BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

18^TH DAY OF FEBRUARY 2016

O R D E R

SRI.P.V.SINGRI, PRESIDENT

These complaints are filed by the complainants under Section 12 of Consumer Protection Act, 1986 against one and the same Opposite Parties (herein after referred as OPs).  The issue involved in both the complaints are one and the same.  Therefore, both these complaints are taken up together for disposal under this common order.

2. Both the complainants have filed these complaints with a prayer to direct the OP Society to allot and register an alternative site to them of the same dimension which was earlier allotted and registered in their favour, in the vicinity of the earlier site and compensation of Rs.1,00,000/- with litigation cost.

3. The complainants are the members of the OPs society, the Karnataka State D Group Employees Central Association. The OP society represented that they are the absolute owner in possession of 66 Acres 14 Guntas of land in Sy No.21/1, 25/1, 25/2, 25/3, 26/8, 26/9, 27/2, 27/3, 29, 30/1 and 30/2 situated in the limits of Shrigandhadakaval Village, Yeshwanthpura Hobli, Bangalore North Taluk and that same having been acquired by the Government after following the procedures for the benefit of the members of the OP society.  The complainants were also represented that the said layout has been approved by the Bangalore Development Authority and the same has been conveyed to them by  its letter dated 24.06.1999.  The complainant M.G.Satyanarayana was allotted a site bearing No.1215-A and the complainant Smt.K.V.Manjula was allotted a site bearing No.1220-A both formed in Sy.No.30/1 and both were issued possession certificates. Subsequently the OP society executed registered sale deed in respect of the above mentioned site in favour of respective complainants on receiving valuable consideration on 23.12.2002.  The site allotted to the complainants measures 50 x 30 feet, totally measuring 1500 square feet. 

4. Both the complainants after execution of the registered sale deed in their favour, and after taking necessary permission from competent authority constructed residential house by investing of their life time savings.  Subsequently, the complainants were informed from the officials of BDA that the sites which have been allotted to the complainants are not in the layout plan and the same are earmarked and reserved for civic amenities.  Thereafter the officials of BBMP and BDA have physically dispossessed the complainants from their respective properties and demolished the entire structure which virtually threw the complainants onto the streets.  The complainants immediately brought the same to the notice of the OPs.  The OPs replied that the BDA has approved only 40% of the layout as against promise of 55% and as such there has been some problem in the allotment and thus shifted the burden on the BDA.  On repeated requested the OPs promised the complainant that immediately after the release/approve of 6% more of the land they will be allotted alternative sites.  However, till today the OPs have not allotted alternative sites to the complainants, despite repeated oral request and representations.   The complainants have reliably learnt that the BDA has released the revised plan and approved 6% more of the land.  Even thereafter the OPs have not allotted alternative sites to the complainants out of the newly released land.  Though alternative sites are available in the same layout, as released by BDA, the OPs are not taking any steps for allotment of alternative sites to the complainants as promised. 

5. When the OPs failed to allot alternative sites despite available, the complainant got issued legal notice to the OPs calling upon them to allot alternative sites immediately.  However OPs have not complied with the demand made in the legal notice and also failed to reply.  The conduct of the OPs amounts to deficiency in service.  The complainants have been put to great hardship, mental agony and inconvenience for having lost huge amount of money in purchasing the site and in putting up residential house.  The complainant lost all their life time savings.  The OPs with an oblique motive or not allotting alternative sites.

6. For the aforesaid reasons, the complainants prays for an order directing the OPs to allot and register an alternative site to each one of them of the same dimension which was allotted and registered in their favour earlier, in and around the same layout and award them compensation of Rs.1,00,000/- for causing financial loss, mental agony together with litigation costs.

7. The OPs entered their appearance through their advocate in both the complaints and filed identical version.  The brief averments made in the version are as under:-

It is true that the complainants are members of the society, the object of which is to provide residential sites.  Both the complainants were allotted sites as mentioned in the complaint and the society executed registered sale deed in respect of the sites allotted to the complainants and handed over possession to the complainants.  After allotment of sites, the BDA ear marked a portion of land for civic amenities, such as park and playground etc. The BDA granted only 49.99% of land for residential sites though as per the Karnataka Gazette Notification dated 19.05.2006 50% of the total area shall have to be ear marked for residential sites.  The OP society requested the BDA to release the remaining 6% of the land for the purpose of allotment of sites to its members.  The OP society has intimated to the members through paper publication and through post individually to some members.  The society has submitted modified plan to the BDA to allot alternative sites to those members who have lost their sites and Hon’ble High Court of Karnataka have disposed of the Writ Petition No.7947/2009 filed by the OP for enhancement of the percentage of ratio of land for residential purpose.  The OP is ready to pay the amount deposited by the complainants or allot alternative sites in their proposed layout.  There is no deficiency of service on the part of the OPs.  The deficiency in service if any is not because of the OPs but because of judicial interferences and errors  committed by BDA authority etc.

8. For the aforesaid reasons, the OPs prays for disposal of both the complaints.

9.  After the versions were filed by the OPs, the complainants were called upon to file their affidavit evidence.  Accordingly both the complainants filed their affidavit evidence in lieu of oral evidence reiterating the allegations made in the complaint.  Thereafter, the OP-1 President of the society filed his affidavit evidence in both the complaints in support of the contentions raised in the version.  Both the parties have submitted their written arguments and produced certain documents to substantiate their respective contentions.

10.  On the rival contention of the both the parties, the points that arises for our determination are as under:

1. Whether, the complainant proves deficiency of service as alleged in respective complaints?

2. What relief or order?

11.  Perused the allegation made in the complaints, the averments made in the versions, the sworn testimony of complainants as well as OPs, the documents relied upon by both sides, written submission submitted by both parties and other material placed on record.

12. Our answer to the above points:

13. POINT NO.1:  The OPs admitted that both complainants are members of their society and further admitted the allotment of site in favour of complainants and also execution of registered sale deed in favour of complainants and handing over the possession of the same to the complainants.  The copies of the sale deeds produced by the complainants also proves that each one of them were allotted sites each measuring 50 x 30 feet in the layout formed in Sy.No.30/1, situated within limits of Shrigandhadakaval Village, Yeshwanthpura Hobli, Bangalore North Taluk.  It is also not in dispute that the complainants were put in possession of the respective sites.  It appears from the material placed on record that the complainant Sri.M.G.Sathyanarayana obtained power connection to the said site may be with an intention to put the certain construction.  The complainant Smt.K.Manjula has mortgaged the said site in favour of the Hanumanthanagar Co-operative Bank Limited by deposit of title deeds to raise loan to the tune of Rs.2,50,000/-.  Thus both the complainants have right over the respective sites having in lawful possession of the same.

14. As alleged by the complainants and also as admitted by the OP the authorities from BDA as well as BBMP dispossessed both the complainants from their respective sites and demolished structure they had put for the reason that the said sites are part of civic amenities earmarked in the said layout.  Thus, it is evident that both the complainants have been dispossessed from their respective sites for the reason that the sites allotted to them were part of the civic amenity site, which was earmarked for park.  The OP took up a contention that subsequent to allotment of sites the BDA earmarked an area in which present two sites were located, as civic amenity sites.  The learned advocate for the complainants disputed this claim of the OP and argued that the OP society allotted the sites to the complainants in an area which is earmarked for park (civic amenity) in the layout plan.  Admittedly, at the time of approval of the layout the BDA and other competent authority earmark the civic amenity sites and permit the society to allot the sites formed in the remaining area of the layout.  Neither the BDA nor any other government agency will earmark any area as civic amenity area subsequent to approval of the layout.  Therefore, it is apparent that OP society has deliberately allotted sites to the complainants in an area which is earmarked for park in the approved layout.  It appears that the complainants without being aware of the fact that the sites allotted to them are within civic amenity area have obtained registered sale deeds and also took possession of the same and further proceeded to put up construction in the same.  The conduct of OP society in allotting sites to the complainants in an area earmarked for civic amenity in the approved plan amounts to gross deficiency in service.  When the complainants brought to the notice of the OP their dispossession from the sites from the BDA and BBMP authority, the OPs have promised them to allot alternative site in the same layout after release of 6% land from the BDA or in any other layout developed by them.  The OPs in their version also reiterated that they would allot alternative sites to both the complainants either in the same layout after release of 6% of expected land by the BDA as per government notifications dated 16.05.2006 or any other layout developed by them.  However, the fact remains that till this date the OP society has not allotted alternative sites to the complainants.  Though the complainants have been dispossessed from the respective sites during middle of 2012, the OPs have not made efforts till today to allot them alternative sites.  The OPs who are guilty of allotting sites to the complainants in an area meant for civic amenity should have allotted them alternative sites by this time. Except making empty promises, so far the OPs have not acted upon their promise of allotting alternative sites.  The OPs in their version and sworn testimony have undertaken to allot alternative sites to both the complainants or refund the consideration amount received from them.  In the given circumstances of the case, we are of the opinion that the OPs have to be directed to allot alternative sites of same dimension to the complainants within a reasonable time or refund the consideration amount together with interest at 18% per annum from the date of execution of the respective sale deed till the date of realization.  Further the conduct of the OPs in allotting sites to the complainants in civic amenities area and subsequent dispossession of the sites must have caused the complainants great mental agony, hardship and inconvenience, for which the OPs have to be directed to pay compensation of Rs.1,00,000/- to each of the complainants as claimed by them. 

15. The order could not be passed within the stipulated time due to heavy pendency.  In the result we proceed to pass the following:-                  

                                      O R D E R

1. The complaint No.1083/2013 and 1084/2013 filed by complainants U/s.12 of the Consumer Protection Act, 1986 are allowed. 

2. The OPs are ordered to allot alternative sites to both the complainants of the dimension of 50 x 30 feet either in the same layout or in other layout developed by them and execute registered sale deed in favour of the complainants at their cost (OP 1 & 2) within three (3) months from the date of communication of the order.

3. If for any reasons the OPs are unable to allot alternate site to the complainant, they shall refund a sum of Rs.97,080/- being consideration amount to each of the complainants together with interest at 18% per annum from 23.12.2002 till the date of realization.

4. Further the OPs shall pay compensation of Rs.1,00,000/- to each of the complainants towards deficiency in service together with litigation cost of Rs.5,000/-.  The OPs shall comply the order within a period of three (3) months from the date of communication of the order.

5. The original order shall be kept in the file of the                                  CC No.1083/2013 and a copy of it shall be placed in                          CC No.1084/2013. 

6. Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 18^th day of February 2016)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

CC.No.1083/2013

Witness examined on behalf of the complainant dated 12.08.2013 Sri.M.G.Sathyanarayana

Witnesses examined on behalf of the OP Sri.B.M.Nataraj President of OP Sangh, dated 21.08.2013.

CC.No.1084/2013

Witness examined on behalf of the complainant dated 12.08.2013 Smt.K.N.Manjula

Witnesses examined on behalf of the OP Sri.B.M.Nataraj President of OP Sangh, dated 21.08.2013.

MEMBER                               MEMBER                              PRESIDENT