Karnataka

Bangalore 4th Additional

CC/745/2018

Smt Anasuya Devi, - Complainant(s)

Versus

Karnataka Telecom Department Employees Co operative Society Ltd., - Opp.Party(s)

22 Jul 2019

ORDER

Complaint Filed on:27.04.2018

Disposed On:22.07.2019

                                                                              

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

    DATED THIS THE 22^nd JULY OF 2019

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

CC No.745/2018

 

 

 

COMPLAINANT	Smt.Anasuya Devi, W/o Sathyamurthy, Aged about 69 years, Residing at No.935, 11th Main, HAL II Stage, Indiranagar, Bengaluru – 560 038.   Advocate – Sri.K.Rama Bhat.         V/s
OPPOSITE PARTy	Karnataka Telecom Department Employees Co-operative Society Ltd., Amimas Castle, No.706, First Floor, C.B.S Road, HMT Layout, R.T Nagar, Bengaluru – 560 032.   Represented by its President.   Advocate – Sri.S.R Narayanappa

                                       

 

O R D E R

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

This complaint is filed by the complainant against the Opposite Party (herein after called as OP) under section 12 of the Consumer Protection Act, 1986.  The Complainant prays to direct the OP to pay a sum of Rs.6,56,000/- paid by the complainant and Rs.2,56,000/- towards damages along with interest @ 21% p.a and award cost of the proceedings.

 

2.      The brief facts of complaint is as under:

 

Complainant became a member of OP society on 03.05.2006 by paying a membership fee, vide membership No.7349.  The complainant submitted that the OP intended to form a layout called ‘Brammanandha Sagara’ Ilawala Village, Ilawala Hobli, Taluk & District Mysore.  The complainant had applied for the site in the said layout measuring 50’x80’ and made payment of 2,00,000/- on 03.05.2006, Rs.2,28,000/- on 31.07.2006 and Rs.2,28,000/- on 28.04.2007 respectively.

 

The complainant further submitted that she is a senior most member of the society, site ought to have been allotted to her by OP society.  Further OP made an allotment in favour of junior members.  The complainant hopefully waiting for the allotment of the OP society, till today OP has not allotted the site to the complainant.  Hence complainant approached the OP in the month of December 2017 for refund of the amount along with interest.  The OP not refunded the amount nor allotted a site in favour of the complainant.  Hence complainant issued a legal notice to the OP on 30.01.2018.  Notice has been duly served on OP but OP neither replied nor complied the demands made in the notice.  Hence the complainant approached this Forum.

 

3.      After service of the notice from the office, the OP appeared before this Forum and filed objections.  The OP submitted that the complainant is an associate member of OP society and she has got membership No.7349.  In the year 2006, the complainant has made an application before the OP society seeking for allotment of site in the layout known as “Brahmananda Sagara” formed by OP society at Ilvala Village and Hobli, Mysore District, Mysore measuring 50x80 feet.  For that the complainant had paid Rs.6,56,000/-.

 

The OP further submitted that OP society have acquired land at Ilvala Village and Hobli, Mysore District, Mysore for formation of residential layout for the benefit of the members.  The society has got approval of layout plan and formed layout in the said village.  Due to comprehensive development plan the further layout work has been stopped.  In the year 2016, the Government of Karnataka has approved the Comprehensive Development Plan and it has been published in the Gazette notification on 04.02.2016 for development of the area and included in MUDA and again the Government of Karnataka notified the same lands for Industrial Zone and again the developers approached the Hon’ble High Court of Karnataka to pass an order for notifying all the lands to residential zone, for which MUDA has no right to notify the lands to Industrial zone and finally they are able to get an order for land use change to an extent of 21 acres from Industrial zone to residential zone.  The lands for industrial zones includes the extent of 441 acres 6 guntas sought to be acquired under KIADB Act in respect of which State Government has given an undertaking that no industrial layout can be formed in and around Ilvala and Maidanahalli villages of Mysore Taluk.  Because of all these industrial acquisition notification, de-notification, again notification and again re-denotification, it has taken long time to get the revenue records transferred in the names of developers.  The land acquired by the developer for formation of the above said layout situated at Ilvala village of Mysore Taluk has been included in the industrial category by the Comprehensive Development Plan of the MUDA.  The developer of the society has submitted detailed representation along with all the documents to the State Government and the Director of Town and Country Planning and also MUDA pointing out the above aspects and requesting the authority to include the lands belonging to the developers in residential zone, but no action has been taken so far.

 

OP further submitted that the developer of the society, being aggrieved by non-consideration of the above representation, has filed W.P No.39971/2015, W.P No.39972/2015 and W.P No.39973/2015 before the Hon’ble High Court of Karnataka.  The above writ petitions are pending final adjudication.  The delay in formation of layout work was due to the industrial acquisition as stated above.  Hence, the society has issued notice in the year 2013, stating that because of the delay in forming layout Brammananda Sagara, the society has started the formation of another layout by name “Kuvempu Sagar Layout” at Mysore.  The society has informed the members that the society will allot the sites in Kuvempu Sagara layout instead of Brammananda Sagara layout.

 

Hence on the above, there is no deficiency on the part of OP.  Hence the question of paying the interest @ 21% p.a does not arise and damages of Rs.2,56,000/- also claimed by the complainant is not sustainable in law and there is no agreement between the parties to that effect and OP is ready to allot the site to the complainant.  The complainant is not interested for the site, hence the OP is ready to refund Rs.6,56,000/- deposited by the complainant without interest and damages.  All allegations made in the complaint are denied by OP.  Hence, there is no deficiency of service on the part of OP.  Hence OP prayed for dismissal of the complaint with exemplary cost.    

 

4. In the course of enquiry into the complaint, the complainant and the OP has filed their affidavit reproducing what they have stated in their respective complaint and objection.  Complainant has filed written arguments.  Complainant has produced documents which were marked.  We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

 

5. Based on the above materials, the following points arise for our consideration:

 

 

1)	Whether the Complainant has proved that there is deficiency in service on the part of OP, if so, whether she entitled for the relief sought for?
2)	What order?

 

        6. Our findings on the above points are as under:

 

 

Point No.1:-	In the Affirmative
Point No.2:-	As per the order below

 

REASONS

 

 

7. Point No.1 On perusal of the pleadings and documents it is an admitted fact that the complainant is an associate member of OP society, membership number is 7349.  It is also admitted fact the complainant had made an application before the OP society seeking for allotment of site measuring 50’x80’ in the layout called as ‘Brammanandha Sagara’ Ilawala Village, Ilawala Hobli, Taluk & District.  It is also admitted fact the complainant made a payment for allotment of site for a sum of Rs.6,56,000/- on three different dates.  The contention of the complainant is that, the complainant had made a payment in the year 2006 & 2007, till today OP has not allotted the site in favour of the complainant.  The OP has allotted a site to the junior members of the society by ignoring her seniority.  Hence the complainant seeking for refund of amount along with interest at 21% and damages.

 

8. On contrary OP submitted that the OP has assured to form a layout in Ilvala village and Hobli, Mysore District, Mysore.  In this regard acquired a land and also got approval of layout plan and formed a layout in the said village.  Meanwhile in the year 2016 Government of Karnataka approved Comprehensive Development Plan and Gazette notification has been issued on 04.02.2016 for the development of the area.   Against the said notification aggrieved persons approached the Hon’ble High Court of Karnataka by filing Writ Petition.  The said petition is pending before the Hon’ble High Court of Karnataka for final adjudication.

 

9. Hence OP had issued a notice in the year 2016 stating that because of delay in forming the layout for the aforesaid layout, society has started formation of another layout by name Kuvempu Sagara layout at Mysore.  The same was informed to members of the society and will allot a site in “Kuvempu Sagara Layout” instead of ‘Brahmananda Sagara’ layout.  To substantiate his contention OP has not produced documentary evidence.  Hence the OP contention cannot be acceptable without documentary evidence.  Further the OP contented that is ready to allot a site to the complainant in ‘Kuvempu Sagara Layout’ but the complainant has not interested for the site and OP is also ready to refund the amount of Rs.6,56,000/- deposited by the complainant without interest and damage. 

 

10. The said contention raised by OP only in the version.  OP neither replied to the legal notice nor issued a letter to the complainant regarding the same.  Be that as it may the complainant had applied for allotment of site in ‘Brahmananda Sagara Layout’ measuring 50’x80’ feets and OP is also accepted the amount of Rs.6,56,000/- for the allotment of site in the aforesaid layout.  Further on perusal of the notices issued by OP dated 01.07.2006, 22.12.2007, 06.01.2009, 24.09.2009.  In the above said letters it clearly evident that, the OP has assured the complainant that, ‘The layout will be completed as early as possible with all amenities’.  Till today the OP has not allotted the site to the complainant.  However the OP has come up with the contention stating that, they are ready to allot a site in Kuvempu Sagara layout at Mysore and OP also ready to refund the amount of Rs.6,56,000/- without interest.  Having accepted the amount of Rs.6,56,000/- from the complainant for allotment of residential site at ‘Brahmananda Sagara Layout’ OP is estopped from insisting the complainant to buy the site in different venue or to take refund the amount without interest.  This action of OP highly deprecated and unsustainable.  Hence, we come to the conclusion that, there is deficiency in service on the part of OP in not allotting the site in ‘Brahmananda Sagara Layout’.  Hence we direct the OP to refund the amount of Rs.6,56,000/- along with interest @ 10% p.a.  Further OP is directed to pay compensation of Rs.10,000/- to the complainant for having caused mental agony and deficiency of service together with litigation cost of Rs.10,000/-.

 

11. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:           

 

                 

  O R D E R

 

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part. 

 

OP is directed to refund a sum of Rs.6,56,000/- (Six Lakhs Fifty Six Thousand only) to the complainant together with interest @ 10% p.a from the date of respective payment till the date of realization.  Further OP is directed to pay compensation of Rs.10,000/- to the complainant for having caused mental agony and deficiency of service together with litigation cost of Rs.10,000/-.

 

OP shall comply the said order within four weeks from the date of receipt of the order.

 

Furnish free copy of this order to both the parties.  

   

(Dictated to the Stenographer, transcribed and typed by his, corrected and then pronounced by us in the Open Forum on this, the 22^nd day of July 2019)

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

 

 

                                            

                      

Witnesses examined on behalf of the complainant/s by way of affidavit:

 

Smt.Anusuya Devi.

 

Copies of documents produced on behalf of complainant/s:

 

Ex-A1	Copy of proposal for formation of new layout by name ‘Brammanandasagar’ 10.01.2006 by the OP.
Ex-A2	Photocopy of application for associated membership dated 03.05.2006.
Ex-A3	Photocopy of application form for purchase of site dated 03.05.2006.
Ex-A4	Copy of notice dated 01.07.2006 issued by Opposite Party demanding first instalment.
Ex-A5	Copy of letter dated 22.12.2007 issued by Opposite Party informing layout status.
Ex-A6	Copy of letter dated 06.01.2009 issued by Opposite Party informing the change of location/land for formation of layout.
Ex-A7	Copy of letter dated 24.09.2009 intimating layout status.
Ex-A8	Copy of receipt dated 03.05.2006 for an amount of Rs.1,120/-.
Ex-A9	Copy of receipt dated 03.05.2006 for an amount of Rs.2,00,000/-.
Ex-A10	Copy of receipt dated 31.07.2006 for an amount of Rs.2,28,000/-.
Ex-A11	Copy of receipt dated 28.04.2007 for an amount of Rs.2,28,000/-.
Ex-A12	Office copy of legal notice dated 30.01.2018 issued by complainant to the opposite party.
Ex-A13	Postal receipt along with acknowledgment.

 

Witnesses examined on behalf of the OP/s by way of affidavit:

 

Sri.B.S Manjunath, who being the Secretary of OP society.  

 

 

Copies of Documents produced on behalf of OP - Nil

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

 

Vln*