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Judgment
The present revision petition under Section 21(b) of the Consumer Protection Act, 1986 is filed against the order dated 22.8.2016 passed in Revision Petition No. 89 of 2016 by West Bengal State Consumer Disputes Redressal Commission, Kolkata.
The revisionist/opposite party (OP) is a registered society in the name of ''Prayas Community Living Centre'', an organization working on non-profit basis formed by a group of parents, whose children have multiple disabilities. It is registered as National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation under Multiple Disabilities Act, 1999. The society had purchased small piece of land at Sonarpur, West Bengal on 22.1.2004. The complainants, Smt. Bahni Mandal and Mr. Sanjib Mondal approached the OP/society for the membership for their mentally challenged daughter and also opted for an accommodation in the upcoming residential complex. As per the terms and conditions of society, the complainant paid amount of Rs.9 lakh to the OP/society for a flat of 380 sq. ft. Complainant also attended all the 12 meetings which were held till 16.02.2014. However, OP issued money receipts as "donation" to restrict the complainants for seeking refund. The complainants were not willing to make the OP as a legal guardian of their daughter during their life time and also disagreed to make the OP as nominee for their bank accounts. Therefore, being aggrieved by the services of OP, the complainants filed a complaint before the District Forum, Kolkata Unit III (South), West Bengal with the prayer for refund of Rs. 9 lakhs alongwith compensation of Rs.400/- per day till recovery of the same and Rs.50,000/- for mental agony, harassment and agony.
The OP resisted the complaint before the District Forum and challenged the maintainability of the consumer complaint inter alia on the ground that the complainants were neither consumers nor could have approached the District Forum. The District Forum dismissed the application of OP on maintainability.
Being aggrieved of the same, the OP/Society subsequently approached the State Commission by filing revision petition No. 89 of 2016, which was dismissed by State Commission vide order dated 22.8.2016 with costs of Rs.5,000/- relying upon the order of NCDRC in M/s Prayas Community, Living Centre, Tollygunge vs. Ranjit Bhattacharjee & Anr., revision petition No. 2407 of 2015.
Aggrieved by the impugned order, the OP filed this instant revision petition.
After thoughtful consideration and perusal of order of State Commission, which relied upon the judgement in Revision Petition No. 2407 of 2015 of this Commission. " Having perused the outline of the project "Swapnaneer". Available on record, we are of the view that the revision petition is without any substance. It is evident from the salient features of the project, particularly, the three components viz. living components, service components and social components, that the payment in question of which refund had been sought by the complainants, was towards the living components, viz. shelter in the form of a 350 sq. feet furnished accommodation for a consideration of Rs.8,00,000/- notwithstanding that fact that allotment has to be on a long term lease-hold basis initially for a period of 17 years, extendable as per the requirement of the allottee. In our opinion, the character of the payment would not change by terming "the cost of the dwelling unit towards the construction of the living components including all expenses for allied infrastructure" as donations" in terms of Clause 38 of the outline of the project. In our view, the use of word ''donations'' is a misnomer or a camouflage to facilitate the Members to claim benefit of Section 80 G of the Income Tax, 1961, and ingenious device. There is no Clause in the entire scheme/agreement, providing forfeiture of the amounts deposited in the event of Member withdrawing from the Scheme. In the absence of any such condition and above all, having initially agreed to refund the said amount, no fault can be found with the impugned direction to refund of the aforesaid amounts to the complainants. Consequently, the Revision Petition fails and dismissed accordingly."
On the basis of facts and circumstances of the case and the judgment of this Commission in R.P. No. 2407 of 2015, we are of the considered view that the respondents/complainants are the consumers and denial of services to the complainants tantamounts to deficiency. Therefore, we do not find any jurisdictional error or any material irregularity in the well reasoned order of the State Commission. Accordingly, the revision petition is dismissed. The parties are directed to appear before the District Forum on 22.3.2017 for further adjudication. The District Forum is requested to dispose of this case expeditiously within six months. A copy of this order be sent to the parties and the District Forum.