1. This is a case in which all facts are under admission, therefore, Rule 14 (2) of the Punjab Consumer Protection Rules, 2009 permits this Court to decide this claim on the basis of merit of the case and documents available on record.
2. The facts under admission in this case are as follows: - I. Defendant No. 1 is President and defendant No. 2 is Secretary General of WAPDA Employees Cooperative Housing Society Rawalpindi-Islamabad (hereinafter to be called Society).
II. Mst. Farzana Ashraf/claimant was allowed membership of Society on 19.08.2006 with allotment of plot measuring ten Marlas for a consideration of Rs. 8,00,000/-(eight lac).
III. Till 25.08.2007 entire installments were paid by claimant and nothing remained outstanding against her.
IV. Possession of plot was not handed over to claimant and even development had not taken place so she applied to Circle Registrar of Co-operative Housing Societies for withdrawal of amount most probably in 2010.
V. The Circle Registrar vide an order dated 29.10.2010 directed Managing Committee (hereinafter to be called MC) to refund the deposit amount to claimant as per law immediately under intimation to his office.
VI. Circle Registrar was approached again by claimant who issued another order on 03.01.2012 to MC to make full payment of Rs. 8,00,000/- (eight lac) to claimant within seven days positively.
VII. MC, on receipt of orders and after holding a meeting made refund but after deduction 10% of total amount which became Rs. 7,20,000/- (seven lac & twenty thousands).
VIII. Above amount was received by claimant under protest through a cheque.
IX. Claimant, then, served a legal notice as required by Punjab Consumer Protection Act, 2005 (hereinafter to be called the Act,) to both defendants for which they made reply accordingly.
03. Through this claim filed under section 25 of the Act case of claimant for the purpose of relief is that Society was not authorized to deduct 10% from total consideration hence besides return of Rs.
80,000/- she is also entitled for following relief:- a) Rs. 800,000/- (eight lac) for loss of enjoyment of possession of developed plot at the rate of 200,000/- per year b) Rs. 500,000/- (five lac) for loss of rise in value of developed plot c) Rs. 10,00,000/- (ten lac) for loss resulting from breach of contract d) Rs. 10,00,000/- (ten lac) for mental agony e) Rs. 2000,000/- (twenty lac) for exemplary damages
04. In written statement submitted by Society facts were admitted as mentioned earlier, however, it was added that no deadline was given by Society to its members for handing over possession of plots and that deduction was made strictly in accordance with law and rules. It was also replied that claimant was not entitled for any relief.
05. On 10.11.2012 when written statement was submitted by learned counsel for Society, despite admission of facts, he had raised following objections: - i. Claimant is not consumer falling within the definition as provided by the Punjab Consumer Protection Act, 2005. ii. This Court has no jurisdiction to hear claim because being a member claimant and defendants are governed by the provisions of Co-operative Societies Act, 1925. iii. Circle Registrar if made an order for full payment to claimant and even then if 10% was deducted by defendants the remedy for claimant is to file an execution petition in Civil Court.
06. Today I have heard arguments of both sides at length and I have also examined relevant provisions of the Act, as well as Co-operative Societies Act, 1925.
07. First of all I will like to resolve the objection that claimant has a remedy to approach Civil Court for execution of orders of Registrar.
08. Learned counsel for Society contends that under section 59 of the Co-operative Societies Act, there is available specific procedure for execution of orders of Registrar and other Authorities which is through Civil Court hence claimant cannot knock the door of this Court.
09. Before I comment on this provision I will like to reproduce section 59 which is as under: -
59. Money how recovered (1) Every order passed by a liquidator under section 50, or by the Registrar under section 50-A, or by the Registrar or his nominee or arbitrators on disputes referred to him or them under clause (g) of section 50 or under section 54 or under subsection (3) of section 54-A, every order passed in appeal, under section 56, every order passed by the Provincial Government in appeal against orders under sections 50, 50-A, 54 or sub-section (3) of section 54- A and every order passed under section 64-A shall, if not carried out,
(a) on a certificate signed by the Registrar or a liquidator, be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such court; or
(b) be executed according to the law for the time being in force for the recovery of arrears of land revenue; provided that any application for recovery of the amount in such a manner shall be made to the Collector and shall be accompanied by a certificate signed by the Registrar or by an officer subordinate to the Registrar to whom the said power has been delegated by the Registrar.
(Sub-clause-B was substituted by Co-operative Societies (Punjab Amendment) Act VI of 2006).
10. Section 59 shows various kinds of orders passed by Registrar or other authorities to be executed either as a decree of Civil Court or through recovery of arrears of land by Collector. It is ,therefore, has to be seen in first instance that orders of Registrar for refund of amount in this case whether were passed under above referred provisions or some other Authority provided by the same Act.
This can be resolved only after examination of said provisions. Following table will show the powers of Registrar under earlier referred sections: - {{TABLE}} S. No Name of Section Powers described 1 50-A Power of Registrars to assess damage against delinquent promoters etc. 2 50-G To get disputes referred to arbitration 3 54 Arbitration in case of dispute when referred to him 4 54-A (3) Power to refer back to arbitration for fresh award {{TABLE}}
11. None of above provisions can come to help learned counsel for Society because the orders of Registrar passed in favour of claimant are not covered under any of these sections of law. Even these orders were not passed under section 54 as this section deals with arbitration in a dispute between a member and Society or other classes of parties. This provision can play its role only when a dispute arises and referred to Registrar for decision by himself or his nominee or through arbitration. In the case in hand no dispute by the parties was referred to Registrar as she was only claimant who moved an application to him for refund of amount. Without calling other side, the Registrar had passed an order in favor of claimant which was ultimately complied with by Society but with deduction of 10% of amount.
12. In this eventually, I can confidently say that above orders were passed by Registrar under section 44-D of the same Act because certain powers are also given to a Registrar under Chapter VII (sections 43 to 46). Section 44-D is as under: - Powers of Registrar to give directions: (1)Where the Registrar is satisfied that in the public interest or to prevent the affairs of any society from being conducted in a manner detrimental to the interest of its members or depositors or the society or to secure the proper management of any society generally, it is necessary, to issue directions to the societies generally or to any society in particular, it may issue necessary directions, and the societies or as the case may be the society shall be bound to comply with such directions.
(2) The Registrar may on a representation made to him or on his own motion modify or cancel any direction issued under sub section (1) and in so modifying or cancelling any direction impose such conditions as he may think fit subject to which the modification or cancellation shall have effect.
13. The words used "affairs of any society from being conducted in a manner detrimental to the interest of its members" are of much importance. Therefore, any member if finds any action of Society which prejudices his interests or rights, he can approach the Registrar who then can pass necessary directions.
14. Section 59 (Supra) does not cover the orders passed by Registrar which were under section 44- D hence there remains no ambiguity to hold that there was and is no remedy available to claimant to approach Civil Court or Collector for execution of such orders.
15. Learned counsel for Society further maintains that claimant was a member of Society hence her all grievances were covered by the provisions of Co-operative Societies Act, 1925 therefore, she is prohibited to come to this Court. He also argues that under section 70-A there is a bar of jurisdiction hence this Court cannot sit over the dispute between parties so claim is liable to be dismissed. He has made reliance on "Bahadur Yar Jang Co-operative Housing Society Ltd. vs. Feroz Shamsh PLD-2010-SC-1058 & Mehar Ali Memon vs. Federation of Pakistan PLD-2012-SC-425"
15. I have gone through referred case law and I have no fear to say that facts and circumstances of the cases referred in both judgments are entirely different from the facts and circumstances of the case in hand.
16. On the other hand there is chain of judgments on this proposition that if the order/action/act is based on malafide and without jurisdiction, the same can be looked into by a Court of ordinary jurisdiction or constituted under any special enactment. In this case the evidence of malafide is floating on record for which Society has not good answer or defence.
17. On 19.08.2006 allotment of plot was made to claimant and she deposited entire amount of Rs.
8,00,000/- (eight lac) within one year that means by August 2007. What to say about 2010 when claimant was disappointed and she found nothing, even in 2012 as admitted by learned counsel for Society none of the members have been given plots and development too has not taken place.
Members cannot be left at the mercy of MC. Introducing a housing Society does not mean that if a member makes full payment as performance on his part, he should wait till indefinite period for possession of a plot. I am surprised to hear learned counsel for Society that delay had not lost the right of member for getting possession of plot and if he dies, his successors shall be entitled to get control of said property. If this is the intention of a Society then what remains behind to say that the action of Society is based on malafide and when it is so claimant has every right to approach the Court of law for the purpose of relief.
18. I do not see eye to eye with learned counsel for Society that claimant cannot ask for shelter under the Consumer Act in presence of Co-operative Societies Act because section 3 of the Consumer Act, clearly says that "the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force." The Preamble of the Act is also important to refer which is to provide for protection and promotion of the rights and interests of the consumers, speedy redress of consumer complaints and for matters connected therewith.
19. To my mind Mst. Farzana Arshad is the consumer and Society is services provider within the definition provided by the Act. This relation shall remain unless and until all issues between them are finally resolved. Society had received an amount of Rs. 8,00,000/- (eight lac) from claimant with a view to put her in possession of a plot besides development work to be done there. Both these actions of Society are falling within the definition of services as provided by section 2 (k) of the Act, and same is reproduced as under: - "services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services but does not include: -
(i) the rendering of any service under a contract of personal service;
(ii) the rendering of non-professional services like astrology or palmistry; or
(iii) a service, the essence of which is to deliver judgment by a court of law or arbitrator;
20. In view of above all objections raised by learned counsel for Society are decided against defendants.
21. Now I come to the question of reliefs. I have already held that relations of consumer and services provider shall remain intact unless all issues between parties are finally resolved. To return the amount is one of the services to be provided by Society to its members. If refund was not made in accordance with directions of Registrar, it will amount to defective or faulty services on the part of Society. There are two orders of Circle Registrar issued to MC. In first order it was directed to MC to refund deposited amount to claimant as per law within seven days and in second order it was directed to refund Rs.800,000/- to claimant. I have examined the original record produced by learned counsel for Society which shows that amount refunded to claimant was in pursuance of above directions of Circle Registrar.
22. Learned counsel for Society when asked that whether there is any provision in by-laws or the rules giving any authority to MC for deduction in case of refund and whether MC has any power to modify the orders of Registrar, he could not give any answer because there is no provision to do so.
I cannot stop myself to say that under by-laws it was the duty of MC to frame comprehensive rules and to place it before Registrar for approval but till today, as admitted by learned counsel for Society no such rules have been framed. In by-laws it is provided that in absence of such rules MC cannot run its business.
23. As declared earlier orders of Registrar were in terms of section 44-D of the Co-operative Societies Act and MC was under obligation for its compliance. Clause 2 of section 44-D had given a right to Society for a representation for modification or cancellation of such orders but this right was never exercised by Society. It means that they had accepted the orders of Circle Registrar.
24. Society was under no authority to modify the orders of Registrar and once it was agreed by MC that amount paid by claimant had to be returned to her, it had to be full and not with any deduction particularly when there was no fault at all of claimant because these were the actions on the part of Society which compelled her to withdraw the amount in question as she did not find that in near future she would get anything and today her said prediction became true as even today none of the members have been given possessions of plot besides no development work at spot. In this view of the matter Society was under legal and moral duty to refund the total amount of 8,00,000/- to claimant.
25. Coming to remaining reliefs claimed by claimant for damages etc, I do not find any good ground for doing so, which too have not been seriously pressed by learned counsel for claimant.
26. Whatever has been discussed above, in the light of that this claim is accepted. In terms of section 31 of the Act, I issue an order directing defendants to return to claimant Rs. 80,000/- (eighty thousand) within fifteen days from today. File shall be consigned to record room after its due completion.