COMPLAINTS FILED ON:27.12.2011

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. 2364/2011, 2365/2011 & 82/2012

COMMON ORDER

SRI. B.S.REDDY, PRESIDENT

All these complaints are filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants or to direct the Opposite Party (herein after called as O.P) to refund the sital value deposit with interest at 12% p.a. and for compensation 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 all these complaints are stand disposed of by this common order.

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

The complainants became the members of OP-Society and applied for allotment of sites proposed to be formed in the layout called ‘Vishweswarayanagar, 2^nd Stage, Bilekahalli and Kodichikkanahalli of Banneraghatta Road, Bangalore and deposited sital value.       The complainant in complaint No.2364/2011 deposited initial sale amount of Rs.9,750/- on 15^th December 1988 and further sum of Rs.20,000/- on 28^th January 1994 in all an amount of Rs.29,750/- was deposited.    The complainant in complaint No.2365/2011 deposited an amount of Rs.50,000/- on 18.08.1988 and further sum of Rs.20,000/- on 28.01.1994 in all Rs.70,000/-.   The complainant in complaint No.82/2012 deposited total amount of Rs.69,000/- between 21.06.1986 and 05.02.1994 in instalments.     OP has issued the pass book and made entries regarding the deposits made by these complainants.   Provisional Allotment Letters were issued for having allotted the sites in favour of these complainants.     OP was unable to form the layout and allot the sites.       The complainants got issued legal notice, OP not complied the demand in the reply notice sent by OP on 18.11.2011 and 28.12.2011 it is stated that OP-Society is facing financial problem, there is no provisional to pay the interest and compensation,    after receipt of the funds OP will issue the cheques for refund of the amount.        The complainants being not satisfied with the said reply felt deficiency in service on the part of the OP.    As OP neither allotted the sites nor refunded the amount received.   Hence these complaints.

3. In the version filed by the OP has taken similar contentions in these complaints.  It is admitted that these complainants were members of the OP-Society and the applied for allotment of sites by making payments.     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. At the stage of passing, award and handing over possession of acquired lands some of the landowners had challenged the acquisition before the Hon’ble High Court.  The acquisition proceedings were set aside.     OP-Society preferred Special Leave Petitions before the Hon’ble Supreme Court and the same was dismissed on 21.02.2005 in SLP.12/04-107/91 on 21.02.2005 confirmed the order of the High Court.    There was further direction to the Government to return the lands to the landowners and thereafter pay to the society.       The society has to get back the money from the Government and 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 from the Government.     The site aspiring 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 AIR2010 SC 486 that 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.   These cases are similarly placed.    The complaints are barred by limitation.  There is no deficiency in service on the part of the OP.     The society has informed its members about the events which have taken place and as there is no land to form layout the society has requested he members to take refund of the site deposited amount.   Hence it is prayed to dismiss the complaints.

4.   The complainants in order to substantiate complaint averments each of the complainants filed affidavit evidence. The Secretary of OP 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 these complainants became members of the Op and applied for sites proposed to be formed in the layouts called ‘Vishweswarayanagar layout, 2^nd Stage, Bilekahalli and Kodichikkanahalli of Banneraghatta Road, Bangalore and at Gangenahalli, Nagavara and other layouts.    The complainants deposited part of the amounts towards allotment of the sites.    The complainant in complaint No.2364/2011 deposited total amount of Rs.29,750/-, the complainant in complaint No.2365/2011 deposited total amount of Rs.70,000/- and the complainant in complaint No.82/2012 deposited total amount of Rs.69,000/-.    OP was unable to form any layouts and allot the sites as assured.   The complainants demanded for refund of the amounts paid with interest.    OP neither formed the layouts and allotted the sites nor refunded the amounts received from these complainants.    Though the complainants got issued legal notice, OP neither replied for the notice nor complied the demand.     Thus these complainants felt deficiency in service on the part of the OP.

9. 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 OP received from its members, is deposited with the State Government towards the cost of acquisition of the lands and the said amount is still not at received from the Government.    OP is prepared to refund the amount received but it is not liable to pay any interest.    OP has not produced any material to show that the entire amounts received from these complainants is deposited with the State Government.    The acquisition proceedings initiated by the State Government were challenged before the Hon’ble High Court. The said acquisition proceedings were quashed with a direction to return the lands to the farmers.    OP preferred SLP before the Supreme Court challenging the said Order but the said SLP also dismissed confirming the Order of the Hon’ble High Court.    When the OP was not able to form any layout and allot the sites, it would have been fair enough on its part to refund the amount received from these complainants.     The act of OP neither forming any layout and allotting the sites nor refunding the amount received from these complainants, amounts to deficiency in service on its part.    

We are unable to accept the defence of the OP that the complaints are barred by limitation.   When once OP accepted the deposits towards sital value with a promise to allot sites to the complainants, till OP allot and register the sale deeds, recurring cause of action will accrue to the complainants.    

10. 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 cases. Op is not a developing authority, the acquisition proceedings were quashed by the Hon’ble High Court in W.P.No.17429 to 17493/1996 and the same was confirmed by the Hon’ble Supreme Court in the SLP filed.    Even after lapse of more than 16 years of quashing the acquisition proceedings OP has not refunded the amount.  

OP has not disputed the fact of the receipt of the amounts from these complainants.  The receipts are issued and entries are made in the pass book regarding the receipt of the amounts.    The complainants are entitled for the refund of the amounts with interest at 18% p.a. from the date of the respective payments till the date of realization.   In the Appeal No.5041/2010 the Hon’ble State Consumer Redressal Commission in similar circumstances against the same OP modified the Order passed by the 1^st additional District Consumer Forum in CC.No.2201/2010 dt.16.11.2010 to refund the amount towards sital value together with interest at 18% from the date of respective payments till realization.   On the basis of the said Order, we are of the considered view that each of these complainants are entitled for refund of the amount with interest at 18% by way of compensation from the date of respective payments, till the date of realization and for litigation cost 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.2364/2011 OP is directed to refund an amount of Rs.29,750/- with interest at 18% p.a. from the date of respective payments till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

In complaint No.2365/2011 OP is directed to refund an amount of Rs.70,000/- with interest at 18% p.a. from the date of respective payments till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

In complaint No.82/2012 OP is directed to refund an amount of Rs.69,000/- with interest at 18% p.a. from the date of respective 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.2364/2011 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  29^th day of MAY– 2012.)

MEMBER                                                         PRESIDENT

CS.,