COMPLAINTS FILED ON:02.11.2011

DISPOSED ON:29.05.2012  

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

 29^th DAY OF MAY 2012

  PRESENT:-  SRI. B.S. REDDY                    PRESIDENT

                      SRI.A.MUNIYAPPA                     MEMBER               

COMPLAINT Nos. 1989 & 1990/2011

COMMON ORDER

SRI. B.S.REDDY, PRESIDENT

Both these complaints are filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants seeking direction against the Opposite Party (herein after called as O.P) to refund an amount of Rs.63,500/- with compensation of Rs.10,00,000/- in each case on the allegation of deficiency in service.

Since Op is common in both these complaints, the questions involved and the relief’s claimed being similar, in order to avoid the repetition of facts and multiplicity of reasoning’s both these complaints are stand disposed of by this common order.

2. The case of the complainants to be stated in brief is that:

OP is a Society registered under the Karnataka Co-operative Societies Act.   The business of the OP is to form residential layouts for allotment of sites to its members.   Op representing that a layout called as “Chanukyapuri Layout” is proposed to be formed invited applications for allotment of sties from its members.   The complainants filed applications for allotment of sites and paid initial deposits of Rs.38,000/- each the dimensions of the site being 40 X 60 feet.   OP issued Provisional Allotment Letter dt.31.12.1984 further amount of Rs.7,500/- was demanded accordingly the complainants paid the said amount OP issued demand letters to pay further sum of Rs.18,000/- on or before 15.04.1994.   Accordingly, the complainants also paid the said amount with a fond hope of getting the sites.   However OP demanded additional price of Rs.2,96,500/- per site.   The complainants have not paid the said amount.   For the first time on 12.09.2000, the complainant demanded refund of the amount deposited with interest.    OP replied assuring to refund the amount with interest.    OP issued a notice of allotment of sites dt.24.07.2001.   Thereafter OP claimed that there had been some stay from the Hon’ble High Court of Karnataka which prohibited the layout.   The complainants submitted registered representation on 13.04.2010, demanding to refund or allot the sites as promised, OP by its letter dt.16.04.2010.   Thus the complainants felt deficiency in service on the part of the Op and filed these complaints seeking the relief’s stated above.

3. On appearance, OP filed version with similar contentions in both cases.    It is admitted that these complainants applied for allotment of sites and made certain payments towards sit deposits and OP has issued the Provisional Letter of allotments.   It is contended that OP has done its best and diligently prosecuted all legal avenues available; for the purpose of acquiring the lands for formation of layout and for distribution of sites among its members.    Even though the acquisition was notified by the State Government for acquisition of the lands required for the proposed layout but the acquisition proceedings could not be completed,   as some of the landowners had challenged the acquisition before the Hon’ble High Court and the Hon’ble High Court by its order dt.18.06.1991 quashed the acquisition proceedings.   OP preferred CLP12/04-107/91 and the same was dismissed confirming the Order of the Hon’ble High Court on 21.02.2005.    There was further direction to the Government to return the lands to the landowners and thereafter to pay the amount to the society.   OP has to get back the money from the Government.    It is reliably learnt that the Government will deduct nearly 22% of the amount towards administrative heads and the society has to make good the deficit amount even if the money is received by the Society from the Government.   The site aspiring members who had deposited amount have been informed through a Circular dt.31.12.1984that the site deposit amount shall not carry interest.    The Hon’ble High Court in AIR 2010 SC 486 held that developmental authorities need not pay interest on the deposit amount for the delay or failure of the projects if there is interference by the Orders of the Courts. The present case is similarly placed.    The OP has requested the members to take refund of the amount deposited.    The complaints are barred by limitation.   Hence, it is prayed to dismiss the complaints.    

4.   The complainants in order to substantiate complaint averments each of them filed affidavit evidence. The Secretary of OP-Society filed affidavit evidence in support of the defence version.

5.   Arguments from complainant’s side heard, OP side taken as heard.

6.   Points for consideration are:

     Point No.1:-  Whether the complainants proved the          

                         deficiency in service on the part of

                           the OP?

       Point No.2:- Whether the complainants are entitled

                   for the reliefs now claimed?

     Point No.3:- To what Order?

7.   We record out findings on the above points:

              Point No.1:- Affirmative,

              Point No.2:- Affirmative in part,

              Point No.3:- As per final Order.

R E A S O N S

8. At the outset it is not at dispute that each of these complainants applied for allotment of 40 X 60 feet sites proposed to be formed in “Chanukyapuri Layout”, Gangenahalli, Bangalore and paid initial deposit of Rs.38,000/-.    OP has issued the Provisional Allotment of letters for having allotted the sites.    Subsequently each of the complainants deposited an amount of Rs.7,500/- and Rs.18,000/-.      Each of these complainants deposited total amount of Rs.63,500/-.    OP was unable to form the layout and allot the sites on account of the land acquisition proceedings initiated by the State Government for acquisition of the lands required for the project were being quashed by the Hon’ble High Court on 18.06.1991 and the same being confirmed by the Hon’ble High Court in CLP 12/04-107/91 on 21.02.1995.    When the OP-Society was not in a position to form the layout and allot the sites, it would have been fair enough on its part to refund the amount to the complainants.     There is no material in support of the defence version that the entire amount deposited by the members towards cost of the site was deposited in the State Government towards the cost of the acquisition of the lands and that amount still lying with the Government.      When the acquisition proceedings were quashed by the Hon’ble High Court and the same was confirmed by the Hon’ble Supreme Court on 21.02.1995, even after lapse of 16 years OP has retained the amount deposited thereby accrued wrongful gain to itself and caused wrongful loss to the complainants.      The act of OP neither forming any layout and allotting sites nor refunding the amount deposited amounts to deficiency in service.

9. The principles laid down in AIR 2010 Supreme Court page-486 Punjab Urban Planning and Development Authority and another V/s Dayasingh cannot be made applicable to the facts of the case.    Op-Society is not a developing authority and even after lapse of 16 years of quashing the acquisition proceedings, the deposited amount has been retained by OP. There is no merit in the contention that the complaints are barred by limitation. When once OP accepted the deposit towards sital value with a promise to allot a sites to the complainants, till OP allot and register the sale deeds, recurring cause of action will accrue to the complainants.

10. The complainants have calaimed compensation of Rs.10,00,000/- and interest at 24% p.a. on the amounts deposited.     The Hon’ble State Commission in Appeal No.1211/2011 & 1214/2011 modified the orders of the District Forum to the extent of interest awarded by enhancing the interest from 12% p.a. to 18% p.a. in similar cases against the same OP.    The compensation and interest both cannot be awarded.    On the basis of the above said order, we are of the view that the complainants are entitled for the interest by way of compensation on the amounts deposited at 18% p.a. from the respective date of deposits till the date of realization along with litigation cost of Rs.2,000/- to each case.     Accordingly, we proceed to pass the following:

O R D E R

Both these complaints are allowed in part.

In both these complaints Op is directed to refund an amount of Rs.63,500/- with interest at 18% p.a. from the respective date of payments till the date of realization and pay litigation cost of Rs.2,000/- to each of the complainants.

OPs to comply the order within four weeks from the date of this order.

This original order shall be kept in the file of the complaint No.1989/2011 and a copy of it shall be placed in other complaint.

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  29^th day of MAY– 2012.)

MEMBER                                                         PRESIDENT