COMPLAINT FILED ON: 17.08.2011.

DISPOSED ON: 30.11.2011.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE (URBAN)

30^th NOVEMBER 2011

       PRESENT:- SRI.B.S.REDDY                      PRESIDENT           

                         SMT. M. YASHODHAMMA     MEMBER

                         SRI.A.MUNIYAPPA                MEMBER

COMPLAINT Nos. 1515/2011&  1516/2011

C O M M O N O R D E R

SMT. M. YASHODHAMMA, MEMBER

These are the complaints filed u/s. 12 of the Consumer Protection Act of 1986 by the respective Complainants, seeking direction to the Opposite Party (herein after called as O.P) to refund whatever the amount paid towards cost of the site along with interest at rate of 12% p.a., and costs on the allegations of deficiency in service on the part of the OP.

          As the OP in the complaints is common, the questions involved, relief claimed being the same, in order to avoid repetition of facts and multiplicity of reasoning both these complaints stand disposed of by this common order.

2.    The brief averments as could be seen from the contents of these complaints are as under:

These complainants became the members of the OP Society in the year 1984, with an intention to obtain a residential sites in the proposed Chanakyapuri layout, (Nagawara, Cholanayakanahalli and Viswanathanagenahalli of Gangenahalli side) Bangalore. OP accepted their membership and issued roll numbers as shown below in the table and collected the amount from the year 1984 and gave the receipts and pass book.  OP has also issued provisional allotment letters allotting a site measuring 1200 Sq.ft at Chanakyapuri layout in the year 1986 itself.  But neither OP confirmed the allotment nor conveyed the sites.  In the year 1991 OP demanded payment of further amount. Thereafter OP failed to register the sites in favour of the complainants. Hence complainant issued notice calling upon OP to refund the amount with interest.  OP sought 2 to 3 months time to refund the amount, but failed to refund the same. For no fault of them complainants were made to suffer both mental agony and financial loss. For the convenience sake details of  roll numbers, date of provisional allotment letters, measurement of site, amount paid by each complainant, date of payments and date of legal notice are noted below in the chart.

3.      It is the contention of the complainants that they have paid the entire cost of the site on different dates from 20.08.1984 to 31.01.1995. The pass book issued by OP are produced. OP has executed provisional allotment letters and promised to allot a site at their Chanakyapuri layout, Nagawara, Chalonayakana halli, and Vidhwanathanagenahalli of Gangenahalli side Bangalore. Though complainants became the members of OP society in the year 1984, till date OP has failed to register the sites.  There was no proper response since 27 years.  OP neither refunded the amount nor registered the sites. Hence complainants felt deficiency in service on the part of the OP. Under these circumstances they are advised to file these complaints for the necessary reliefs.

4.      On appearance OP filed the version. The defence set out in both these complaints is almost identical and same. The brief averments made in the version are as under:

5.      OP filed the version mainly contending that OP could not purchase the lands; under the prevailing laws OP has to approach the state government to initiate land acquisition proceedings which involves gazette notification U/s. 4(1) of the Act to hold enquiries of the land owners U/s. 5-A of the Act 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. One being consent of land owners and another being the general award. After the procedure the state government will hand over possession of the land to society within 3 to 4 years.  The entire cost including payment to land owner and conversion charges and other expenses incurred should be paid by the society to the government.  The land acquired by the government in favour of the society was challenged by the land owners before the High Court. Unfortunately acquisition proceedings were set aside and notification were quashed.  The Appeal preferred by OP before Hon’ble Supreme Court confirmed the order of the high court.  Further directed the government to return the lands to land owners. OP has to get back the money from the government. Government will deduct 22% of the amount towards administrative heads. Hence OP is not in a position to pay the interest to its members. In AIR 2010 SC 486 it was held that developmental authorities need not pay interest on the deposit amount for the delay or failure of the projects due the order of the courts; The claim is barred by time. Among other grounds OP prayed for a direction to the complainant to receive the site deposit amount and prayed for dismissal of the complaints.

6.      In order to substantiate the complaint averments, each one of these complainant filed their affidavit evidence and produced the provisional allotment letters and  pass book issued by OP, receipts, circular, correspondences, copy of notice and reply notice. On behalf of OP H. Srinivas, Secretary of OP society filed his affidavit evidence in support of the defence version. OP  not produced any documents. Complainant filed written arguments. Heard oral arguments from complainant and taken as heard from O.P. side.

7.      In view of the above said facts, the points now that arises for our consideration in these complaints are as under:

      Point No.1:-  Whether each complainant proved

   the deficiency in service on the

    part  of the OP?

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

                     entitled for the relief now claimed?

       Point No.3:-  To what Order?

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

Point No.1:- In Affirmative.

Point No.2:- In Affirmative.

Point No.3:- As per final Order.

R E A S O N S

9.      At the out set it is not in dispute that each complainant 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, Bangalore, and complainants paid a sum of Rs.48,335=00 and 46,335=00 respectively  on different dates from 20/08/1984 to 31/01/1995. To substantiate this fact each complainant has produced the receipts, pass book, provisional allotment letters issued by OP. OP has not disputed the fact of receipt of amount.  Now the grievances of each complainant is that though OP collected the entire sital value and membership fees, failed to execute and register the sale deed as promised or to refund the amount.

10.    As against the case of the complainants the defence of the OP is 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 complainants because the said amounts are used for paying compensation to the land owners by depositing the same with the government and for paying development expenses.

11.    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 complainants 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 complainants. 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 complainants. Having retained the amount for more than 18 years OP accrued wrongful gain to itself and thereby caused wrongful loss to the complainants.

12.    We are unable to accept the defence of the OP that the complaints are 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 complainants.

    13.     In support of his arguments counsel appearing for OP has  relied on Order 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.

14.    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.

15.    Though O.P. has received the  entire sital deposit in the year 1984 to 1995 has failed to form the layout and execute the sale deed or to refund the amount since 25 years. 

The complainant in complaint No.1516/2011 has claimed refund of Rs.48,360, but the receipt produced are to the extent of Rs.46,335/-.  The receipt dated 22/3/1986 is for a sum of Rs.200/- and not for a sum of Rs.2000/- as taken by the complainant.  Hence complainant is entitled for a sum of Rs.46,335/-.

The relief claimed by each complainant is for refund of amount with interest at 12% p.a. and costs.  Taking into consideration of all the facts/circumstances we are of the considered view that the complainants are entitled for refund of amount paid along with interest at 12% p.a. as compensation from the date of respective payments till realisation and litigation cost of Rs.2000/- each.  Accordingly we proceed to pass the following order.  

ORDER

          The complaints are allowed.

1.      In Complaint No.1515/11 OP is directed to refund a sum of Rs.48,335/- along with interest at the rate of 12% p.a. from the  date of respective payments till the date of refund   and litigation cost of Rs.2,000/- to the complainant.

2.      In Complaint No.1516/11 OP is directed to refund Rs.46,335/- together with interest at the  rate of 12% p.a. from the date of respective payments 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 its communication.

This original order shall be kept in the file of the complaint No.1515/2011 and copy of it shall be placed in other respective file.

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

(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 30^th day of August 2011.)

MEMBER                         MEMBER                    PRESIDENT