COMPLAINT FILED: 24.10.2011

                                             DISPOSED ON: 17.01.2012

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

17^th DAY OF JANUARY-2012

  PRESENT :-  SRI. B.S. REDDY                   PRESIDENT

                      SRI. A. MUNIYAPPA                  MEMBER

       COMPLAINT NO. 1960/2011

O R D E R S

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Party (herein after called as O.P.) to pay an amount of Rs.35,000/- with interest at 18% p.a. as compensation towards physical strain and mental agony on the allegations of deficiency in service on the part of the OP.

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

            The complainant has taken membership from OP society vide account Roll No. 1705 dated 21.12.1987 by paying a sum of Rs.35,000/-.    The OP issued the provisional allotment letter dated 21.12.1987 agreeing to allot 2400 square feet area, but has not shown the place where the site will be allotted, till date the OP neither come forward to allot the site number nor register the same in favour of the complainant.    Due to the failure of the OP in not allotting the site, the complainant demanded to refund the amount deposited or to register the sale deed by allotting the site, but OP has not complied the demand.     The registered letter dated 31.08.2010 was issued to OP to refund the amount with interest.    The OP has issued reply letter dated 18.10.2010 stating that they are facing financial problem and they would refund the amount without any interest.   Hence the complaint.

3. On appearance OP filed the version contending that the complainant has suppressed the true and prevailing facts, even though the same is well within her knowledge.   She has not approached this Forum with clean hands, she is not entitled for the relief for allotment of site or recovery of money.    It is admitted that the complainant was member of OP society and she applied for allotment of site and she was issued provisional allotment letter of site measuring 2400 sq. ft. and made certain payments towards site deposit.      The OP society 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 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 of Karnataka and the same confirmed by the Hon’ble Supreme Court of India.     The OP society has spent huge amounts of money towards land acquisition, development, deposit of compensation to land lords with the Government, etc., and even the layout in respect of land in the possession of the society was approved by the BDA.   Moreover, even assuming the Hon’ble Supreme Court judgment were to stand, the Supreme Court has decided as follows:

    “We direct that as a result of quashing of the land acquisition proceedings, including the notification as aforesaid, the possession of the land shall be restored to the respective land owners irrespective of the fact whether they have challenged the acquisition of their lands or not.    On restoration of the possession to the land owners, they shall refund the amounts received by them as compensation or otherwise in respect of their lands.     The appellant, the respondents and State Government including all concerned authorities / persons shall implement the aforesaid directions at an early date”.

            All the amounts paid by the society are lying with the Government of Karnataka in the form of compensation.     The State Government is a proper and necessary party to the proceedings, as the society will be able to have some funds if and only the society gets back money from the Government which was deposited as compensation.    The society has not deliberately or intentionally committed any act, which can be branded as a deficiency in service.     The question of paying interest does not arise, as the society is not making any profit from the site deposits received from its members.    On the contrary, the site amounts have been duly deposited and spent by the society for the purpose of development of layout to ensure that each member who has made site deposit get a site and in the process is not making any profit.    The OP society is a non-profit oriented.    Every member together forms the co-operative society and the society is governed and controlled by the collective, democratic co-operative decision of the general body.    There is no concept of any service being rendered for any consideration, as the society is not making any profit for itself.      The question of refunding the amount with interest doe not arise.     In Appeal Nos. 551 to 559/2006, the Karnataka Appellate Tribunal in similar circumstances allowed the appeals by order dated 15.07.2010 setting aside the interest payable at 18% p.a. on the amount to the members.   The OP society is similarly placed and entitled for benefit of waiving of payment of interest and compensation on the said site deposit amount.     Under sec-71 of the Karnataka Co-operative Societies Act, the Registrar of Co-operative Societies or his subordinates is the competent authority to adjudicate the dispute between a co-operative society and its members, this Forum has no jurisdiction to adjudicate the dispute.   The complainant has filed this complaint after lapse of more than 02 years from the date of cause of action.   The complaint is barred by limitation, hence it is prayed to dismiss the complaint with costs.

        4. In order to substantiate complaint averments, the complainant filed her affidavit evidence. The Secretary of OP filed affidavit evidence in support of the defence version.

5.   Arguments on both sides heard.

6. Points for our considerations are:

   Point No.1:- Whether the complainant proved the        

                       deficiency in service on the part of

                          the OP?

 Point No.2:- Whether the complainant is entitled

                 for the reliefs now claimed?

   Point No.3:- To what Order?

7. We record our findings on the above points:

  Point No.1:-Affirmative.

Point No.2:-Affirmative.

Point No.3:- As per final Order.

R E A S O N S

8. At the out set, it is not in dispute that the complainant became member of OP society under account Roll No. 1705 dated 21.12.1987 by paying sum of Rs.35,000/- towards the sital deposit.   The OP society has issued the letter dated 13.07.1987 marked as document No.01 to the complainant stating that the Committee of Management has decided to allot site measuring 40 x 60 feet in the layout called “Mookambika”.   It is also shown that the cost of the site is tentatively fixed at Rs.44,000/- at the rate of Rs.165/- per sq. yard, out of which complainant has already paid Rs.10,000/- towards site purchase deposit.    Hence he was requested to pay the balance amount of Rs.34,000/- at an early date.    The provisional allotment letter dated 21.12.1987 marked as document No.2 issued by OP reveals that OP has allotted site measuring 2400 sq. feet at Visweswaryanagar II Stage Layout to the complainant.   In that provisional allotment letter OP has admitted that they have received a sum of Rs.35,000/- as part payment towards cost of the site and complainant was required to remit the balance of Rs.19,000/- towards the provisional land costs and the layout purchase.    Thus it becomes clear that OP has received Rs.35,000/- from the complainant towards allotment of the site and provisional allotment letter has been issued.    On 27.12.2000 as per document No. 4, the complainant has requested the OP to allot a alternative site at Gangenahally  Layout in lieu of Visveswaranagar Layout.   The OP could not form any layout as the acquisition proceedings initiated for acquiring the lands for the proposed layout were challenged by the land owners before the Hon’ble High Court and the proceedings were quashed.      The Hon’ble Supreme Court confirmed the order of quashing the proceedings.     In view of the same, OP was unable to form any layout and allot the sites.     Soon after the acquisition proceedings were quashed, it would have been fair enough on the part of the OP to refund the amount received towards the part of the sital value.   The OP has not placed any material to show that the amount has been deposited in the Government for the acquisition of the lands and the amount has been paid for developing the layout and State Government has not refunded the amounts.  The act of OP neither developing the layout nor refunding the amount, amounts to deficiency in service on its part.   The acquisition proceedings were quashed long back, till then the complainant was not informed about the said fact.    Had the said amount had been invested by the complainant in other projects she could have got the site allotted or she would have got good returns by investing the same in some other scheme.     Under these circumstances, we are unable to accept the contention of the OP that OP is not liable to pay interest.   We are of the view that interest at the rate of 18% p.a. is to be awarded as compensation. 

9. There is no merit in the contention that the complaint is barred by limitation.   Once the OP has accepted the deposit towards allotment of site, till the site is allotted or the amount is refunded there is continuance of cause of action to claim the reliefs.   Accordingly, we proceed to pass the following:

O R D E R

        The complaint filed by the complainant is allowed.

OP is directed to refund an amount of Rs.35,000/- with interest at 18% p.a. from the respective date of deposit, till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

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

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

 (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 17^th day of January-2012.)     

MEMBER                                                     PRESIDENT

Pn.