COMPLAINTS FILED ON:22.11.2011

DISPOSED ON: 30.06.2012

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

30^th DAY OF JUNE 2012

  PRESENT:-  SRI. B.S. REDDY                    PRESIDENT

                      SRI.A.MUNIYAPPA                     MEMBER               

COMPLAINT Nos.1949/2011, 1950/2011,

                          1952/2011, 2112/2011,

                          2233/2011, 2234/2011,

                        2299/2011, 101/2012

       & 166/2012

COMMON ORDER

SRI. B.S.REDDY, PRESIDENT

All these complaints U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants, seeking direction against the Ops to allot the sites alternatively to refund the sital deposit with interest and to pay compensation on the allegation of deficiency in service.

Since Op is common in all 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 all these complaints are stand disposed of by this common order.

2.  In complaint No.1949/2011 the case of the complainant is that to acquire a site he applied for the same with OP-Society by becoming its member and Op promised to allot the site measuring 4,000 sq.ft at Devarachikkanahalli, Kodichikkanahalli, Honga Sandra and Arakere Village (i.e., Banerghatta Housing Project), Bangalore.  Accordingly, the complainant had paid the total sum of Rs.73,472/- to the OP in between 19.07.1984 to 04.04.1994.   OP failed to allot the site ultimately, the complainant approached OP to refund the entire amount paid with interest.   The OP failed to refund the amount.    Thus the complainant is seeking direction to allot a site measuring 50 X 80 feet, in case if OP is not in a position to allot a site to direct the OP to refund an amount of Rs.73,472/- with interest at 24% p.a. and to pay compensation of Rs.18,00,000/-.

            In complaint No.1950/2011 the case of the complainant is that he became member of OP-Society to acquire a site and paid total amount of Rs.40,000/- towards the sital value.    OP issued Provisional Allotment Letter dt.25.05.1987 promising to the complainant that they will allot a site measuring 4,000 sq.ft at Banerghatta Housing Project, Bangalore.   The Provisional Letter of Allotment dt.25.05.1987 was issued OP failed to allot the site.    The complainant demanded for refund of the amount OP has not refunded the same hence the complainant has sought for allotment of site measuring 50 X 80 feet alternatively to refund the amount of Rs.40,000/- with interest at 18% p.a. and compensation of Rs.18,00,000/-.

In complaint No.1952/2011 the case of the complainant is that his mother became member of OP-Society and applied for allotment of site measuring 2,400 sq ft situated at Bannerghatta Housing Project, Bangalore.   After death of the complainant’s mother Smt.Thayaramma, on 10.07.1989, the Provisional letter of allotment has been transferred to the complainant.     Accordingly, the complainant had paid the total sum of Rs.60,942/- to the OP in between 20.05.1987 to 04.04.1994.     After receiving the said amount, OP has issued a Provisional Letter of Allotment of the site.    OP failed to allot the site complainant demanded for refund of the amount,   OP has not refunded the same.    Thus the complainant is seeking for allotment of site measuring 40 X 60 feet alternatively to refund the amount of Rs.60,942/- with interest at 18% p.a. and to pay compensation of Rs.15,00,000/-.

In complaint No.2112/2011 the case of the complainant is that she became member of OP-Society and applied for allotment of site in the year 1989.    The complainant paid the entire amount towards sital value of site measuring 50 X 80 ft, the amount being Rs.62,250/-.   The proposed layout was at Gangenahalli, Bangalore.   An amount of Rs.60,000/- was paid through D.D. on 27.02.1985.   OP has issued the receipt, the Provisional Letter of Allotment was issued on 31.10.1986.    The complainant was further intimated on 27.12.1993 to pay an amount of Rs.20,000/- towards the Development charges.     OP circulated a letter on 07.09.1994 to remit the additional amount of Rs.25,000/-.   The complainant demanded allotment of site, OP failed to fulfill its obligations, hence the complainant requested to refund the amount with interest at 18% p.a.   The complainant has paid Rs.2,250/- through cash on 22.05.1986.   Thus the complainant is seeking to allot the site or to refund the amount of Rs.62,250/- with interest at 18% p.a. and for compensation of Rs.10,000/-.

 In complaint No.2233/2011 the case of the complainant is that he became member of OP-Society and applied for allotment of site at Nagavara Village or Gangenahalli or Chanakyapuri layout.    Initial deposit of Rs.25,000/- was paid on various dates between the period of 1983 and 1986 towards allotment of site.    OP failed to allot and registered the site in favour of the complainant.    Thus the complainant is seeking for allotment of site or to refund the amount of Rs.25,000/- with interest at 24% p.a. and compensation of Rs.5,00,000/-.

 In complaint No.2234/2011 the case of the complainant is that he became member of OP-Society and applied for allotment of site.   He has paid initial deposit of Rs.25,000/- on various dates between the year 1983 and 1986.    OP has issued the receipt and made necessary entries in the Pass Book.    OP neither allotted the site nor refunded the amount hence he is seeking for refund of the amount of Rs.25,000/- with interest at 24% p.a. and compensation of Rs.5,000/-.

In complaint No.2299/2011 the case of the complainant is that she joined the OP as a member in order to purchase one a site on 24.02.1987.   Initially she has paid Rs.22,000/- for allotment of site measuring 2400 sq.ft to be formed in Visweshwarayanagar, II Stage Layout (Bilekhalli and Kodichikkanahalli of Bannerghatta Road) OP has issued the Provisional Letter of Allotment dt.04.01.1989.   OP demanded further sum of Rs.15,000/- and the same was paid by the complainant on 25.01.2004 OP has issued the receipt.   Thus in all the complainant has paid Rs.37,000/- towards the cost of the site to be allotted.   OP has failed to allot the site and has not refunded the amount deposited.   The Legal Notice dt.22.10.2011 was issued to the OP, OP has replied for the same on 02.11.2011 stating that Government is likely to allot 200 acres of alternate land and they will inform to the complainant the probable date of allotment and costs etc.    OP has not fulfilled its obligation either by allotting the site or refunding the amount received.   Hence, the complainant is seeking the relief to refund an amount of Rs.37,000/- with interest at 12% p.a. and to pay compensation of Rs.15,00,000/-.

In complaint No.101/2012 the case of the complainant is that he became member of Ops-Society and applied for allotment of site.   He has paid Rs.12,000/- as per pay in slips, Rs.118.50 on 05.10.1987, Rs.121/- on 05.10.1987, Rs.10.50/- on 05.10.1987, Rs.13,750/- on 05.10.1987, Rs.28,000/- on 14.11.1988, Rs.10,000/- on 08.01.1993.   Thus the complainant has paid in all Rs.51,750/-.  Ops have issued the Provisional Allotment Letter OPs failed to allot and register the site.   Thus the complainant is claiming for refund of the amount of Rs.51,750/- with interest at 24% p.a. and compensation of Rs.5,00,000/-.

In complaint No.166/2012 the case of the complainant is that he has given Special Power of Attorney to file and prosecute the complaint as he is residing at U.S.A.    The complainant became member of OP-Society in the year-1997 and paid an amount of Rs.75,000/- to OP towards sital deposit.    OP issued Provisional Letter of Allotment of site on 12.12.1987 stating that the complainant is allotted a site measuring 1200 sq ft in Visweswarayanagar II Stage Layout. But so far the OP has not conveyed and registered the site.     The registered notice dt.18.11.2011 was issued to the OP to allot a site or to refund the amount but there is no any response from OP.    Hence, the complainant is seeking relief directing OP to allot a site in any of the layout alternatively to refund Rs.75,000/- with interest at 24% p.a. and to award compensation of Rs.25,000/-.

3. On appearance, Ops filed version with similar contentions in all these complaints.  It is admitted that the complainants became members of Op, they applied for allotment of the sites and made payments towards the sital deposit and Provisional Allotment Letter was issued.    It is stated that the Ops have 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 the same could not be completed in view of the acquisition proceedings quashed by the Hon’ble High Court and the same confirmed by the Hon’ble Supreme Court in the year 1995 in C.L.P.12/04-107/91 on 21.02.2005.  The entire acquisition costs including payment to the land owners, conversion charges and all other expenses incurred is to be paid by the Ops-Society to the Government.   Ops-Society has deposited the entire amount with Government.    OP has to get back the money from the Government and it is reliable learnt that the Government will deduct nearly 22% of the amount towards the administrative heads and the society has to make good the deficit amount even if the money is received from the Government.     Ops-Society is not in a position to pay interest on the sital deposit amounts.   The members who had deposited amount have been informed through a Circular dt.31.12.1984 that site deposit amount shall not carry interest.    As per the ruling reported in AIR-2010 SC 486 the 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 cases are similarly placed.   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 these complainants filed affidavit evidence and produced documents. The Secretary of OP-Society filed affidavit evidence in support of the defence version.

5.   Some of the complainants filed written arguments. 

6.   Arguments heard on both sides.

7.   Points for consideration are:

     Point No.1:-  Whether the complainants proved the          

                         deficiency in service on the part of

                          the OPs?

       Point No.2:- Whether the complainants are entitled

                   for the reliefs now claimed?

     Point No.3:- To what Order?

8.   We have gone through the pleadings of the parties, both affidavit and documentary evidence and the arguments advanced.    In view of the reason given by us in the following paragraphs our findings:

              Point No.1:- Affirmative,

              Point No.2:- Affirmative in part,

              Point No.3:- As per final Order.

R E A S O N S

9. At the outset it is not at dispute that each of these complainants became the members of the OP-Society, who claims to be the house building cooperative society, with fond hope of getting residential sites.    The complainants have deposited the amounts as shown in the complaints, OP has not denied the fact of deposit of the amounts as shown in the complaints.    OP has issued Provisional Allotment Letters allotting the sites to each of these complainants.    OP has issued the receipts acknowledging the receipt of the amounts from each of these complainants.    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 projects were being quashed by the Hon’ble High Court on 18.06.1991 and the same being confirmed in C.L.P.12/2004-107/91 by the Hon’ble Supreme Court on  21.02.2005.    When the OP-society was not in a position to form the layouts and allot the sites, it would have been fair enough on its part to refund the amounts 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 sites has been deposited with the State Government towards the cost of the acquisition of the lands and that amount is 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 21.02.2005, even after lapse of many years, OP has retained the amount deposited thereby accrued wrongful gain to itself and caused wrongful loss to the complainants.

10. The principles laid down in AIR 2010 Supreme Court page-486 Panjab Urban Planning and Development Authority and another V/s Dayasingh cannot be made applicable to the facts of the cases. Op-Society is not a developing authority and even after lapse of many years of quashing the acquisition proceedings, the deposited amount has been retained by OP.    Therefore OP cannot avoid liability to pay interest on the deposited amounts.     There is no merit in the contention that these complaints are barred by limitation.    When once OP accepted the sital deposits with a promise to allot the sites to the complainants, till OP allots and register the sites, recurring cause of action will accrue to the complainants.

11. With regard to the awarding of the interest on the sital deposits to be refunded, in Appeal Nos1211/2011 & 1214/2011 the Hon’ble State Commission modified the Order of the District Forum to the extent of interest awarded in similar complaints against the same OP and interest has been enhanced from 12% to 18% p.a. from the respective date of payments. 

The act of OP neither forming the layouts and allotting the sites nor refunding the amounts deposited, amounts to deficiency in service.   The relief’s claimed by the complainants for a direction to allot the sites cannot be considered for the reason that OP has not formed any layouts and no sites are available for allotment.    The complainants are entitled for refund of the deposits made towards sital value with interest at 18% p.a. by way of compensation along with litigation costs of Rs.2,000/- each.      Accordingly, we proceed to pass the following:

O R D E R

All these complaints are allowed in part.

In complaint No.1949/2011 OP is directed to refund an amount of Rs.73,472/- 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 the complainant.

In complaint No.1950/2011 OP is directed to refund an amount of Rs.40,000/- with interest at 18% p.a. from 25.05.1987 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

In complaint No.1952/2011 OP is directed to refund an amount of Rs.60,942/- 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 the complainant.

In complaint No.2112/2011 OP is directed to refund an amount of Rs.62,250/- 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 the complainant.

In complaint No.2233/2011 OP is directed to refund an amount of Rs.25,000/- 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 the complainant.

In complaint No.2234/2011 OP is directed to refund an amount of Rs.25,000/- 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 the complainant.

In complaint No.2299/2011 OP is directed to refund an amount of Rs.37,000/- 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 the complainant.

In complaint No.101/2012 Ops are directed to refund an amount of Rs.51,750/- 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 the complainant.

In complaint No.166/2012 OP is directed to refund an amount of Rs.75,000/- 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 the complainant.

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.1949/2011 and a copy of it shall be placed in other respective files.

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  30^th day of JUNE– 2012.)

MEMBER                                                         PRESIDENT

CS.,