Date of Filing: 13/12/2011
Date of Order: 31/01/2012
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 31st DAY OF JANUARY 2012
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.Sc.,B.L., PRESIDENT
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
C.C. NO.2254 OF 2011
P.S. Uthappa,
S/o. Late P.M. Ganapathi,
Aged About 86 years,
R/at: No.112, Venkata Sai Nilayam,
Akkiyappa Garden, Mohan Kumar Nagar,
Yeshvanthpur, Bangalore-560022.
Rep. by GPA Holder M.P.S. Naidu, (Agent).
(Rep. by Sri.B.K.Sundara Rajan, Advocate) …. Complainant.
V/s
Bangalore Development Authority/BDA
B.D.A., formerly C.I.T.B.,
Rep. by its Commissioner,
T.Chowdaiah Road,
Bangalore-560 020.
(Rep. by Sri.T.P.Rajendra Kumar Sungay, Advocate) …. Opposite Party.
BY SRI H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The complainant has made this complaint seeking direction to the opposite party to allot site No.42 to P.S. Uthappa, S/o. P.M. Ganapathy, to pay Rs.50,000/- for violating R.T.I. Act for not providing information and documents etc., to pay Rs.50,000/- for deficient of public service, to pay Rs.20,000/- for cost of the proceeding and litigation expenses, on making certain allegations.
2. The opposite party appeared through their counsel and filed its version denying each and every allegation made in the complaint and contested the matter.
3. Accordingly the parties have filed their respective affidavits and documents. The arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether the complaint is filed well within time?
- Whether there is any deficiency in service?
- What order?
5. Our findings are:-
Point (A) to (E): As per the final Order
for the following:-
-:REASONS:-
Point A to C:-
6. The complaint is as un-understandable as it could be, for that reason we did not summarize the complaint. The complaint in whole is reproduced herein:-
2. The complainant submits Annexure ‘A’ is the Notarized GPA dated:31.10.2011 executed by P.S. Uthappa, hereinafter called as principle in favour of M.P.S.Naidu herein after called as Agent.
3. The complainant submits that Annexure ‘B’ dated: 08.12.1958 is the agreement of article having purchased the land from Smt. Shivamma (Owner of the property) by X Financers (Parties 1 & 2 and site Nos.19, 20, 41 and 42 given (allotted to promoters 3, 4, 5 and 6/ 6th party P.M.Ganapathy, not allotted the site, measuring 60’ x 45 ft, as recited in page No.3, para 6 of the Agreement dated: 8.12.1958 and terms and conditions may be read as part and parcel of this complaint. The parties 1 to 6 have subscribed their signature at Page No.4 of agreement and 6th party being expired and his son P.S.Uthappa, the legal heir claiming the his father site No.42, at Rajamahal Vilas Layout as per the terms of the agreement.
4. The complainant submits that Annexure ‘C’ – dated: 15.10.1959 Oct.15 1959) is the Xerox copy of the Mysore Gazette Notification and the contents, intents may be read for relief/s claimed by the party. The land named as “RAJAMAHAL VILAS LAYOUT” acquired the C.I.T.B, now B.D.A. for public purposes in which P.M.Ganapath’s name and with other names mentioned proves the khathadar and Anubhavdar.
4(a). The complainant submits that Annexure ‘D’ – dated: 19.08.1977 is the death certificate of P.M.Ganapathy.
5. Annexure ‘E’ is the layout with boundaries and sites formed by the BDA (OP) at Rajamahal Vilas Layout.
6. The complainant submits Annexure ‘F’, dated: 24.08.2009 is the endorsement issued by BDA to the agent for his letters /application dated 28.05.2009, 18.07.2009, 21.07.2009. The sites No.42 was kept for Allotment in abeyance by earlier C.I.T.B, as recited in the letter.
As per the Agreement dated: 08.12.1958, Two members (1) Achiah Setty (2) G.B.Shankar Reddy are Financiers, other members are promoters.
7. It is submitted that on 14.10.1959 for public purpose the C.I.T.B/B.D.A. had acquired land and formed sites allotted the sites to respective persons.
8. The complainant submits that Annexure ‘G’, dated: 30.04.2010 is the Govt.’s Chief Secretary’s letter issued to Commissioner, BDA regarding allotment of sites and Sl No. 26 proves that site No.42 is to be allotted to P.S. Uthappa S/o. P.M.Ganapathy,
9. The complainant submits that Annexure ‘H’ dated: 15.11.2011 is the reply letter received by the Agent from the Karnataka Govt. Vikassoudha under R.T.I. Act.
10. The complainant submits Annexure ‘I’ dated: 26.03.2010 is the letter issued by Government’s/Governor’s Secretary to Principal P.S.Uthappa to furnish information regarding allotment of site formed in Rajmahal Vilas Layout, Bangalore.
11. The complainant submits that Annexure ‘J’ – dated: 3.10.2011 issued by Karnataka State Commission for address to City Development for information to be given to the agent.
12. The complainant submit that Annexure ‘K’, dated: 11.10.11 is the R.T.I. application issued to BDA, Bangalore by Advocate for information and allocation (allotment) of sites and documents. But till today 9.12.2011 no reply is received from the BDA and violated R.T.I. Acts, for having not replied within 30 days as per R.T.I. Rules to the Principle P.S.Uthappa, 86 Senior Citizen.”
This is as bald as it could be. The complainant claims relief under an agreement purport to have been executed between D.Achiah Setty, G.B. Shankar Reddy, G.B. Manjunath Guptha, G.C. Ramaiah, N.V. Narayan and P.M. Ganapathi with respect to certain properties on 08.12.1958. That means as on 08.12.1958 the cause of action to file or prosecute a proceedings started but this complaint is filed on 13.12.2011 hence it is hopelessly barred by time as rightly contended. Merely the complainant or anybody writing letters or making any correspondences will not enlarge or abridge the limitation. In IV (2011) CPJ 114 the National Commission has held thus:-
“Consumer Protection Act, 1986 – Sections 2(1)(g), 21(b), 24-A – Flat – Agreement – Non-honouring of commitments – Limitation – Forums dismissed complaint – Hence revision – Contention, continuous and long correspondence between parties and hence case of continuing cause of action – Not accepted – Once a period of limitation starts, it cannot be enlarged or extended by prolonged correspondence between parties – Provision regarding limitation being of mandatory nature, For a below was duty bound to determine whether complaint is within limitation period – Complaint barred by limitation.”
This in all force applies to the facts and circumstances of this case. Hence complaint as brought is hopelessly barred by time.
7. In any event the complainant claims RIGHT from one P.M.Ganapathi. P.M. Ganapathi died on 17.08.1977, hence taking the cause of action as aroused as on 17.08.1977, even then the complaint is hopelessly barred by time as rightly contended.
8. Here the complainant is one P.S.Uthappa he claims to be the adopted son of P.M.Ganapathi, that adoption is denied by the opposite party. No document is produced to show that the complainant is adopted by P.M.Ganapathi at any point of time or on any date. No document is produced to show that P.M. Ganapathi has adopted the complainant. The complainant had sworn to an affidavit on 12.02.2010 and sent it to the opposite party. According to that affidavit the relevant portion of the affidavit reads thus:-
“¢£ÁAPÀ: 21.12.1961gÀ°è ²æÃ. ¦.JA. UÀt¥ÀwgÀªÀgÀÄ £À£ÀߣÀÄß ¸ÁPÀĪÀÄUÀ£ÁV zÀvÀÄÛ vÉUÉzÀÄPÉÆArgÀÄvÁÛgÉ. bÁ¥Á PÁUÀzÀzÀ°èAiÀÄÆ ¸ÀºÀ §gÉzÀÄPÉÆnÖgÀÄvÁÛgÉ.”
That is to say on 21.12.1961 P.M.Ganapathi had taken the complainant as fostered son. That means the complainant is not the adoption son but he is only a fostered son. The fostered son will not have any right in the property as an adopted son. Even that stamp paper executed by P.M.Ganapathi on 21.12.1961 is not produced before this Forum. The complainant therefore has to seek his relief elsewhere as rightly contended.
9. The complaint is not filed by the complainant but it is filed by its GPA holder M.P.S. Naidu. According to the GPA it has been executed by executor P.S.Uthappa for looking after the immovable properties to be allotted by BDA on the basis of the agreement dated: 08.12.1958. That means the complainant has not become the owner of the any property nor any allotment is there. It is only for enforcement of an agreement dated: 08.12.1958 the power of attorney has been executed for that the remedy is only to file a suit and not this complaint.
10. Further GPA says it is effective even after death of the complainant. Hence it is not a GPA – it is not registered. It is a conveyance. Hence complaint on the basis of GPA which is invalid and void is not maintainable.
11. Further it is seen that the complainant wants site No.48 has to be allotted to the complainant. Which is that site? where it is situated? what is its dimension? what is its value? what is the boundaries? All remained? This type of prayer is outside the purview of the consumer forum as rightly contended. If the complainant wants a particular site, he must give its description in full and seek relief before the Hon’ble High Court or the Hon’ble Apex Court or before the Civil Court as he deem fit with proper pleadings that has not been done. This relief amounts to mandatory injunction or writ of mandamus. This cannot be given by this Forum.
12. The other prayer is to award Rs.50,000/- for violating of the R.T.I. Act. This is also outside the jurisdiction of this Forum. If there is violation of any law that too RTI Act he has to approach the authorities under the RTI Act. For which this order will not come in the way.
13. The complainant wants certain amount towards deficient of public service. This is a relief sought for tortuous Act for that he has to approach Civil Court.
14. The complainant wants certain amounts towards costs of the proceedings. As the complainant has not made out any case in his favour how can he succeed. Alas the complaint has to be dismissed with costs. Be that as it may.
15. The complainant has not purchased any service from the opposite party at any point of time nor there is any deficiency in service in that regard. Here the agreement is between some other parties to share the amount of acquisition and selling it to the public for higher price. That means it is the commercial transaction entered in to between the parties in the year 1958, this is outside the scope of the consumer protection act. Regarding that agreement the opposite party is not a party to the agreement. Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Dismissed.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 31st Day of January 2012)
MEMBER PRESIDENT
