Date of filing:29.12.2021

                                                                                                Date of Disposal:21.12.2023

BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 21^st DAY OF DECEMBER 2023

PRESENT

Mr. K B SANGANNANAVAR: JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

APPEAL NO. 1163/2021

1. Shivamogga City PWD and Irrigation Department

Employees Housing Society (R.),

Rep. by its President

Mr.Somashekar

S/o Late S Chikkanna,

Aged about 79 years,

R/at Basavanaganur Road,

Navule, Shivamogga-577204.

2. Shivamogga City PWD and Irrigation Department

Employees Housing Society (R.),

Rep. by its Secretary,

Mr.S.K.Siddalingappa

S/o Late S Kotrappa,

Aged about 58 years,

R/at Basavanaganur Road,

Navule, Shivamogga-577204. …….. Appellants

(By Mr.H.B.Rudresh, Adv.)

-Versus-

1. E Beerappa,

S/o Eshwarappa Kambali,

Aged about 54 years,

R/at Kurubara Beedhi,

Savalanga Road,

Navule,

Shivamogga          …….. Respondent

(By Mr.Rama Rao N, Adv.)

ORDER

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:

1. This is an appeal filed by Jdr Nos.1 and 2 in EA/12/2019 on the file of District Consumer Disputes Redressal Forum, Shivamogga, aggrieved by the order dated 04.12.2021. (The parties to this appeal will be referred as to their rank assigned to them by the Forum below).

2. The brief facts of the case to be stated for the purpose of deciding this appeal would be, EA/12/2019 pending on the file of Forum below is arising out of an award passed in CC/91/2015 dated 10.09.2015, wherein parties to the complaint entered into compromise petition U/o XXIII Rule 3 of CPC, was decided on 09.09.2015. 

3. It was stated one Mr.E.Beerappa raised Consumer Complaint on 17.04.2015 in CC/91/2015, wherein Forum below proceed to record compromise terms and ordered to allow the complaint in terms of compromise petition and held terms of compromise petition shall form part and parcel of the order.  In order to have better understating in our view it would be appropriate to extract and note down the terms of compromise as they are –

“1. It is submitted that, the complainant has filed the above complaint against the opponent alleging the deficiency in service in not allotting site to him.

2. Upon mutual deliberations and discussions, the complainant and the opponent have agreed to end up the above case on the following terms of compromise:

1. That, the opponent admits that the complainant is entitled for allotment of site from the Opponent.

2. Since, no vacant sites are available with the opponent to make allotment, the opponent, hereby admits that it will allot site measuring 30’X50’ to the complainant on priority basis, on payment of its value in the layout that may be formed by it in future.”

4. Pursuant to this Compromise Petition Forum below on 10.09.2015 ordered as below –

“1. Case called.Sri.HRSS advocate for the complainant and Sri.APK advocate for the OP Nos.1 and 2 are present.Complainant present.OP2 the secretary of the Shimogga Society is present.

2. A compromise petition is filed under Order 23 Rule 3 CPC singed by the complainant and opponent No.2 for and on behalf of the said society and they are indentified by their respective advocates is filed.  Both parties pray for disposing of this case in terms of the compromise petition.
3. Both parties are questioned.  Both have submitted that they have voluntarily agreed to the terms and conditions set out in the compromise petition and they have also admitted the execution of the said petition and pray for passing appropriate orders.
4. In view of the compromise petition filed and the execution of the same, admitted by the parties who were identified by their advocates this compromise petition is taken on file.  The present complaint is allowed in terms of the compromise petition.  The compromise petition shall form part of this order.  File closed.”

5. The above order was passed on 10.09.2015, the complainant Mr.E.Beerappa, sought for execution of the said order in EA U/s 27 of CPA, 1986, on 01.07.2019.  And in this EA on 20.09.2019 Executing Forum held in para-04 – “Admittedly, the complaint filed by the complainant was disposed on 10.09.2015.  But after lapse of 04 years Jdr has not taken any steps to grant site to the complainant/Dhr by telling that they could not acquire land to form the layout.  It clearly shows that the Jdr by taking undue advantage of not mentioning the time limit in the compromise petition has postponing to allot the site to the complainant which is un-just not permissible and held Dhr is liberty to take steps for execute the order passed in CC/91/2015”. 

6. Aggrieved by the above such order Jdr Nos.1 and 2 preferred A/1456/2019 U/s 27A of CPA, before this Commission and this Commission held as there is no adverse order against the Jdrs and the order of the Forum below is in accordance with the terms of Compromise Petition, thereby dismissed the appeal. After dismissal of the appeal Executing District Forum ordered to issue NBW against Jdr Nos.1 and 2 on 17.10.2019 and 16.11.2019 respectively was again assailed U/s 27A of CPA, 1986 before the Commission in A/1596/2019 and the Commission held – Executing Forum has to hold an enquiry and pass the final order since orders dated 17.10.2019 and 16.11.2019 are still pre-mature.  Accordingly, held appeal is not maintainable followed by the decision of the Hon’ble NCDRC in A/69/2018.  Thereby dismissed the appeal on 07.01.2021.  Further to take notice of the fact found from this appeal papers, Jdr Nos.1 and 2 have also preferred A/339/2021, also came to be disposed off at the stage of admission itself, wherein held in para-05 - “In the above such terms of compromise, District Commission has to hold an enquiry, whether site measuring 30’X50’ has agreed by the parties for allotment is available with the OP/appellant Society?  Further to hold an enquiry whether sale price is deposited with the OP for allotment?  Since under the compromise terms itself it was agreed as per term No.2 for allotment of site measuring 30’X50’ to the complainant/respondent on priority basis on the payment of its value in the layout that may be formed by it in future.  Thus the Commission below having not been enquired into these two vital aspects before issuance of non-bailable warrant against appellants herein has to be held contrary to the terms of the compromise.  In other words all such consequences of legal effect shall have to be examined by the Executing Court before proceed to issue warrants.”, and held appeal is still premature.  Accordingly, held such appeal could not be maintainable U/s 27A of CPA, thereby disposed off the appeal. 

7. After disposing of the above matters arising out of the order on the compromise terms entered between the parties to the complaint, now the Jdrs/appellants are in this appeal, aggrieved by the order dated 04.12.2021, wherein Executing Forum directed Jdrs/appellants to allot the vacant site available in site No.113 of Navule Village, Shimogga within 15 days from the date of receipt of this order after receipt of the difference amount of consideration if any, failing which Dhr is at liberty to take steps against the Jdrs for executing this order.  It is this order being assailed in this appeal by the Ops contending that Forum below failed to hold an enquiry, as directed by the State Commission in the appeal stated supra wherein directed the District Commission to hold an enquiry, whether site measuring 30’X40’ ft., as agreed under compromise petition is available for allotment? Whether the sale price is deposited by Dhr with OP Society?  And the Court Commissioner appointed by the District commission had failed to make mention of the existing play-ground situated in the said area and failed to note down the playing equipments installed. These are all situated in the site No.113 which was not mentioned by the Court Commissioner. Further contending Executing Forum failed to appreciate site No.113 is reserved for playground meant for the Arunodaya School, since the days of formation of layout. It was also contended the Forum below failed to consider as there is no bifurcation/division between site No.113 and 114 and they are surrounded by compound wall and there will be a direct entry from site No.114 to 113 and vice-versa to enable children to have direct entry in the vacant playground, which cannot be allotted in favour of complainant/Dhr pursuant to the compromise award. 

8. In the above such circumstances, learned counsel for appellants would submit impugned order dated 04.12.2021 is contrary to facts and law is liable to be set aside with a direction to Forum below to appoint yet another Court Commissioner to hold fresh enquiry in respect of site No.113 and 114 to elucidate more clarity facts found at  site No.113 and 114 formed by OP/Jdr Society are required and no harm would caused to the parties, however on the    contrary, learned counsel for Dhr, would submit that Executing Forum rightly directed Jdr Society to allot vacant site available in site No.113 of Navule Village accepting the report of Court Commissioner who had found a vacant site measuring 73’X27.6’ft., in site No.113. 

9. In view of rival contentions of respective parties, it would be just and proper for us to re-examine or re-evaluate the materials placed on record before the Forum below by the parties to the EA, since in our view it appears case on hand is not so simple as understood by the Commission below. 

10. It is to be noted herein that the Complainant had placed EC in Form-16 for the period from 01.04.2007 to 24.08.2021 along with Property Tax Register Extract in Form-3 showing property bearing No.2966/1952 Sy.No.31/4B and 31/4C, 31.5, 33, 32, 31/4A, 34/1C and in this document we could see mentioning of extent of the property even as on 23/24 entire extent has been shown as found in Form-16 of EC.  In other words either site No.113 or 114 or any of the site numbers could be seen or shown.    Further the complainant has produced 03 photographs to show that site is available, but facts remain found from enquiry that complainant has kept mum for 04 to 05 years which give rise to the Commission to draw an inference that he better knew the exact position of the so called sites available for allotment. The enquiry reveals OP Society neither formed a layout nor called the complainant to deposit site price for allotment.  In other words, when sites are not formed by OP Society either in the said layout or in where in and around Shivamogga, question of calling upon complainant to deposit site price for allotment does not arise at all.  According to Jdr Society site No.113 is reserved for playground, is not available for allotment.  What we found in EC and Property Tax Register Extract is in respect of mentioning of Sy.Nos., as they are with no changes from 01.04.2007 to 24.08.2021.  It is to be noted herein the compromise award was passed in CC/91/2015 on 09.09.2015, suffice to hold what was the existing position of Society as on the date of compromise terms was never changed even on the date of passing impugned order. It is therefore, in our view, the documents produced by Dhr as stated above are not come to his assistance to show that site is available for allotment pursuant to compromise award as contented by counsel for appellants, has some considerable force and in our view was not properly appreciated by the Forum below.

11. We have also examined the report of the Court Commissioner. According to him site No.113 and 114 are vacant sites, but facts remained the Commissioner also found a school building in Site No.114 and also found 02 sites namely site no.113 and 114 and they are abutting each other. Learned counsel for the appellant submitted, it was brought to the notice of the learned Commissioner about the resolution dated 27.07.2003 for having reserved site No.113 and 114 in favour of school and this resolution was earlier to the compromise award. The Commissioner has also prepared the sketch of school building site situate in Site No.114 and vacant site No.113 is abutting the said site and both sites are covered with compound wall.  In such circumstances, in this summary proceeding, deciding such nice and complicated questions and to come to a conclusion site abutting the school building is available for allotment in favour of complainant pursuant to the compromise award is nothing but disturbing part of the impugned order.  In other words, Executing Forum failed to appreciate not only on factual matrix but the intricacies of effect of documents placed on record. The Forum below failed to exercise its wisdom to understand mandate of the compromise award and failed to understand not only the report of Court Commissioner but the Revenue Records or the Municipal Records, wherein one has to make out prima-facie that a vacant site is not available for allotment in favour of complainant and if it could be seen such vacant site abutting the school building covered with compound wall cannot be construe it as a vacant site but a play ground which was in existence even before the date of compromise entered between the parties to the complaint.  He waited for 05 years after the compromise order and he knew no vacant site is available yet had  taken a chance to file EA on the ground that abutting the school building site is kept vacant and  is available for allotment in his favour?. How it could be? Even we can draw an inference that school does not mean only a building   but together with a playground. 

12. In the above such circumstances, contention of counsel for appellants that vacant site is none other playground meant for playing school children and is not a site to be allot either in favour of the complainant followed by the terms of compromise award  has some considerable force.  At the cost of repetition  as  stated above site Nos.113 and 114 are covered  with compound wall is again yet another circumstance to believe the case of the Jdr Society that they are reserved the said area or sites meant to run a school as decided during 2002-2003 in General Body Meeting dated 27.07.2003.  And in order to corroborate such contentions appellants have placed certain documents for having purchased the sports materials during 2003 amounting Rs.44,089/- and Rs.2,800/- and they have also produced few photographs to show existence of the school building and the compound Wall, were not at all appreciated by the Executing Forum before passing the impugned order.  In our view, if such vacant site was available for allotment why complainant kept mum all these years is again yet another circumstance to hold such sites are not available to be allot in the said layout.  He waited for 05 years to file EA knowing fully-well the factual situation of the said layout.  Learned counsel for appellant would submit without playground school cannot be run and school institution and it is very difficult for the children to play to develop their physical fitness besides playground is mandatory for a school as mandated under Education Act and as per rules prescribed by Department of Education, Government of Karnataka as submitted has some considerable force were not been properly appreciated by the Forum below.

13. Learned counsel also submits that Society has not purchased any of the land at present to form layout.  Hence question of allotment of site as sought in the EA does not arise. But facts remained OP Society had entered into compromise terms with complainant and the OP Society is ready to allot site in due course of time if layout would be formed. Now we have to question ourselves, is it executable? And in our view this question has to be answered by the Executing Forum, whether the terms of compromise could be executable and if not, as to how the complainant having been obtained an award has to be adequately compensated, since the OP Society still not formed any layout.

14. We have inclined to observe herein before entering into compromise terms, either complainant or his advocate or  he Forum below have failed to consider as to the future action of the matter in case no layout would be formed by OP. It is found from the enquiry no layout is formed pursuant to compromise award. The contentions of the parties in our view are contrary to each other and they cannot justify the impugned order on any of the grounds namely either for the reasons recorded by the Forum below or for the grounds set out by the appellant society that no layout is formed. 

15. In this case it is also to be taken notice of the fact school is not a party either in CC/91/2015 or in EA/12/2019 and these legal implications were not at all considered by the Forum below before passing impugned order.

16.  In the above such circumstances, when site No.113 is reserved for playground for the sports usage of students of Arunodaya Higher Primary School situated in site Nos.83, 84 and 114 and when Jdrs have shown on 27.07.2003, Society reserved site No.113 meant for playground for the school and when it is found from the enquiry as to the existence of the compound wall all around the school and playground situate in site No.113 and 114 which cannot be bifurcated, since they are covered by compound wall and a main gate attached to the site, no need to appoint yet another Commissioner  to ascertain, whether sites are available in the said layout, in particular site No.113 for allotment in favour of complainant/Dhr.  In such conclusion, the direction of the Executing Forum to allot site No.113 in favour of complainant pursuant to compromise terms or award as ordered on 04.12.2021 has to be held highly erroneous not only on facts but the law, is liable to be set aside. Accordingly Commission proceeds to allow the appeal.  Consequently, set aside the impugned order dated 04.12.2021 passed in EA/12/2019 by District Consumer Disputes Redressal Commission, Shivamogge, with a direction to hold further enquiry as observed and decide EA in accordance with law.

17. Send a copy of this Order to the District Commission and parties to the appeal.

        Lady Member                                 Judicial Member               

*GGH*