:ORDERS:

BY SMT. SUNITA C. BAGEWADI  -  MEMBER

         This appeal is filed by the appellant/complainant being aggrieved by the order dated:23.07.2013 passed by Bangalore Urban III Additional District Consumer Commission in C.C.No.2295/2012. 

2.      The parties to the appeal shall be referred to as complainant and Opposite Parties respectively as per their rankings before the District Commission. 

3.      The brief facts of the complaint is that:-

         The complainant submits that he was the owner of land bearing survey No.14/1 and 21/1 of Chikkasandra Village and the Opposite Party No.1/M/s Athmiya Geleyara Balaga Gruha Nirmana Sangha  is a Co-operative Society and it intended to form Layout by acquiring lands and the land of the complainant was also acquired among other lands for formation of layout.  The complainant further submits that he became a member of the Opposite Parties on 01.11.1984 and also obtained share certificates. The Opposite Party No.1 has assured to allot the site to the complainant in the layout to be formed.  The complainant was frequently enquiring about the allotment of the site and the Opposite Party went on postponing the matter for one or the other reasons.  The Opposite Party has allotted the site to some other persons who became members recently and not allotted the site to the complainant who was senior member.  The complainant further submits that he has paid the amount for allotment of the site to the Opposite Party, but the Opposite Party has not allotted the site to him.  Hence, the complaint.

4.      The Opposite Parties have filed their version and admitted that it has acquired lands including the land of the complainant for formation of layout and residential layout was formed and the sites were allotted to various members.  The Opposite Parties further contended that the Opposite Parties have not assured the complainant to allot the site.  After formation of the layout, the sites were allotted in the year 1995 and 1997 to its members and the cost of the site at the time was Rs.51,000/- measuring 30X40’.  The complainant has never made any efforts to pay the cost of the site for allotment to him a site and because of it there was no occasion to allot the site to the complainant.  The Opposite Parties further contended that the complainant has paid only the initial amount with membership fee only and he has failed to pay the cost of the site which was fixed by the Opposite Party.  The Opposite Parties further contended that as per the bylaw of the Opposite Parties, the defaulter in payment of the site amount is not entitled for allotment.  The allegation that it has allotted the site to junior members recently is denied by the Opposite Party and prayed for dismissal of the complaint.  

5.      After trial, the Bangalore Urban III Additional District Commission dismissed the complaint.

6.      Being aggrieved by the said order, the appellant/complainant is in appeal on various grounds.

7.      Advocate for Opposite Parties filed written arguments.  Heard the Advocate for appellant side.

8.      Perused the order passed by the III Additional District Commission, Bangalore and materials placed on record, it is an admitted fact that the appellant was the owner of the land bearing survey No.14/1 and 21/1 of  Chikkasandra Village, Chikkabanavara, Bangaluru which is measuring to an extent of 1.29 guntas and the complainant was the share holder of the Opposite Party No.1/Athmeeya Geleyara Balaga Gruhanirmana Sahakara Sangha Ltd., and has paid Rs.6,880/- as initial installment for allotment of site measuring 30X40’ in Katha No.128.  It is also admitted fact that the Opposite Party Society issued a notification on November 1, 1984 that, the members who have fully paid the value of at least one share i.e. Rs.100/- are eligible to apply those who wish to apply for a site may indicate their dimension preference in the prescribed application form and deposit, the earnest money for the highest preferred site by a crossed (A/c payee) DD drawn in favour of A.G.B.G..N.S.S. Ltd., on or before November 2015 1985 and obtain official receipt from the society office and also issued a notice dated:28/11/1991 to the complainant stating that for 30X40’ site the complainant must pay the balance amount of Rs.5120/- within 20.12.1991. 

9.      The Opposite Parties further contended that the acquisition proceedings were initiated by the Government and in that acquisition proceeding the land of the complainant was also included and after the completion of the acquisition, the compensation was paid to the complainant and others.  Hence, there was no question for the Opposite Parties to give assurances to the complainant for allotment of the suit.  During the year 1995 and 1997 the allotment was made to its members and the cost of the site by that time was Rs.51,000/- for the site measuring 30X40’ Sq.Ft. and the members who have paid the amount to the Opposite Parties for allotment of the site during the year 1995 and 1997 were allotted the sites.  In this case, the appellant failed to pay the cost of Rs.51,000/- for 30X40’ which was fixed even after issuing the notice to the complainant.  The complainant neither approached the Opposite Party nor paid the cost of the site during the year 1995 and 1997.  Hence, he is a defaulter. 

10.    Looking to the materials produced by the complainant we noticed that there is no any assurance letter given by the Opposite Party and no any receipts were produced by the complainant for the site to show that the amount was paid towards site and also no allocation letter is there which was given by the Opposite Party.  There are no any materials are produced to show that the sites are still available for allotment to the members because sites are allotted in the year 1995 and 1997.  Hence, in our opinion, the complainant has not paid the full cost of the site, hence, is a defaulter.  However, if there is no any site available with the Opposite Parties, it is the duty of the Opposite Parties to return the amount of Rs.6,880/- which was paid by the complainant for the site with interest which was reflected by Opposite Parties in the notice MURANE HANTHADA SUCHANA PATHRA dated:28/11/1991.     

11.    The Opposite Parties themselves have admitted in their notice dated:28.11.1991 that “¤ÃªÀÅ ªÀÄÆgÀ£É §qÁªÀuÉAiÀÄ°è PÉýgÀĪÀ ¤ªÉñÀ£ÀzÀ C¼ÀvÉ 30X40 PÀnÖgÀĪÀ ºÀt 6880, PÀlÖ¨ÉÃPÁVgÀĪÀ ºÀt 5120 gÀÆUÀ¼À£ÀÄß vÁ:20/12/1991gÉÆÃUÁV vÀ¥ÀàzÉ ¥ÁªÀw ªÀiÁr”.  Hence, to non- payment of the site amount by the complainant, the Opposite Parties have not allotted the site and if the Opposite Parties have not allotted the site way back in the year 1995 and 1997 it is the duty of the Opposite Parties to return the amount of Rs.6,880/- paid by the complainant for site.  The Opposite Parties have to return the amount when they have not allotted any site in favour of the complainant.  Therefore, in our opinion there is a deficiency in service on the part of Opposite Party in not returning the amount.  Hence, the complainant is entitled for Rs.6,880/- along with interest from the date of payment of the said amount and compensation of Rs.25,000/- for mental agony.  Accordingly,   

:ORDER:

The appeal filed by the appellant/complainant is allowed with cost of Rs.25,000/-.

The order dated:23/07/2013 passed by the Bangalore Urban III Additional District Consumer Commission in C.C.No.2295/2012 is hereby set-aside and the complaint is allowed in part.

The Opposite Parties are directed to pay Rs.6,880/- along with interest @ 9% PA from the date of payment of the said amount by the complainant till realization.

The Opposite Parties are further directed to pay Rs.25,000/- towards compensation to the complainant.

Return the LCR forthwith to the concerned District Commission. 

Send a copy of this order to both parties as well as Concerned District Commission.

Member.                                                               Judicial Member.

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