Sri.D.Krishnappa,<br /> President<br /> <br /> 1. This is a Complaint presented by the Complainant against the opponent under section 12 of the Consumer Protection Act, 1986. <br /> 2. The grievances of the Complaint in brief are: that he was a member of the opponent Housing Co-Operative Society was allotted site No.1 of Temple Road measuring 3950 Sq. ft. by allotment letter dated 29.10.1990. Thereafter, the opponent executed a lease-cum-sale agreement on 05.03.1991 and the same was registered on that day and possession was delivered to him. Thereafter, he got the Khatha changed to his name, paid tax and has been in possession of it. That the opponent on 11.02.1998 served a letter on him claiming to have withdrawn site no.1, which was allotted to him, which is renumbered as 87, on the ground that it was required for public purpose without consulting him and without his knowledge. That he on 10.07.2006 in order to apply for sanctioned plan for the construction of building placed the relevant papers before the opponent for its approval, but the opponent did not process it and thereafter he did not get any response from the opponent. That he later on got issued a legal notice to the opponent, which met with an untenable reply and therefore contended that the opponent by not approving his papers for obtaining sanctioned plan has committed deficiency in service and therefore has prayed for a direction to the opponent to process his papers, to survey the site as per the schedule in Annexure-C, to compensate him for harassment and mental agony and to award compensation of Rs.75,000/- with interest at 12% p.a.<br /> 3. The opponent has filed it’s version admitting allotment of a site to the complainant, which has been renumbered as site no.87 as contended by the complainant and also executing the lease cum sale agreement in his favour. The opponent further denying the other allegations made in para 7 has contended that on 24.01.1998 it has decided to provide Civic amenity to the members of that layout by constructing Vinayaka Temple, as it is the need and desire of the occupants of that area. Therefore, it has resolved through a resolution to withdraw the site of the complainant besides withdrawal of sites of 5 more persons, and the complainant is bound by that. The complainant through his letter dated 29.03.2004 agreed for receiving an alternative site, therefore he cannot now contend to the contrary and therefore he is estopped from pleading contrary to his admission to take an alternative site. It further denying the other allegations has stated that the complainant can get an alternative site of same measurement in another phase of that layout, therefore he cannot exhibit indifferent attitude. The complainant has violated terms and conditions laid down by it. That allotment of site was a provisional one and the complainant is bound by all the terms and conditions laid down in the allotment letter and the bye-law, that this Forum has no jurisdiction and also lacks pecuniary jurisdiction, as such the complaint is not maintainable. The complainant is not entitled for any relief and therefore has prayed for dismissal of the complaint.<br /> 4. During enquiry in to the complaint, the Complainant reiterating the Complaint allegations has filled his affidavit evidence with some documents and letters. On behalf of the opponent, it’s Secretary has filed affidavit by re-asserting the stand they have taken in the version, besides producing some copies of the letters and photographs of a temple and layout. <br /> 5. We have heard the counsel for both the parties and perused the records.<br /> 6. On the above contentions, following points for determination arise.<br /> 1. Whether the opponent has right to withdraw the site once allotted to it’s members on the ground that it is required for Civic amenity at a later stage?<br /> 2. Whether the Complainant proves that the Opponent has caused deficiency in service by not clearing proposed plan submitted to it for constructing a dwelling house proposed to built on the allotted site?<br /> 3. Whether the complainant is entitled for relief as prayed for?<br /> 4. What order?<br /> 7. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 & 3 : In the Affirmative.<br /> Point no.4 : See the final order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- As could be seen from the version and affidavit evidence filed by the opponent, the opponent has admitted to had allotted a site bearing no.1, which is renumbered as site no.87 out of the sites formed in Dasanakoppal Village, Martikyathana Halli, Mysore. It has also admitted the execution of a registered lease cum sale agreement in respect of that site in favour of the Complainant and also issued possession certificate on 29.10.1990. The claim of the Complainant that he thereafter got khatha changed to his name paid assessment to the local body has not been denied. Therefore, there is no dispute with regard to the fact that the Complainant was allotted a site in question took possession of it and was in peaceful possession and enjoyment of the sale. As could be seen, the lease cum sale agreement was executed and registered on 05.03.1991 and possession was delivered on 29.10.1990. There was no problem for the Complainant, with regards to his title and possession of the allotted site till he received a letter of the opponent dated 11.02.1998, under which the opponent informed the Complainant that the site allotted to him was decided to be withdrawn in it’s Board meeting dated 24.01.1998 by invoking clause 16 of the allotment letter dated 05.03.1991. Therefore, it is clear that the opponent purported to have invoked clause 16 of the allotment letter and passed a resolution in it’s Board Meeting to withdraw the site allotted to the complainant for public purpose. The letter do not disclose the specific public purpose for which they decided to withdraw the site. Besides, that on examination of clause 16 of the allotment letter referred to above, it also not confer any right on the opponent to withdraw the site allotted lease cum sale agreement was executed and possession was delivered.<br /> 9. The allotment letter is produced by the Complainant with this complaint. This letter contain as many as 24 clauses, clause 16 on the basis of which the opponent Board said to have exercised their power of withdrawing the site reads as under:<br /> “The allottee shall take the clearance of the Society for connecting a sewage line and water line. The sewage line should be routed to the earmarked chamber provided at the each individual site.” <br /> On cursory reading of this clause in our view has no relevance to the subject of authorizing the opponent to withdraw the site, therefore, apparently it do not empower to do so. The other clause of the allotment letter also do not empower the Society to take back or withdraw a site already allotted on the ground of requirement for public purpose or for any other purpose for that matter except authorizing the opponent to take punitive actions for violating any terms or clause of allotment letter. Therefore, the contention of the opponent that they have decided to withdraw the allotment made in favour of the complainant, is without authority and is illegal.<br /> 10. Further it could be seen that the opponent after 9 years after executing a registered lease cum sale agreement and delivering possession to the complainant unilaterally resolved to deprive the complainant by withdrawing the site allotted to him. Therefore, in the absence of any such authority, the action of the opponent in our view is arbitrary coupled with high handedness, therefore is not justifiable one.<br /> 11. It is further brought to our notice by the learned counsel for the opponent that the opponent resolved to withdraw sites of as many as 6 members out of that 4 have already surrendered their sites, except this complainant and another and withdrawing of their sites is for construction of a temple. Admittedly as per the sanctioned plan produced by the opponent, the opponent has already earmarked a land for construction of temple and that land is separated by a road called temple road from the site allotted to the complainant. Therefore, when the opponent earmarked a separate land for temple purpose, formed sites and got it approved by the competent authority, it cannot now again say the site of the complainant is required for construction of temple. The opponent has not specifically contended as to why when the land has already been earmarked for temple the site of the complainant is required. The opponent therefore when ceased of the issue of allotment of site long back cannot usurp powers which are not with it to divest the title unilaterally. The opponent finds it require any extra land for it’s activities, it can do so by any other legal method that is available and not by this method of either withdrawing or directing to surrender. <br /> 12. The learned counsel representing the opponent in the course of arguments submitted that the complainant to whom the decision of withdrawing his site was communicated had agreed to surrender it by accepting an alternative site. Therefore he cannot now go back and deny and he is estoppled from doing so. The counsel in support of his arguments that the complainant had agreed to surrender the site referred to the letter of the complainant dated 29.03.2004. No doubt, the complainant in this letter has stated that the offer of the opponent to allot an alternative site measuring 50 x 80 ft. i.e. site no.800 D is accepted and stated that the same can be registered in his name immediately. But, in the same letter he has put the condition as under:<br /> “I reiterate that I must get a corner site in exchange of my existing corner site, it to be fair and adequately compensatory in return for my gesture” <br /> The letter also reveal that the complainant was awaiting for the reply of opponent. This offer of the complainant has contended by the counsel for the opponent is not a blanket one. With this letter, the Complainant agreed for surrendering the site, on the opponent allotting a suitable corner site in that layout. Even this offer of the Complainant cannot be used as a weapon to deprive of the complainant of the site allotted to him by using the estoppel clause. The same is not applicable under the facts and circumstances of this case. Therefore, we are constrained to hold that the opponent has no authority to withdraw the site allotted to the Complainant and the action it has proposed to take is unsustainable and we therefore answer point no.1 in the negative.<br /> 13. Points no.2 and 3:- The complainant in his affidavit evidence has deposed that he in order to put up construction on the allotted site prepared a draft of sanctioned plan and presented it to the opponent as required under clause no.19 of the allotment order, but it did not take any action, and is squatting of those papers. The opponent in it’s letter dated 11.10.2006 informed the complainant that they have not cleared the papers presented by him for getting the sanctioned plan for the reasons that they have taken decision to recall the site allotted to him. With this, it is manifest that the opponent failed to discharge it’s functions as enumerated in clause 19 of allotment letter for the reasons that they have decided to recall the site allotted to the complainant. Its omission or inaction in not clearing the papers presented by the complainant on the guise of recalling the site, in our view is impressible. Since we have already held that recalling of site allotted to the complainant as has been now done by the opponent is not legal and then it goes without saying that non-processing of the papers of the complainant as required under clause 19 of the allotment letter amounts to deficiency in service, for which, the opponent in our view is accountable. Therefore, we have no hesitation to hold that the Complainant has proved that the opponent has caused deficiency in their service.<br /> 14. The learned counsel representing the opponent argued that this Forum has no jurisdiction to entertain the complaint. But, has not been able to demonstrate before us on this point. The Complainant who was a member of the opponent has been allotted a site for the amount he has paid and the opponent who has allotted a site issued allotment letter, is bound to follow the liability clauses that are enumerated in the allotment letter by rendering service as agreed upon. Therefore, the Complainant would be a Consumer as defined in clause (d) of section 2 and the opponent is bound to render service as found from sub-section (o) of section 2 of the definitions. Therefore, we find no substance in the arguments of the counsel for the opponent. The learned counsel further argued that the complaint in question cannot be decided by this Forum as it require elaborate evidence and cross-examination which cannot be done in a summary jurisdiction and therefore it is only a Civil court can deal with it. As could be found from the facts and merits of this case there are no complex of facts, the adjudication of this complaint has not warranted any elaborate evidence, cross-examination scanning of voluminous of documents. The simple issues involved in this case have been highlighted, which require only limited materials for effective adjudication, as such the Forum has power to deal with it by exercising it’s summary jurisdiction. The opponent has produced certain photographs of existing temple in the concerned layout and also photographs depicting certain areas of the layout, which in our view are not very much relevant for deciding the dispute in question between the parties.<br /> 15. It is found from the facts and circumstances of this case that the complainant who is a senior citizen was allotted a site in the year 1991 has been administered a shock during February 1998 threatening to withdraw the site and the opponent has kept that shock and threat alive for all these years till this day, exhibiting uncertainty to the complainant of his dream of having house in Mysore. Even the gesture of the complainant to accept an alternative corner site has not been utilized by the opponent by offering him an alternative corner site, if they are in real need of the site for explanation for the temple activities. Even during the hearing of this case, it was proposed to the opponent to consider that, but it did not yield any fruitful result. Therefore, the Complainant in our view has suffered mental stress, uncertainty and agony, which needs to be compensated by awarding compensation.<br /> 16. The Complainant in the Complaint has sought relief like directing the opponent to survey the site allotted to him and also to fix the boundaries. The Complainant is not entitled for those reliefs, because he has been allotted a site, possession was delivered to him including executing a registered lease cum sale agreement. Therefore he was definite of the area and the boundaries of the site he was given and thereafter it is he who is responsible to preserve and protest the site with boundaries and if necessary to get it measured. Even otherwise, the opponent itself in reply to letters of the complainant through letter dated 27.10.1995 has given and reiterated the boundaries and other details as sought by the complainant. Therefore, such relief cannot be granted. However, he is entitled for the relief of a direction to the opponent to process the papers and for compensation. Hence, we answer point no.2 and 3 in the affirmative and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The opponent Society is hereby directed to clear the proposed dwelling house plan submitted to it, if they are in accordance with requirement within 30 days from the date of this order, failing which the opponent shall pay damages of Rs.1,000/- per month for every month of default until it clears the paper as required under clause 19 of the allotment letter.<br /> 3. The opponent shall also pay compensation of Rs.30,000/- to the complainant within 2 months from the date of this order, failing which the opponent shall pay interest at 12% p.a. from the date of this order till the date of payment.<br /> 4. The opponent shall also pay cost of Rs.1,000/- to the complainant being the cost of this complaint. <br /> 5. Give a copy of this order to each party according to Rules.<br /> <br />