COMPLAINT FILED: 01.06.2011

DISPOSED ON: 31.10.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

31^st  OCTOMBER 2011

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                 MEMBER                   

                     SRI.M.MUNIYAPPA                          MEMBER

 COMPLAINT NO. 1014/2011

O R D E R

SMT. M. YASHODHAMMA,  MEMBER

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to allot and give physical possession of the residential site measuring 30’ X 40’ or to refund Rs.29,000/- along with interest and cost on the allegations of deficiency in service on the part of the OP.

2.      The brief averments made in the complaint are as follows:

          Attracted by the propaganda made by O.P., the deceased husband of the complainant B.Jagadish became the member of the O.P. society in the year 1984, under the scheme for allotment of site measuring 30 X 40 situated at Chanakyapuri layout, Nagavara, Cholanayaknahalli and Vishwanathanagenahalli of Ganganehalli. O.P. accepted the membership of the husband of the complainant and issued Roll No.6210 and Khatha No.7150 to the husband of the complainant.  The husband of the complainant paid Rs.1000/- on 10-11-1993 Rs.9000/- on 20-10-1993 Rs.19,000/- on 17-12-1986.  Totally complainant’s husband has paid Rs.29,000/- to O.P. towards sital value and development charges.  On 17-12-1986 O.P. issued provisional allotment letter.  On 28-5-1991 as per the direction of O.P. the husband of the complainant submitted domicile  certificate and affidavit.  Inspite of repeated requests of the husband of the complainant.  O.P. failed to allot the site.  The husband of the complainant Mr. B.Jagadish expired on 3/11/2000. The copy of the death certificate is produced.  On 15-10-2009 complainant gave representation to O.P. to allot and register the site or to refund the amount with interest at 24% p.a. O.P. having acknowledged the said letter on the same day failed to take any action.  Hence on 7-6-2010 complainant got issued legal notice calling upon O.P. to allot the site or to refund the amount with interest.  In its reply dated 16-6-2010 O.P. informed the complainant that within 2 to 3 months amount will be refunded.  Even after 1 year O.P. failed to refund the amount. Hence complainant felt deficiency in service.  Under these circumstances  she is advised to file this complaint for the necessary reliefs.

3.      On appearance OP filed the version mainly contending that OP approached the state government to initiate acquisition proceedings invoking the land acquisition Act;  which involves gazette notification u/s 4(1) to hold enquiries of the land owners u/s. 5-A and to issue final notification u/s 6(1) of the Act and thereafter to pass award granting compensation to the land owners u/s 9 and 10 of the Act. The award includes two types; one being consent of the land owners and the other one being general award. After completing the procedure the state government will handover the possession of lands to OP.  Time spent for acquisition process was 3 to 4 years.  The entire acquisition cost including payment to land owners conversion charges and all other expenses incurred should be paid by the society to the government.  At that time some of the land owners challenged acquisition. Unfortunately acquisition proceedings were set aside and notification quashed by the Hon’ble High Court. OP preferred S.L.P before Hon’ble Supreme Court in the year 1991.  The Hon’ble Supreme Court confirmed the order of the High Court on 21.02.1995 and directed to return the land to the land owners.  The government will deduct 22% of the amount towards administrative heads. Thus OP faced hardship and not in a position to pay interest on the deposit made by the members; The Hon’ble Supreme Court held in AIR 2010 SC 486 that developmental authorities need not pay interest for delay or failure of projects if there is interference by the orders of the courts; Complainant approached this forum after 10 years.  Hence claim is barred by time. Among other grounds OP prayed for dismissal of the complaint.

4.      In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of correspondences,  provisional allotment letter, domicile certificate, affidavit, acknowledgement, counter foils, circular, representation, legal notice reply letter, postal receipts and acknowledgements. On behalf of OP Srinivas H., Secretary of OP filed affidavit evidence in support of the defence version.  O.P. has not produced any documents complainant filed written arguments. Heard the argument from complainant side and taken as heard from OP side.

5.      In view of the above said facts the points now that arises for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved

                     the deficiency in service on the part of

                       the OPs?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

6.      We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs our findings on the above points are:

Point No.1:- In Affirmative

Point No.2:- Affirmative in part

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not in dispute that the deceased husband of the complainant late B.Jagadish became the member of the OP society, on the basis of the propaganda made by the OP who claims to be the house building Co-Operative society with a hope of getting a site. OP assured to allot a residential site measuring 30 x 40 ft. situated at Chanakyapuri layout Nagavara, Cholanayakanhalli and Viswanathanagenahalli of Gangenahalli and The husband of the complainant paid a sum of Rs.29,000/- towards sital value on different dates from 5/6/1986 to 10/11/1993.  To substantiate this fact complainant has produced the copy of the letter dated 5/6/1986, issued by O.P. and counter foils of pay in slips issued by OP and copy of the provisional allotment letter dated 17.12.1986 allotting a site measuring 1200 Sq. ft. at the above mentioned project.  OP has not disputed the fact of receipt of amount.  On 3/11/2000 the husband of the complainant expired.  To substantive this fact complainant has produced the copy of the death certificate of her husband.  As a legal heir complainant approached O.P.  Now the grievance of the complainant is on 5/10/2009 complainant gave the representation to O.P. to allot the site or to refund the amount.  There was no response.  Hence complainant caused legal notice to O.P.  Though O.P. replied stating within 2 to 3 months amount will be refunded but failed to refund the same.  Hence complainant approached this Forum for the necessary relief.

8.      As against the case of the complainant the defence of the OP that due to legal hurdles it is unable to complete the project and whatever the amount they have received from the members is paid to the developers and deposited towards compensation payable to landlords with the government etc. But OP has failed to substantiate the said defence by producing documents. The land acquired for the purpose of formation of layout is repossessed by the land owners in view of the quashing of the land acquisition proceedings.  So the sum and substance of the defence set out by OP is that it is unable to complete the project due to the quashing of the land acquisition proceedings.  It is unable to refund the sital value to the complainant because of the said amounts are used for paying compensation to the land owners by depositing the same with the government and for paying development expenses.

9.      On the close scrutiny of the defence set out by OP it can be made out that OP collected the amount towards sital value from the complainant with a promise that it would complete the project and register the site but project could not be completed on account of the acquisition being quashed. When OP was aware of the fact that it is unable to complete the project, it could have been fair on its part to refund the sital value collected to the complainant. No such steps are taken. Hence we find deficiency in service on the part of the OP in not refunding the sital value to the complainant. Having retained the amount for more than 24 years OP accrued wrongful gain to itself and thereby caused wrongful loss to the complainant.

10.    We are unable to accept the defence of the OP that the complaint is barred by limitation. When once OP accepted the deposit towards sital value with a promise to allot a site to the complainant, till OP allot and register the sale deed recurring cause of action will accrue to the complainant.

11.    In support of his arguments counsel appearing for OP has relied on the decision reported in AIR 2010 Supreme Court 486 in Civil Appeal No. 433, 4335 and 4336/2004 of Punjab Urban Planning and development Authority and Another V/s. Daya Singh.

          In the above matter the Hon’ble Supreme Court has observed that possession could not be delivered in time to respondents in respect of the plots on account of the order passed by the High Court of Punjab and Haryana directing maintenance of status quo regarding possession. Hence it was found that delay was on account of the order passed by the High Court.  So the question of payment of interest for such delayed possession given to the respective respondents may not arise at all and directed the National Commission to take up the issue then decide the same on facts before passing the final order.

12.    In the present proceedings acquisition proceedings were quashed by the Hon’ble High Court of Karnataka in W.P. No.17429 to 17493/1986 and the said order was confirmed by the Supreme Court in the Special Leave petition filed by OP.  Thereafter even after lapse of many years of the order of the Supreme Court OP has failed to refund the amount to the complainants.  Hence the principles laid down in the above case cannot be made applicable to the present proceedings.

13.    The main relief claimed by the complainant is for   allotment and possession of residential site measuring 30” X 40”. O.P. has failed to form the layout.  In the absence of any evidence that the sites are readily available free from encumbrances at the disposal of O.P. as on today, we cannot consider the claim of the complainant.   Hence complainant is entitled for the alternative relief of refund of amount along with interest at 12% p.a. In similar cases against O.P. compensation of Rs.50,000/- is awarded towards escalation cost.  Under these circumstances complainant is entitled for refund of Rs.29,000/- with interest at 12% p.a. from the date of respective payments till realization and compensation of Rs.50,000/- towards escalation costs and litigation cost of Rs.2000/-. Accordingly we proceed to pass the following

ORDER

          The complaint is allowed in part. OP is directed to refund Rs.29,000/- along with interest at the rate of 12% p.a from the date of respective payments till realization and pay compensation of Rs.50,000/- towards escalation cost  litigation cost of Rs.2,000/- to the complainant.

This order is to be complied within four weeks from the date of its communication.

          Send the copy of this order to both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 31^st day of October 2011.)

MEMBER                       MEMBER                     PRESIDENT