DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.FA/686/2012 (Arising out of order dated 11/09/12 in Case No.CC/208/2010 of District Consumer Disputes Redressal Forum, Alipore, South 24-Parganas) DATE OF FILING:28/09/12 DATE OF FINAL ORDER:24/09/14 APPELLANTS : 1) Dr. Madhuri Mukherjee D/o-Late Dr. Bramha Prasad Mukherjee 103, Thakurbari Road Sakchi, Jamshedpur And also of Flat No.C-12/7, Manjulika A Co-operative Housing Society Ltd. EKT Phase IV Eastern Metropolitan Bypass P.S. Tiljala, Kolkata-700 107 2) Smt. Shreyasee Mukherjee W/o-Debshankar Mukhopadhyay D/o-Late Jyoti Mukherjee 3) Sri Debshankar Mukhopadhyay Both of C-12/7, Manjulika A Co-operative Housing Society Ltd. EKT Phase IV Eastern Metropolitan Bypass Kolkata-700 107 RESPONDENTS : 1) Manjulika A Co-operative Housing Society Ltd. Represented by its Secretary of EKT Phase IV Eastern Metropolitan Bypass P.S. Tiljala, Kolkata-700 107 2) Neogallant Security Service Pvt. Ltd. 107, Jodhpur Garden 1st floor, P.S. Lake Kolkata-700 045 BEFORE : HONBLE JUSTICE : Mr. Kalidas Mukherjee
President HONBLE MEMBER : Mrs. Mridula Roy HONBLE MEMBER : Mr. Tarapada Gangopadhyay FOR THE APPELLANTS : Kh. Aftabuddin Ld.
Advocate FOR THE RESPONDENTS : Mr. Barun Prasad Ld.
Advocate Mr. Malay Roy Learned Advocate Mr. Malay Chakraborty Authorized Representative
: O R D E R :
HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Alipore, South 24-Parganas in case no.CC 208 of 2010 dismissing the complaint with liberty to the Complainants to move before the proper Forum.
The case of the Complainants/Appellants, in short, is that the Complainant No.1 is the owner in respect of flat no.C-12/7, Manjulika, a Co-operative Housing Society Ltd., EKT Phase-IV, Eastern Metropolitan Bypass, Kolkata-700 107 and is also a member of the OP No.1 Co-operative Housing Society. Complainant No.2 happens to be biological brothers daughter of Complainant No.1.
Complainant No.1 is normally a resident of Jamshedpur, Jharkhand, but a regular visitor of Kolkata and she spends most of her time in the flat. Complainant No.2 was brought up by spinster Dr. Madhuri Mukherjee right from her childhood days. Complainant No.3 is the husband of Complainant No.2. All maintenance charges and other charges of the flat of Complainant No.1 have been paid. Prior to 2010-11 there was no requirement for any person to pay money for parking the car in the car parking space allotted to the flat owners. The Complainants have been parking their car from 2005.
The difficulty arose after the purchase of the car WagonR WB 06B 2731 which was intimated to the Society. The Society decided that the owner who is not staying in the flat and the relative staying there is to pay Rs.100/- per day from 01/04/10 or else no service would be given to him. Against such imposition of charges @ Rs.100/- per day the Complainants have filed the petition of complaint before the Learned District Forum.
The Learned Counsel for the Appellants/Complainants has submitted that the Complainant No.1 is the owner of the flat. It is submitted that her nice is residing in the flat from 2003 onwards. It is submitted that the OP/Respondent claimed Rs.100/- per day for parking of the car in the allotted space. It is contended that Complainant Nos.2 and 3 are the near relatives of Complainant No.1, but not the tenants.
The Learned Counsel for the Respondent has submitted that under explanation to Section 16 of the Co-operative Societies Act, 2006 family has been defined. It is contended that the Complainant Nos.2 and 3 would not come within the definition of family of Complainant No.1. It is submitted that the Complainant/Appellant No.2 submitted application to the OP for assessing rent wherein under clause no.6 possess any vehicle or not. Answer was given as none. It is submitted that at the bottom of the application there was endorsement that both parties called at the Co-operative Office on 22/01/04 and after discussion sub-committee recommended the letting of the flat to the applicant subject to fulfillment of other conditions, if any. It is submitted that the applicant was Ms. Shreyasee Mukherjee, wife of Mr. Debshankar Mukherjee and an undertaking was given by the applicant that she shall not park any vehicle inside the campus, if any. The Learned Counsel has referred to running page no.28, clause 3 wherein there was stipulation for rent and transfer. It is submitted that the Complainants are also the members of the Co-operative Society.
We have heard the submission made by both sides and examined the papers on record. Firstly, under the explanation to section 16 the Complainant Nos.2 and 3 would not come under the definition of family. The explanation to section 16 of the West Bengal Co-operative Societies Act, 2006 runs thus:
Explanation For the purpose of this sub-section, a family shall be deemed to consist of husband, wife, minor sons and daughters, dependant widow of a pre-deceased son, minor sons and daughters of a dependant widow of a pre-deceased son, husbands and wifes dependant parents and dependant divorcee daughter.
Evidently, the Complainant Nos.2 and 3
would not come under the relationship as mentioned in the explanation.
Secondly, under the provision contained in sections 102(1) and (4) the Consumer Fora will have no jurisdiction to try such dispute. The provisions contained in Section-102(1) and sub-section (4) are quoted hereunder.
(1): Any dispute concerning the management or business or affairs of a Co-operative society other than the dispute relating to election in a Co-operative society as and when such election is conducted by the Co-operative Election Commission and disciplinary action taken by Co-operative society against its paid employees regarding the terms and conditions of the service shall be filed before the Registrar for settlement if it arises
(a) Among members, past members and persons claiming through members and deceased members or then sureties; or
(b) Between member, past member or a person claiming through a member, past member or deceased member representing through heirs or legal representatives and the Co-operative society, its board or any officer, agent or employees of the Co-operative society or liquidator, past or present; or
(c) Between the co-operative society or its board and any past board, any officer, agent or employee or any past officer, past agent; or past employee or the nominee, heirs or legal representatives of any deceased officer or deceased employee of the Co-operative society; or
(d) Between two Co-operative society or between a Co-operative society and a liquidator of another Co-operative or between liquidator of two different Co-operative or between a Co-operative society and any person having transaction with it or between a Co-operative society and its financing bank.
Sub-section (4): Any Civil Court or any consumers Dispute Redressal Forum shall not have any jurisdiction to try any dispute as mentioned in sub-section (1).
The Complainant No.1 being the member of the same Co-operative Society, that is, OP No.1, it is a dispute between the member and the Co-operative Society which comes within the purview of section 102, sub-section (1). The consumer complaint before the Learned District Forum was, therefore, not maintainable. The Complainants are not entitled to get any relief before the Consumer Forum. The Learned District Forum was justified in dismissing the complaint.
The Appeal is dismissed. The impugned judgment is affirmed. The petition of complaint is dismissed.
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MEMBER(TG) MEMBER(L) PRESIDENT