BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.919/2011 against C.C.No.648/2009 District Forum-II, Hyderabad.
Between
Sri M.V.S.R.Sarma B.A.L.L.B.,
S/o.late Seetapathi Rao,
District Judge (Retired)
Hindu Male, aged about 70 years,
R/o.FlatNo.103, Siddisadan
D.No.45-45-8, Madeti Gardens,
Akkayyapalem Main Road,
Visakhapatnam-530 016. Appellant/
Complainant
And
1. The Indira Gandhi Co-operative Housing
Society Ltd., reptd. By its Chairman,
D.No.11-5-435, 2nd floor, Red Hills,
Lakdikapul, Hyderabad-500 004.
2. The Indira Gandhi Co-operative Housing
Society Ltd., reptd. By its Secretary,
D.No.11-5-435, 2nd floor, Red Hills,
Lakdikapul, Hyderabad-500 004. Respondents/
Opp.parties.
Counsel for the Appellant : Smt. N.(P).Anjana Devi
Counsel for the Respondents: M/s V.Gourisankara Rao-R1 and R2
QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HON’BLE Incharge President
SRI T.ASHOK KUMAR, HON’BLE MEMBER
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
MONDAY, THE TWENTY FIFTH DAY OF NOVEMBER,
TWO THOUSAND THIRTEEN
Oral Order (Per Sri R.Lakshmi Narasimha Rao, Hon’ble Incharge President)
***
The unsuccessful complainant is the appellant. He filed the complaint seeking direction to the respondents to execute registered sale deed in his favour by collecting all necessary expenses, registration charges from the appellant for plot No.427 in an extent of 600 sq. yds. situated in Jalpalli and Gaganpahad villages along with a house to be constructed by the society within the time stipulated by the District Forum or in the alternative for a direction to the respondents to pay a sum of Rs.16,00,000/- along with interest at 18% p.a. on the said amount till realization.
The case of the appellant is that he is a retired District Judge and is a member of the Indira Gandhi Co-operative Society Ltd., with Admission (Membership) No.879 and was issued identity card. The appellant submitted that he paid Rs.100/- towards share capital and a further sum of Rs.830/- towards land value as also Rs.1/- towards admission fee and an amount of Rs.20/- towards other charges totalling to Rs.951/- on 11-4-1968 and a receipt was also issued by the respondent. The appellant submitted that later a sum of Rs.1000/- was collected by the respondent on 14-5-1968 for allotment of a plot being a member of the society.
The appellant submitted that at that time he worked as Short hand writer in High court of Andhra Pradesh and the respondents have originally allotted plot No.379 to him on 25-10-1968 after collecting the land cost of Rs.830/- which was already paid by him on 11-4-1968 and the development charges of Rs.250/- and issued a letter of allotment and also collected a sum of Rs.500/- on 17-7-1980 and issued a receipt to that effect. The appellant further submitted that he became a Judicial officer in February, 1976 and by virtue of that post, he worked in various places in the state and could not get the plot registered immediately.
The appellant submitted that though the respondents threatened to cancel the allotment they had not done so and when the appellant enquired about his plot, he was informed that it was encroached by a third party. Thereafter there was correspondence between the appellant and the respondents in this regard and ultimately respondents have re-allotted plot No.427 through letter dated 10-6-1991 and he was asked to pay various amounts towards development charges and the appellant paid the amounts as demanded by the respondents and finally paid a sum of Rs.1500/- to the respondents on 07-2-2001 towards re-survey charges and a receipt was also issued for the same. The appellant submitted that he was ready to pay the balance if any towards betterment charges and get the plot registered in his name as he paid the entire cost of the plot. The appellant submitted that he was also ready to bear the registration charges as per the present market value and also addressed a letter on 24-11-2007 requesting the respondents to fix a date for registration of the plot.
The appellant submitted that he was invited to attend the General body meeting of the society held on 10-2-2008 and he attended the meeting and he was assured that his plot will be registered slowly by informing the requirements of payments of any amounts. The appellant submitted that thereafter he sent a sum of Rs.5,000/- plus Rs.75/- towards collection charges on receipt of phone call from respondents on 10-3-2008 but thereafter there was no response from the respondent. Therefore, the appellant got issued a notice dated 28-4-2008 requesting the respondents to fix a convenient date and register the re-allotted plot No.427 by collecting dues if any and also registration charges and the respondents did not comply with the request of the appellant or sent a reply which amounts to deficiency in service and hence the appellant filed the complaint.
The respondents resisted the claim on the premise that the allotted plot No.379 was not taken care by the appellant after its allotment to him and it was encroached by some third party to an extent of 80 sq. yds. and they submitted that it is not the duty of the society to protect once the plot is allotted to their members but despite all these circumstances, having considered the appellant’s difficulties they re-allotted plot No.427 in lieu of plot No.379 and asked the appellant to pay Rs.6035/- and get it registered. The appellant has not responded to the letters issued in 1987 and wrote a letter dated 25-4-1991 expressing his intention to pay the amount and even then had not sent any amount. The society replied vide letter dated 10-6-1991 that an amount of Rs.7810/- has to be paid within 15 days failing which the plot No.427 will be allotted to the next senior member for which the appellant did not respond till date or paid any amounts. They denied that the appellant paid an amount of Rs.1500/- and submitted that the appellant was never ready to pay nor replied to any of the letters within time or expressed his willingness to pay the amounts.
The respondent submitted that after the letter issued by the society in the year 1987, the appellant surfaced on by letter dated 24-11-2007 stating that he had come to Hyderabad and created the story of the receipt of year 2001 in his letter dated 24-11-2007. They denied that the appellant attended the General body meeting and paid Rs.5075/- and stated that it is cooked up and returned the same to the appellant and the appellant has not proved by any evidence to show that it was encashed by the society. Respondents further submitted that the complaint of the appellant is barred by law of limitation and plot No.427 was allotted to the next senior member as per the records of the society as stated in their earlier letter. Respondents submitted that since the respondent is a society registered under Co-op. Societies Act, 1964 the Forum does not have jurisdiction to entertain the complaint and submitted that there is no deficiency in service on their behalf and prayed for dismissal of the complaint with costs.
The appellant filed his affidavit and relied on documents i.e. Exs.A1 to A13 in support of his case and on behalf of the respondents, the secretary filed his affidavit his chief affidavit along with the affidavit of Mr.G.Jaganadh Rao, Member of the society and relied on documents i.e. Exs.B1 to B19 in support of their case.
The District Forum dismissed the complaint on the premise that filing a complaint before this Commission would not enlarge the limitation and denied the alternate remedy of the plot value of R.16,00,000/-. However, the District Forum held that the appellant is entitled to the relief for refund of Rs.2,951/- in the event of the appellant electing to withdraw his membership and the District Forum on the alternative (granted) relief in favour of the appellant holding him entitled to allotment of any other vacant plot in case available.
Aggrieved by the order of the District Forum, the appellant has filed the appeal contending that the complaint was filed within the period of limitation and that the District Forum erred in observing that the appellant is entitled for refund of Rs.2,951/- only in the event of his withdrawing from the society and gave option to the appellant to opt for any other vacant plot available.
The point for consideration is whether the order of the District Forum suffers from mis-appreciation of facts or law?
It is beyond any dispute that the appellant joined as a member of the respondent society and he was given admission (Membership) No.879 as also he was issued identity card. At the time of admitting him as its member, the respondent society collected a sum of Rs.100/- towards share capital and a further sum of Rs.830/- towards land value as also Rs.1/- towards admission fee and an amount of Rs.20/- towards other charges totalling to Rs.951/- on 11-4-1968. The respondent society issued receipt to that effect and later the appellant paid an amount of Rs.1,000/- on 14-5-1968 for allotment of a plot.
The appellant has submitted that at the time he joined the respondent society, he was working as Stenographer in the High Court of Andhra Pradesh and subsequently he worked as Personal Assistant to late Hon’ble Justice Avula Sambasiva Rao and the respondent society allotted plot bearing No.379 in favour of the appellant on 25-10-1968. A letter of allotment was issued in favour of the appellant and the respondent has collected a sum of Rs.500/- on 17-7-1980 and issued a receipt to the appellant. The appellant submitted that subsequently he became judicial officer in the month of February, 1976 and by virtue of that post, he worked at various places in the State and as such he could not get the plot registered. The appellant submitted that though the respondent society threatened him that it would cancel allotment but it had not cancelled the allotment and later he was informed by the respondent society that his plot was encroached by a third party.
Against the order of dismissal of his complaint, the appellant has filed the instant appeal which was dismissed for non-prosecution and the appellant filed writ petition W.P.No.106576/2013 which was allowed by the Hon’ble High Court remitting back the matter to this Commission.
The learned counsel for the respondent had submitted that at present there is no plot available to be allotted to the appellant.
The object of the respondent society read as under:
i) to buy or acquire land by lease, exchange or otherwise
ii) to lay out land to suit the requirement of members and to prepare layout and estimates for the construction of buildings thereon
iii) to build or cause to be built residential or other works of common utility, houses, other buildings for the convenience of members, and for this, purchase in bulk the necessary building material to stock brick, lime and other kind sand to provide technical guidance and supervision
iv) to develop a co-operative colony and if necessary to establish and maintain therein a store, a transport service and other social recreative and educational institutions for the convenience and benefit of members
v) to hold, sell, mortgage, lease out on hire or on hire purchase system, give or lease or otherwise dispose of land, houses, house sites, building and all other property, movable and immovable, as may be necessary to carry out of the objects of the society.
vi) to advance loans to members for building houses on society’s land and for other legal and necessary house construction purposes on east terms and at reasonable rates of interest.
vii) To repair, after or otherwise deal with the building of its members
viii) To do all things necessary of expedient for accomplishment of the aforesaid objects and for the comfort, convenience and good of its members and who are not the member of any other housing society”.
The respondent in its letter issued to the members including the appellant that development activity has to be taken up on the land and no infrastructure said to have been provided even after lapse of 35 years. It is stated:
“In this context we wish to impress upon the members about the immediate need for taking up developmental activity on the lnad. It is most disappointing to point out that despite lapse of about 35 long years no infrastructure worth the name could be provided. Obviously unless basic amenities such as Roads, Drinking Water, Electricity, Drainage etc. are provided the members think rather rightly that it is futile to invest to take up any construction of houses. Keeping in view the potentiality of the area, the committee of persons in charge had met on 22-9-2000 and discussed at length about the urgent need for providing basic amenities without further loss of time. Subsequently the committee members had interacted with other colleagues who used to visit the office and the area during and after the re-survey. They have appreciated the idea of providing civic amenities on top most priority and encouraged to go ahead with the proposal. Accordingly the persons in charge committee had met on 22-12-2000 and again reviewed the response from members and confirmed its resolution to collect rs.50/- per sq. yd in two instalments to provide Roads, Electricity, Drinking water, Drainage and avenue plantation etc.,”
The general body was to be convened as mentioned in the letter on or after 25.02.2001. Thereafter, it is not known whether the general body meeting was held in order to decide the disqualification of the members who committed default in making payment of the balance sale consideration. The respondent is silent and it had not shown any reason or explanation as to why general body meeting was not held as mentioned in the letter circulated to its members. Thus, the inference would be that the respondent had not held any general body meeting of its members and the consequent result of not holding the general body meeting is keeping intact the membership of the appellant which would also draw support from the letter dated 10.03.2008 wherein the respondent pointed out that no plot was registered in the name of the appellant and informed the appellant that it had returned the cheque for Rs.5075/- sent towards development charges of the plot.
The respondent-society had addressed letter dated 10.03.2008 contrary to its intimation made previously that in the initial stage plot number 379 was allotted to the appellant and subsequently it had allotted plot bearing number 427 to the appellant. The respondent had not shown as to what happened to the plot bearing numbers 379 and 427. A mere statement that no plot is available at present would not satisfy the requirement of proof that particular plot is allotted to a member and on the whole the entire numbers of plots are allotted to specific members.
The appellant got issued notice on 24-11-2007 pointing out to the respondent about the allotment of plot bearing number 379 and subsequently on being the plot encroached , allotment of plot bearing number 427, The respondent requiring the appellant to pay an amount of Rs.1,500/- towards resurvey charges was mentioned in the notice as under:
‘Again when Sri D.George was the Chairman of the Society, I received a communication from the Society that I should pay Rs.1500/- towards resurvey charges. I paid the said sum on 07-2-2001 to Smt.Mary George W/o.Sri George as he was not available at his house and obtained an acknowledgement. At the time of making payment I furnished my address as Judge, Family Court, Visakhapatnam. Thereafter there is no communication from the society. I was anxiously waiting for a communication from the society for getting my plot registered but I have no information”.
The appellant having come to know about missing of his name in the voters list, got issued the aforementioned notice requesting the respondent to receive the dues from him and register the plot bearing number 427 in his favour. There was no response for the notice from the respondent-society. The respondent ought to have informed the appellant about the preparation of voters list and non-inclusion of his name in the voters list and the reasons therefor. For all these reasons, the complaint cannot be said to be filed beyond the period of limitation. Without completing the development work, the respondent cannot register the plot in favour of its employees.
The aforementioned discussion would draw conclusion that the respondent had not taken up the development activity of the project even after long lapse of time and the respondent society had not conducted general body meeting to decide the fate of the defaulters. The District Forum dismissing the complaint directed the respondent to register available plot in favour of the appellant or refund the amount paid by the appellant in case the appellant sought for withdrawal of his membership. The District Forum also ought to have awarded interest on the amount paid by the appellant for the period the amount was retained by the respondent-society.
The National Commission in ‘P.Suri Babu vs Abhishek Gonvil’ IV (2013) CPJ 239, confirmed the order of the District Forum wherein this Commission directed refund of the amount with interest owing to the developer’s failure to carry out development work.
Thus, the refund of the amount awarded as alternative relief is required to modified by award of interest as means of compensation. The appellant is entitled to the interest @ 9% p.a. from the date of last payment.
In the result, the appeal is allowed. The order of the District Forum is modified to the extent of refund of the amount i.e. Rs.2,951/- which shall carry interest @ 9% pa. from the date of last payment and the rest of the reliefs granted by the District Forum is confirmed. Time for compliance four weeks.
INCHARGE PRESIDENT.
MEMBER.
MEMBER.
JM Dt. 25-11-2013.
