IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - 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 113/08 DATED 07-07-2008<br /> ORDER<br /> <br /> Complainant Shanthala, W/o D.M.Raju, Rep. by her GPA Holder D.Muni Raju @ D.M.Raju, S/o Late Sri Dasappa, R/at No.96, Maruthi Nilaya, 1st D Cross, 3rd Stage, 4th Block, Basveshwaranagar, Bangalore-560079.<br /> (By Sri.Chikkanna, Advocate)<br /> Vs. <br /> Opposite Parties 1. Commissioner, Mysore Urban Development Authority, Jhansi Lakshmi Bai Road, Mysore.<br /> (By Sri M.R.S.K. Advocate)<br /> 2. Secretary to the Government Department of Urban Development, The State of Karnataka, Vikasa Soudha, Bangalore-560001.<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 25.04.2008<br /> Date of appearance of O.P. : 21.05.2008<br /> Date of order : 07.07.2008<br /> Duration of Proceeding : 1 ½ Months<br /> <br /> <br /> PRESIDENT <br /> <br /> MEMBER<br /> MEMBER<br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. This is a complaint presented by the complainant through her power of attorney holder against the Opposite parties with her grievance that she belongs to schedule caste community applied for allotment of a site in that category to first Opposite party on 05.03.1992 and at that time she was the resident of Mysore residing in the address given in her application. During the year 1999, she was constrained to shift her residence from Mysore to Bangalore then on 29.01.1999 intimated the first Opposite party about the change of her address and requested them to note down her changed address. Then she came to know that certain allotments of sites were made to some of the applicants, then she gave a letter on 20.12.2000 to send allotment letter to her changed address if a site is allotted. In the year 2004, she strongly learnt that applications of 1992 were disposed off by allotting sites and she was delivered a copy of the letter of allotment dated 25.02.2001 made in her favour. At this particular point of time, she came to know the allotment made in her favour was cancelled arbitrarily and the same site was allotted to one Raghava Shetty, later on that allotment was also came to cancelled for non-payment. Then she made a request to consider application for allotment of a site on humanitarian consideration. That the allotment made in her favour came to be cancelled on the ground of non-payment of balance sital value then the first Opposite party moved the second Opposite party to permit him to allot a site in her favour. Therefore, further contended that the first Opposite party has caused deficiency in not sending allotment to her changed address and in cancelling that allotment arbitrarily and therefore has prayed for a direction to the Opposite parties to revoke the order of cancellation and to re-allot site No.1934 or allot an alternative site in her favour, to award compensation of Rs.1,00,000/- for her mental agony and pass such other orders. <br /> 2. This Forum considering the grievance of the complainant had ordered issue of notice to first Opposite party only. First Opposite party entered appears through his advocate and filed version contending that the complainant had come to know the cancellation of allotment made in her favour in the year 2005 itself, but she did not take any steps to challenge it and therefore the complaint is barred by limitation. That the complainant had also approached the Hon’ble High Court of Karnataka in W.P. NO.3767/07, which came to be dismissed as not pressed. That on the application of the complainant for allotment of a site, she was allotted a site measuring 50’ x 80’ bearing No.1934 of Hanchya – Sathagally B-Zone under schedule caste category. The allotment letter dated 25.02.2001 conveying the balance amount payable by the complainant within the stipulated time was sent to the complainant to the given address and the same was returned as door was always locked at the time of delivery. That the Opposite party was issued a notice on 08.01.2002 and 26.12.2002 in her not paying sital value and they were sent to her given address, which were not returned to them for non-delivery, therefore they deemed to had been served on the complainant. That the complainant had given a letter to them on 01.04.2004 she has clearly stated that she could not pay the amount on account of financial difficulties and that she was prepared to pay the entire amount along with interest and requested for allotment of that site. Therefore, it cannot be said that the complainant did not receive the letter of allotment. Then the request of the complainant for allotment of site was refused and an endorsement dated 27.04.2004 was sent to the complainant to her Mysore address and the same was received by the complainant as per the postal acknowledgement. Then the complainant on 10.11.2004 through a member of legislative counsel namely Sri Maruthi Rao D. Male got a letter addressed to the Chief Minister of the State recommending for re-allotment of the site on the ground that the complainant could not pay the sital value because of her financial difficulties. Therefore, it is not true that complainant had not received the allotment letter and subsequent letters due to change of her address on the contrary she has through out pleaded that she could not pay the balance sital value in time. That the document relied on by the complainant dated 20.01.1999 purported to be a document for having given the change of address is a concocted one, a forged or manipulated by the complainant and no such representation was given to them informing the change of her address. The records maintained by them do not show any such representation given by the complainant informing change of her address and that the complainant has also not produced any documents to prove her having vacated the Mysore house and having occupied a residence at Bangalore. Therefore, contended that the documents relied upon by the complainant regarding change of address is concocted and cannot be relied upon. Further contending that there is no merits of the complainant has prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the grievances of the complaint, though affidavit evidence of the complainant is prepared in the name of the complainant namely Shanthala also known as Shanthala D.M.Raju, but it is sworn to before the Notary by her power of attorney holder D.M.Raju. Therefore, it cannot be construed this is the affidavit evidence of the complainant or that of her power of attorney holder namely D.M.Raju. Therefore the affidavit evidence filed by the complainant’s side has to be rejected as it has not been sworn to by the person in whose name it is prepared. Even then the complaint is taken on merits. On behalf of Opposite party, affidavit evidence of one Panduranga, A Zonal Officer if filed. In these affidavits evidence, we are finding reproduction of what has been stated in the respective complaint and version. The complainant has produced copies of application filed by her, allotment letter, cancellation letter, her representations and replies to the first Opposite party. The first Opposite party has also produced copies of those documents and their relevant file containing the material papers pertaining to the allotment and cancellation and representations of the complainant. Heard the counsel for both the parties and perused the records.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Is the complaint is barred by limitation?<br /> 2. Whether the complainant proves that she on shifting her residence from Mysore to Bangalore had given a representation to the Opposite party informing him about her change of address? <br /> 3. Whether she further proves that the Opposite party without sending the letter of allotment to her changed address and intimation of cancellation of site has caused deficiency in his service?<br /> 4. To what relief the complainant is entitled?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : In the Negative.<br /> Point no.3 : In the Negative.<br /> Point no.4 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- The claim of the complainant that she had applied for allotment of a site under the schedule case category to the Opposite party on 05.03.1992 and that she was allotted a site wide allotment letter dated 25.02.2001 of Hanchya-Sathagahally Layout and the allotment came to be cancelled on 26.12.2002 are not in dispute. But, the complainant has contended that she was not served with the letter of allotment by the Opposite party and that the Opposite party purported to had sent the allotment letter to her old address despite giving her changed address and that the Opposite party thereafter on the ground of non-payment of the sital value while cancelling the allotment also did not informed her and therefore stated that the Opposite party has acted arbitrarily. <br /> 7. As could be found from para 6 of the complaint and also para 6 of the affidavit evidence, the complainant has admitted that she came to know the allotment of site made by the Opposite party in her favour vide allotment letter dated 25.02.2001 and at that particular point of time she also learnt that cancellation of the allotment in her favour, the captioned site was arbitrarily allotted to one Raghava Shetty aspirant in the general category. These submission of the complainant prove that the complainant according to her own statement came to know the cancellation of allotment made in her favour and allotting that site in favour of one Raghava Shetty in the year 2004 itself. The complainant after having come to know that act of Opposite party cancelling the allotment made in her favour she did not bother to approach this Forum for the relief she has now sought in this complaint. On the contrary she appeared to had given representation to the Opposite party and moved political persons to recommend her case for allotment of a site in her favour by reverting the order of cancellation. Thereafter, it is found that the complainant even approached the Hon’ble High Court of Karnataka through writ petition No.3767/07 later on got it dismissed as not pressed on 28.02.2008. The complainant after lapse of more than 2 years has approached this Forum with this complaint on 26.04.2008. But, the complainant has not filed any application for condonation of delay in preferring this appeal, therefore the complainant since has not filed this complaint within 2 years from the date of her knowledge of cancellation of site on which date the cause of action arose, the complainant can be conveniently be held has barred by limitation as the same is not presented within the period provided under section 24 (A) of Consumer Protection Act, 1986. Therefore, the complaint in our view is barred by limitation.<br /> 8. Points No.1 and 2:- Coming to the case of the complainant on merits and in her having had given a representation or an application to the Opposite party to record the change of her address, the complainant has produced a Xerox copy of her letter dated 29.01.1999 said to have been received by the Opposite party on 30.01.1999, in which the complainant of course has stated that she has shifted her residence to Bangalroe and to send all the letters or correspondences to her changed address. But, the Opposite party has seriously challenged the correctness or genuineness of this letter and categorically stated it is concocted or forged document and called upon the complainant to prove the same. Despite such a vehement stand of the Opposite party with regard to the genuineness of this letter, the complainant has not taken any step to prove the giving of this application to the Opposite party informing them of her change of address. The Opposite party has produced the relevant papers of their files and contended that absolutely there is no entry or mention or note in their file in this complainant having had given a representation informing the change of address. That being so the complainant should have taken care to prove the genuineness of this letter and in she having had given such letter to the Opposite party as open to her under law. As stated by us this letter is a Xerox copy though purported have been affixed with the seal of the Opposite party, but that is not clear and it do not also bear the signature of any of the officials of the Opposite party. The complainant simply alleging to had given such letter to the Opposite party to note down the change of address has washed of her hands and kept quite without any endeavor to prove that document. <br /> 9. The Opposite party has produced their file and also a copy of the letter issued to the complainant on 27.04.2004 informing the complainant that she has not paid the sital value in time, therefore allotment made in her favour has been cancelled and the same was sent to her address as the same site has been allotted to some one else her request for reconsideration cannot be considered and not to continue any further transaction. This letter was sent to the complainant on 06.05.2004 through registered post acknowledgement due to the old address of the complainant as given in her application. That letter shown to have been delivered to the complainant in her old address and bears the signature of a person to whom it is delivered. This has been highlighted by the Opposite party in their affidavit and also in the arguments, but the complainant has not controverted the statement of the Opposite party and rebutted the receipt of communication dated 27.04.2004 and the contents of the letter. Therefore, it emerges that even on 27.04.2004, the complainant was residing in the same address where she had given in her application for allotment. All these materials prove that the contention of the complainant that she had changed her address and that the Opposite party had not sent the allotment letter to her changed address is a make believe story.<br /> 10. Further it could be seen that the complainant has produced a Xerox copy of the letter she had given to the Opposite party with a caption that she has been allotted a site measuring 50’ x 80’, but because of her financial difficulty she could not pay the sital value and requested the Opposite party to receive the balance sital value and to re-allot site to her. This letter do not bear the date and year. However, there is a note appears to be that of the officials of the Opposite party office, wherein that representation shown to had been given on 04.01.2004. This is a typed letter originally it only contained the information of allotment of a site in her favour, her financial difficulty for which she could not pay the value and requesting for re-allotment. But, subsequently an addition is made in hand writing inserting as if the allotment letters did not reach her in her changed address. This is apparently made by the complainant subsequently with molafide intention for putting blame on the Opposite party. Fortunately, the subject matter captioned in this letter of the complainant that she was in financial difficulty, therefore could not pay the sital value remind un altered or un disturbed. But, in the body of this letter addition has been made to appear as if the allotment was not sent for her changed address. This view of ours is further fortified through a letter of a Member of the legislative counsil namely Maruthi Rao D.Male dated 10.11.2004. It is found that when the complainant approached this Member of the legislative counsel to take up her grievance with the Chief Minister of the State, and that member in this letter addressed to the Chief Minister has categorically stated that this complainant who had been allotted a site could not pay the sital value because of her financial difficulties. If the letter of the complainant and the letter of this member of the counsel are taken together they clearly make out that the complainant never at that stage stated to had not received the allotment letter nor whispered about her change of address. But, she only pleaded that she could not pay the sital value because of her financial difficulties. It is thereafter when she could not succeed with all her efforts to get a favorable order because of the reason of her own default has now come up with a innovative idea of putting blame on the Opposite party in not noting down her change of address and not sending the letter of allotment to her changed address, which as stated already has not been proved. The complainant has also not denied the contents of these 2 letters and has not rebutted the evidence of the Opposite party in this regard as such we have no hesitation to hold that the complainant has failed to prove that she had given any representation to the Opposite party to note down her change of address and she was not aware of the allotment order. Further, it is forth coming from the contents of her complaint that she by taking clue from some of the orders passed by this Forum against the Opposite party has come up with this present story of not sending allotment letters to her to her changed address, which in our view has no basis and has to be rejected.<br /> 11. The Opposite party it is found to had sent the allotment letter allotting a site in favour of the complainant to her address fixing time for payment of the balance sital value and thereafter even turned down the request of the complainant for reconsideration of her case and sent a letter to the same address, which has been received has per the postal acknowledgement. The Opposite party thereafter finding the non-payment of the balance amount finding no alternative cancelled the allotment. The complainant who failed to get any relief from the Hon’ble High Court of Karnataka and also from the Government became frustrated by negative decisions she received in view of her getting the writ petition dismissed and the order of the Government of Karnataka dated 23.04.2007, as such we find no merits in this complaint, as the complainant has failed to prove any short comings or deficiency of the Opposite party. As such we answer the above points accordingly and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. 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 7th July 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> (Y.V.Uma Shenoi)<br /> Member<br /> (Shivakumar.J.)Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />