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

18^TH DAY OF DECEMBER 2015

O R D E R

SRI.P.V.SINGRI, PRESIDENT

This complaint is filed by the complainant under Section 12 of Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct the OP to allot him a site at Halage Vaderahalli.

2.      The brief averments made in the complaint are as under:

The complainant is working as Superintendent in Development Section of Bangalore University at Jnana Bharathi Campus, Bangalore.  The complainant became a member of the OP society in the year 1998 and his membership No. is 784/1988/89.  The OP society as per bye-law is required to allot site/house/apartment to the members as per the seniority of the members and cannot overlook the seniority. The OP society formed layout at Saneguruvanahalli near Basaveshwaranagar and allotted sites to its members.  Thereafter, the society acquired a land and formed a layout at Halage Vaderahalli adjacent to Rajarajeshwarinagar and formed sites.  The complainant paid a sum of Rs.2,25,000/- towards price of the site to be allotted to him.   The sites were allotted to other members in the year 2003.  However no site was allotted to the complainant despite his repeated request.  The complainant came to know that there are still three sites available for allotment at Halage Vaderahlli layout.  Therefore, he approached the OP to allot one of the sites to him, but the OP did not respond.  Therefore, he got issued a legal notice dated 21.03.2013.  Despite service of notice he was not allotted site in the said layout.  The OP deliberately is not allotting site to the complainant though he is a senior most member in the society.  The contention of the OP that the said three sites available at said layout are meant for allotment to members belonging to SC/ST is false.  Since, already several members of the said community have been allotted sites.

3. For the aforesaid reasons, the complainant prays for an order directing the OP to allot him a site of the value of Rs.10,00,000/- out of three remaining sites at Halage Vaderahalli.

4. In response to the notice issued, OP appeared through their Advocate and filed their version contending in brief as under:-

The complainant has filed a false and frivolous case against the OP society.  The complainant cannot seek any such directions in the hands of this Forum and this Forum has no jurisdiction to award relief as sought by the complainant.  There is no any deficiency in service on the part of the OP.   Therefore, the provisions of Consumer Protection Act, 1986 are not attracted.  It is true that the complainant has enrolled himself as a member of OP society in the year 1998.  Further, it is false to contend that he is entitled for a site belonging to senior most member of the society.  Whenever, the OP society formed a layout had invited applications from its members for allotment of the sites.  Accordingly, the members applied for sites and after due consideration the sites are allotted to the members.  Only those who have applied for sites in a layout will be considered for allotment of site and not all member of the society.  Merely because complainant is a member since 1998 does not get a right for allotment of site.  The OP society has to follow procedure as per the bye-law for allotment of sites.

 5. The OP society formed a residential layout at Halage Vaderahalli and invited applications from its members for allotment of 18 sites during the year 2003.  The complainant also applied for a site and deposited a sum of Rs.2,25,000/- with the Society.  The Serial number of his application was 35.  As per the resolution dated 08.10.2003 the OP society allotted 18 sites to its members.  Since, the complainant could not get a site, the society has communicated the same to the complainant and refunded the amount of Rs.2,25,000/- immediately.  The complainant has received the same and acknowledged the receipt of the said amount without any displeasure for the sole reason that his application number was 35.  The complainant having received the amount paid by him on 10.10.2003 did not challenge the refund of the amount for more than 10 years 2 months.  He did not raise his little finger for all these years and now he has come up with false allegation against OP.  The complainant did not apply for allotment of sites in the layout formed by the OP society in Ajjanahalli Lauout and Tharalu layout.  Therefore, he was not been allotted any sites in the said layout.   If at all the complainant was really interested in allotment of site he should have been diligent in submitting his application together with deposited amount within stipulated time.  However, the complainant did not do so.  The OP society has no ill-will against the complainant and they have allotted sites to all the deserving members who applied for sites as and when the application was called for from the members.  As per the memorandum issued by Government of Karnataka three sites have been reserved at Halage Vadrehalli layout for allotment to members belonging to SC/ST.   A resolution dated 21.09.2013 has been passed in the General Body by the OP society for allotment of the said sites to SC/ST as per the direction of the said notification. The guidelines issued by the Government of Karnataka are mandatory and the OP society cannot ignore the same.  No any sites have been left out in Halage Vadrehalli layout for allotment to anybody other than members belonging to SC/ST.  There is no any truth in the allegation made by the complainant against the OP Society.  The complainant is not entitled to relief as sought by him.

6. For the aforesaid reasons OP prays for dismissal of the complaint.

7. On the rival contention of the both the parties, the points that arises for our determination are as under:

1. Whether, the complainant proves the deficiency of service on the part of the OP as alleged in the complaint?

2. What relief or order?

8. The complainant to substantiate the allegations made in the complaint, filed his affidavit by way of evidence in lieu of oral evidence.  Similarly, the OP also filed affidavit evidence in support of the averment made in the version.  Both the parties have produced certain documents in support of their respective contention.  Both the parties also submitted written arguments.  

9. Perused the allegations made in the complaint, averments made in the version, the sworn testimony of both the parties, various documents produced by both the parties and other material placed on record.
10. Our answer to the above points:

11. Admittedly, the complainant who is working at Bangalore University at Jnana Bharathi Campus, Bangalore became a member of OP Society, a house/building/co-operative society, with an intention to secure allotment of a site in layout developed by OP society.  The complainant alleges that he being the senior most member of the society was overlooked by the OP society while allotting sites at Halage Vadrehalli layout and a sum of Rs.2,25,000/- paid by him was returned to him.  The complainant further alleges that though three sites are still available at the said layout the OP did not allot him a site out of the three available sites.  According to the complainant the OP society deliberately did not allot him site in the said Halage Vadrehalli layout. 

12. The complainant alleges that as per bye-law No.53 the OP society has to follow the seniority of the members while allotting the sites to its members and they cannot overlook the seniority of the members while allotting sites.  The complainant did not produce the bye-laws of the society to ascertain whether clause 53 of the bye-law provides for allotting of sites in accordance with seniority.  Therefore, we cannot believe that there is certain bye-law in the OP society requiring the said society to allot sites in accordance with the seniority of the membership. 

13. It is contended by the OP that as and when any residential layout is formed by the society, applications are invited from the members of the society for allotment of sites and accordingly the members desires of getting a site in such layout would apply together with necessary deposit amount and on the basis of the seniority of such applications the sites are allotted to the members. The OP society contended that in accordance with the procedure followed, applications were invited from among members of the society for allotment of sites in the year 2003, as soon as residential layout was formed at Halage Vadrehalli.  It is further contended by the complainant that he had also applied for a site and paid a sum of Rs.2,25,000/-. It is contended by the society that the sites were allotted as per the seniority of the application and since the serial number of the complainant was 35 he could not get any site.  Therefore, immediately on 09.10.2003 he was returned with the deposit amount of Rs.2,25,000/- by the OP society which he has acknowledged on 10.10.2003.  The complainant admitted that he has received back the said amount of Rs.2,25,000/- on 10.10.2003. 

14. OP further contended that when they formed a layout at Ajjanahalli layout, applications were invited from the members and the last date for submitting the applications was 15.12.2008. Similarly when the society formed a layout at Tharalu layout, Kanakapura Road the applications were invited from its members and last date for receipt of applications was 17.03.2011.  The complainant did not deny this procedure followed by the society for allotment of sites in the residential layout formed by them from time to time. The participation of the complainant by submitting an application for allotment of a site in the layout formed at Halage Vadrehalli by depositing Rs.2,25,000/- itself establishes that he was aware of the procedure followed by the society for allotment  of site.  The copy of the resolution and other material placed on record goes to establish that the sites were allotted not as per the seniority of the membership, but on the seniority of the applications received for allotment of sites in each layout formed by them.  Therefore, the allegation of the complainant that he was not allotted site despite his seniority in membership does not hold any water and cannot be accepted as true.  When the complainant was not allotted a site at Halage Vadrehalli he was immediately refunded the deposit amount of Rs.2,25,000/- which the complainant had received without a murmur.  This itself goes to establish that the complainant knew that he could not get site in the said layout because he was late in submitting his application for allotment of site.  If at all he was not satisfied with the procedure adopted by the society in allotment of sites in Halage Vadrehalli he could have challenged the same immediately thereafter.  However, he has kept silent for more than 10 years.  The complainant for the reasons best known to him never challenged the procedure followed by the society in allotment of sites in different layouts. 

15. It is contended by the OP society that three sites were left in Halage Vadrehalli for the allotment to the members of the society belonging to SC/ST.  The OP society produced the Government notification directing all the house/building/co-operative societies to allot 15% of sites in a layout to the members belonging to SC and 3% to members belonging to ST.  In pursuance of the said mandatory direction given by the state government the OP society has passed a resolution to allot the said three sites to the members belonging to SC/ST.  Since, there were more members belonging to SC/ST in the society, a resolution has been passed by the OP society, the copy of resolution which is produced, to allot the said sites to members belonging to SC/ST by auction.  The advocate for OP on 26.06.2014 filed a memo stating that in pursuance to the resolution passed by the society the said three sites, were auctioned on 25.05.2014 and the same were acquired by Sri.Muddaiah, Sri.Venkataiah and Sri.Kumarswamy.  The OP society is justified in allotting the said three sites to members belonging to SC/ST in pursuance of the mandatory direction given by the state government. Therefore, we are of the opinion that absolutely there is any truth in the allegations of the complainant that he was denied site at Halage Vadrehalli layout despite his seniority.

16. The complainant ought to have challenged the allotment of sites made by OP at Halage Vadrehalli layout, immediately after he was refunded with deposit amount intimating that he could not be allotted a site in the said layout.  The complainant has kept quiet for more than 10 years without raising any objections.  Therefore the complaint is certainly barred by limitation.  The complainant ought to have challenged the allotment of site within two years from the date of intimation dated 09.10.2003.  However, the complainant has not approached this Forum within two years from the date of communication dated 09.10.2003.

17. For the discussion made above we are of the opinion that the complainant is not entitled for any relief and the complaint filed by him is liable to be dismissed.

18. The order could not be passed within the stipulated time due to heavy pendency.  In the result we proceed to pass the following:-

ORDER

1. The complaint filed by complainant under section 12 of the Consumer Protection Act, 1986 is dismissed. 

2. No order as to cost.

3. Furnish free copy of this order to both the parties.

           (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 18^th day of December 2015)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

C.C.No.2420/2013

Witness examined on behalf of the complainant dated 23.01.2014

1. Sri.D.S.Raghu

Witnesses examined on behalf of the OP dated 24.02.2014

1. Sri.B.Eshwarachari, President                                           

MEMBER                               MEMBER                              PRESIDENT