Sri.G.V.Balasubramanya,<br /> Member<br /> <br /> 1. The Complainant became a member of the Opposite party society on 29.05.1998 with an intention to own a site in Mysore. She had applied for a site measuring 50’ x 80’. On 30.12.1995, the Opposite party sent an intimation to the complainant stating that she has to pay the difference of amount, as she is one among the wait listed members. On 15.10.1996 the Opposite party sent another circular calling upon the complainant to pay Rs.37,560/-, despite the fact that the complainant had already paid the said amount. Again on 13.06.1997, the Opposite party sent a circular asking the complainant to pay the betterment levy. Thus, she has so far paid Rs.63,440/-. Though, the Opposite party had promised to allot the site as early as possible, it was postponed on the ground that MUDA and the Government had not approved the land acquisition at Satagalli or Dattagalli. However, the complainant has submitted that the Opposite party Society has registered sites to it’s members. <br /> <br /> 2. This complaint has been filed for the failure on the part of the Opposite party to allot the site. She has prayed that the Opposite party be directed to allot the site. In the alternative she wants the Opposite party to be directed to pay the market value of the site by way of damages. <br /> <br /> 3. The Opposite party has filed his version in which he has alleged that the complainant has not paid the enhanced membership fee and the enhanced sital value, thereby became a defaulter. In fact, he says that the complainant has forfeited the membership.<br /> <br /> 4. The Opposite party has also averred that the Complaint is not maintainable and is hit by section 70 of the Co-operative Societies Act. He has also denied the Complainant’s contention that an amount of Rs.63,440/- has been paid so far.<br /> <br /> <br /> 5. On perusing the records, following point arise for our consideration:- <br /> i. Whether the complainant is entitled for the relief of allotment of a site?<br /> ii. Whether the complainant is entitled for the alternative relief of refund of the installments paid by her?<br /> iii. What order or relief?<br /> <br /> 6. We have answered the above points as under:-<br /> Point (i) : In the negative.<br /> Point (ii) : In the affirmative.<br /> Point (iii) : As per final order.<br /> <br /> REASONS<br /> <br /> 7. Point No.(i):- The undisputed fact is that the Complainant became member of the Opposite party society. From the documents filed by her, it is observed that she paid the following sums of money Rs.5,000/- on 10.06.1988, Rs.10,780/-on 16.05.1989, Rs.45,360/- on 15.02.1990 and Rs.2,300/- on 08.12.1989. Thus, she has so far paid Rs.63,440/. Interestingly on receipt dated 16.05.1989, the dimension of a site has been shown as 30 x 40 ft. whereas in the receipt dated 15.02.1990, the dimension has been shown as 50 x 80 ft. There is no allotment letter of site so far. A perusal of the documents filed by the Opposite party reveals that the complainant had in fact applied for a site measuring 50 x 80 ft. <br /> <br /> 8. The Bye-laws of the Opposite party society was amended on 29.09.2002 enhancing the membership fee from Rs.115 to 1,150/-. The members were informed through a circular to pay the enhanced membership fee by 15.01.2002. The complainant has not produced any document for having paid the enhanced membership fee. <br /> <br /> 9. A perusal of Opposite party’s circular dated 30.12.1995 reveals that a scheme was formulated for the benefit of wait listed members where by they could own a site in Srirampura extension instead of waiting for formation of layout in Sathagalli. It is mentioned in the circular that the allotment would be entirely discretionary and only for wait listed members. The Opposite party came up with this plan, as there was some problem in acquiring the land. The complainant does not appear to have accepted this offer choosing to wait for formation of Sathagalli Layout.<br /> <br /> 10. The Opposite party announced the acquisition of land in Sathagalli through circular dated 13.06.1997. The circular also states that the members should be ready to remit the money as and when circulars are sent to them. But, thereafter the Opposite party fell silent until 2003. On 03.10.2003 he issued a circular calling upon the complainant to pay an additional Rs.50,000/- to get the allotment letter. Complainant did not pay this amount. However, she has also, not communicated to Opposite party she finds the price of the site too high and therefore does not want it. In a catena of decisions the Hon’ble National Commission has held that consumer Fora cannot go into the pricing of plots/flats, etc. If the complainant wanted the site to be allotted to her for Rs.63,440/- paid by her then she should have communicated her refusal to pay any additional sum and demanded refund of the money already paid. This Forum cannot direct the Opposite party to allot the complainant a site for Rs.63,440/- unless she proves that she was promised a site at that price. The Opposite party has not even allotted her a site. Hence, her demand is untenable. In this regard, the Opposite party has relied upon a decision of the Apex Court in Delhi Development Authority V/s Pushpendra Kumar Jain (1994 (3) SCC 494) wherein it was held that “mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment at the price prevailing on the date of drawl of lots. If in case the respondent is not willing to take or accept the allotment at such rate, it is always open to him to decline the allotment, we see no unfairness in the above procedure”. Therefore, the complainant cannot demand that she must be allotted the site for the money already paid by her. <br /> <br /> 11. The learned counsel for the Opposite party has relied upon a decision in Smt.Kalavathi and others Vs. United Vaish Co-operative Thrift and Credit Society Ltd., (2002 CTJ 477 (CP) (NCDRC)). The Hon’ble National Commission while holding that a member of a Co-operative Society is a consumer of the Society has also held that the member cannot exercise rights as a member unless he has made due payment as required by the Bye-laws of the Society. It is the definite case of the Opposite party that since the complainant has not paid the enhanced membership fee she has no right to claim any relief. <br /> <br /> 12. As we have already observed the complainant has not been allotted any specific site though she has paid certain installments. The Hon’ble National Commission had an occasion to deal with a similar case in B.K.Prabha Vs. Secretary, Kendriya Upadyarasanga (I 2004 CPJ 127 NC), we here below quote a few sentences from the said order:-<br /> “The basic question still remains; how does the complainant petitioner come within the definition of consumer? By just becoming a member of a Housing Society one does not become a “consumer”. Thus, Commission had severally held that it is only after the allotment of a plot/flat/house which confer certain rights. It is the delivery/possession, after issue of allotment letter, which can be a subject-matter of deficiency of services. Here in this case by merely becoming a member of society does not amount to hiring the services of Opposite party by the petitioner. Since, in this case no allotment could be made for whatever reasons – he cannot be considered to fall within the definition of consumer.”<br /> <br /> 13. It is therefore clear that since the complainant has not been allotted a site for whatever reason he cannot be given the relief of allotment of a site. Further, she cannot exercise her right as a member as she has not paid the enhanced membership fee. Hence, we answer the point in the negative.<br /> <br /> 14. Point No.(ii):- However, the above conclusion does not bar us from examining the complainant’s alternative prayer for the refund of the installments paid by her. She paid these installments 16 to 18 years back without getting even a provisional allotment of site, she is justified in declining to wait any more and to seek refund of the amount paid by her. Though as per circular dated 13.06.1997 the land was acquired for formation of Sathagalli layout. The next circular was issued by the Opposite party only on 03.10.2003 she cannot wait eternally in the hope of getting a site from the Opposite party. Clearly, the Opposite party has committed an error by not informing the complainant the progress in formation of the layout for 6 years. The complainant can seek refund of the money as an alternative prayer either because she cannot afford to pay Rs.50,000/- more or because she has lost faith in Opposite party. The Opposite party is liable to refund, her money with interest as the money was him all these years. Hence, we answer the point in the affirmative. The plan for Sathagally layout was submitted for approval on 12.06.1997. Allowing one year for getting the plan approved and dispatching the allotment letters to the allottees, the Complainant would be entitled to interest on her money from 12.06.1998 until 03.10.2003 when the Opposite party demanded on additional Rs.50,000/-. The complainant should have paid it or demanded refund of the money already paid by her. She did neither. With these observations, we proceed to pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. Complaint is allowed.<br /> 2. The Opposite party is directed to refund an amount of Rs.63,440/- along with interest at 10% p.a. from 12.06.1998 until 03.10.2003.<br /> 3. No costs.<br /> 4. Give a copy of this order to each party according to Rules.<br />