partly promised.  As a sequel to this, it must be held that the members of the Societies had every right to complain against illegal, arbitrary and unjustified forfeiture of 10% earnest money and non-refund of 18% interest and the District Consumer Forum did not commit any jurisdictional error by entertaining the complaints.”
7.      In Secretary, Thirumurugan Co-operative Agricultural Credit Society v. M. Lalitha (dead) through L.Rs. and others AIR 2004 SC 448, it was held :
                   For instance in addition to granting a specific relief the forums under the Consumer Protection Act have jurisdiction to award compensation for the mental agony, suffering, etc. which possibly could not be given under the Act in relation to dispute under S. 90 of T. N. Co-operative Societies Act.  Merely because the rights and liabilities are created between the members and the management of the society under the Act and forums are provided, it cannot take away or exclude the jurisdiction conferred on the forums under the Consumer Protection Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of Consumer Protection Act.  Therefore the view taken by the State Commission that the provisions under the T. N. Co-operative Societies Act relating to reference of disputes to arbitration shall prevail over the provisions of the Consumer Act is incorrect and untenable.”
Consequently, we find no force in this argument and deserves no consideration. 
8.      The second submission made by learned counsel for the petitioner was that his second objection that complainant did not disclose the date of cause of action was not answered by the order of the State Commission.  The same is conspicuously silent.
9.      We agree with the order of the State Commission to this extent.  The State Commission should have decided this question as well.
10.    In the light of above discussion, we dismiss the revision petition but give liberty to the respondent to raise the above said second point in the written statement to be filed by him.  The same shall be decided at the final stage.
    (J.M. MALIK, J.)
                                                        (VINAY KUMAR)

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