COMPLAINTS FILED ON:10.01.2012
DISPOSED ON:03.05.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
3rd DAY OF MAY 2012
PRESENT:- SRI. B.S. REDDY PRESIDENT
SRI.A.MUNIYAPPA MEMBER
COMPLAINT Nos. 63/2012, 68/2012 & 72/2012
Complaintno.63/2012 Complainant | R.P.Ramakrishnan S/o Late R.P.Pachaiyappan, Hindu, Aged about 62 years, Residing at No.626, 4th ‘C’ Main Road, O.M.B.R.Layout, Banaswadi, Bangalore-560 043. Adv:Sri.P.Thulasipathi Naidu. |
Complaintno.68/2012 Complainant | Smt.K.Nirmala W/o K.V.Chalamaiah Chetty, Residing at No.302, Manish Priyamvada Apartments, 7th Main, 18th Cross, B.T.M.2nd Stage, Bangalore-560 076. Adv:Sri.P.Thulasipathi Naidu. |
Complaintno.72/2012 Complainant | K.P.Nandakumar S/o Late Pachappa, Aged about 62 years, Residing at No.73/B, 21st Cross, 2nd Block, Rajajinagar, Bangalore-560 010. Adv:Sri.P.Thulasipathi Naidu. |
OPPOSITE PARTY/S | The Vyalikaval House Building Co-Operative Society Limited, No.110, 6th Main, 11th Cross, Malleswaram Bangalore-560 003, Presently at No.62, 7th Main, Between 8th & 9th Cross, Malleswaram, Bangalore-560 053. Represented by its Secretary. Adv:Sri.Shivaramaiah |
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COMMON ORDER
SRI. B.S.REDDY, PRESIDENT
These complaints are filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants seeking direction against the Opposite Party (herein after called as O.P) to allot the sites, alternatively to refund the amount received towards sital value and to pay compensation on the allegation of deficiency in service.
Since Op is common in all 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:
OP-Society is formed with an object to develop and allot the Housing sites to its members. The mother of the complainant in complaint No.68/2012 and the complainants in complaint No.63/2012 and 72/2012 became the members of the OP-Society with an intention to acquire sites. OP promised to allot the sites, accordingly, the complainants paid amounts towards the costs of the sites and Op issued provisional letter of allotment of sites situated at Devarachikkanahalli, Kodichikkanahalli, Hongasandra and Arakerem Villages (i.e., Bannerghatta Housing Project) and at Visveswarayanagar layout, Bangalore.
The complainant in complaint No.63/2012 deposited an amount of Rs.18,000/- on 23.04.1988. In complaint No.68/2012 complainant deposited an amount of Rs.55,000/- (Rs.50,000/- on 18.07.2011, Rs.5,000/- on 20.11.1999). In complaint No.72/2012 the complainant paid total amount of Rs.68,472/- from 20.05.1987 to 29.04.1994 on various dates. Op failed to form any layout and allot the sites as assured. The complainants demanded refund of the amount. OP failed to comply the demand. The complainants have given representation to the OP in the month of October-2011 and December-2011 for refund of the amount. Since OP neither formed the layout and alloted the sites nor refunded the amount, the complainants felt deficiency in service and filed these complaints.
3. On appearance, Op filed version with similar contentions in all these complaints. It is admitted that these complainants applied for allotment of sites and made certain payments towards site deposit, OP issued provisional allotment letter. It is contended that the Op 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 amongst its members. Even though the acquisition was notified by the State Government for acquisition of the lands required for the proposed layout but the acquisition proceedings could not be completed, as some of the land owners had challenged the acquisition before the Hon’ble High Court, Hon’ble High Court passed Order on 18.06.1991 quashing the acquisition proceedings. OP preferred CLP 12/04-107/91 and the same was dismissed confirming the Order of the Hon’ble High Court on 21.02.2005. There was further direction to the Government to return the lands to the landowners and thereafter pay to the Society. Op has to get back the money from the Government. 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 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 the site deposit amount shall not carry interest. The Hon’ble Supreme Court in AIR 2010 SC 486 held that 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. The OP has requested the members to take refund of the amount deposited. The complaints are barred by limitation. 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-Society 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 each of these complainants applied for allotment of sites to OP by paying the cost of the site and OP has issued the Provisional allotment of letters. An amount of Rs.18,000/- was deposited by the complainant in complaint No.63/2012 and Rs.68,472/- was deposited by the complainant in complaint No.72/2012 and an amount of Rs.55,000/- was deposited by the complainant in complaint No.68/2012. OP has issued the receipts acknowledging the receipt of the amounts from these complainants. OP was unable to form the layout and allot the sites on account of the land acquisition proceedings initiated by the State Government for acquisition of the lands required for the project were being quashed by the Hon’ble High Court on 18.06.1991 and the same being confirmed by the Hon’ble Supreme Court in C.L.P.12/04-107/91 on 21.02.2005. When the OP-society was not in a position to form the layout and allot the sites, it would have been fair enough on its part to refund the amount to the complainants. There is no material in support of the defence version that the entire amount deposited by the members towards cost of the site was deposited in the State Government towards the cost of the acquisition of the lands and that amount still lying with the Government. When the acquisition proceedings were quashed by the Hon’ble High Court and the same was confirmed by the Hon’ble Supreme Court on 21.02.2005, even after lapse of 16 years OP has retained the amount deposited thereby accrued wrongful gain to itself and caused wrongful loss to the complainants.
9. 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. Op-Society is not a developing authority and even after lapse of 16 years of quashing the acquisition proceedings, the deposited amount has been retained by OP. There is no merit in the contention 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 complainants, till OP allot and register the sale deeds, recurring cause of action will accrue to the complainants.
10. The complainants have produced the copy of the orders in Appeal No.1211/2011 & 1214/2011 by the Hon’ble State Commission wherein the order of the District Forum to the extent of interest awarded has been modified against the same OP in complaints filed by other complainants in similar cases enhancing the interest from 12% p.a. to 18% p.a. from the respective date of payments. On the basis of the said order, we are of the view that the complainants are entitled for the interest by way of compensation on the amounts deposited at 18% p.a. Accordingly, we proceed to pass the following:
O R D E R
All these complaints are allowed in part.
In complaint No.63/2012 OP is directed to refund an amount of Rs.18,000/- with interest at 18% p.a. from 23.04.1988 till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.
In complaint No.68/2012 OP is directed to refund an amount of Rs.55,000/- 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.
In complaint No.72/2012 OP is directed to refund an amount of Rs.68,472/- 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.
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.63/2012 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 3rd day of MAY– 2012.)
MEMBER PRESIDENT
CS.,
