1. This is Complaint filed by the Complainant under section 12 of the Consumer Protection Act, 1986, has alleged, that she was an applicant before the Opposite parties for allotment of a site measuring 30’ x 40’, paid Rs.2,500/- as deposit. That she thereafter changed her residential address on two occasions and intimated to the Opposite party on 23.01.1992 and 28.08.1994. That during October 2004 she came to know from the records of the Opposite party’s office that on 14.07.2003 she was allotted a site at Devanur 3rd stage, Mysore. On 24.11.2004 she applied to the Opposite party for issue of allotment letter, but was given an endorsement on 21.12.2004 that a site allotted to her had been cancelled by the Opposite parties on 25.09.2004. She through a representation given on 02.03.2005 give the reasons and brought the notice of Opposite party about change of address and reconsider her case for allotment of a site, for which the Opposite party on 19.03.2005 issued another endorsement and therefore the Opposite parties without sending allotment letter to her changed address have caused deficiency in service and therefore cause of action has arisen on different dates including on 02.03.2005 and has prayed for a direction to the Opposite parties to allot a site and to award compensation of Rs.50,000/-.<br /> 2. The complainant has filed an application under section 24(A)(2) of the Act for condoning delay of 57 days in filing the complaint.<br /> 3. The Opposite parties have filed their version contending that the complaint is barred by limitation, is not maintainable under section 64 of the Karnataka Urban Development Authorities Act, as the complainant is not a Consumer, and denied that the complainant had given change of address on 23.01.1992 and 28.08.1994 and stated that allotment letter was sent to the complainant to the address given by her in the application, it had also published in the daily newspaper and also on it’s notice board despite that the complainant did not go before them, therefore the allotment was cancelled and therefore has prayed for dismissal of the complaint.<br /> 4. The complainant in support of her complaint has filed her affidavit evidence and Xerox copies of certain documents. On behalf of the Opposite parties, it’s Assistant Secretary has filed his affidavit evidence and they have made available their original file. Heard the counsel for both the parties and perused the records.<br /> 5. On the above contentions, following points for determination arise.<br /> 1. Whether the complaint is barred by limitation?<br /> 2. Whether the complainant proves that she had on 23.01.1992 and on 28.08.1194 had intimated the Opposite parties regarding her change of address and that the Opposite parties without sending the allotment letter to her changed address have caused deficiency in service by cancelling the allotment of site made in her favour?<br /> 3. To what relief the complainant is entitled for?<br /> 6. Our findings are as under:-<br /> Point no.1 : In the negative.<br /> Point no.2 : In the affirmative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The complainant along with the complaint filed an application as stated above for condoning 57 days delay in filing this complaint computing the period from 21.12.2004 on which day she got information of cancellation of allotment from the office of the Opposite party. The Opposite party has not filed any objection to this application. On perusal of the complaint allegations and the contents of the application, it is further made clear by the complainant that she gave a representation to the Opposite party to reconsider her case and to allot a site, on which an endorsement came to be issued by the Opposite party on 19.03.2005 stating that site has been cancelled on 25.09.2004, therefore her representation cannot be considered. It is on this date, the complainant’s claim for allotment of site was finally terminated, therefore this endorsement dated 19.03.2005 issued by the Opposite party also gives a cause of action. The complaint is presented to this Forum on 13.02.2007, if prescribed period is reckoned from 19.03.2005, the complaint can safely be held as in time and not barred by limitation. Therefore, we answer this point in the negative.<br /> 8. Point no.2:- Regarding allotment of a site in favour of the complainant and the subsequent cancellation are not in dispute on the other hand are admitted by both the parties. Therefore, we do not want to reiterate such admitted facts in this order and therefore we only refer to the main contention of the complainant regarding her intimation of change of address to the Opposite party and the stand of the Opposite party in having cancelled the site allotted in favour of the complainant.<br /> 9. This Forum had disposed of this complaint on 16.05.2007 allowing the complaint with a direction to the Opposite party to allot a site measuring 30’ x 40’ in Devanur Extension if site is available in that layout, if not an alternative site in any of the layouts formed by the Opposite party, within 3 months from the date of receipt of this order. Against which, the Opposite party had preferred an appeal before the Hon’ble Karnataka State Consumer Disputes Redressal Commission in appeal No.1287/07. The Hon’ble State Commission by allowing the appeal set aside the order and remanded the matter to this Forum for disposal of the same in accordance with law in the observation made therein. On perusal of the order of the Hon’ble State Commission, it appears that the Hon’ble State Commission on the submission by the counsel for the Opposite party / opponent that this Forum has gone wrong in acting upon Xerox copies of the relevant documents without production of the originals has allowed the appeal and remanded the matter for fresh disposal. On receipt of the case of the purse, notices were issued to both the parties who have appeared through their counsel and have conducted the case, as both the parties submitted to have no further evidence. The counsel for the complainant took notice to the Opposite party under order 12 Rule 8 CPC for production of documents like the original tappal book, in which the receipt of envelops or applications are received by Opposite party as on 23.01.1992 and 28.08.1994, the movement register of toppal received and handed over to the concerned clerk from reception counter to case worker as on 23.01.1992 and 28.08.1994, the original intimation given by the complainant intimating change of address. The original register where the change of address if entered into as on 23.01.1992 and 28.08.1994 and subsequent period of 6 months, the register maintained for change of address, which bears the signature of the complainant about the change of address as on the above 2 relevant dates. The manual containing procedure for destruction of records after certain period then proof of destruction of above documents or reason for non-availability of records in the event of all these records are not non-available. To this notice, the Opposite party has filed objection, which do not meet the requirement of the complainant as indicated in the notice, objection is a bald one filed in a casual manner contending as if the notice is not maintainable, the burden of proving the case lies in the complainant. That the complainant is not entitled for any relief not made out a prima-facie case and therefore prayed for rejection of the notice. The Opposite party who ought to have reply to the notice given by the complainant either by producing those documents sought therein or giving reasons for not producing them has not at all whispered anything in the reply to the notice. Therefore, the objection of the Opposite party to this notice in our view cannot be construed as objection and therefore we find no justification for the Opposite party in not either producing the documents required by the complainant or in not giving reply to that notice.<br /> 10. On hearing the counsel for both the parties and on perusal of the oral and documentary evidence placed before us, it is seen that the complainant in support of her contention taken in the complaint she on 23.01.1992 and again on 28.08.1994 gave applications to the Opposite party to note down her changed address and in support of her contention has produced Xerox copies of the endorsements issued by the Opposite parties. The complainant has contended that she has lost the original acknowledgements issued by the Opposite party and therefore has produced Xerox copies of those 2 endorsements said to had been issued by the Opposite party. Even at this stage, the learned counsel for the Opposite party was called upon to verify the Xerox copies of the endorsements said to had been issued by the Opposite party and produced by the complainant before us either to admit the issue of those endorsement or deny, but the learned counsel representing the Opposite party did not chose to submit either of them. On perusal of the endorsements dated 28.08.1994 said to had been issued by the Opposite party there is a mention of D.D. number under which the requisite fee was collected from the complainant, which also bears the application number. The Opposite party though in its version has denied the intimation said to had been given by the complainant regarding her change of address, but they have not specifically denied having had issued the endorsements dated 23.01.1992 and 28.08.1994. As could be seen from the file of the Opposite party produced before us, the complainant gave a representation to the Opposite party on 02.03.2005 also by enclosing Xerox copies of endorsements said to had been issued by the Opposite party on 23.01.1992 and 28.08.1994, which are in the letter head of the Opposite party containing signature of an official of the Opposite party. It is further found from the note made in the case file of the Opposite party, on that representation of the complainant they appears to had searched for relevant address books in their office, but the address book pertaining to the period 23.01.1992 was not available in their office. But, they have not made any efforts to locate the address book pertaining to the period dated 28.08.1994. Therefore, when it was even brought to the notice of the Opposite party by producing Xerox copies of the endorsements issued by the Opposite party in response to the applications given by the complainant for change of address, they could have verified in their office and replied to the Complainant either admitting or denying them. It is submitted during the course of arguments that the complainant was required to pay a prescribed fee to the Opposite party for recording the change of her address. That being so if they had received any fee on those applications, they could have also verified the concerned fee collection receipt book or register having received any payment and remitted to their account. But no attempt is made to locate the concerned registers and the D.D. as mentioned in the acknowledgement of 28.08.1994 to find out as to who had issued it and for what the D.D. was given. Even to the notice issued by the complainant under order 12 Rule 8 CPC, the Opposite parties have not bothered to give reply, but have ended by filing the objection, which has no relevance to the notice. It is under these circumstances, we have no hesitation to hold that the complainant had given 2 applications to Opposite party on 23.01.1992 and 28.08.1994 to record her change of address, but the Opposite party has not acted upon them.<br /> 11. No doubt, the party who approaches a court or this Forum in a matter against the Opposite party for any relief, the primary burden is on such a party to prove his or her allegations and also his or her entitlement for the relief. But, in the case an hand, the complainant has produced all the materials hand by her and sworn to an affidavit having had filed applications for recording change of her address and produced Xerox copies by further stating that she has lost the originals. In such a situation, it is incompetent upon the Opposite party after seeing the Xerox copies either to admit the issue of those acknowledgements or to deny them and also to verify in their office in they having had issued such endorsements to prove their genuineness or authenticity, particularly when a notice was taken against them. But the Opposite party found to have turned defear to the call of the complainant, therefore when such materials are produced before the Forum by the complainant, the burden in our view shifts on the Opposite party to disprove. It is to be born in mind, the possessing all will not be containing the material documents required to be produced in this case. It is the Opposite party who is in custody of those documents ought to have produced and if they can not produced these documents they could have given proper reply to the notice. Under these circumstances, we have no hesitation to draw an adverse inference against the Opposite party by holding that the Opposite party has withheld the documents from this Forum thinking if they produce, they may go against them. In this regard, we rely upon a decision to Tamil Nadu State Consumer Disputes Redressal Commission, Chennai reported in Ii (2008) CPJ 293 wherein the Hon’ble State Commission has held as under:- <br /> “Evidence – burden of proof – parties having portion of documents could not refuse to produce them on the ground the onus or burden of proving was on the other side” <br /> The Hon’ble State Commission further held in that case, <br /> The Opposite party bank should have had copies of the documents and they could very well for produced the documents before the District Forum in support of their contention”<br /> Further, the Opposite party who is required to maintain a register for noting down the change of address of the applicant, documents for having received the prescribed fee, it remittance etc., have not come forward to produce those documents. Therefore, the Opposite party who has not denied the endorsements issued by their office and having regard to the contents of those endorsements, we have no hesitation to hold that though the complainant had given applications regarding her change of address, the Opposite party has failed to take appropriate step on them. <br /> 12. The learned counsel representing the Opposite party invited our attention to a paper publication and also notification displayed in the notice board of the Opposite party and argued that the complainant was given sufficient opportunity, but she did not turn up as the result the allotment was cancelled. No doubt, the Opposite party shown to had published an intimation notifying the allotees to collect the allotment letters failing to do so, it would result in cancellation of allotment. But, giving intimation of allotment and consequent cancellation since was required to be given to the applicant personally, which is mandatory, the publication of allotment in the notice board or in newspaper do not absolve the Opposite parties from their responsibility of complying mandatory provisions of law. The complainant in this case admittedly had not been served with the allotment letter nor with the cancellation order. That being so, the act of Opposite party results in violation of principles of natural justice and depriving the complainant of the benefit, for which he was legally entitled to.<br /> 13. It is found from the postal cover in which allotment letter was sent to the complainant that the postal authorities have returned the post with a shara that no such addressee is in that door number, therefore when the Opposite parties received such endorsement from the postal authorities, they could have searched for the change of address given by the complainant before they cancelled the allotment, but they did not. It is on consideration of all these materials facts placed before us, we find that the Opposite parties have failed to maintain proper account of the particulars pertaining to allotment of sites in favour of this complainant and they have caused deficiency in not noting down the change of address of the complainant and by cancelling the site allotted in favour of the complainant. As the result, the complainant is entitled for relief of direction for allotment of a site as such we answer this point in the affirmative and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> 2. The Opposite parties are directed to allot a site measuring 30 x 40 ft. in Devanur extension if site is available if not an alternative site in any of it’s already developed layouts within 3 months from the date of receipt of this order at the same rate that was prevailing when site was allotted to the complainant on 14.07.2003 by collecting all other necessary legal fee.<br /> 3. The Opposite parties shall also pay cost of Rs.1,500/- to the complainant being the cost of this complaint.<br /> 4. Return the original file to the learned counsel for the Opposite parties. <br /> 5. Give a copy of this order to each party according to Rules.<br />