COMPLAINT FILED: 02.11.2011

DISPOSED ON:30.04.2012

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

30^th DAY OF APRIL 2012

       PRESENT:- SRI. B.S.REDDY                PRESIDENT                        

                         SRI.A.MUNIYAPPA                   MEMBER

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint u/s. 12 of the C.P. Act of 1986, seeking direction against Opposite Parties (herein after called as OPs) to register the site allotted, alternatively to refund the sital amount of Rs.36,000/- with interest at 24% p.a. and to pay compensation of Rs.5,00,000/- on the allegations of deficiency in service.

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

The complainant is a member of OPs-Society and he had applied for the site at Ganganahalli Layout, Chanakyapuri Layout, Nagavara, formed by OPs and OPs have allotted account No.8048, Roll No.10114, issued the pass book which consists of P.F.A/C and also payment of sital value.    OPs had issued the Provisional letter of allotment of site.    The complainant has paid substantial amount of Rs.36,000/- on various dates as mentioned in the pass book from 16.01.1985 to 03.01.1994, as demanded by the Ops and Ops have acknowledged the payments vide pass book and entered therein. The amounts collected is more than then the sital value.   OPs have intentionally not mentioned the site number and other details in pass book. OPs issued letter dt.07.06.1991 and accordingly the complainant has submitted the affidavit and Domicile Certificate and same have duly acknowledged by the Ops.   Ops assured to register the site in favour of the complainant but have failed to register the same.  Ops failed to provide the services to the complainant, whereby caused immense loss. The complainant has issued the letters dt.11.11.2002, 08.08.2011 and Ops replied by their letter dt.13.11.2002, 16.08.2011, assuring allotment/refund but have failed to comply with their own commitments. The complainant got issued legal notice dt.18.10.2011 but no payment received from Ops. Thus the complainant felt deficiency in service and filed this complaint.

3. On appearance, OPs filed version admitting that the complainant was member of Ops-Society and he applied for allotment of site and made certain payments towards site deposit, he was issued provisional letter of allotment. Ops-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. OPs approached the State Government for acquisition of lands for the formation of the layout and accordingly the State Government initiated the acquisition proceedings.    At the stage of passing, award and handing over possession of the acquired lands some of the landowners had challenged the acquisition before the Hon’ble High Court. The Hon’ble High Court set aside the acquisition proceedings, as against the same OP preferred CLP before the Hon’ble Supreme Court and the same was dismissed on 21.02.2005 confirming the Order of the Hon’ble High Court. The Society had invested huge money on the process of acquisition.   There was further direction to the Government to return the lands to the landowners and thereafter pay to the society.   Ops-Society has to get back the money from the Government and 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 by the society 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.    It is stated that 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 case is similarly placed. Ops-Society have informed its members that there is no land to form a layout and they are requested to get the refund of the site deposited amount.    The complaint is barred by limitation. Hence, it is prayed to dismiss the complaint.

4. The complainant in order to substantiate the complaint averments filed affidavit evidence.  The Secretary of the Ops-Society filed affidavit evidence in support of the defence version.

 5. Arguments from complainants side heard, Ops side taken as heard.

 6. Points that arise for our consideration are:-

Point No.1 :- Whether the complainant has proved

                    the deficiency in service on the part of

                     the OPs?

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

                   entitled for the relief’s 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 in part

           Point No.3:- As per final Order.

R E A S O N S

8. At the out set it is not at dispute that the complainant being member of Ops-Society deposited amount of Rs.36,000/- on various dates from 16.01.1985 to 03.01.1994 as shown in the Pass Book issued by Ops. Ops have issued the Provisional Allotment Letter dt.31.10.1986 acknowledging the receipt of an amount of Rs.38,000/- and informing the complainant that a site measuring 2400 sq.ft at Chanakyapuri Layout has been allotted.  Subsequently, Ops were unable to form any layout on account of the land acquisition proceedings initiated by the State Government were quashed by the Hon’ble High Court and the same was confirmed in the CLP filed by the Ops-Society.     For the reply letter dt.16.08.2011 by Ops, the complainant has been informed that at present Ops are facing financial problem, they are expecting the amount at any time.   Soon after getting the funds they will inform the complainant to come and receive the cheque.  In another reply dt.13.11.2002 Ops have informed the complainant that the layout work at Chanakyapuri is expected to be completed by February or March 2003.    Soon after completion allotment will be made and if the complainant does not receive the site, the amount will be refunded after realizeation of the amount from allottee members.     It is pertinent to note that as per the defence version the acquisition proceedings were quashed by the Hon’ble High Court on 18.06.1991 when that being so we are unable to understand as to how the layout work was in progress and the same as expected to be completed by March-2003.   When the acquisition proceedings were quashed and the same was confirmed by the Hon’ble Supreme Court on 21.02.2005, it would have been fair enough on the part of the Ops to refund the amount received towards sital value from the complainant.   Ops have not produced any material to show that entire amount collected from the members towards sital deposit was deposited with the State Government towards the cost of the lands proposed to be acquired and that amount is still lying with the Government. The act of Ops neither forming any layout and allotting the site nor refunding the amount received towards sital deposit, amounts to deficiency in service on its part.  

9.  We are unable to accept the defence of the Ops that the complaint is barred by limitation. When once Ops accepted the deposit amount towards sital value with a promise to allot a site to the complainant, till Ops allot and register sale deed, recurring cause of action will accrue to the complainant.

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 case. Ops-Society is not a developing authority. The acquisition proceedings were quashed by the Hon’ble High Court in the year 1991 and the same was confirmed by the Hon’ble Supreme Court in the year-2005.   Even thereafter, after lapse of about 16 years Ops have not refunded the amount to the complainant.

10. The main relief sought by the complainant is for registration of the site allotted.   Ops have not formed any layout on account of land acquisition proceedings being quashed.  In the absence of any material that the sites are readily available free from encumbrances at the disposal of Ops as on today, we cannot consider claim for registration of the site. Hence the complainant is entitled for the alternatively relief, the refund of the amount along with interest. The Hon’ble State Commission in appeal No.5041/2010 dt.19.08.2011 in similar circumstances against the same Ops modified the Order passed in complaint No.2201/2010 to refund the amount with interest at 18% p.a. from the date of respective payments, till realization. On the basis of the said order, we are of the considered that the complainant is entitled for refund of the amount paid along with interest at 18% p.a. as compensation from the date of respective payments, till realization and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is allowed in part.

Ops are directed to refund an amount of Rs.36,000/- 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.

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

 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 30^th day of APRIL-2012.)

MEMBER                                                        PRESIDENT

Cs.