BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 26th JULY 2008<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> COMPLAINT NO.1179/2008<br /> <br /> <br /> COMPLAINANT Sri.K.S.Krishnamurthy,<br /> Aged about 54 years,<br /> S/o Late K.S.Subba Rao,<br /> No.68/2, 6th Cross, 5th Main,<br /> Chamarajpet,<br /> Bangalore – 560 018.<br /> <br /> Advocate – Sri.N.R.Nagaraj<br /> <br /> <br /> <br /> V/s.<br /> <br /> <br /> <br /> OPPOSITE PARTIES 1. The Secretary,<br /> ITI Employees Housing<br /> Co-operative Society Ltd.,<br /> Dooravaninagar,<br /> Bangalore – 560 016.<br /> <br /> Advocate – Sri.P.Anand<br /> <br /> 2. The President,<br /> ITI Employees Housing<br /> Co-operative Society Ltd.,<br /> Dooravaninagar,<br /> Bangalore – 560 016.<br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to allot and convey the site measuring 30’ x 40’ in the layout formed by the OP at Mallathahalli Village and for such other relief’s on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant became the member of the OP House Building Co-operative society with a fond hope of acquiring a site. He enrolled himself in the year 1982 opted to purchase a site measuring 30’ x 40’. He has paid Rs.30,000/- and other additional sum as per the demand made by the OP towards the cost of the said site. OP issued the provisional allotment letter dated 09.08.1992 allotting a site No.548. Thereafter executed the registered sale deed on 12.02.1997 and issued the possession certificate on 30.03.1997. When complainant approached the BDA for change of Khatha and registration of Khatha in the year 2001, to his utter shock and surprise it was not considered for more than 7 years. Ultimately on 23.01.2008 complainant got the endorsement from the BDA stating that Khatha can’t be changed in his name because the so called site allotted to him by the OP society forms part and parcel of the civic amenity area reserved for public use by the BDA while accepting the said layout. Then immediately complainant caused the legal notice to OP on 02.04.2008 requesting them to allot an alternative site in lieu of site No.548, there was no response. Though there are certain vacant sites still available at the disposal of the OP as per the endorsement issued by the BDA that too to the extent of 625 sites, OP failed to heed to the demand of the complainant. Hence complainant felt deficiency in service on the part of the OP. For no fault of his he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP they did acquired substantial quantity of land to complete Mallathahalli project but unfortunately Government of Karnataka excluded Survey No.21 which is measuring 7 Acres. Under such circumstances they are unable to complete the said project in toto. Thereafter some how BDA approved only 743 sites and blocked 114 sites including that of the complainant. All those sites cleared by BDA were allotted to the respective members. OP making hectic efforts to compensate the complainant and other aggrieved whose sites were taken away by the BDA for the purpose of park. In the General Body Meeting which is attended by the complainant it is proposed to allot a site in their layout at Nagarur Village, Dasanapura Hobli. But again there was a hurdle. BMRDA has issued the comprehensive development plan wherein the lands acquired by the OP for Nagarur project were also involved in the so called industrial zone. Ultimately OP took the assistance of a developer to form the layout at Bethanagere Village, Dasanapura Hobli but he claimed for Rs.500/- per square feet. The members if they are ready to pay the enhanced sital value, OP is prepared to allot a site in Bethanagere Village. Of course 50% of the cost will be borne by them by selling lands of Nagarur village and remaining 50% is to be borne by the intending purchaser. As on today there are no sites available at Chandra layout, Yellakunte or Mallatahalli. So there is no deficiency in service on the part of the OP. If the complainant is ready to pay Rs.500/- per square feet as per the General Body Meeting resolution they are prepared to allot a site otherwise they are ready to refund what ever the amount that is paid by the complainant. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP have also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant became the member of the OP House Building Co-operative Society in the year 1982 and opted to purchase a site measuring 30’ x 40’ at Mallatahalli layout proposed by the OP. It is also not at dispute that OP has collected the sale consideration of the site to the tune of Rs.30,000/- and odd and on 09.08.1992 OP allotted site No.548 provisionally measuring 30’ x 40’. It is also not at dispute that OP executed the sale deed with respect to the said site on 12.02.1997 and issued the possession certificate on 30.03.1997. Now it is contended by the complainant that after obtaining the possession certificate he approached the BDA to register the Khatha in his name with respect to the said site in the year 2001.<br /> 7. Why complainant made so much of delay of 4 years in approaching BDA to change his khatha in his name is not known. Further it is contended by the complainant that his repeated requests and demands made to OP went in futile. No such correspondence alleged to have been made with the BDA with regard to the registration of the khatha right up to 2008 is produced. According to the complainant unfortunately BDA has issued an endorsement on 26.03.2008 that the site provisionally allotted to him forms part and parcel of civic amenity area under the approved plan. Again why complainant kept mum from 2001 to 2008 without getting khatha being changed in his name from BDA is not known. So there is a delay caused by the complainant in redressing his grievance. That delay is not satisfactorily explained.<br /> <br /> 8. It is further contended by the complainant that after getting the endorsement from BDA he caused the legal notice to OP on 02.04.2008 seeking for allotment of alternative site in place of site No.548. Copy of the legal notice is produced. One thing is admitted that the site provisionally allotted to the complainant forms part and parcel of the civic amenity area. On the receipt of the legal notice from the complainant OP did try to accommodate the members like complainant by allotting alternative site in their other project. Unfortunately no such sites were available at their disposal. When complainant alleges that BDA has issued an endorsement that 625 sites at Mallathahalli Layout are yet to be released. Complainant being the member of the said society would have insisted OP to get released the said sites, but no such steps are taken. Again there is some kind of carelessness on the part of the complainant. It is also not at dispute that OP with a fond hope to compensate the complainant and other members who lost their site in civic amenity area took up the matter before General Body Meeting. In the said General Body Meeting OP thought to provide them the site at Nagarur Village, but again there appears to be a hurdle. The BMRDA has issued the comprehensive development plan wherein the lands acquired by the OP for Nagarur project were involved.<br /> <br /> 9. It appears ultimately OP has given up the Nagarur project also. Thereafter OP took the assistance of a developer to form the layout at Bethanagere village. But the said developer fixed the price as Rs.500/- per square feet. The matter was again taken up before the General Body Meeting and in the General Body Meeting it was resolved to sell the land acquired in Nagarur village in the market at prevailing rate and further resolved to utilize 50% of the sale proceeds to reduce the rate in favour of those members whose sites were blocked in Mallatahalli and 50% of the sale proceeds to reduce the rate in favour of those members who applied for allotment of site at Nagarur layout. The said resolution was ratified subsequently on 24.02.2008. These facts are not at dispute.<br /> <br /> 10. The complainant being the member of the said society and party to the said General Body Meeting resolution is bound by the said resolution. So if the complainant is really interested to acquire a site he has to pay the cost of the site Rs.500/- per square feet and take the benefit of the resolution with regard to 50% of the cost being borne by the OP. Offer made by the OP appears to be reasonable and acceptable. OP has produced the resolution copy. Contents of the said resolution and the decision taken by the General Body Meeting are not at dispute. OP has also produced the list of waiting allotees to acquire the so called sites in their layout. Contents of the said documents are not disputed by the complainant. It has also come in the evidence that the land acquired by the OP for the formation of the Chandra Layout certain unauthorized persons have occupied the same and the complaint is being lodged to evict the said unauthorized occupants.<br /> <br /> 11. We have gone through the pleadings of the parties as well as the documents produced by the litigating parties. In a same kind of dispute this Forum has already passed an order against the OP in complaint No.1023/2008. The present case on hand the facts as well as the relief claimed are almost identical. Under the circumstances present complainant is also entitled for the same kind of relief which is ordered in complaint No.1023/2008. The said complaint is disposed of on 20.06.2008. With these reasons we answer point Nos.1 & 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to convey residential site measuring 30’ x 40’ free from all encumbrances at Bethanagere village project developed by the developer by collecting sital value at Rs.500/- per square feet and registration and other miscellaneous expenses and execute the registered sale deed, put him in possession. It is further ordered OP to bear 50% of the sital cost at the above said rate as undertaken and promised in their version and evidence as well as in G.B.M. In view of the nature of dispute no order as to costs. This order is to be complied within two months from the date of its communication. <br /> <br /> If the complainant is not agreeable to pay sital value at the rate of Rs.500/- per square feet as ordered, OP is directed to refund the sital value of Rs.58,578/- together with interest at the rate 9% p.a from February 1998 till realization. This order is to be complied within two months from the date of its communication. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 26th day of July 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br />