BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.109/2015

DATED ON THIS THE 23^rd December 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     The complainant filed the complaint under section 12 of the C.P.Act, 1986, against the opposite party, alleging deficiency in service and seeking a direction to allot a site measuring 30 x 40 ft, at Bogadhi VIllage, Mysuru and to pay Rs.19,50,000/- compensation with other reliefs.
2.     The complainant applied for a residential site with opposite party, by becoming a member on 15.04.1989.  A residential site was allotted by opposite party, on payment of entire sale consideration.  Possession was handed over.  On measurement, complainant found shortage of total area and brought the same to the knowledge of opposite party, who assured to resolve the issue.  All necessary documents executed in favour of the complainant and paid the necessary tax to the concerned authority.  The complainant got dug a borewell in the site.  Later on complainant noticed, some strangers encroached about 8 feet including the borewell dug.  Requests made to opposite party, to rectify the encroachment and to proceed with the construction work went in vain.  The complainant made representation to the co-operative department authorities, who have not taken any action.  Hence, the aggrieved complainant, filed the complaint seeking reliefs.
3.     The opposite party denies the allegation.  It admits a site measuring 30 x 40 ft. has been allotted to the complainant on payment of the sale consideration at Anandnagar.  The opposite party has given the possession of the site and denies the handing over of a site of lesser dimension.  Thereby, opposite party submits there is no deficiency in service on its part and prays for dismissal of the complaint.
4.     To establish the facts, the complainant filed his affidavit and relied on several documents.  The opposite party filed its affidavit.  Written arguments filed by both parties, heard the oral submissions.  Perusing the material on record, posted the matter for orders.
5.     The points arose for our consideration are:-

1. Whether the complainant establishes the deficiency in service on the part of opposite party in not allotting a residential site measuring 30 x 40 ft. in Anandanagar layout, Bogadi, Mysuru and thereby entitled for the reliefs?
2.  What order?

6.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

7.    Point No.1:- The complainant intended to purchase a site, become a member of opposite party on 15.04.1989.  On payment of entire sital value, the opposite party allotted a residential site on 30.12.2002 and possession given on 17.07.2004.
8.   There was discrepancy in measurement of site and the same was brought to the notice of opposite party.  A lease cum sale agreement executed on 22.07.2004 and executed a registered sale deed on 28.11.2005 in favour of the complainant, in respect of the scheduled site.  After obtaining the khata transfer, the complainant also paid tax to MUDA.
9.   The complainant obtained necessary plan approval from MUDA on payment of requisite fees on 03.11.2011.  A borewell was dug and construction work was in progress.  On 10.11.2011, the complainant noticed some stranger constructed the wall, encroaching about 8 ft. of his site, including the borewell dug by him.  The complainant requested the opposite party, to rectify the unlawful encroachment of his site by strangers and also got issued a letter on 12.11.2011 and requested the opposite party to resolve the issue, but in vain.  As such, complainant alleged the deficiency in service on the part of opposite party.  Narrating the entire facts, a legal notice caused on 12.03.2014, to the opposite party and also to other authorities under Department of Co-operative Societies.  However, no action has been initiated against opposite party.  As such, the aggrieved complainant filed the complaint and sought for the reliefs.
10. The opposite party admitted the complainant as its member with membership No.686 w.e.f. 15.04.1989.  On receipt of the full payment in respect of the site, it has allotted a site measuring 30 x 40 ft. in its layout popularly known as Anandnagar.  It denied the allegation of the site allotted was measuring only 30 x 38 ft.  It is contended that, it has put the complainant in possession of the site measuring 30 x 40 ft. and issued the possession certificate.  The complainant got mutated his name in all the documents with the concerned authorities and obtained the khata transfer endorsement and also paid the tax to the authority.  As such, on handing over the possession of the site to the complainant, the responsibility get seized.  Thereby, the allegation against the opposite party does not survive and hence contended that, the complainant is not entitled for any reliefs and as such, prays for dismissal of the complaint.
11. On perusal of the material on record, the allotment of a residential site by opposite party has been established by the complainant.  The opposite party established the allotment of site measuring 30 x 40 ft. in Anandanagar layout of opposite party society.  The photo copies of the documents in respect of the site also confirms to the allotment of site measuring 30 x 40 ft. in favour of the complainant.  The possession certificate, khata transfer, endorsement and tax fixation also confirms the allotment of site measuring 30 x 40 ft.  Further, the complainant failed to establish by means of cogent evidence to establish the encroachment of his property by strangers.  It is the bounden duty of the complainant, to protect the property, when the possession has been handed over to him.  As such, the contention of deficiency in service on the part of opposite party is not established by the complainant.  As such, we opine that, the complainant is not entitled for any compensation from opposite party.    Accordingly, the Point No.1 is answered in the negative.   
12. Point No.2:- In view of the above, we proceed to pass the following

:: O R D E R ::

1. The complaint is hereby dismissed.
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 23^rd   December 2016)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER