VIRENDER JAINversusALAKNANDA COOPERATIVE GROUP HOUSING SOCIETY LIMITED AND OTHERS

                       [2013] 2 S.C.R. 1058


A                          VIRENDER JAIN
                                    v.
         ALAKNANDA COOPERATIVE GROUP HOUSING
               SOCIETY LIMITED AND OTHERS
               (Civil Appeal No. 64 of 2010 etc.)
B
                            APRIL 23, 2013
       [G.S. SINGHVI, RANJANA PRAKASH DESAI AND ·
                SHARAD ARVIND BOBDE, JJ.]

C        CONSUMER PROTECTION ACT, 1986:

         s.2 (1) (d) -- 'Consumer'-Members of Co-operative Group
    Housing Society - Challenging action of Society terminating
    their membership by refunding the amounts deposited by
D them - Held: Members of the Society are 'consumer' within
  · the meaning of s. 2 ( 1) (d) - Further, the action of Society even
    if approved by authorities under Co-operative Societies Act,
    cannot deprive the members of their legitimate right to seek
    remedy under Consumer Protection Act which is in addition
    to other remedies available to them under Cooperative
E Societies Act - State Commission directed to decide appeals
    filed by complainants on merits - Haryana Co-operative
    Societies Act, 1984.

       The appellants, who were members of respondent
F no.1 Co-operative Group Housing Society, filed
  comp!aints uls 12 of the Consumer Protection Act, 1986,
  as respo11dent no.1 returned the amount deposited by
  them and indirectly terminated their membership on the
  ground that they had failed to deposit the required
G installments. The District Forum dismissed the
  complaints on merits. However, the State Commission
  and the National Commission held that the appellants
  could not be treated as 'consumer' within the meaning
  of s.2 (1) (d) of the Consumer Protection Act.
H                            1058
  VI RENDER JAIN v. ALAKNANDA COOPERATIVE           1059
        GROUP HOUSING SOCIETY LIMITED
    Allowing the appeals, the Court                         A
    HELD: 1.1 In view of the judgments of this Court, it
must be held that the appellants, who had deposited the
instalments of price for the flats being constructed by
respondent No.1 are covered by the definition of
                                                            8
'consumer' contained in s 2(1)(d) of the Consumer
Protection Act, 1986 and the contrary view expressed by
the National Commission in B.K. Prabha's case* which
has been reiterated in the impugned order is not correct.
[para 12] [1068-E-F]
                                                            c
    Lucknow Development Authority v. MK. Gupta, 1993 (3)
                =
Suppl. SCR 615 (1994) 1 SCC 243; Chandigarh Housing
                                        =
Board v. Avtar Singh, 2010 (12) SCR 96 (2010) 10 SCC
194 - relied on.
                                                            D
    *B.K. Prabha v. Secretary Kendriya Upadyarasanga
(2004) 2 CLT 305 - overruled.

     1.2 As regards the approval of action of respondent
no.1 by the authorities constituted under the Cooperative
Societies Act, the appellants, in their complaints had E
primarily challenged the action of respondent No.1 to
refund the amounts deposited by them and to extinguish
their entitlement to get the flats. Therefore, the mere fact
that the action taken by respondent No.1 was approved
by the Assistant Registrar, Cooperative Societies and F
higher authorities, cannot deprive the appellants of their
legitimate right to seek remedy under the Act, which is
in addition to the other remedies available to them under
the Cooperative Societies Act and availability of
alternative remedies is not a bar to the entertaining of a G
complaint filed under the Act. [para 13-14] [1068-H; 1069-
A-B]

    National Seeds Corporation Ltd. Vs. M. madhusudhan
                                                            H
    1060    SUPREME COURT REPORTS                [2013) 2 S.C.R.


                               =
A Reddy 2012 (2) SCR 1065 (2012) 2 SCC 506; Secretary,:
  Thirumurugan Co-operative Agricultural Credit Society vs. M.
  Lalitha 2003 (6) Suppl. SCR 659        =(2004)1 sec 305;
  Kishore Lal v. ES/ Corporation, 2007 (6) SCR 139 = (2007)
  4 SCC 579; Fair Air Engineers (P) Ltd. v. N.K. Modi, 1996
                        =
B (4) Suppl. SCR 820 (1996) 6 SCC 385; Skypak Couriers
  Ltd. v. Tata Chemicals Ltd., 2000 (1) Suppl. SCR 324           =
  (2000) 5 SCC 294; Trans Mediterranean Airways v. Universal
  Exports (2011) 10 sec 316 - relied on.

      1.3 The impugned order as also the orders passed
c by the State Commission are set aside and the matters
    are remitted to the State Commission with the direction
    that it shall decide the appeals filed by the appellants on
    merits. [para 16] [1069-G]

D                       Case Law Reference:
        1993 (3) Suppl. SCR 615      relied on         para 7
        2010 (12) SCR 96             relied on         para 10
        (2004) 2 CLT 305             overruled         para 11
E
        2012 (2) SCR 1065            relied on         para 12
        2003 (6) Suppl. SCR 659      relied on         para 12
        2007 (6) SCR 139             relied on         para 12
F
        1996 (4) Suppl. SCR 820      relied on         para 13
        2000 (1) Suppl. SCR 324      relied on         para 13
        (2011) 10 sec 316            relied on         para 13
G        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 64
    of 2010.
        From the Judgment and Order dated 11.02.2009 of
    National Consumer Disputes Redressal Commission New
H
  VIRENDER JAIN v. ALAKNANDA COOPERATIVE 1061
       GROUP HOUSING SOCIETY LIMITED
Delhi in Revision Petition No. 4209 of 2008.                        A
                             VVlTI-1
C.A. Nos. 65, 66, 67 & 68 of 2010.

     S.B. Sanyal, K.K. Mehrotra for the Appellant.
                                                                    B
    Neeraj Kumar Jain, Pratham Kant, Aseem Mehrotra,
Abhijat P. Medh, Rauf Rahim, Devyani Ashra, Yadunandan
Bansal for the Respondents.

     The Judgment of the Court was delivered by                     c
                         JUDGMENT

     1. The appellants were enrolled as members of
respondent No.1-Alaknanda Cooperative Group Housing
Society Limited. They applied for 'A' type flats, which were        D
being constructed by respondent No.1. They are said to have
deposited the instalments of price between 10.12.1995 and
15.12.2003. The details of the amounts deposited by the
appellants are as under:
                                                                    E
         1. Virender Jain              Rs.1,96,000/-
         2. Sudesh Kumar Jain          Rs.1,96, 100/-
         3. Pankaj Jain                Rs.2,96,110/-
         4. Nitin Jain                 Rs.1,96, 1OO/-
         5. Sudershan Kumar Jain       Rs.2,96,100/-
                                                                    F
     2. By letters dated 9.2.2004, respondent No.1 returned the
amount deposited by the appellants and indirectly terminated
their membership on the ground that they had failed to deposit
the instalments of first and second stage of construction as also
the instalment of the cost of land allotted by HUDA. For the sake   G
of reference, the letter sent by respondent No.1 to appellant -
Virender Jain is reproduced below:



                                                                    H
    1062     SUPREME COURT REPORTS              [2013) 2 S.C.R.


A      ''THE ALAKNANDA COOP. GROUP HOUSEING
       SOCIETY GURGAON

                   PLOT NO. GH-45, SECTOR-56,
                        GURGAON-122002
B      Ref no.7115         Regd.     Date:9.02.04

       Mr. Virender Jain

       Sub: Refund of payment due to persistent default
c           The following payments had been demanded by the
      .Society from time to time

       (a) 1sf construction inst. due on 15.07.03 Rs.1,00,000/-

       (b) 2nd construction inst due on 15.07.03 Rs.1,00,000/-
D
       (c) Inst. of HUDA land cost due on 15.10.03 Rs.42,000/-

             But, the above mentioned payments have not yet
       been received from you by the society inspite of reminders
E      issued from time to time as indicated in our last office
       letter no. 6878 -97 dt. 28.12.2003. Further, no
       communication/representation has been received from
       you.

             The matter was brought to the notice of the managing
F      Committee. The managing Committee, in its meeting held
       on 11.01.04 has taken a very serious view of your non-
       compliance and non-response and presumed that you are
       not interested in the housing project of the Society.

G            In view of the above, your contribution alongwith
       share money, as per details given below is sent herewith
       vide Ch.No.331971 dated 01.02.04 for Rs.1,82,350/-

       (a)    Share money          1,00/-
H
  VIRENDER JAIN v. ALAKNANDA COOPERATIVE 1063
       GROUP HOUSING SOCIETY LIMITED
                                                                   A
     (b)   Contribution           1,95,900/-


                                  1,96,000/-

     Less installment on dues of Rs.84,000 of HUDA Land cost B
     installment @ 15 % p.a. from January'03 to January' 04
     {3months)

                                  (-) 13,650.00

                                      1,82,350/-"                  c
     3. The appellants challenged the aforesaid action of
respondent No.1 by filing complaints under Section 12 of the
Consumer Protection Act, 1986 (for short, 'the Act') and prayed
that respondent No.1 may be directed to restore their
                                                                0
membership and issue necessary share certificates after
receiving the balance cost. They further prayed for award of
damages to the tune of Rs.50,000/- in each case.

       4. On notice, respondent No.1 filed applications under
  Section 13 of the Act and challenged the jurisdiction of District E
  Consumer Disputes Redressal Forum, Gurgaon (for short, 'the
  District Forum') to entertain the complaints. Respondent No.1
  claimed that the complaints were not maintainable because the
  appellants do not fall within the definition of 'consumer'.
· Respondent No.1 also pleaded that the Haryana Cooperative F
  Societies Act, 1984 (hereinafter referred to as, 'the Cooperative
  Societies Act') is a special statute vis-a-vis the Act and the only
  remedy available to the appellants in the matter of termination
  of their membership and/or refund of the entire amount
 deposited by them was to file a petition under the Cooperative G
 Societies Act.

     5. By separate orders dated 16.6.2006, the District Forum
overruled the objections raised by respondent No.1. The
relevant portion of the order passed in the case of Virender Jain
is extracted below:                                               H
    1064    SUPREME COURT REPORTS                  [2013) 2 S.C.R.


A       "The remedy provided under the act is an additional
        remedy it is not in derogation to remedy provided under
        the other Acts. It is the choice of the complainant either to
        avail the remedy under the Consumer Protection Act or any
        other applicable. In coming to our above conclusion we are
B       guided by the AIR 2004 Supreme Court 448 "Secretary,
        Thirumurugan Co-Operative Agricultural Credit Society
        Versus M. Lalitha (dead) through L.Rs. and others"
        wherein it is held so. The respondent has also relied upon
        the case law stated to have been reported in 2004(2) CLT
c       304(NC)"B.K. Prabha Versus Secretary Kendriya
        Upadyarasanga" wherein it is held that merely becoming
        a member of the Society does not amount to hiring of
        services of the respondent by the complainant and the
        dispute does not fall within the definition of the consumer.
        The above citation has been referred from the subject
D
        index only, detailed judgment has not been supplied by the
        respondent. Besides this the citation relied upon by the
        complainant is of the Apex Court, the same, therefore, is
        of binding nature on all other Courts Judicial as well as
        quasi Judicial."
E
       6. However, the District Forum did not find merit in the
  grievance made by the appellants and dismissed the
  complaints vide orders dated 17.11.2006 by observing that
  there was no deficiency in service on the part of respondent
F No.1.

       7. The appeals and the revisions filed by the appellants
  under Sections 17 and 21 of the Act were dismissed by the
  State Commission and the National Commission respectively
  solely on the ground that the appellants cannot be treated as
G consumer within the meaning of Section 2(1)(d) of the Act.

      8. Shri S.B. Sanyal, Senior Advocate appearing for the
  appellants relied upon the judgment of this Court in Lucknow
  Development Authority v. M.K. Gupta (1994) 1 SCC 243 and
H argued that the impugned order as also the orders passed by
  VIRENDER JAIN v. ALAKNANDA COOPERATIVE                    1065
       GROUP HOUSING SOCIETY LIMITED
the State Commission are liable to be set aside because the         A
view expressed by the two consumer forums on the issue of
maintainability of the complaints is ex-facie erroneous and is
contrary to the law laid down by this Court. Shri Neeraj Kumar
Jain, Senior Advocate appearing for respondent No.1
supported the impugned order and argued that the appellants         B
cannot be treated as consumer because respondent No.1 was
not providing any service to them.

      9. We have considered the respective arguments. Section
2(1 )(d) of the Act, which defines the term 'consumer' reads as     C
under:

    "'consum~r' means any person who-

    i. buys any goods for a consideration which has been paid
    or promised or partly paid and partly promised, or under        o
    any system of deferred payment and includes any user of
    such goods other than the person who buys such goods
    for consideration paid or promised or partly paid or partly
    promised, or under any system of deferred payment when
    such use is made with the approval of such person, but          E
    does not include a person who obtains such goods for
    resale or for any commercial purpose; or

    ii. hires or avails of any services for a consideration which
    has been paid or promised or partly paid and partly
    promised, or under any system of deferred payment and           F
    includes any beneficiary of such services other than the
    person who hires or avails of the services for consideration
    paid or promised or partly paid and partly promised or
    under any system of deferred payment, when such
    services are availed. of with the approval of the first         G
    mentioned person but does not include a person who
    avails of such services for commercial purpose.

    Explanation-For the purposes of this clause, commercial
    purpose does not include use by a person of goods bought        H
    1066   SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A      and used by him and services availed by him exclusively
       for the purposes of earning his livelihood by means of self
       employment."

       10. The above quoted definition was interpreted by this
B Court in M.K. Gupta's case. After analyzing the definition of
  'consumer', this Court observed:

       ''The provisions in the Acts, namely, Lucknow Development
       Act, Delhi Development Act or Bangalore Development
       Act clearly provide for preparing plan, development of land,
c      and framing of scheme etc. Therefore if such authority
       undertakes to construct building or allot houses or building
       sites to citizens of the State either as amenity or as benefit
       then it amounts to rendering of service and will be covered
       in the expression 'service made available to potential
D      users'. A person who applies for allotment of a building site
       or for a flat constructed by the development authority or
       enters into an agreement with a builder or a contractor is
       a potential user and nature of transaction is covered in the
       expression 'service of any description'. It further indicates
E      that the definition is not exhaustive. The inclusive clause
       succeeded in widening its scope but not exhausting the
       services which could be covered in earlier part. So any
       service except when it is free of charge or under a
       constraint of personal service is included in it. Since
F      housing activity is a service it was covered in the clause
       as it stood before 1993."

        (emphasis supplied)

       11. The ratio of the aforementioned judgment was
G reiterated in Chandigarh Housing Board v. Avtar Singh (2010)
  1O sec 194. The questions considered in that case were
  whether members of the Cooperative House Building
  Societies, who would have been benefited by allotment of land
  under the scheme framed by the Chandigarh Administration
H could be treated as 'consumer' within the meaning of Section
  VIRENDER JAIN V. AlAKNANDA COOPERATIVE 1067
       GROUP HOUSING SOCIETY LIMITED
2(1)(d) and whether the District Forum had the jurisdiction to     A
entertain the complaints filed by them for refund of 10% earnest
money .forfeited by the Chandigarh Housing Board. After
noticing the relevant passages from the judgment in M.K.
Gupta's case, this Court observed:
                                                                B
    "From what we have noted above, it is crystal clear that
    even though the 1991 Scheme was ostensibly framed for
    allotment of land to the Societies for construction of
    multistoreyed structures (dwelling units/flats) for their
    members, but th'e provisions contained therein not only C
    regulated the relationship of the Societies with their
    members, but also made them jointly and severally
    responsible for payment of the earnest money, etc. The
    Finance Secretary and the Board issued directions from
    time to time for payment of the earnest money and interest
    by the members of the Societies. If the Scheme had D
    nothing to do with the members of the Societies, then it
    would not have contained provisions to regulate their
    eligibility and entitlement to get dwelling units to be
    constructed on the land allotted by the Board and made
    them jointly and severally responsible for payment of the E
    premium, etc. and the Finance Secretary would not have
    issued directions vide Memos dated 9-6-1993 and 9-3-
    2000 in the matter of refund of earnest money and interest.
    The Board too would not have entertained the request
    made by the members of the Societies for refund of the F
    earnest money and remitted the amount to the Societies
    after deducting 10%.

    Thus. even though no formal contract had been entered
    into between the Chandigarh Administration and the             G
    Board on the one hand and the members of the Societies
    on the other hand, the former exercised sufficient degree
    of control over the latter. By making applications for
    allotment of land. the Societies will be deemed to have
    hired or availed the services of the Chandigarh                H
    1068    SUPREME COURT REPORTS                [2013) 2 S.C.R.


A       Administration and the Board in relation to housing
        construction as elucidated and explained in M.K. Gupta
        case and Balbir Singh case. If the Scheme had .been
        faithfully implemented and land had been allotted to the
        Societies. their members would have been the actual and
B       real beneficiaries. Therefore. they were certainly covered
        by the definition of "consumer'' under Section 2(1)(d)(ii).
        the second part of which includes any beneficiary of the
        services hired or availed for consideration which has been
        paid or promised or partly paid and partly promised. As a
c       sequel to this. it must be held that the members of the
        Societies had every right to· complain against illegal,
        arbitrary and unjustified forfeiture of 10% earnest money
        and non-refund of 18% interest and the District Consumer
        Forum did not commit any jurisdictional error by
        entertaining the complaints."
D
                                             (emphasis supplied}

          12. In view of the above noted judgments, it must be held
    that the appellants, who had deposited the instalments of price
E . for the flats being constructed by respondent No.1 are covered
    by the definition of 'consumer' contained in Section 2(1}(d} of
    the Act and the contrary view expressed by the National
    Commission in B.K. Prabha v. Secretary Kendriya
    Upadyarasanga (2004} 2 CLT 305, which has been reiterated
F in the impugned order is not correct.

      13. The other question which needs to be considered is
  whether the District Forum should not have entertained the
  complaints filed by the appellants and directed them to avail
  the statutory remedies available under the Cooperative
G Societies Act. Shri Neeraj Jain vehemently argued that the
  forums constituted under the Act cannot grant relief to the
  appellants because the action taken by respondent No.1 was
  approved by the authorities constituted under the Cooperative
  Societies Act, who were not impleaded as parties in the
H complaints.
  VIRENDER JAIN v. ALAKNANDA COOPERATIVE                   1069
       GROUP HOUSING SOCIETY LIMITED
      14. In our view, there is no merit in the submission of the   A
learned senior counsel. In the complaints filed by them, the
appellants had primarily challenged the action of respondent
No.1 to refund the amounts deposited by them and thereby
extinguished their entitlement to get the flats. Therefore, the
mere fact that the action taken by respondent No.1 was              B
approved by the Assistant Registrar, Cooperative Societies and
higher authorities, cannot deprive the appellants of their
legitimate right to seek remedy under the Act, which is in
addition to the other remedies available to them under the
Cooperative Societies Act. Law on this issue must be treated        c
as settled by the judgments of this Court in Secretary,
Thirumurugan Co-operative Agricultural Credit Society v. M.
Lalitha (2004) 1 SCC 305, Kishore Lal v. ES/ Corporation
(2007) 4 SCC 579 and National Seeds Corporation Ltd. v. M.
Madhusudhan Reddy (2012) 2 SCC 506.
                                                                    D
     15. In the last mentioned judgment, this Court referred to
the earlier judgments in Fair Air Engineers (P) Ltd. v. N.K. Modi
(1996) 6 SCC 385, Thirumurugan Co-operative Agricultural
Credit Society v. M. Lalitha (supra), Skypak Couriers Ltd. v.
Tata Chemicals Ltd. (2000) 5 SCC 294, Trans Mediterranean           E
Airways v. Universal Exports (2011) 10 SCC 316 and held that
the remedy available under the Act is in addition to the
remedies available under other statutes and the availability of
alternative remedies is not a bar to the entertaining of a
complaint filed under the Act.                                      F

      16. In the result, the appeals are allowed, the impugned
order as also the orders passed by the State Commission are
set aside and the matters are remanded to the State
Commission with the direction that it shall decide the appeals      G
filed by the appellants on merits after giving opportunities of
hearing to the parties.

R.P.                                          Appeals allowed.

                                                                    H