O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> These complaints are filed by different complainants against the same op with similar allegations and for similar type of relief, are therefore taken together for disposal by a common order.<br /> <br /> The brief facts of the complaints filed by the complainants against the Ops are, that the complainants for establishing manufacturing units applied to State Level Single Window Clearance Committee herein after referred to in brief as SLSWCC for allotment of 4 acres by the first and fourth complainants each and 3 acres by the second and 2 acres by 3rd complainant. On 22/12/2006 the second Op sent a letter each to complainants No.1 to 3 and another letter to 4th complainant on 17/02/2007 informing them that SLSWCC has approved their proposal for establishing industrial units and recommended for allotment of land as requested by them at Rs.30.00 lakhs per acre and called upon these complainants to make initial deposit of 20% along with the applications. Accordingly, the first and fourth complainant deposited Rs.24,02,000/- each with second Op on 05/12/2007 and 30/07/2007 respectively. Then the second and third complainants were also called upon to pay 20% of the initial deposit along with their applications and that the second complainant deposited Rs.18,01,500/- on 22/09/2007 whereas the 3rd complainant deposited Rs.12,01,000/- on 16/01/2007. It is stated that tentatively cost of the land was fixed at Rs.30.00 lakhs per acre. That the second Op through his letter promised them of forming industrial layout at Dobbaspet and it would take within 8 months to complete and stated that they were promised allotment of land at Dobbaspet Industrial Area. After change of the Government first, second and fourth complainant received a letter of Op No.2 on 12/11/2008 and that the third complainant received such letter on 11/11/2008 stating that they have decided to reduce the extent of land agreed to be allotted as recommended by SLSWCC and have also revised the cost of the land and told the first complainant that he would be allotted 02 acres of land as against 4 acres, that 1.5 acres to the second complainant as against his claim for 3 acres, then 1 acre to 3rd complainant as against his claim for 2 acres and 2 acres to the 4th complainant as against his claim for 4 acres at Rs.57.00 lakhs per acre which is a tentative rate as against Rs.30.00 lakhs per acre offered earlier. The complainants contended to had sent letters to Ops demanding them to allot the full extent of land they had asked for. They have further stated that Ops discriminating their claim have allotted lands to various other applicants allotting extent of land as requested by them and to have only restricted their claim and further contended that there is no dearth for land for allotment and narrating several other applicants in whose favour more lands are allotted, then stated to had requested the Ops to refund their money with interest by sending letter to Ops on different dates and thereby have contended that the Ops have refunded Rs.24.00 lakhs only to the first complainant on 14/08/2009, Rs.18.00 lakhs to the second complainant then Rs.12.00 lakhs to the 3rd complainant and Rs.24.00 lakhs to the 4th complainant and thereby have contended that balance advance amount paid by them is not refunded and thus the first complainant has prayed for a direction to Ops to return EMD and interest of Rs.8,19,707/- on the deposit amount @ 18% p.a. The second complainant has also prayed for return of EMD and interest of Rs.6,80,334/- @ 18% p.a. Whereas the 3rd complainant has asked for EMD and interest amount of Rs.5,76,000/- and the 4th complainant has asked for refund of EMD amount and interest amount of Rs.7.20 lakhs accrued on deposit amount besides awarding damages of Rs.10,000/- each in favour of these complainants for mental agony and also to award cost.<br /> <br /> Considering the allegations of the complainants, this forum had ordered notice to Op No.2 only who has appeared through his advocate and filed version, which is common in all these cases is narrated as under. Op No.2 has admitted participation of these complainants in the SLSWCC meeting and also compliance made by them for allotment of lands in their favour as narrated above. This op has also admitted the initial deposits made by these complainants being 20% of the cost of the land besides admitting that the cost of the land was fixed at Rs.30.00 lakhs per acre tentatively. It is further contended by him that because of non-availability of required land they were able to acquire land an extent of 794 acres as against the requirement of 1314 acres and therefore in order to meet the requirements of several applicants SLSWCC had recommended to allot 2 acres to the first complainant, 1.5 acres to the second complainant and 1 acre to the 3rd complainant and 2 acres to the 4th complainant at Rs.57.00 lakhs per acre. It is further stated though 794 acres of land was acquired, out of which only 476 acre was available for allotment and justified the reduction of the extent and admitted to have refunded Rs.24.00 lakhs each to complainant No.1 and 4, Rs.18.00 lakhs to the second complainant and Rs.12.00 lakhs to the 3rd complainant and stated that the complainants since did not pay balance cost of the land proposed to be allotted in their favour forfeited EMD amount of Rs.2,000/- from the amount of the complainant No.1 and 4, Rs.1,000/- from the amount of complainant No.2 and Rs.1,500/- from the amount of complainant No.3 and thus denying the other allegations has prayed for dismissal of the complaints.<br /> <br /> In the course of enquiry into these complaints, the complainants have filed their affidavit evidence where as Op has not filed his affidavit evidence. The complainants along with the complaints have produced a copy of the letter that the Op addressed to them offering to allot lands as requested by them at Rs.30.00 lakhs per acre, have also produced the copy of another letter of the Ops offering to allot reduced extent at the higher rate besides a copy of letter addressed by them to the second OP requesting them to allot the extent of land they requested. We have heard the counsel for the complainants. The counsel for the Op is also heard later.<br /> <br /> On consideration of the materials referred to above, following points for determination arise.<br /> <br /> 1. Whether the complainants prove that the second Op has caused deficiency in his service in not paying interest on the deposit amount and also in not refunding the EMD amount.<br /> 2. To what relief the complainants are entitled to?<br /> <br /> Point No.1 : In the affirmative in part<br /> Point No.2 : see the final order.<br /> <br /> REASONS:<br /> <br /> Answer on point No.1: As found from the complaints allegations and the admission of Op No.2, we do not find any dispute between the parties, in second Op offering to allot 4 acres of land each to complainant No.1 and 4, 3 acres to the second complainant and 2 acres to 3rd complainant at Dobbaspet Industrial Area at Rs.30.00 lakhs per acre. The complainants have also produced copies of letters addressed by second Op to each of these complainants. In view of the admission of the second Op in this regard we do not go in detail to this effect. But the problem started when there was change of the Government as stated by the complainants themselves and when the second Op sent letters to these complainants offering to allot only two acres of land to complainants No.1 and 4 and 1.5 acres to the second complainant and 1 acre to the 3rd complainant at the enhanced rate of Rs.57.00 lakhs per acre. That means the second opponent based on the recommendation of SLSWCC offered to allot 50% of the land sought by these complainants and at a higher rate. The complainants thereafter stated to had give representations to Op No.2 to allot the extent of land as offered earlier but the second Op did not agree for the same.<br /> <br /> The second Op in his version filed and reply given has stated, because on non-availability of sufficient land, they were able to acquire only 794 acres as against 1314 acres as proposed for acquisition and has further stated out of 794 acres acquired only 476 acres was available for allotment and considering the pending claims it became necessary to reduce the extents. The complainants have not denied these facts narrated by the Op i.e regarding the extent of land actually acquired as against the requirement and extent of land actually available for allotment. Therefore, when the complainants have not disputed these facts the reasons assigned by the OP regarding reduction of land cannot be held as illegal or orbitrary. Further going to the escalation of the cost of the land the complainants themselves have admitted that cost of the land was fixed at Rs.30.00 lakhs per acre per land tentatively. Therefore, that cost was not a final, cost offered to the complainants. Again OP in his version has justified the cost escalation stating that there was increase in the rate of lands and cost of acquisition and also escalated cost of developments and thereby stated they were forced to escalate the cost of the land proposed to be allotted. As evident from the facts of these cases when the offer of allotment of land was made to the complainants by Op No.2 land had not yet been acquired. Therefore, only the tentative rate was fixed and by the time when the acquisition proceeding was started Op No.2 stated to had noticed escalation in the cost of the land, the cost of acquisition and development charges and thereby has stated that the land cost had to be revised.<br /> <br /> The complainants to whom the rates, the extent of land were offered did not satisfy with it but claim to had requested the second Op to allot them the extent of land they had sought. Therefore Op No.2 it appears to had not processed and taken final decision for some time but in the mean time, the first complainant through his letter dated 24/07/2009 requested to return his deposit amount with interest @ 18% p.a and in response to that the second Op refunded Rs.24.00 lakhs on 14/08/2009 that is within a month from the date of request. Similarly in the second complaint when this complainant requested to refund his money through his letter dated 24/07/2009 second Op refunded Rs.18.00 lakhs on 14/08/2009 again within a month. Thereafter in the 3rd complaint in response to the letter of this complainant dated 20/07/2009 second Op refunded Rs.12.00 lakhs on 04/08/2009 and in the 4th complaint on the letter of the complainant dated 21/02/2009 for refund of his money the second Op refunded Rs.24.00 lakhs to him on 12/03/2009, again within one month from that date in both these cases. Thus it can be seen that these complainants until they write letters to the second Op for refund their money. The second Op was under impression that these complainants would accept the offer for lesser extent of land and pay the balance cost of the land and therefore he had no idea of refund the complainants deposit amount. But when the complainants made known their unwillingness to second Op to accept the lesser extent of land and requested for refund of their deposit then the second Op on coming to know the request of the complainants has within the reasonable time has refunded their money by forfeiting Rs.2,000/- each from out of the money paid by the complainants from 1st and 4th, Rs.1,500/- from the money of the 2nd complainant and Rs.1,000/- from the money of the 3rd complainant as EMD amount.<br /> <br /> The complainants have no where denied or disputed the right of the second Op to forfeit the EMD amount in the event of the complainants not paying the full cost of the land. But that does not mean that these complainants can not raise their voice against the orbitrary act of this Op in forfeiting the EMD amount. It is fool proof that when the second Op offered to allot them lands of the extents they requested they agreed the offer and paid 20% of the land value towards initial deposit. Then if the second Op had allotted the full extent they had requested and if there had been any failure on the part of these complainants to pay the balance land cost then the OP could have forfeited EMD amount and it was within the is right but when the second Op failed to fulfill the requirement of the complainants and failed to keep up the promise made and when the extent of land offered by the second Op was not adequate and suitable for the complainants to start their proposed projects, then they had no option but to decline to accept the lesser extent of land and to ask for refund of the deposit money. Offering lesser extension of land orbitrary and unilaterally by the second Op cannot be take his own failure as advantage and forfeit EMD amount. We do not find any deficiency or lapse on the part of the complainant which led to forfeiture of the EMD amount. Forfeiting EMD amount of these complainants by the second Op for their own fault shall have to be held as improper and it amounts to unfair trade practice.<br /> <br /> The counsel for the complainants has produced several documents and even has narrated in the complaint and affidavit evidence showing that the same second Op allotted lands to other applicants the extent they had sought for, and even in some cases more extent than what those applicants had sought for, we are finding some truth in these allegations of the complainants from the records of the second Op. Therefore, under these circumstances forfeiture of the EMD by the second Op in our view is orbitrary and unsustainable and it is to be refunded to the complainants.<br /> <br /> The complainants have not asked for any direction to the Op to allot land and that can not be done in this proceeding. Therefore, the claim for awarding interest on the deposit amount for the reasons we have already stated above cannot be acceded. Because until these complainants inform the second Op about their willingness or otherwise to accept the extent of land offered and until the complainants choose to take back their deposit money, the liability of the second OP to pay interest on the deposit amount do not arise and we also do not find any contract in this regard binding the second Op to pay interest on the deposit amount. Therefore, the liability of the second Op for the payment of interest would have arisen only if there had been undue delay in refund of deposit amount on the request of these complainants but we do not find any such delay here. Therefore, the complainants are not entitled for interest on their deposit amount.<br /> <br /> Counsel for the complainants relied upon a decision of Hon’ble National Commission in I 1999 CPJ page 18 in Gaziabad Development Authority and others and has prayed for awarding interest @ 18% pa on the deposit amount but facts of the case dealt by the Hon’ble National Commission are not similar with the facts of this case and therefore, the decision in our humble view is not applicable to these cases and for the reasons we have assigned above, the complainants are held as not entitle for interest. With the result, we answer point No.1 in the affirmative in part and we pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaints are allowed in part.<br /> <br /> Op No.2 is ordered to refund EMD Rs.2,000/- each to 1st and 4th complainant and Rs.1,500/- to second complainant. Rs.1,000/- to the 3rd complainant within 30 days from the date of this order with interest @ 10% p.a from the date of filing of this petition until those amounts are repaid.<br /> <br /> Op shall pay cost of Rs.2,000/- to each of these complainants. <br /> <br /> The original order shall be kept in complaint No:05/2010 and the copies of the same shall be kept in the remaining complaints<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 20th July 2010<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />