IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 416/09 DATED 06.01.2010<br /> ORDER<br /> <br /> Complainant T.Sundararaju, S/o Thammaiah @ Thotappa, No.1773, Basavaraja Building, Shanthinagara, Doddaballapura-561203.<br /> <br /> (By Sri. B.P.Rajesh, Advocate)<br /> <br /> Vs. <br /> Opposite Party Commissioner, <br /> Mysore Urban Development Authority, J.L.B.Road, Mysore.<br /> <br /> (By Sri. M.R.S.K, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 09.11.2009<br /> Date of appearance of O.P. : 24.11.2009<br /> Date of order : 06.01.2010<br /> Duration of Proceeding : 1 MONTHS 12 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint under section 12 of the Consumer Protection Act 1986, seeking direction to the opposite party to provide/furnish allotment letter in respect of site No.2108 measuring 40’ x 60’ situated at 3rd Stage, Dattagalli, Mysore City and compensation of Rs.50,000/- towards mental agony and Rs.10,000/- cost of the proceedings.<br /> <br /> 2. It is alleged in the complaint that, on 11.02.1992, the complainant submitted an application for allotment of site measuring 40’ x 60’. The application Number is 159241 and the registration number is 130493. Along with the application, the complainant paid prescribed fees. The opposite party considering the application of the complainant, allotted site No.2108 measuring 40’ x 60’ at 3rd Stage, Devanur Layout, Mysore City. Though the opposite party had allotted the site it did not give the allotment letter to the complainant. The complainant wrote several letters to the opposite party to provide allotment letter. Ultimately, 19.09.2009 opposite party gave an endorsement to the complainant stating that, in the application for allotment of site name of father of the complainant was mentioned as Thammaiah, whereas during the course of scrutiny of documents, it was found name of the father of the complainant as Thotappa. Hence, the application of the complainant has been rejected. The said order or endorsement of the opposite party is not legal. Name of father of the complainant is Thammaiah @ Thotappa. In the application for allotment of site through over sight both names were not mentioned. There are several documents including ration card, rent note etc., to prove that name of father of the complainant is Thammaiah @ Thotappa. Under the circumstances, non-furnishing of the allotment letter by the opposite party to the complainant amounts to deficiency in service and the opposite party by making to move the complainant repeatedly to the office of the opposite party, caused mental agony. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version has contended that, the complaint is not maintainable in law and that it is time barred. Further it is alleged that, to show that site No.2108 measuring 40’ x 60’ of Devanur 3rd Stage has been allotted to the complainant, no documents are available in the office of the opposite party. Further it is contended that, during verification, the complainant did not produce the original receipts regarding payment of registration fees and the initial deposit. Also, during the scrutiny, it was noticed that name of father of the complainant as Thotappa. For change of name of the father, complainant has not produced proper documents. Hence, the request of the complainant has been rejected. There is no question of granting any reliefs to the complainant. Hence, it is prayed to dismiss the complaint with cost.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents. On the other hand, the opposite party has filed his affidavit narrating the facts mentioned in the version. We have heard the arguments of both the learned advocates for the complainant and the opposite party and perused the entire records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- Considering the facts as well as oral and documentary evidence on record, it is proved that the complainant had submitted application to the opposite party for allotment of site measuring 40’ x 60’ in the year 1992. Further, complainant had paid prescribed registration fees as well as initial deposit.<br /> <br /> 8. Regarding submission of application for allotment of site, there is specific allegation in the complaint and that fact is stated by the complainant in his affidavit. The complainant has also produced Xerox copy of the application and the receipts regarding payment of fees and initial deposit. These facts are not denied or disputed by the opposite party.<br /> <br /> 9. Definite and specific case of the complainant is that, considering his application the opposite party allotted site No.2108 measuring 40’ x60’ situated at 3rd Stage, Devanur Layout, Mysore City. That fact is alleged in the complaint and stated by the complainant in his affidavit. Opposite party has not specifically denied that, said site was allotted to the complainant. Further more, in the endorsement given by the opposite party to the complainant dated 05.02.2009, which is produced by the complainant at Sr.No.19 on page 49 of the list of documents, there is mention that site No.2108 measuring 40’ x 60’ in 3rd Stage, Devanur Layout, Mysore City was allotted and the complainant had sought to provide allotment letter. Further it is mentioned that, the complainant was requested to furnish original receipts, but the complainant produced only Xerox copies. Regarding allotment of the said site, again it is mentioned in the endorsement of the opposite party dated 30.05.2009 in the document at Sr.No.20 on page 51 of the list of document produced by the complainant. Hence, considering these facts and the evidence, the complainant has proved that, the said site was allotted to him by the opposite party. <br /> 10. The grievance of the complainant in the present complaint is that, even though the opposite party has allotted the said site to him, allotment letter has not been furnished or provided. It is not at all the case of the opposite party that, allotment letter was sent to the complainant. When it has been proved that, particular site was allotted by the opposite party to the complainant, it was obligatory on the part of the opposite party to provide allotment letter or intimation to the complainant. The opposite party having not complied with the same, deficiency in service on the part of the opposite party has been established.<br /> <br /> 11. Two main contentions raised by the opposite party in the version needs to be considered here. Firstly, the opposite party contend that, the complainant did not produced the original receipts regarding payment of fees and the initial deposit. The complainant in his affidavit in the middle of 3rd paragraph has specifically stated that, he has furnished all the documents to the opposite party as per the endorsement. Of course, the opposite party in his affidavit has stated that, at the time of scrutiny, original receipts were not produced. But, further it is relevant to note, the documents produced by the complainant in this case. At Sl.No.16 on page 43 of the list of documents in the letter addressed to the opposite party by the complainant dated 02.02.2009, there is specific mention that, complainant already had submitted the original receipts in the office of the opposite party on 17.11.2008. The documents that the complainant had furnished are narrated in the said letter. Further more, along with the said letter, the complainant had enclosed in all 19 xerox copies. Earlier to the said letter of the complainant dated 02.02.2009, opposite party had given an endorsement to the complainant dated 05.02.2009, stating that even though complainant was asked to furnish original receipts, had furnished only Xerox copies. Hence, complainant was called upon to produce original receipts within 7 days. But, as noted above, it is definite and specific case of the complainant that, the original receipts were produced. On the other hand, to substantiate the fact that as stated in the endorsement dated 05.02.2009, the complainant had sent only Xerox copies and not the original receipts, no cogent and acceptable evidence for the opposite party is placed on record. The opposite party could have very well produced the alleged Xerox copies that the complainant had sent instead of original receipts along with the letter that the complainant has sent. For non-production of those documents, no reasons are assigned. Hence, adverse inference shall have to be drawn.<br /> <br /> 12. As noted above, by the endorsement dated 17.01.2009, the opposite party called upon the complainant to furnish original receipts, but through the letter dated 02.02.2009, the complainant informed opposite party that on 17.11.2008 itself the original receipts and the other documents narrated therein were submitted in the office of the opposite party. Thereafter, through the endorsement dated 05.02.2009 as noted above, the opposite party again called upon the complainant to produce original receipts stating that only Xerox copies were furnished, for which the complainant replied on 02.02.2009, stating that, the originals were already furnished. Thereafter, through the endorsement dated 13.05.2009, the opposite party informed the complainant to appear in person in the office of the opposite party within 7 days along with the available documents. Thereafter, the complainant submitted further petition dated 03.08.2009 and thereafter, the opposite party through the endorsement dated 09.09.2009, which is at Sr.No.21 on page 53 of the documents produced by the complainant informed that at the time of enquiry, the complainant did not produce the original receipts and further, name of the father in the application was mentioned as Thammaiah, but, in the documents, it is mentioned as Thotappa and hence, as per the order dated 03.09.2009, the Commissioner rejected the application of the complainant.<br /> <br /> 13. From the facts and the contentions referred to above, the point that needs to be appreciated is, irrespective of the fact as to whether the complainant had produced the original receipts or otherwise, whether the opposite party has justified in rejecting the application of the complainant. First of all, the opposite party has not produced alleged order of the Commissioner dated 03.09.2009. However, as noted the reason for rejecting the application is that, the complainant did not produce the original receipts. Firstly as considered here before, the complainant has made out that in fact he has produced the original receipts. Even otherwise, Xerox copies are available and according to the opposite party, also complainant had furnished Xerox copies of the said receipts. It is not at all the case of the opposite party that, said Xerox copies are concocted or created. Hence, what made the opposite party not to act upon said documents, is not explained. Said receipts pertains to making payment by the complainant to the opposite party Development Authority. The amount is not handed over in cash by the complainant to the opposite party. Through challen of the bank amount has been credited. From the Xerox copies of the challens, there are seal of the bank and all other particulars. When that is so, the opposite party having received the said amount firstly could have verified the same with the account books maintained in the office and further, also could have counter checked from the account books of the bank. Moreover, it is not the case of the opposite party, that the complainant did not pay the said amount. Under the circumstances, we are of the considered opinion that, rejection of the application of the complainant stating that, the complainant did not produce the original receipts, will not sustain.<br /> <br /> 14. The opposite party also contended that, in the application for allotment of the site, name of the father of the complainant is mentioned as Thammaiah whereas during the course of scrutiny of the documents, the name was found as Thotappa. Definite case of the complainant is that, name of his father was Thammaiah @ Thotappa. To substantiate this fact, the complainant has produced rent note of the year 1989. In this rent note, name of father of the complainant is mentioned as Thammaiah @ Thotappa. Xerox copy of the ration card of the family of the complainant isproduced wherein it is mentioned as Thammaiah @ Thotappa. According to the complaint, through over sight while submitting the application to the opposite party for allotment of site name was mentioned only as Thotappa. Taking into consideration of all these facts and the evidence on record, the reason assigned by the opposite party is without any basis. Moreover, for allotment of site what is relevant and important is, who is the person applied for site and to whom it is to be allotted. Complainant had applied for site and that was allotted to him by the opposite party.<br /> <br /> 15. The records and facts as well as evidence referred to here before, establish that in the year 1992 itself, the complainant applied for allotment of site by paying prescribed fees and initial deposits and even though the opposite party allotted the site to the complainant did not send or furnish the allotment letter. Since, then for all these nearly 19 – 20 years, the complainant is repeatedly approaching the opposite party with a request to provide allotment letter, but the opposite party instead of furnishing the allotment letter, at last in the year 2009 has given an endorsement assigning certain reasons, which will not sustain in the eyes of law. Just to get allotment letter, the complainant is fighting for the last 19 – 20 years. Hence, certainly the complainant has suffered mentally and monetarily.<br /> <br /> 16. Before concluding one more contention raised by the opposite party regarding limitation shall have to be considered. Without repeating the facts mentioned in the foregoing paragraphs, the complainant made a repeated request to the opposite party to provide allotment letter. It has been proved from the evidence on record that, the particular site was allotted by the opposite party to the complainant. There are several endorsements of the opposite party itself of the year 2008-09. Ultimately, by the endorsement dated 09.09.2009 furnishing of allotment letter to the complainant by the opposite party has been denied. Hence, the complaint filed within 2 – 3 months thereafter is certainly well in time.<br /> <br /> 17. Considering the facts, evidence and discussion made here before, the complainant has proved deficiency in service on the part of the opposite party and accordingly our finding is partly is in affirmative.<br /> <br /> 18. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> <br /> 2. The opposite party is hereby directed to give/furnish allotment letter to the complainant in respect of site No.2108 measuring 40’ x 60’ at 3rd Stage, Devanur Layout, Mysore City, within two months from the date of this order.<br /> <br /> 3. Further, the opposite party shall pay a sum of Rs.25,000/- to the complainant towards compensation for mental agony and other inconvenience caused, within two months from the date of the order and on failure, the amount shall carry interest at the rate of 10% p.a., till realization.<br /> <br /> 4. So also, the opposite party shall pay a sum of Rs.2,000/- towards cost of the present proceedings.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 6th January 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />