Sudha Jain vs PRAGATISHEEL SAMOOHIK SEHKARI KRISHI SAMITI

THIS order shall dispose of Compensation Application filed by Ms. Sudha Jain, r/o Terapant Niketan, Flat No. P, Sagar Apartments, 6, Tilak Marg, New Delhi (hereinafter referred to as applicant) under Section 12-B of the Monopolies and Restrictive Trade Practices Commission (hereinafter referred to as the Act) against M/s. Pragatisheel Samoohik Sehkari Krishi Samiti, Salarpur, 4047, Naya Bazar, Delhi-110006 (hereinafter referred to as respondent No. 1) through its Honorary Secretary, Shri Padam Chand Gupta (hereinafter referred to as respondent No. 2).

DURING 1981, respondent No. 1, who is also providing services of immovable properties to the consumers, floated a scheme for providing farm houses in an area located at NOIDA, Uttar Pradesh by the name of "Pragati Baagh". Since the applicant was interested in such a farm house, deposited Rs. 20,135/- (Rs. 20,000/- cost of land, Rs. 100/- share money and Rs. 35/- admission fee) on 9th January, 1982, and the receipt for the aforesaid amount was issued by the respondent. On 1st March, 1982, vide their Circular No. PS/04/CIR/82, the respondents informed the applicant that they had purchased 1600 Bigas of land by executing sale deeds and arranged 900 Bigas of land under agreements for which sale deeds were to be executed by March, 1982. On 8th October, 1982, the respondents asked the applicant to pay Rs. 15,000/- towards cost of land by 31st October, 1982, which was paid on 25th October, 1982, by the appellant and acknowledged by the respondent vide Receipt No. 1766 dated 30th October, 1982. The respondents sent another Circular bearing No. PS/05/CIR/82 dated 9th November, 1982 that they have purchased 2500 bigas of land and development charges for the same were being worked out and applicant/member will be informed accordingly. Since cost of half hectare of land at that time in that area was Rs. 50,000/-, final demand for payment of balance Rs. 15,000/- was sent by the respondent on 26th December, 1982. The applicant paid Rs. 21,000/- on 18.12.1984 (Rs. 15,000/- towards cost of land and Rs, 6,000/- towards development charges). A further amount of Rs. 3,00/- was also paid by the applicant on 15.1.1985 towards miscellaneous charges and the respondents have issued receipts for the aforesaid payments which are on record. Since the lay out plan does not meet the requirements of the Government with regard to roads, the respondents had to revise the lay out plan and asked the applicant to forward a list of fresh group consisting of five members which was sent on 1.6.1986. Possession of the land was to be delivered within 2 years from the date of enrolment of membership on 29.1.1982 but till 1991 nothing could be heard from the respondents. Since the applicant had paid entire amount towards cost of land far back in 1984, he sought information about the correct position of the Society and requested the respondents to hand over the possession of the plot. In response to the letter of the applicant, the respondents vide their letter dated 1.6.1991 informed that the land of the Society has been attested by the District Magistrate, Ghaziabad. The applicant asked the respondents to send the papers of litigation which were never sent by the respondent. Instead of handing over the possession of land in question, the respondent on 31.8.1991 informed the applicant that some litigation is pending in Supreme Court and as such allotment of plot is not possible. After waiting for 10 years, the applicant vide its letter 12th June, 1992 requested the respondent to refund the amount paid by him together with interest @ 24%. Instead of refunding the amount, the respondents informed the applicant vide their letter dated 16.9.1993 that since the matter was under litigation and the amount received from the applicants had been spent towards purchase of land, the amount could not be refunded. The applicant left with no other alternative, sent a legal notice of date 13.10.1993 but nothing could be achieved. The Commission has ordered to issue notice to the respondent returnable on 16.1.1995. The respondents filed their reply admitting receipt of Rs. 5,06,135/- towards cost of land and development charges but denied the averments made in the compensation application since according to the respondents, actual facts have been suppressed by the applicant and the case is under litigation.

The applicant also filed its rejoinder rebutting the stand taken by the respondents in their reply. On completion of pleadings, following issues were framed : 1. Whether the respondents are or have been indulging in the unfair/ restrictive trade practices as alleged in the C.A. ? 2. If the answer to the foregoing issue is in the affirmative, whether the restrictive/unfair trade practices are prejudicial to public interest ? 3. Whether as a result of the unfair/ restrictive trade practices, the applicant has suffered any loss ? 4. To what relief, if any, is applicant entitled ?

THE applicant filed her affidavit in evidence alongwith certain documents in support. Shri Padam Chand Gupta, Hony. Secretary of the respondent has also filed his counter affidavit in evidence. We heard the arguments of Mr. Sanjeev Sabharwal, Advocate for the applicant and Mr. O.P. Dua, Advocate for the respondent. Liberty was given to both the parties to file their respective written synopsis within two weeks in support of their oral arguments. Written synopsis have only been filed Mr. O.P. Dua, Advocate, for the respondents. We have also gone through the averments made by the applicant, reply of the respondents, rejoinder of the complainant, affidavits of Ms. Sudha Jain, the applicant and Mr. Padam Chand Gupta, Hony. Secretary of the respondent and the written synopsis filed by Mr. O.P. Dua, Advocate for the respondents. Taking cognizance of the various facts placed before us, the following emerged :

THE applicant in her evidence almost repeated the facts contained in the complaint and alleged that the respondent even after receiving 100% payment during 1984 has not so far delivered the possession of the land resulting in imposing of unjustified cost on her. THE respondent thus manipulated the conditions of delivery which is a restrictive trade practice within the meaning of Section 2(o) of the Act. It has also misrepresented about the time of delivery of the possession of farm land and made the applicant to party away with the cost of land deceptively within the meaning of Section 36 A of the Act. Since the aforesaid restrictive/unfair trade practices have caused pecuniary and non-pecuniary losses to her, she is entitled to the compensation as prayed. On the other hand, after going through the records, it is found that the respondent No. 1 is a registered Co-operative Farming Society bearing Registration No. 2794 dated 23.12.1981 and it has about 600 members in NOIDA, Uttar Pradesh. The applicant is a bona fide member of one share of the Society and paid her share towards cost of land from time to time. The applicant falls in the category under Section 77(1)(a) & (b) of Chapter XI of the U.P. Cooperative Societies Act reads as under : "77. Registration of Co-operative Farming Societies : (1) Where any ten or more persons - (a) holding Bhumidari or Sirdari rights in land in a circle, and desiring to pool it; or (b) Intending together to obtain in the name of the Society land in a circle, by purchase, lease or otherwise;

Also Section 79 of the aforesaid Act describes the consequences of registration as under : "79. Consequences of registration. (1) When a Co-operative Farming Society is registered under Section 77, all land in the circle held by a member, whether as Bhumidar or Sirdar, other than land in possession of his Asami, till such time as it is so held by the Asami, shall be deemed to have passed into the possession, control and management of the Co-operative Farming Society, which shall thereupon hold such land in accordance with the provisions of this Chapter and may use the same for any of the purposes mentioned in Sub-section (1) of Section 77."

ACCORDING to Section 90 of the above Act, provisions of Chapter XI is to prevail over other laws. Since the applicant is a member of a Co-operative Farming Society which is located in the vicinity of NOIDA, Uttar Pradesh. We hold that the provisions of the U.P. Co-operative Societies Act, 1965 are mandatory and the members of the Society in question are to be governed by the aforesaid provisions.

WE after going through the records, we also found that the land purchased by the Society is under litigation. District Magistrate, Ghaziabad served a show cause notice to the Society to the effect that the entire land holding of the Society which was in excess of 12.5 acres was threatened to be vested in the State of U.P. and consequently a case was instituted against the Society vide No. 3/87 under Sections 154(2) and 167 of U.P.Z.A & L.R. Act which is still being contested. In the meanwhile, Allahabad High Court decided one Petition No. 7111 of 1988 namely Kasturi Samyukt Sehkari Krishi Satniti Ltd. v. State of U.P. & Ors., holding that the provisions of Section 154(2) and Section 167 of U.P.S.Z. & L.R. Act do not apply on a Co-operative Farming Society. The respondent Society filed a Writ Petition No. 3193/1989 in the Hon''ble High Court of Allahabad. D.M., Ghaziabad was directed by the Hon''ble High Court of Allahabad to decide the case in question within one month vide its order dated 18.12.1989. D.M., Ghazaibad in pursuance of the above orders, adjourned the case of the respondent till the disposal of an appeal filed by the U.P. State in the Hon''ble Supreme Court of India bearing No. 1618/1990 against the judgment of Allahabad High Court cited above. Hon''ble Supreme Court dismissed the above mentioned appeal on 4.12.1991. Consequently, the respondent Society approached the D.M., Ghaziabad and prayed for final disposal of its case in accordance with the order passed by the Hon''ble Supreme Court. Since, the case was not disposed of by the D.M., the respondent Society filed another case in Allahabad High Court and Hon''ble High Court, Allahabad vide its order dated 16.7.1992 issued directions to the D.M to dispose of the case of the respondent Society within one month but nothing was done till December, 1992. The respondent Society left with no other alternative, filed another petition in Allahabad High Court praying quashing the proceedings pending before D.M., Ghaziabad. The case was fixed for final disposal on 30.3.1993 buts since no counter was filed, the case is pending till date. D.M., Ghaziabad, on 7.4.1993 passed a judgment vesting 812 hectares of the Society''s land in the State of U.P. and only 12.5 acres of land has been left with the respondent Society. This impugned order of D.M., Ghaziabad has been challenged by the Society vide its fourth Writ Petition No. 37574 of 1994 in the Allahabad High Court in which stay order has been granted vide order dated 24.11.1994 and the case is still pending. From the above, it is emerged that as on date, moneys collected from the members have been spent for purchase of 900 Big has of land for co-operative farming. The respondent Society is in possession of only 12.5 acres of land and 812 Big has of its land has been vested in the State of U.P. It is battling legally against the D.M., Ghaziabad''s order dated 7.4.1993 in order to safeguard the interests of its members.

According to the provisions of U.P. Cooperative Societies Act, for the purpose of cooperative farming, the land is to be controlled and managed by the society and the bye-laws of tine respondent Society allow pooling of money and material to achieve the object of co-operative farming distinct from individual ownership.

FROM the foregoing, it is emerged that the entire land has been purchased by the respondent in the name of the Society from the moneys collected from its members and the applicant undertook to abide by the Act and Rules of the U.P. Co-operative Societies Act and bye-laws of the respondent Society. It is also found that the delay in giving possession of farm land to the members is not due to manipulation/ deceptive intention of the respondents but is due to attachment of en tire land except 12.5 Hectares to U.P. State in accordance with the order of D.M., Ghaziabad for which the respondent is battling legally, we hold that the compensation application is not maintainable. Accordingly, we dismiss the same in the light of provisions of U.P. Co-operative Societies Act and bye-laws of the respondent society leave, unintentional delay on the part of respondent and the case being under litigation. Application dismissed.