By I C Naik
Of late a visible number of cooperative housing society managements have started displaying the activism knocking the gates of District Consumer forum and getting relief cheap and fast especially from developers in the matters of deficient construction and not completing conveyance of the titles of the property to take undue advantage of the delay.
Its use against the so called mafia managements is yet to catch up. The Court’s intervention in the otherwise active State of Maharashtra is in news these day.The increasing awareness that the C P A 1986 is very much the first easy and cheaper recourse to solving disputes of housing societies as also of its members seems to have started percolating well. It’s over two decades ago that the Hon. Supreme Court had put its seal on this idea and now it has to gather momentum.
The background, the objects, reasons and purpose of the C P A 1986:
[As per the Hon. Supreme Court in Secretary, Thirumurugan … vs M. Lalitha (Dead) Through Lrs. & … on 11 December, 2003 Bench: Shivaraj V. Patil, D.M. Dharmadhikari.CASE NO:Appeal (civil) 92 of 1998]
QUOTE: Consequent upon Industrial Revolution and vast development and expansion in the field of international trade and commerce, variety of consumer goods entered the market to meet the needs of the consumers and most of services like insurance, transport, electricity, housing, entertainment, finance and banking have been made available to the consumers. Well-organized sectors of manufacturers and traders with better energy and markets have emerged affecting relationship between the traders and consumers. With the help and aid of media both electronic and print, the advertisements of goods and services in television, newspapers and magazines have created great impact and influence on the demand for the same by the consumers though there may be manufacturing defects or deficiencies or short-comings in the quality, quantity and the purity of the goods or there may be deficiency in the services rendered.
In the interest of the public and to protect the consumers, it became necessary to check adulterated and substandard articles in the market. Despite various other statutes such as Indian Contract Act, 1972, Sale of Goods Act, 1930, the Indian Penal Code, 1960, The Standard of Weights and Measures Act, 1976 and the Motor Vehicles Act,1988 etc. being in operation, very little could be achieved in the field of consumer protection. Though the MRTP Act 1969 and the Prevention of Adulteration Act, 1954 provide relief to the consumers yet it became necessary to protect the consumers from the exploitation and to save them from adulterated and substandard goods and deficiency in services and to safeguard their interest.
In General Assembly (of the United Nations) a Consumer Protection Resolution No.39/248 was passed and India is a signatory to this Resolution. The United Nations had passed a resolution in 1985 indicating certain guidelines under which the governments could make laws for better protection of the interest of the consumers and such laws were more necessary in developing countries to protect the consumer from hazardous to their health and safety and to make them available speedier and cheaper redress. With this background, the 1986 Act was enacted.
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Further the Hon. Court observed QUOTE: The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers disputes and matters connected therewith.
From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers.
To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance of their orders.
As per Section 3 of the Act, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. 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 clear bar.
In earlier decision in Lucknow Development Authority vs. M.K. Gupta [(1994) 1 SCC 243], of the Supreme Court observed, thus: –
QUOTE: In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated.
The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful, business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to ‘rob the rest’ and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked.
The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.” UNQUOTE
Declaring its agreement with the order upholding the vires of the Consumer Protection Act, 1986 dated 18 12 1998 of the division bench of the High Court of Karnataka in Civil Appeals No. 4613 and 4614 of 1999 filed by Vishwabharathi House Building Cooperative Society, the Hon. Supreme Court observed: QUOTE: By reason of the said statue quasi-judicial authorities have been created at the District. State and Central levels so as to enable a consumer to ventilate his grievances before a forum where justice can be done without any procedural wrangles and hyper-technicalities UNQUOTE decided on 17/01/2003 by the Bench of V.N. KHARE CJ & K.G. BALAKRISHNAN & S.B. SINHA in 2003(1) SCR 397
The www.indiancooperative.com is constrained to recall these old cases as even the 21st Century India having already ushered wholeheartedly in to the market driven economy, the States in India and in that where an international business place like Mumbai is situate, the State Government is vehemently engaged in the wait for the judiciary to force them to take steps to achieve the goals of this central enactment passed almost three decades ago. Is this the kind of federalism India wants to keep nursing in spite of it is acclaimed to be a highly tailor made non-traditional Centric structure?
The apex Court has emphatically ruled in favour of the C P A 1986 being preferentially available to Cooperative Movement to free cooperators from the shackles of the cooperative mafia management and the mighty builder lobby. The Consumer forum is seized of an issue so well that given the State due support, the Cooperative Movement can achieve progress in leaps and bounce in meeting an avowed objectives of the Constitution ( 97th Amendment ) Act 2011. The Bench of MOHIT S. SHAH, C.J. & D.G. KARNIK, J. of Bombay High Court reiterated this view in a case as recent as May 03, 2011 in WRIT PETITION NO.117 of 2011 Mandatai Sambhaji Pawar and anr vs The State of Maharashtra and others.
QUOTE: Firstly, the Maharashtra Co-operative Societies Act is a general law governing all co-operative societies in the State. Section 91 of the Maharashtra Co-operative Societies Act is a general provision regarding adjudication of any dispute between a co-operative society and its members. Consumer Protection Act is a special enactment which relates only to a specific classes of disputes concerning an unfair trade practice, defects in the goods or defect in a service (see section 2(c) of the Act). Only those disputes which can be a matter of the complaint under section 2(c) of the Act can go to the District Consumer Forum. When a special provision is made for adjudication of specific class of disputes, the provision would ordinarily override the general provision regarding adjudication of disputes contained in a general law like in section 91 of the Maharashtra Co-operative Societies Act.
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Just a few days ago by yet another order (one was on Jun 29, 2013 whereby 19 Presidential posts were ordered to be filled up within four weeks) the Bombay High Court has ordered the State Government to fill up 12 vacant posts of Presidents and 33 posts of members of the district consumer forums besides removal of infrastructural deficiencies and rationalization of salary structure of the staff and judicial members in expeditious manner and by September 12, 2014.
Those who cry foul over judicial overreach, this case should definitely make them re-think on the stance of the Executive in the game of balance of power of State Administration.