Co-operative society
jyotsna
(Querist) 24 April 2013
This query is : Resolved
Can Society member come under definition of "Consumer" can society matters be filed at Consumer Court?
J K Agrawal
(Expert) 24 April 2013
If society provide some service and charge for that then U R a consumer.
ajay sethi
(Expert) 24 April 2013
The Hon’ble National Commission have held in several cases that dispute between a member and management of a Cooperative Society is adjudicable before a different forum and complaint in a Consumer Forum is misconceived. It is true that there are some rulings to the effect that the Consumer Forum can entertain the dispute between the two, but those cases of a different nature like defects in the construction of flat, buildings and such other lapses.
ajay sethi
(Expert) 24 April 2013
move the registrar for complaints against society
Raj Kumar Makkad
(Expert) 24 April 2013
Generally such disputes do not come within the ambit of consumer act.
Devajyoti Barman
(Expert) 25 April 2013
Society member is not a consumer of Society.
AMAR RANU
(Expert) 25 April 2013
A MEMBER OF A REGISTERED SOCIETY IS A CONSUMER,IF HE/SHE PAYS FOR THE SERVICES RENDERED BY A REGISTERED SOCIETY.
IT IS WELL SETTLED.ANY MATTER INVOLVING DEFICIENCY IN SERVICE CAN BE FILED BEFORE CONSUMER FORUM.
Hemant Agarwal
(Expert) 26 April 2013
CONTRARY to few views expressed above:
Consumer Protection Act
Defination: u/s 2(m(iii)), a "Cooperative Society" is a "Service Provider"
Defination: u/s 2(d(ii)) "consumer" means any person who avails of "A N Y" services for a consideration (consideration is equalivalent to the maint. & services collected from a Society member)
Section 3 : Act not in derogation of any other law. — The provisions of this Act shall be in "A D D I T I O N A L" to and not in derogation of the provisions of any other law for the time being in force.
There are scores of Orders of the Consumer Courts, wherein it is held that a Member of a Coop. Society is a Consumer, BECAUSE the Member is a "Service Receiver"
example:
Matter decided by the "STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA , MUMBAI", in Appeal No. A/08/305 (Arisen out of Order Dated 31/12/2007 in Case No. CC/04/440 of District Mumbai(Suburban)) (SMT.VAIBHAVI A.KHOT vs. VITHALDHAM C.H.S.LTD.)
CONCLUDINGLY: Irrespective of "ALTERNATE" remedies available under any other Act, a Consumer can still file a complaint under the Consumer Protection Act, "specially and specifically so" BECAUSE the Consumer Protection Act provides for an "ADDITIONAL" remedy,
Keep Smiling .... Hemant Agarwal
AMAR RANU
(Expert) 26 April 2013
I stand vindicated by a detailed and considered opinion expressed by Mr.Hemant Agarwal
ajay sethi
(Expert) 26 April 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1511 OF 2006
(From the order dated 9/27.3.06 in Appeal No.735/2000 of the Bihar State Consumer Disputes Redressal Commission, Patna)
Lal Babu Nath Tiwari
S/o Rajendra Nath Tiwari
Resident of 1/1 P&T Colony, Kidwaipuri
Patna-800001
Petitioner
At Present:
HRD Section, 2nd Floor
Telephone Bhawan, ‘R’ Block
Patna-800001
versus
The Secretary
Rani Laxmibai Mahila Sahakari
Grih Nirman Samiti Ltd.
Kadamkuan, Patna-800003
Respondent
At present:
Smt. Rambha Mishra, Secretary
Rani Laxmibai Mahila Sahakari
Grih Nirman Samiti Ltd.
W/o Sachidananda Mishra
High School Gali
Chiraiyatand, Prithvipur,
Kankarbagh, Patna-800020
BEFORE:
HON’BLE MR. ANUPAM DASGUPTA, PRESIDING MEMBER
HON’BLE MRS. VINEETA RAI, MEMBER
For the Petitioner Ms. Prerana Mehta, Advocate
For the Respondent: Mr. Ravi Bhushan, Advocate for
Mr. Mohit Kumar Shah, Advocate
Pronounced on 5th August 2010
ORDER
Anupam Dasgupta
This revision petition challenges the order dated 09.03.2006 of the Bihar State Consumer Disputes Redressal Commission, Patna (in short, ‘the State Commission’) in appeal no.735/2000. By this order, the State Commission set aside the order of the District Consumer Disputes Redressal Forum, Patna (in short, ‘the District Forum’) in complaint case no.761/1994 by which the District Forum had held the opposite party (respondent in this petition) guilty of deficiency in service and directed it to allot a rectangular plot of land of 2092 sq. ft. to the complainant (petitioner before us) without charging any additional amount, hand over possession thereof after fixing boundary pillars and to also pay compensation of Rs.5,000/-.
2. The relevant parts of the order of the State Commission allowing the appeal of the Sahakari Samiti are as under:
“5. We have heard both parties, perused the records including the rejoinder of the respondent and the written arguments filed on 8.3.2006. The moot question whether such a dispute between a member of the Cooperative society and the Cooperative Society is maintainable for adjudication in a Consumer Forum. There is a specific legal provision in the Bihar and Orissa Cooperative Society’s Act, 1935 for referring such disputes between a member of the Cooperative Society and the Cooperative society to the Registrar of Cooperative Society; entertaining such disputes by a Consumer Forum itself was against the law. The Hon’ble National Commission have held in several cases that dispute between a member and management of a Cooperative Society is adjudicable before a different forum and complaint in a Consumer Forum is misconceived. It is true that there are some rulings to the effect that the Consumer Forum can entertain the dispute between the two, but those cases of a different nature like defects in the construction of flat, buildings and such other lapses. These rulings definitely do not apply in the present case.
6. We therefore feel that the complaint itself was not maintainable under the C.P. Act in the District Forum. In the result, the impugned orders are set aside as not being maintainable under the C.P. Act. The respondent (complainant) if so advised may so approach the Registrar of Cooperative Societies, Bihar and we are sure that the learned Registrar will condone the delay in raising the issue before him, which was due to the matter being referred wrongly in the Consumer Forum. There shall be no order as to cost.”
3. We have heard Ms Prerana Mehta, learned counsel for the petitioner/complainant and Mr. Ravi Bhushan, learned counsel for the respondent Sahakari Samiti and gone through the records.
4 (i) Ms Mehta has first drawn our attention to section 48 of the Bihar Cooperative Societies Act, 1935, which reads as under:
“48. Disputes.—(1) If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society) arises—
(a) amongst members, past members, persons claiming through members, past members or deceased members, and sureties of members, past members or deceased members, whether such sureties are members or non-members; or
(b) between a member, past member, persons claiming through a member, past member or deceased member, or sureties of members, past members or deceased member, whether such sureties are members or non-members and the society, its managing committee or any officer, agent or servant of the society; or
(c) between the society or its managing committee and any past or present officer, agent or servant of the society; or
(d) between the society and any other registered society; or
(e) between a financing bank authorised under the provisions of sub-section (1) of section 16 and a person who is not a member of a registered society;
such dispute shall be referred to the Registrar:
Provided that no claim against a past member or the estate of a deceased member shall be treated as a dispute if the liability of the past member or of the estate of the deceased member has been extinguished by virtue of section 32 or section 63.
[Note: The ‘Explanations’ under this section are not reproduced here because they do not add anything to the adjudication of the question involved in this petition]
(ii) Clause (b) of sub-section (1) of section 48 reproduced above, according to Ms Mehta, covers the case in this petition. Such a dispute, according to this provision of the aforesaid Act, has to be referred to the Registrar of Cooperative Societies of the State (Bihar). She adds that though the State Commission has not specifically referred to this section of the aforesaid Act, its observations cited above are apparently based on the above-mentioned provision of section 48(1)(b). In this context, she submits first that the above-mentioned provision does not specifically bar the jurisdiction of any court, tribunal or forum from entertaining such a dispute and that the provisions of section 3 of the Consumer Protection Act, 1986 are in addition to and not derogation of the provisions of any other law for the time being in force. This, according to her, would imply that the provisions of section 48(1)(b) of the Bihar Cooperative Societies Act, 1935 notwithstanding, a member (like the petitioner) of the respondent Cooperative Society aggrieved by any decision of that Society was very much within his rights to (prefer to) approach the consumer forum concerned, which in this case was the District Forum, Patna.
(iii) To substantiate her contention, Ms Mehta relies on the ratio of the decision of the Apex Court in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v M. Lalitha (Dead) through LRs and Others [(2004) 1 SCC 305] and also an earlier decision of (a five-Member Bench of) this Commission in the case of Smt. Kalawati and Others v M/s United Vaish Cooperative Thrift and Credit Society Ltd. in Revision Petitions no. 823-826 of 2001.
5. Mr. Bhushan, learned counsel for the respondent Society is unable to show us any provision of the Bihar Cooperative Societies Act (other than section 48 noticed above) which specifically bars the jurisdiction of courts, tribunals, etc., in respect of disputes between a cooperative society and its members. However, he reiterates that the complaint was barred ab initio on account of limitation (the sale deed for the plot as well as the mutation entry effecting transfer of its ownership having been executed in favour of the petitioner/complainant way back in December 1984) and, in any case, the respondent Society has handed over possession of a plot of land measuring 2092 sq. ft. (including a triangular piece of land adjoining a rectangular plot measuring 45 ft X 44 ft.) to the petitioner/complainant long ago. The respondent Society’s claim of having handed over possession of the plot to the petitioner is, on the other hand, disputed by Ms Mehta who, under instruction, states that in view of the long pendency of the dispute, the petitioner is now willing to accept the rectangular plot of land measuring 45 ft. X 44 ft, i.e., 1980 sq. ft. in lieu of the plot of 2092 sq. ft. originally allotted, possession of which has yet to be handed over to the petitioner.
6 (i) Before considering the rival contentions mentioned above, we may notice that in the Thirumurugan case before the Supreme Court cited (supra) by Ms Mehta, the respondents, as members of the appellant (Thirumurugan) Society, had pledged their bags of paddy and threagainst obtained loans from the said Society. The Society issued notices to the respondents demanding repayment of the loans with interest. The respondents filed complaint before the District Forum, Thiruchirapally seeking directions to the appellant Society to release their paddy bags on receipt of the loan amounts or, in the alternative, to pay them the market value of the paddy bags with interest thereon from the date of pledging till the date of release of the bags and to also pay compensation for mental agony and suffering. The Society contested the complaint on grounds of maintainability, stating that in view of the provisions of section 90 of the Tamil Nadu Cooperative Societies Act, 1983, no Consumer Forum had the jurisdiction to adjudicate a dispute between members of a cooperative society and the society as such. However, the District Forum allowed the complaint but in appeal by the Society, the State Commission set aside the order of the District forum. The complainants went up in revision petition before this Commission and this Commission upheld the order of the District Forum. In the appeal before the Supreme Court against the order of the National Commission, the appellant Society raised the following four points, viz., (1) section 90 of the Tamil Nadu (TN) Act ousted the jurisdiction of all courts and tribunals, including that of a civil court and consumer fora under the Consumer Protection Act, 1986, from adjudication on issues falling within the scope of that section, given the facts in the case (before the Supreme Court), the disputes were covered by that section as well as by virtue of section 156 of the TN Act; (2) the TN Act, being a special enactment with provisions meant to deal exclusively with disputes between a cooperative society and its members, the disputes raised by the respondents before the District Forum were not maintainable; (3) the TN Act, read with the Rules thereunder created special rights and liabilities for the members of a cooperative society and its management and laid down that all questions relating the said rights and liabilities were to be determined by the Registrar of Cooperative Societies of the State and also provided for appeal, revision and review; (4) the case was covered by the proposition approved by the Apex Court in the case of Dhulabhai v State of M. P. [(1968) 3 SCR 662]; and (5) if the argument of the respondents were to be accepted, there would be avoidable likelihood of conflicting decisions because of parties approaching one adjudicating authority or the other (i. e., under the TN Act or under the Consumer Protection Act, 1986) or, both simultaneously or at different points of time, at their choice.
(ii) Disposing of the said appeal by the Society, the Supreme Court, however, held:
“Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional / extended jurisdiction, particularly when section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar. Under the 1986 Act, the Court has to consider as regards the additional jurisdiction conferred on the Consumer Forums and not their exclusion. In Dhulabhai case, consideration was whether the jurisdiction of the civil court was excluded. Propositions (1) and (2) set out therein indicate that where the statute gives a finality to the orders of the Special Tribunals, the jurisdiction of civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Further, where there is an express bar on the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. The remedies that are available to an aggrieved party under the 1986 Act are wider. For instance, in addition to granting a specific relief the forums under the 1986 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 section 90 of the 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 1986 Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of the 1986 Act. When the decision of Dhulabhai case was rendered, the provisions similar to the 1986 Act providing additional remedies to parties were neither available nor considered. If the argument of the appellant is accepted, it will lead to taking away the additional remedies and forums expressly provided under the 1986 Act, which is not acceptable.
If the parties approach both the forums created under the Act and the 1986 Act, the question of conflict of decisions may not arise. It is for the forum under the 1986 Act to leave the parties either to proceed or avail of the remedies before the other forums, depending on the facts and circumstances of the case. (para. 19)
Therefore, the view taken by the State Commission that the provisions under the Act relating to reference of disputes to arbitration shall prevail over the provisions of the 1986 Act is incorrect and untenable.”
It is not necessary, in view of the Supreme Court’s comprehensive ruling on the issue, to consider the earlier decision of this Commission in the case also cited (supra) by Ms Mehta. We may simply add that the facts of the case before us are very similar to those in the case before the Supreme Court.
(iii) In view of the above-mentioned ruling of the Apex Court, the finding and order of the State Commission cannot be legally sustained and, accordingly, the impugned order has to be set aside.
(iv) As regards Mr. Bhushan’s submission that the complaint was barred ab initio by limitation, suffice it to observe that it is too late in the day to re-agitate this point. The complaint was initially dismissed by the District Forum on this very ground. However, in appeal by the complainant/petitioner, the State Commission set aside the said order and remanded the complaint back to the District Forum for fresh adjudication. That order of the State Commission, not having been challenged by the respondent Society specifically on the ground of limitation, attained finality. Hence, the question of the complaint being barred by limitation does not simply survive.
(v) However, from the contentions of the parties before us, it would appear that the question whether possession of the plot of land in question was at any time handed over by the respondnent Society to the petitioner is still open. The District Forum had directed the respondent Society to hand over to the petitioner/complainant physical possession of a rectangular plot of land measuring 2092 sq. ft. with boundary pillars duly fixed (but without any additional payment), in addition to paying compensation of Rs. 5,000/-. That order would need to be confirmed, with the only modification (based on the statement, under instruction, of the counsel for the petitioner) that the plot of land to be now handed over to the petitioner/complainant would be a rectangular plot measuring 45 ft. X 44 ft., i.e., 1980 sq. ft. in all.
7. In conclusion, the revision petition is partly allowed and the impugned order of the State Commission is set aside, being based on an erroneous interpretation of the law on the subject. The order of the District Forum is consequently confirmed with the only modification that the land to be handed over to the petitioner by the respondent Society shall be a rectangular plot measuring 45 ft. X 44 ft, i.e., 1980 sq. ft. in area. It will be open to the petitioner to execute the said order of the District Forum, as modified by this order, under the relevant provisions of the Consumer Protection Act, 1986 and for the parties to put forth their respective stands regarding actual possession of the plot of land before the District Forum for final determination during the execution proceedings. The parties shall bear their own costs.
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[Anupam Dasgupta]
……..………………………………
[Vineeta Rai]
M V Gupta
(Expert) 26 April 2013
There is no doubt that member of a coop Society can approach the Con forum for relief in cases where on given facts he falls within the meaning of the word "consumer" as defined in the Act and there is a deficiency in service. But disputes relating to election to the MC or any resolution passed by the MC or the GB may not fall within the jurisdiction of the CP Act.
