Jasmine co-op society: Heroic fight by Kamat

This is a classic case of discrimination of a smaller group of members holding larger flats by a bigger group of members holding smaller flats in charging for common services provided.

The story is about Vasant Vihar Jasmine Tower Co-operative Housing Society, a renowned housing society in Vasant Vihar, an upmarket area in the city of Thane, Maharashtra and a senior citizen member of the society Mr. Suresh Vasant Kamat.

Out of 230 apartments (flats) in the society building, 20 % of the flats are larger in area and 80% are of smaller area, with a visible ‘brute majority’ of 80% smaller flat holders over the minority.

Mr. Kamat falls in the minority group. Society is managed by a Managing Committee (MC for short) consisting of the Chairman, the Secretary and the Treasurer and 6 other members.

From inception of the society in July 2007, the faulty method of billing for common services, termed in co-operative housing parlance as “Service Charges”, resulted in excess charges on the minority group, which Mr. Kamat brought to the notice of MC but, without any effect.

The issue gathered some pace from July 2008 when Mr. Kamat advised the MC on a proper format of billing besides submitting advices from various lawyers on co-operative housing appearing in print and electronic media, copies of bills from 3 neighbourhood societies and excerpts from the landmark judgement given by High Court of Bombay on 30.07.02 (Venus CHS v/s Dr. J.Y. Detwani & Ors, 2003(8) LJSOFT 113) to substantiate his contention.

In April 2009 the billing system was changed. Part of “service Charges” were divided on all flats equally. But expenses on sewage treatment plant (STP for short) expenses, a common facility for all members was treated differently after adding ‘Water Charges’, in a consolidated billing head, “Water and STP charges”.

Worse still, part of electricity charges and repair of water pumps and motors, both expense divisible equally on all flats were added to this consolidated billing head and charged in such a way that excess charges on the minority continued. Also, an amount of “maintenance” was added to another creative billing head and society’s common area property tax – Both were charged in excess on the minority group, separately. It was like putting “old wine in new bottle”.

There was an all round manipulation of amounts and terms used in billing members from April 2009. Mr. Kamat obtained a written legal opinion on disputed matters of billing in October 2010 and submitted it to the society, which was also ignored by the MC.

Finally, in October 2011, Mr. Kamat filed a Complaint with District Consumer Complaints Forum.

The Hon’ble Forum accepting the arguments made and perusing evidences submitted to the Forum by Mr. Kamat awarded full refund claimed by Mr. Kamat from the society as prayed, together with an amount as compensation by a Judgement and Order dated 07.06.14.

This case is a reflection of a trend in many societies in Mumbai and Thane, where Managing Committees with the comfort or application of brute majority or on whims and wishes of a few individuals take law in their own hands in total disregard for transparency and good governance to the detriment of living cooperatively with brotherhood in housing societies in particular and larger interest of co-operative movement as a whole.

Mr Kamat has also asked a query to our expert Mr I C Naik. We produce below his question and Naik’s answer

Suresh V Kamat, Thane

I am in need of some advice in brief.

Consumer Forum, Thane on 07.06.14 gave a judgment and Order in my favour. Period of 60 days grace period allowed is over and society has not executed the Order. Presently I am not in Thane.

What are my options? Is there a time limit for taking any action from my side? What is the time limit for the Society to appeal to State Consumer Forum?

I C Naik

RESPONSE

At the outset let me congratulate you for pursuing a wrong doing by the Society management. It is heartening to note that judicial system also responds to such matters in a befitting manner.

The Consumer Protection Act, 1986 (the Act) provides for effective measures to ensure compliance of orders of District Forum;

1.Section 15 Of the Act is Reproduced Below:

Appeal. — Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:

Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not finding it within that period.

Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent. of that amount or twenty-five thousand rupees, whichever is less:

2.It can be surmised that the Society has not filed any appeal as by now the State Commission would have issued a Notice. As such the Order of District Forum is final as per Section 24 of the Act reproduced below.

“Section 24 Finalityof orders. — Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final.”

3.Provision of enforcement of orders is made under Section 25. Relevant part;

(1) Where an interim order made under this Act, is not complied with the District Forum may order the property of the person, not complying with such order to be attached.

(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.

(3) Where any amount is due from any person under an order made by a

District Forum, as the case may be, the person entitled to the amount may make an application to the District Forum, and such District Forum may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.

4.Section 27 of the Act prescribes the Penalties. Parts relevant to this matter;

(1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both:

(2)  Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).

(3)All offences under this Act may be tried summarily by the District Forum.

After going through the above it must have  become clear that your action is as prescribed under Sub-Section 3 of Section 25 namely may make an application to the District Forum, with a prayer that the District Forum may issue a certificate for the said amount to the Collector of the district (by whatever name called) so that the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.