I knew the meaning of the word derogatory. If someone makes a derogatory remark against me, it will hurt me. Still in order to understand the CPA (Consumer Protection Act, 1986), I browsed the internet as well as looked into the dictionary. The internet gave me the following meaning:
Derogatory means about the same as insulting. Derogatory language is meant to hurt, and it usually does. If you feel o$ffended or insulted by what someone says, the person probably said something derogatory. Racial, sexist, and ho$mophobic slurs are all derogatory. Insults that mean someone is stupid or crazy are derogatory. Making a joke about someone's mother is derogatory. Zinedine Zidane of France did head-butt of Marco Materazzi of Italy during World Cup 2006. The allegation of the former was that the latter made derogatory remarks. Similar was the allegation of Andrew Symonds against Harbhajan Singh in 2008.
The word “derogatory” appears in the Consumer Protection Act, 1986 (CPA). It may be appearing in so many other laws also. I know that the word appears is some international treaties.
Section 3 of the Consumer Protection Act 1986 (CPA) reads thus:
Act not in derogation of any other law: - 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.
What is derogation in law? The word is derived from Latin: derogare, -atum to repeal part of a law de’, down, from, and rogare, to propose a law.
Derogation is the partial repeal or abrogation of an earlier law by a later act that limits it’s (of the earlier law) scope or impairs its utility and force.
The question of derogation of one law by another law will occur only if one law is apparently in conflict with or itself abrogates the other law. Hence the sentence following the title phrase in Section 3 is somewhat superfluous. In fact courts and legal experts have used the latter sentence to derogate the preceding phrase “Act not in derogation of any other law”. It is not right.
The question of application or otherwise of the above section came at least once, to the best of my knowledge, in the case “General Manager, Telecom vs. M. Krishnan & Anr. (2009) 8 SCC 48. The question was whether the CPA can derogate Section 7B of the Indian Telegraph Act, 1885. The Consumer Protection Forum at Kozhikode, Kerala had given a decision in favour of Mr. M. Krishnan against General Manager, Telecom. The latter filed a writ certiorari in Kerala High Court against the decision. The High Court gave judgment in favour of Mr. M. Krishnan. But on an appeal before the Supreme Court by Telecom, the Apex Court reversed the Kerala High Court judgment. In effect the decision was that the CPA cannot derogate the provisions of Section 7B of the Telegraph Act. There are more details to this case and I am reserving them to another article of my own.
Now I come to the Maharashtra Co-operative Societies Act, 1960 (MCS) vs the Consumer Protection Act, 1986 (CPA).
District Consumer Fora in Maharashtra and even the State Consumer Commission have routinely entertained complaints from members of Co-operative Housing Societies completely ignoring the provisions of the MCS. Even learned lawyers, who should know and who should look into all applicable laws, blindly justify the filing of complaints before Consumer Fora.
Section 91, Subsection (3) of MCS reads thus:
Section 164 of MCS reads thus:
Surprisingly no lawyer of a Co-operative Housing Society has referred to these provisions in defence of their clients before the Consumer Fora. Is that their ignorance of law or their ineptitude? I wish they give a straight and specific answer in their comments to this article. I shall apologise for my statement.
Can Consumer Fora and the State Consumer Commission override the above provisions of the MCS? My answer is an absolute “no”. The arguments put forth in favour of the CPA are (1) the Consumer has a choice between CPA and MCS under the second sentence of Section 3 of the CPA, (2) CPA is a modern law and it will override previous laws including MCS. (3) CPA provides for a cheaper redressal and (4) the CPA is intended to provide protection to the weak against the mighty.
1. Has the Consumer (the Society member) a choice between CPA and MCS? Sub-section (3) of Section 91 of MCS precludes a member from going to any court other than the co-operative court. This Section of the MCS would prevail as Section 3 of CPA itself says that the latter cannot derogate the former and he cannot go to the consumer court either.
2. CPA is a modern law and it will override previous laws including MCS. Courts including the Supreme Court cannot decide this. Recently High Courts and the Supreme Courts are intruding into the territory of legislatures. If a Society member should be able to go straight to the Consumer courts, the legislatures should deliberate on it and feel in their wisdom to amend or repeal the laws. The stand of the Supreme Court on IPC Section 377 is relevant here. The court left it to the legislature.
3. CPA provides for a cheaper redressal. Does it? Writing a letter to the Registrar of Co-operative Societies under Section 164 of MCS is more simple and cheaper than filing a case before the consumer court paying fees to a lawyer.
4. CPA is intended to provide protection to the weak against the mighty. Between a CHS member and the CHS, who is weak and who is mighty? Most co-operative housing societies comprise middle class persons. The income of an individual member can be much more than the combined contribution of all the members together to the Society. The Societies are managed by managing committees elected from among members themselves. In most societies, members are unwilling to offer their candidature for election to the MC. They want other members to take up on them the giving of service to them and enjoy life themselves. Many managing committees have less than the number of members required under law. Individual members in pursuit of their selfish interest do such things as encroaching on common areas for their personal use, unauthorized conversion of residential premises to commercial premises for profit etc. The Managing Committee, if it exists, is helpless in preventing them. The Secretary, who does a voluntary service, will have his own vocation to earn his livelihood. He will have to get leave or permission from his boss to go to the lawyer, to the court etc. Who is weak and who is mighty?
Does this mean that a member of a Co-operative Housing Society has no relief, if he has a grievance against the Society? Not at all, he has avenues for making complaints and seeking redressal of his grievances.
If a member has a grievance, at first he should write a letter of complaint to the Assistant Registrar of his Municipal Ward. Only if he does not get his grievances redressed within two months he can proceed further.
Can the member then approach the Consumer Court for redressal? He cannot for the following reasons.
1. A CHS member is not a “Consumer” as defined under Section 2 (iv) (d) (ii) of the CPA.
2. A Co-operative Housing Society is not a “Service Provider” as defined under Section 2(o) of the CPA.
3. Under Section 3 of the CPA, the Act cannot derogate other laws. It means that CPA cannot derogate Section 91, sub-section (3) of MCS reproduced above.
If a member is not satisfied with the action taken by the Assistant Registrar or if that officer takes no action, the recourse available to the member is the Co-operative Court. If it is felt that this causes hardship to a society member, it is for the legislatures to take note of it and suitably amend the laws and courts have no powers in this matter.
I suggest to the readers to also visit the following websites before they give any comments