Date of Filing:16.07.2007<br /> Date of Order:20.06.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 20TH DAY OF JUNE 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> <br /> COMPLAINT NO: 1481 OF 2007<br /> <br /> <br /> Sri. Shiva Basavaiah. B.G,<br /> S/o Ganganna,<br /> R/at No.63, Susheela Road,<br /> Chikkamavalli,<br /> Bangalore-560 004. Complainant<br /> <br /> <br /> V/S<br /> 1. M/s Vasavi Promoters,<br /> No.174/40, Lucky Paradise,<br /> 303/B, 3rd Floor, 3rd Block, <br /> 22nd Cross, Jayanagar,<br /> Bangalore-560 011,<br /> Represented by its Managing partner.<br /> <br /> 2. T.P. Krishna Murthy,<br /> S/o T.A. Padmanabaiah,<br /> R/at No. 174/40, Lucky Paradise,<br /> 303/B, 3rd Floor, 3rd Block, <br /> 22nd Cross, Jayanagar,<br /> Bangalore-560 011.<br /> <br /> 3. C. Mohan,<br /> S/o Late C. Padmanabaiah,<br /> R/at No.174/40, Lucky Paradise,<br /> 303/B, 3rd Floor, 3rd Block, <br /> 22nd Cross, Jayanagar,<br /> Bangalore-560 011. Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> <br /> This is a complaint filed U/Sec.12 of the Consumer Protection Act, 1986 claiming refund of Rs.1,10,000/- with interest and costs and damages. <br /> The facts of the case are that, for the purpose of allotting sites in the layout formed by the opposite parties in Sy.No. 23,75, and 76 situated at Kylasanahalli village, Jigani Hobli, Anekal Taluk, Bangalore Urban District, under the name and style as M/s Vasavi Promoters and the monthly installments payable was Rs.1,750/- and the complainant became a member under the said scheme with membership No. 651. The same was started in April-1996 and he had paid in all forty installments of Rs.1,750/- each. In all the complainant has paid Rs.70,000/-. The opposite parties have also collected Rs.30,000/- at the time of registration towards cost of the site. Upon receipt of the full sale consideration of Rs.30,000/- the opposite parties had executed a sale deed on 1/12/2000 in favour of the complainant. The actual physical vacant possession of the site was delivered to the complainant. When the complainant went to the layout to find out the site sold to him, he was shocked to learn that there was no such site in existence. Thereafter the complainant contacted the opposite parties, they started giving evasive replies and avoided to meet the complainant. Repeated requests and demands of the complainant to either identify the site sold to him or to refund the amounts received from the complainant have not been paid heed to. Though the notice has been served on the opposite parties demanding of the amount, they have so far not complied with the terms of the same. Hence, the complaint. <br /> <br /> 2. Notice was issued to opposite parties. Opposite parties put in appearance through advocate and filed defence version stating that, the opposite party No.2 and 3 are the absolute owners of the property bearing Sy.No.23,75 and 76 situated at Kylasanahalli village, Jigani Hobli, Anekal Taluk. On the request of the opposite party No.2 and 3 the opposite party No.1 has got the land converted to residential purpose in the names of opposite party No.2 and 3. The KIADB by the notification dated 19/4/1997, notified the aforesaid lands for acquisition along with other lands. The opposite parties requested the Government and KIADB to delete the aforesaid lands from acquisition, on the ground that the said lands were converted and required for them to allot to their members and also voluntarily surrendered many other properties to KIADB. Subsequently, the lands were deleted from the acquisition, the same was intimated by KIADB, by the letter dated 1/6/1999. Pursuant to the deletion of the aforesaid properties, the opposite parties have sold the sites to their members including the complainant and put them in possession of their respective sites. The aforesaid facts have been notified to the members before the registration of sites to them. Subsequent to the deletion of the lands from the acquisition, the complainant purchased on 1/12/2000 the schedule property to the price as suggested by the complainant, i.e as per the wish of the complainant the consideration was shown as Rs.30,000/- in sale deed and the entire amount of Rs.70,000/- was utilized for development activities by these opposite parties, but not as alleged by the complainant and opposite parties have put the complainant in possession. Thereafter, the KIADB again notified the lands for acquisition on 27/5/2002 i.e. long after the sale of sites to the complainant and other members. On the request of the members, including the complainant the opposite parties have decided to fight the litigation against them State and KIADB. Pursuant to the acceptance of all the members to file the cases against KIADB, the opposite parties have filed W.P No.9958-59/2004 against State and KIADB before the Hon’ble High Court. The said Writ Petitions are pending for consideration before the Hon’ble High Court. The aforesaid proceedings are well within the knowledge of the complainant. The complaint is barred by law of limitation. In view of all these reasons stated above, the opposite parties have prayed to dismiss the complaint.<br /> <br /> 3. Affidavit evidence of both the parties filed. Arguments heard. <br /> 4. The points for consideration are:- <br /> 1. Whether there was any deficiency in service <br /> on the part of the opposite parties? <br /> 2. Whether the complaint is maintainable? <br /> <br /> REASONS<br /> <br /> <br /> 5. I have gone through the complaint, documents and the defence version. It is an admitted case of the complainant that, he had taken registered sale deed in respect of site No.498 on 1/12/2000 from the opposite parties. After sale deed the said property has been mutated in the name of the complainant in Gram Panchayat records. The complainant has also paid tax of the site. The KIADB had notified the land for acquisition on 27/5/2002 long after the execution of sale deed of the site to the complainant and other members. The opposite parties have filed a writ petition before the Hon’ble High Court of Karnataka challenging the acquisition by the KIADB and the writ petition is also pending. When the land in question was acquired by the KIADB after the execution of sale deed by the opposite parties, in that case there was absolutely no any deficiency in service on the part of the opposite parties. The complaint filed by the complainant before this Forum seeking direction that opposite party be directed to identify the site is not maintainable. The only remedy now available for the complainant is to get the compensation amount from the State Government if the acquisition of land was finally held to be valid and legal by the Hon’ble High Court of Karnataka. The opposite parties have filed a memo in this case on 11/1/2008 stating that, they will undertake that they will not receive the award amount that could be passed in respect of the site bearing No.498. The question of even receiving the compensation by the opposite parties also does not arise because they have already executed sale deed in favour of complainant on 1/12/2000 and khata is also effected in the name of the complainant. Therefore, legally the complainant is entitled to receive compensation amount in respect of site bearing No.498. The complaint on the face of it is not maintainable before this Forum. The remedy if any available to the complainant is only through the Hon’ble High Court of Karnataka. Ultimately, the order that will be passed in the Writ Petition No.9958 of 2005 binds the parties. Therefore, the present complaint filed by the complainant before this Fora is not maintainable on any count. The complaint is misconceived one. Therefore, the same is liable to be dismissed. In the result, I proceed to pass the following:- <br /> ORDER<br /> <br /> 6. The complaint is dismissed. No order as to costs. <br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 8. Pronounced in the Open Forum on this 20TH DAY OF JUNE 2008.<br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> <br /> <br /> <br />