COMPLAINTS FILED ON:05.04.2012

DISPOSED ON:30.07.2012  

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

  30^th DAY OF JULY 2012

  PRESENT:-  SRI. B.S. REDDY                    PRESIDENT

                      SRI.A.MUNIYAPPA                     MEMBER  

COMPLAINT Nos.731 & 732/2012

COMMON ORDER

SRI. B.S.REDDY, PRESIDENT

Both these complaints by the respective complainants U/s. 12 of the Consumer Protection Act of 1986 are for a direction against the Opposite Party (herein after called as O.P) to allot the sites or to refund the sital deposit with interest at 18% p.a. and to pay compensation of Rs.10,00,000/- 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 Co-Operative Society formed with an object to develop and allot Housing Sites to its Members.   The complainant in complaint No.731/2012 and husband of complainant in complaint No.732/2012 became the members of OP with an intention to acquire sites and Op promised to allot the site measuring 4000 sq.ft formed at Devarachikkanahalli, Kodichikkanahalli, Hongasandra and Arakere Villages i.e., Bannerghatta Housing Project, Bangalore to complainant in complaint No.731/2012.

The complainant in complaint No.731/2012 paid total sum of Rs.1,14,497/- between 05.06.1988 and 04.04.1994 on various dates. 

The husband of the complainant in complaint No.732/2012 has applied for allotment of site measuring 2400 sq.ft at Chanakyapuri layout, Bangalore and paid an amount of Rs.25,000/- in between 04.10.1981 and 10.05.1986.    OP has issued the receipts acknowledging the receipt of the amounts from these complainants and issued Provisional Allotment Letters.    OP was unable to form the layout and allot the sites, the complainants demanded for refund of the amount.    OP neither refunded the amount nor formed any layout and allotted the sites.    The complainants felt deficiency in service on the part of the Op and approached this Forum seeking the reliefs stated above.

3.   On appearance Op filed version with similar contentions in both these complaints contending that the Government acquired certain lands in favour of Op-Society for the purpose of forming the layout.    At the stage of passing award and handing over possession of the lands acquired, some of the land owners had challenged the acquisition before the High Court.  The acquisition proceedings were set aside by the Hon’ble High Court and the same was confirmed by the Hon’ble Supreme Court in CLP 12/04-107/91 on 21.02.2005.   OP-Society had invested huge money on the process of acquisition.   The money invested was the money of the investors who had deposited money as site deposit.   The Hon’ble Supreme Court directed the Government to return the lands to the land owners and thereafter pay to the society.   OP has to get back the money

from the Government.   The hardship faced by the Society is loosing lands as well as portion of the deposited amount in the Government that is how the society is not in a position to pay interest on the site deposit amounts.    The site aspiring members who had deposited the amounts have been informed that the site deposit amounts shall not carry interest and the same was informed through a Circular dt.31.12.1984.     As per the principles laid down 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 members were duly informed about the events which have taken place and as there is no land to form layout, the Society has requested the members to take refund of the sital deposits.    The complainants have approached this forum after lapse of more than 10 years, the claim made is barred by time.   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 the OP-Society has filed affidavit evidence in support of the defence version.  

5.   Arguments on both sides 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

At the outset it is not at dispute that the complainant in complaint No.731/2012 and the husband of the complainant in complaint No.732/2012 became the members of the OP-Society with an intention to acquire residential sites and deposited initial sale consideration for allotment of the sites to be formed in the proposed layouts at Devarachikkanahalli, Kodichikkanahalli, Bannerghatta Housing Project and at Chanakyapuri Layout, Bangalore.      The complainant in complaint No.731/2012 has paid total amount of Rs.1,14,497/- and the husband of the complainant in complaint No.732/2012 has paid total amount of Rs.25,000/- towards the part of the sale consideration for allotment of the sites.   OP neither formed any layout and allotted the sites nor refunded the amount deposited.    The act of Op neither forming any layout and allotting the sites nor refunding the amount deposited amounts to deficiency in service on the part of the OP.

8.   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 compensation for the lands to be acquired acquisition proceedings were quashed by the Hon’ble High Court and the same being confirmed by the Hon’ble Supreme Court in the year-1995.   It is stated that the entire amount received from these complainants and other members of he Op-Society is deposited with the Government for payment of compensation to the land owners, OP has not received that amount from the Government.    Hence, OP is not able to pay any interest on the amounts.    It may be noted that OP has not produced any material to show that the sital deposit received from its members is deposited with the State Government and that amount is still lying with the Government.    When OP was not able to form any layouts and allot the sites, it would have been fair enough on its part to refund the amount received from the complainants.     No such steps are taken by OP.    Having retained the amount for such a long time, OP accrued wrongful gain itself and thereby caused wrongful to the complainants.

9.    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 allots 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 Statutory Developing Authority, moreover the acquisition proceedings were quashed, even after lapse of many years,    OP has retained the amount of the complainants. No materials are placed by OP to show that the entire amount of these complainants received is deposited with the State Government for acquisition of the lands and that amount is still lying with the Government.   Under these circumstances, we are of the view that the complainants are entitled for refund of the amount paid with interest at 18% p.a. by way of compensation from the date of respective payments, till the date of realization along with litigation cost of Rs.2,000/- each.   Since no layout has been formed by the OP for allotting the sites, the direction cannot be issued to allot the sites.      Accordingly, we proceed to pass the following:

O R D E R

Both these complaints are allowed in part.

In complaint No.731/2012 OP is directed to refund an amount of Rs.1,14,497/- 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.732/2012 OP is directed to refund an amount of Rs.25,000/- 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.731/2012 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 JULY– 2012.)

MEMBER                                                         PRESIDENT

Cs.