Ram Nath - Appellant
Versus
Improvement Trust, Bathinda - Respondent
Decided On : 06/29/1993
First Appeal No. 57 of 1991
Advocates Appeared :
Sh. Rajesh Garg,Sh. Gurcharan Singh

Headnote:Consumer Protection Act, 1986 - Sections 2(1)(g) and 15 - Complainant allotted plot by respondent - One-forth amount deposited and rest agreed to be paid in installments - Complainant alleging that respondent not entitled to charge interest as possession of plot not delivered - Respondent not in a position to deliver possession as area not developed so far - Complainant requesting for refund of amount charged as interest - Opposite party controverter allegations - Possession of plot and it., ownership passed on to allotted and only demarcation is required to be given - District Forum dismissed complaint without affording opportunities to parties for proving and disapproving allegations in controversy - Appeal filed - Arbitration clause not a bar to entertainment of complaint by District Forum - Provisions of the Act are in addition and not in derogation of provisions of any other law Services of housing falls within parameters of the Act - District Forum not considered the effect of instructions issued by Government of Punjab• Case remitted to District Forum for deciding it afresh.

       Held: It has been authoritatively settled by the Honble National Commission in a catena of judgments that the arbitration clause is not a bar to the entertainment of the complaint by the District Forum. Even if the arbitration provision has been laid down in a statute, it does not preclude the District Forum from entertaining the complaint and to provide consequential relief as permissible under the COPRA.

       If an arbitration remedy under a statute does not bar the consumer from availing of the benefit of the provisions of the COPRA, we fail to understand how by any stretch of imagination a clause of arbitration provided under a mutual agreement between the parties can estop the consumer from obtaining the benefit provided under the COPRA. The contractual agreement is at a much low padestral than a statutory provision.

       The existing laws were found by the Parliament both in fact and practice to be wanting to cope with the unscrupulous exploitation of the consumer and to give teeth, the Parliament in its wisdom thought it proper to bring forth the COPRA to provide better treatment and protection to the consumer. To be precise the COPRA preserves the existing rights of the consumers and confers additional rights and remedies. These rights are conferred de hors and independent of any contract between the parties and appear to us as significantly different and distinct from those conferred by other and existing statutes After examining the purpose and scheme of the Act, one comes to their resistible conclusion that the COPRA makes exclusive provisions in the newly created legal connotation and class of consumers expressly confers specific and meaningful rights in that Class; furnishes specific and special remedies for the enforcement of those rights creates hierarchical structures and for as there for and last but not the least gives a sanction of imprisonment and fine for the free and speedy enforcement of their orders. It is the settled proposition of jurisprudence that where a statute creates both rights and remedies, then resort must be made to the same exclusively. A reading of section 3 of the COPRA mandates and makes it clear that the provisions of the COPRA are in addition to and not in derogation of the provisions of any other law for the time being in force. If the Parliament has granted additional rights and remedies to the consumers under the COPRA, it would be absurd on our part at the time of construing the provisions of the Social Welfare Legislation to narrow and abridge its scope, size, shape and structure. Rights and remedies conferred under the COPRA and enforcement thereof cannot be curtailed by the statutory arbitration provisions of any existing laws or by any contractual arbitration agreement between the parties. The arbitration clause cannot thwart and retard the movement and progress of the COPRA. S. 3 of the COPRA is ABSOLUTA SENTENTIA EXPOSITURE NON INDIGENT (Plain words require no explanation).

       It has been persistently held by the Honble National Commission and the other State Commissions crystallizing in the consumer jurisprudence that the service of housing falls within the parameters of the COPRA. The recent ordinance of 1993, amending the COPRA speaks volumes for it. The Housing Boards and other bodies, including the Improvement Trusts are engaged in serving the public in the matter of providing houses by acquisition of land, development of sites, construction of houses thereon and allotment of plots/houses to the public. They are clearly engaged in rendering service for consideration to the public and therefore, those who are allotted plots/houses by these bodies are clearly consumers falling within the definition of "consumer" given in section 2(1)( d)(ii) of the COPRA. The definition of "service" given u/s. 2(1)(0) is very comprehensive. The type of "service" rendered by the opposite-party Improvement Trust to the public for consideration is clearly covered by section 2(1)(0). The learned District Forum without advancing any cogent and tangible reasons in its own order has observed that the complainant is not a consumer". The finding and observation of the District Forum fly when confronted with the judgment of the Honble National Commission in M/s. Shanti Roadways v. The New India Assurance Co. Ltd. & Ors.4 and V.P. A vas Evam Vikas Parishad, Housing & Development Board) v. CP. Sharma & Ors.5 The charging of interest, as alleged, if proved, would make the service rendered by the opposite-party deficient and actionable wrong under the COPRA.

       The primal reliance of the complainant before us and in the complaint filed by him is on instructions, Annexure-C dated 23.2.1983 issued by the Government of Punjab, Department of Local Government, to various Improvement Trusts in the Slate of Punjab, coupled with the admission of the opposite-party that it has to obey and carry out the instructions of the Slate Government and cannot function independently. We are sorry to point out that the learned District Forum has not adverted to and considered the effect of the said instructions in the impugned order.

       For the reasons recorded above, we accept the present appeal and set aside the impugned order and remit the case back to the learned District Forum.