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Southern Apartment Owners Association v/s Housing Consultancy Pvt. Ltd.

    Complaint Case No. CC/239/2014
    Decided On, 18 April 2018
    At, West Bengal State Consumer Disputes Redressal Commission Kolkata
    For the Complainant: Shamik Chatterjee , Advocate. For the Opp. Party: Abu Sayem, Advocate.

Judgment Text
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of an unregistered apartment owners’ association against the developer/builder on the allegation of deficiency in services on the part of developer/builder in providing common facilities and benefits with the following prayers –

a. An order for recasting of damaged roof and through repairs of vertical wall of entire Southern Apartment, in default to pay the complainants amounting to Rs.25 lakhs to the complainants without further delay,

b. An order against the opposite party directing them to insure the whole apartment for five years with any nationalised insurance company for flats, provide fire license and to set up buffer under the generator and to supply the lift load test certificate, in default a direction be given upon the opposite party to pay a sum of Rs.5 lakhs to the complainants,

c. An order against the opposite party directing them to provide 1/3rd share of community hall and also to provide free egress and ingress through common passage and also be directed to set up an Apex Committee, in default to pay Rs. 15 lakhs to the complainants,

d. An order against the opposite party directing them to complete the proceedings of registration of association of flat owners before the authority concerned of Govt. of West Bengal, in default to pay Rs.20,000/- to the complainants,

e. An order against the opposite party directing them to pay sum of Rs.50,000/- towards cost of litigation etc.

The opposite party by filing a written version resisted the claim of the complainants on the ground inter alia that the complaint does not come within the parameters of the Act.

Both the parties have adduced evidence through affidavit. At the time of final hearing of the case on behalf of complainant a brief notes of argument has been filed. After conclusion of evidence of the parties, the OP has filed an application being IA/267/2018 whereby the OP has challenged the maintainability of the proceeding on the ground of pecuniary jurisdiction of this Commission in view of decision of Larger Bench of Hon’ble National Commission reported in I (2017) CPJ 1 (Ambrish Kumar Shukla & 21 Ors. – Vs. – Ferrous Infrastructure Pvt. Ltd.).

The facts and circumstances and materials on record indicate that the OP/builder has constructed three units at 143, J.C. Khan Road, Jhill Park, P.O.-Mankundu, P.S.- Bhadreswar, Dist-Hooghly comprising of different apartments from time to time in a single complex having common maintenance and sequence wise apartment constructed are – a) economy apartment, b) modern apartment and c) southern apartment. The flat owners of southern apartment has lodged the complaint without seeking any permission as contemplated in Section 12(1)(c) of the Act. When the complainants sought relief to provide 1/3rd share of the community hall, the flat owners of economy apartment and modern apartment should also have been impleaded as parties to this case. The complainants have listed several defects in quality of work but the complainants did not take any pain to implead all the flat owners as parties to this case.

Needless to say, the complaint could have been filed by individual consumers/allottees either separately or they could have joint hands to file a consumer complaint under Section 12(1)(c) of the Act, after seeking the requisite permission, as per law. Therefore, when evidently there are 72 flat owners, in the present form the complaint should not have been filed. Therefore, the complaint is not maintainable.

In the case of Ambrish Kumar Shukla & 21 Ors. (supra) decided on 07.10.2016, the Larger Bench of the Hon’ble National Commission has observed – 'in a complaint instituted under Section 12(1)(c) of the Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers'.

In a decision reported in III (2017) CPJ 494 (Moulivakkam Trust Heights Flats Affected Buyers Association – Vs. – Prima Sristi Housing Pvt. Ltd. & Ors.) the Hon’ble National Commission has held that a complaint lodged by an unregistered society cannot be categorised as ‘consumer’ as defined in Section 2(1)(d) of the Act.

Therefore, the situation comes to surface that 72 different flat owners have lodged this complaint before this Commission and on perusal of one such Sale Deed, it comes to surface that the value of the said flat is Rs.8,80,000/- and as such if average value of all the 72 flats owners are taken together, it would certainly exceed the pecuniary jurisdiction of this Commission of Rs.1 crore as embodied in Section 17(1) of the Act.

The provisions of Section 17(1)(a)(i) of the Act deals with the pecuniary jurisdiction of the State Commission, which provides –

"17. Jurisdiction of the State Commission. –

1. Subject to the other provisions of this Act, the State Commission shall have jurisdiction-

a. to entertain –

i. Complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore .......'.

In the case of Ambrish Kumar Shukla & Ors. (supra) the Larger Bench of the Hon’ble National Commission while discussing on the point has observed thus-

'It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased or the servicers to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint ....'.

Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed which determines pecuniary jurisdiction of the Consumer Forum. The State Commission enjoys a pecuniary jurisdiction not exceeding Rs.1 crore. In the instant case, the complainants have claimed Rs.45,70,000/- without adding the value of the flats of othe

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r co-owners and it is quite apparent that if the value of the co-owners or co-sharers allocation and the compensation are added together, it will certainly exceeds rupees one crore. Consequently, the instant complaint stands rejected being not maintainable. However, this order will not prevent the complainants to approach the appropriate Court/Forum having jurisdiction to entertain the same in accordance with law and in the process they may seek assistance of observation of Hon’ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works – Vs. – PSG Industrial Institute) to overcome the hurdle the limitation after removing the defects as recorded above. The IA/267/2018 is allowed and disposed of accordingly.