O R D E R<br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to allot an alternative site of the same dimension and to get the sale deed registered in favour of the complainant at the cost of the OP in the same layout and to pay compensation of Rs.3,00,000/- and cost on the allegations on deficiency in service. <br /> <br /> 2. The brief averments made in the complaint are as follows:<br /> <br /> Complainant being attracted with the advertisement and propaganda issued by the OP, who claims to be an association engaged in formation of residential sites of various dimensions in the form of a layout in and around Bangalore, thought of becoming member of the OP association. OP accepted the membership of the complainant. After receiving consideration of Rs.97,080/-. OP executed a registered sale deed on 31.08.2002 in favour of the complainant and also issued Hakku Pathra. But thereafter to the utter shock and surprise of the complainant, he came to know that the site allotted to him became the part and parcel of a CA sites acquired by the BDA. As such he is not able to take the actual and physical possession of the said site bearing No.1152, formed in survey No.30/2 at Srigandadakaval village, Yeshwanthpura Hobli, Bangalore North Taluk, measuring 50’ X 30’. Though OP registered sale deed in favour of complainant he is unable to construct his dream house. The repeated requests, correspondences and demands made by the complainant for allotment of alternative site in the said layout went in futile. Inspite of several requests OP failed to allot, register the alternative site. Hence complainant felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 3. On appearance, OP filed the version mainly contending that BDA is expected to release 55% of the land to form sites so as to allot them to the members, but unfortunately it granted permission only to 49.99%. The repeated requests and demands made to BDA to release the remaining land went in futile. Unfortunately the site allotted to the complainant formed part and parcel of the land. Which was not released by the BDA to the OP. In addition to that in pursuance of the orders of the Hon’ble High Court of Karnataka in Writ Petition No.26548/2005, they are not in a position to alter the said original plan. Under the circumstances they are unable to help the complainant. OP issued paper publication in Sanjevani dated 11.01.2008 and on 12.01.2008 in Samyutaka Karnataka calling upon the complainant to opt for alternative sites on the other layout to be formed by them near Doddaaladamara, Belalu Village, Bangalore. But complainant did not approach the OP. Even today OP is ready to provide alternative site at new layout in survey No.53 and 54 Belalu Village, near Doddaaladamara, Bangalore. Complainant without exhausting the said remedy has come up with this false complaint. Among these grounds, OP prayed for dismissal of the complaint. <br /> <br /> 4. In order to substantiate the complaint averments, the complainant filed his affidavit evidence and produced receipts, application for membership, Hakku Patra, notice dated 17.08.2006, copy of the registered sale deed dt.31.08.2002, list of sites released by BDA, copy of the list, notice issued by OP dated 04.11.2009. On behalf OP its Secretary Mr.Tukaram filed the affidavit evidence. In the affidavit though OP has sworn to the fact that annexure R1 to R5 are produced but infact OP has failed to produce any of the annexures. Then the arguments on complainant side heard. OP’s side taken as heard as OP and Advocate were not present.<br /> <br /> 5. 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 the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 6. 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 /> <br /> Point No.2:- Affirmative in part<br /> <br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 7. At the outset it is not at dispute that the complainant became the member of the OP association with a hope of purchasing a site of his choice in the layout formed by the OP at Srigandhadhakaval, Yeshwanthpura Hobli, Bangalore North taluk OP accepted his membership and sital value from the complainant. Further issued Hakku Patra and executed the registered sale deed. The documents to that effect are produced. <br /> <br /> 8. The evidence produced by the complaint supports the case of the complainant. There is nothing to discard his sworn testimony. Now it is the case of the complainant that though OP executed the sale deed in favour of the complainant, the complainant is unable to take physical possession of the same because of the fact that BDA has acquired that area to form CA sites. This fact is admitted by the OP. According to OP BDA is expected to release 55% of total area of the land acquired by OP for the said layout but it released only 49.99% and unfortunately the site allotted to complainant formed part and parcel of the land which is not released by the BDA. Though the complainant has invested his hard earned money he is unable to reap the fruits of his investment. He has lost his title and his money is blocked. <br /> <br /> 9. Further OP has contended that they are forming another layout near Doddaaladamara, Bangalore formed out of Survey No.53 and 54 of Belalu village. But no documents are produced to that effect.<br /> <br /> 10. It is the case of the complainant that still there are 400 sites lying vacant out of 1200 sites formed. A document to that effect is produced. This fact is not denied by the OP. OP having accepted the entire sital value and executing the sale deed, in fact neither given the physical and actual possession of the site nor refunded the amount. This act of the OP amounts to deficiency in service on the part of the OP. We are satisfied that complainant is able to prove the deficiency of service on the part of the OP. Hence he is entitled for certain reliefs. In our view justice will be met by directing OP to allot one of the sites in the remaining 400 sites which are at their disposal in Srigandadakaval, Yeshwanthpur. If it cannot be done, then in the alternative to allot a site of a same dimension for the same cost already received at Doddaaladamara layout if it is duly approved by the statutory authority. Once the complainant has already incurred the registration expenses. Again he cannot be saddled with expenses of registration. Hence site has to be registered at the cost of the OP and put the complainant in actual possession of the said site within a reasonable time. If that is also not possible then the complainant is entitled for the refund of his hard earned money with interest so also for compensation along with litigation cost with these reasons we proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to allot a site measuring 50’ X 30’ in Srigandadakaval, Yeshwanthpura Hobli within 3 months from the date of communication of this order. If for any reason it is not possible, then allot a site of a same size for the same cost already received at their Doddaaladamara Layout, Mysore Road, Bangalore carved out of survey No. 53 and 54 of Belalu Village. Register the site at the cost of OP and put the complainant in actual and physical possession within 6 months from this day. Failing in which OP is directed to refund the amount of Rs. 97,080/- paid by the complainant towards the sital value along with interest at the rate of 12% per annum from the date of sale deed i.e. 31.08.2002 till realization and also pay a compensation of Rs.1,00,000/- and litigation cost of Rs.1,000/-.<br /> <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 5th day of June 2010.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> gm. <br /> <br /> <br />