Sri.D.Krishnappa,<br /> President<br /> <br /> COMMON ORDER IN CC 30 TO 32/07<br /> <br /> 1. These complaints are filed by the complainants under section 12 of the Consumer Protection Act, 1986 against the same Opposite parties with their grievance that the Opposite parties have not allotted sites, despite receipt of requisite sital value. As the issue involved in these complaints being the same are taken together for disposal.<br /> 2. The grievances of the complainants in these complaints are that they were all members of 1st Opposite party – Housing Co-operative Society. That 2nd and 3rd Opposite parties are it’s Secretary and President. That they called for applications for allotment of sites in the layout, they had proposed at Sathagahally layout in survey No.10 to 25 and 31 of the said village. It is further contended that the complainant of the 1st complaint applied for allotment of site measuring 60’ x 40’ and it’s value was fixed by the Opposite parties at Rs.52,000/- + Rs.2,000/- towards conversion, accordingly he had paid amount on 23.01.96 and he was given a provisional allotment letter No.111 dated 23.01.1996. Though, the complainant of 2nd complaint has contended that he had also applied for 60’ x 40’ dimension site and deposited Rs.54,865/- with the Opposite parties on 27.10.1995 through cheque issued on 26.10.1995 and also payment of Rs.135 under Misc. account and contended that a provisional allotment letter was also issued to him, but has not produced any such provisional allotment letter with his complaint. The complainant of the 3rd complaint was also an applicant for allotment of 60’ x 40’ dimension site said to had paid Rs.54,865/- on 27.10.95 + Rs.135/- under Misc. account and he was also issued a provisional allotment letter allotting a site in the proposed layout.<br /> 3. All the three complainants in their complaints have further contended that they waited for sometime, but the Opposite parties did not make final allotment allotting sites to them. That when they approached the Opposite parties, they started demanding huge moneys, thereafter they got issued legal notice to the Opposite parties despite that the Opposite parties have not made final allotment of the sites, therefore contended that the Opposite parties have committed deficiency in their service and thus have prayed for a direction to the Opposite parties to allot them site measuring 60’ x 40’ in Sathagahally layout. <br /> 4. The Opposite parties have filed separate version in these complaints admitting that the complainants were the members of the 1st Opposite party, also admitting that 2nd and 3rd Opposite parties had called for applications from the members of the 1st Opposite party for allotment of sites. It is further contended by them that the complainants when they gave applications under taken to be bound by amendments to the by-law if any, accordingly by-law was amended on 07.07.2003 twice and again on 22.03.2006 under the by-law membership fee was enhanced to Rs.1,150/- from Rs.115/-. But, the complainants have not paid the enhanced membership fee despite intimation and also failed to pay betterment levy and thus under regulations of 1st Opposite party, the complainants have lost their membership. That the complainants are not Consumers, therefore the complaints are not maintainable, the complaints are barred by limitation and this Forum has no jurisdiction to entertain these complaints. The Opposite parties have admitted receipt of moneys by the complainants for allotment of sites and have also further admitted to have issued provisional allotment letters to the complainants in CC30/07 and 32/07. However, prayed for dismissal of the complaints on the ground that the complainants have not paid the enhanced membership fee and other charges.<br /> 5. During the course of enquiry of these complaints, the complainants have filed their affidavit evidence. The Assistant Secretary of the 1st Opposite party only has filed his affidavit evidence. The complainants and the Assistant Secretary of the 1st Opposite party in their affidavit evidence have reiterated the allegations and the contentions they have raised in their complaints and version respectively. The complainants have produced certain documents. We have heard the counsel for the complainants and the Opposite parties, and perused the records.<br /> 6. On the above contentions, following points for determination arise, in common are:-<br /> 1. Whether the Complainants prove that the Opposite parties have caused deficiency in service in not allotting sites to them?<br /> 2. Whether the complainants are entitled for the relief as prayed for?<br /> 3. What order? <br /> 7. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : Answered in the affirmative in CC 30/07 and 32/07 whereas the complainant in CC 31/07 is entitled for an alternative relief.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 8. Points no. 1 & 2:- On perusal of the pleadings and the affidavit they have filed and documents that are forthcoming in these cases, there is no dispute with regard to the fact that these complainants were the members of the 1st Opposite party – Housing Co-operative Society, had applied for allotment of sites in Sathagahally layout. It is also not disputed by the Opposite parties that these complainants had deposited a sum of Rs.54,000/- + Rs.135/-; Rs.54,865/- + Rs.135/- and Rs.54,865/- + Rs.135/- respectively. But, it is contended by the 1st Opposite party Society in it’s version that the complainants at the time of giving application undertook to abide by the amendments that would be brought into the by-law or regulations and thereafter the by-law was amended as contended in their version enhancing a membership fee from Rs.115/- to Rs.1,150/- has not been complied with. It is further alleged that the complainants were informed to pay the enhanced membership fee by 15.01.2002, but they did not pay the same, therefore the complainants have forfeited their membership, as such the complainants are not entitled for any relief.<br /> 9. It is also contended by the 1st Opposite party that the complaints are barred by limitation and this Forum has no jurisdiction to entertain these complaints. The point of limitation and jurisdiction of this Forum is concerned, the contention of the Opposite parties in our view has no basis, because the Opposite parties who have contended that the by-law came to be amended on 07.07.2003 and on 22.03.2006, but have not produced any evidence or materials to show that they had in any way at any time intimated the complainants about amendment of by-law. The complainants it is found had even got issued legal notice to the Opposite parties on 13.10.2006 and that has not been replied by the Opposite parties. Therefore, it is apparent from the materials placed before this Forum that the complainants were in touch with the Opposite parties for allotment of sites through out till 2006 and the Opposite parties at any time disowned or rejected the claim of the complainants, as such these complaints filed on 09.02.2007 cannot be held as barred by limitation. It is further contented by the Opposite parties that this Forum has no jurisdiction to entertain the complaints and the complainants are not consumers. The Hon’ble National Commission in number of decisions rendered by it has been pleased to hold that the members of the Society who had paid certain amounts for allotment of sites and provisional allotment letters were given would become consumers and in the event of any default by the Society in making final allotments amounts to deficiency in service and the Consumer Forum gist’s jurisdiction to entertain the complaints. The same view has been expressed and confirmed in the decisions reported in 2002 CTJ 477, (1) 2004 CPJ page 127 and Hon’ble Supreme Court in the decision reported in 1994 (3) SCC 494. Further having regard to the sital value that was fixed by the Opposite parties and the payments made by the complainants to the 1st Opposite party would squarely come within the jurisdiction of this Forum. Therefore, this Forum cannot take into consideration, the present value of the site as contended by the Opposite parties, as such we also find no merits in the contentions and objections of the Opposite parties. <br /> 10. Now coming to the merits of these cases, as we have already stated above there is no dispute between the parties that the complainants had paid or deposited certain amounts said to be the sital value with the 1st Opposite party and two of the complainants were evev given provisional allotment letters. But, it is contended by the Opposite parties that the complainants who undertook to abide by the amendments if any that would be brought to the by-law or regulations of the Society have not complied with the amended by-law it in so far as the payment of enhanced membership fee. It is pertinent to note that the evidence of the 1st Opposite party in that the complainants were intimated to remit the membership fee as well as the enhanced sital value has been vehemently denied by the contentions and have sworn to that they were not informed at any time about the amendment of by-law and the enhancement of membership fee. With this strict denial by the complainants, it is the duty of the Opposite parties to place material before this Forum as to when and by what means or method the complainants were informed about the amendment of by-law and enhancement of membership fee and calling upon the complainants to pay the enhancement membership fee and enhanced sital value. The counsel representing the 1st Opposite party on 11.06.2007 at 2.20 pm has filed an application in each of these complaints under section 151 CPC for pre-poning the case to 11.06.2007 with a memo to club these cases for passing common order and also to delete 2nd and 3rd Opposite parties, as 1st Opposite party is represented by a Secretary, with Xerox copy to show as if all the members were informed to pay the increased value of the site and also to pay enhanced share amounts to the Society to become members as per the amended by-law. The complaints were taken in board on 12.06.2007, but none represented. We have perused the documents that the counsel for 1st Opposite party produced with this application. Though an attempt is made as if to show that all the members of the 1st Opposite party Society were informed to pay the additional value of the site and enhanced share amount, but unfortunately no documents are produced to prove intimation of such enhancements or demands made to these complainants and from these complainants. The counsel for the Opposite party has also not made out grounds for deletion of 2nd and 3rd Opposite parties, as admitted by 1st Opposite party, 2nd and 3rd Opposite parties were the office bearers of 1st Opposite party who had promised allotment of sites to the complainants. Further this application for deletion of 2nd and 3rd Opposite parties at this stage, is belated and therefore we hold that 2nd and 3rd Opposite parties are necessary parties to these complaints for effective adjudication of the complaints. Therefore, the application for deleting them is rejected. Absolutely, the Opposite parties have not placed a piece of evidence to establish the intimation if any given by them to the complainants. It is qurious to note that even the legal notice issued by the complainants to the Opposite parties inviting their attention to the deficiency in not allotting sites despite receipt of the sital value and their illegal demands made for paying additional amounts have gone unheeded. Even at this stage, that is on 13.10.2006 till the filing of these complaints, the Opposite parties came forward to inform the complainants about enhancement of sital value and a necessity of paying enhanced membership fee. It is further clear from these materials placed before us that the Opposite parties kept these complainants in dark in not informing them about requirement under the by-law or regulations regarding payment of any enhanced value of the sites. Therefore, it is manifest from going through the evidence and documents placed before us that the Opposite parties who after receipt of the money and issue of allotment letters to two of the complainants kept quite without even responding to them after receipt of legal notice. Therefore, under these circumstances, we have no hesitation to hold that the Opposite parties have caused deficiency in their service and therefore the complaints deserve to be allowed.<br /> 11. The complainant in CC 31/07 has not produced any piece of evidence or scrap of paper to show that he was issued a provisional allotment letter allotting a site in the proposed layout. Therefore, as pointed out by the counsel for the 1st Opposite party, the Hon’ble National Commission in it’s decision reported in (1) 2004 CPJ 127, has held that a person by just becoming a member of a Housing Society does not become a Consumer and therefore no allotment of site to be made by an order of this Forum, as such this complainant is not entitled for a relief of direction to Opposite parties for allotment of a site in his favour. But he is entitled for refund of the money he had deposited with interest.<br /> 12. Coming to the claim of the complainants in CC 30/07 and 32/07, the Opposite parties admitted to had issued provisional allotment letters to them, but thereafter have failed to allot them sites as agreed and thereby have caused deficiency in their service. As such those complainants are entitled for a declaration directing the Opposite parties to allot sites in their favour. With the result, we answer point no.1 in the affirmative and point no.2 in the affirmative in part and pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. Complaint No.CC 30 to 31/07 are allowed.<br /> 2. The Opposite parties in CC 30/07 and 32/07 jointly and severally are directed to allot a site to each of these complainants measuring 60’ x 40’ in Sathagahally layout for the same value that was fixed when they were issued provisional allotment letters or for the price that was revised when the sites in that layout are allotted to the other members who were also issued with the provisional allotment letters along with these complainants and get them registered in the names of these complainants at their costs within 3 months from the date of receipt of this order, also by collecting enhanced membership fee.<br /> 3. In case, the sites are not available in the Sathagahally layout, the Opposite parties are directed to allot sites of the same measurement in any of the layouts formed by them for the same value as indicated above.<br /> 4. In CC 31/07 the Opposite parties jointly and severally are directed to refund the amount of Rs.54,865/- + Rs.135/- to the complainant with interest at the rate of 18% p.a. from 27.10.1995 till the date of payment within 2 months from the date of receipt of this order.<br /> 5. The Opposite parties are also directed to pay Rs.2,000/- to each of these complainants as cost of these complaints.<br /> 6. Keep the original order copy in CC 30/07 and Xerox copy of the order in CC 31 & 32/07.<br /> 7. Give a copy of this order to each party according to Rules.<br /> <br />