Sri.G.V.Balasubramanya,<br /> Member<br /> <br /> 1. The complainant made an application to the opposite party for allotment of a site measuring 30’ x 40’ in the year 1991. He paid the initial deposit of Rs.850/- besides registration fee of Rs.250/-. Since then the complainant has not received any communication from the opposite party. The complainant has alleged that though the opposite party refunded the deposit amount of the other applicants it was not done in his case. <br /> 2. The complainant approached the computer section in the opposite party’s office and learnt that he had been allotted site No.814 in Hanchya Sathagalli A zone. But he had not received any communication in this regard. Hence, he gave a representation to the opposite party on 10.3.2006 asking him to send either the allotment letter or refund the initial deposit. However, there was no reply for this letter. This, according to the complainant, is deficiency in service. He has prayed that this Forum direct the opposite party to give possession of the site by accepting the value of the site and if no site is allotted to him refund the initial deposit paid by him along with interest by maintaining the seniority. He has, also, claimed damages of Rs.50,000/-. <br /> 3. The opposite party’s version is simple and straight forward. He has denied all allegations and says that the complaint is not maintainable in view of the provisions of the Karnataka Urban Development Authorities Act. He has also raised an objection that the Complaint is barred by time.<br /> CC 265/06<br /> 4. The Complainant applied for a site measuring 40’ x 60’ and the same came to be allotted in August 2003. Immediately on receipt of the allotment letter, the complainant approached the case worker in the opposite party’s Office to pay the balance amount. He was told by the case worker that he has to obtain the permission of the opposite party for issuing the challan for payment of money and was asked to come back after one week. Thereafter, the complainant visited the opposite party’s Office several times to make the payment, but was sent away giving one reason or the other.<br /> 5. In March 2006, the Complainant learnt that the allotment made to him had cancelled and the case worker issued an endorsement to that effect on 14.03.2006. The complainant has alleged that no demand notice or cancellation order was issued to him before canceling the allotment. Terming the act of cancellation as deficiency in service the complainant has prayed that the opposite party be directed to allot him an alternative site at the price prevalent in the year 2003 and also award him compensation of Rs.1,50,000/-.<br /> 6. The opposite party has justified the cancellation of allotment on the ground that the complainant failed to comply with the terms of allotment thus becoming a defaulter. The ground of limitation has also been raised.<br /> 7. From the above contentions the following points arise for our consideration:<br /> I. Whether the complainant in CC 75/06 proves that the opposite party has caused deficiency in service by not sending the allotment letter though a site was allotted to him?<br /> II. Whether the Complainant in CC 265/06 proves that the Opposite party has caused deficiency in service by not sending final notice before cancelling the allotment?<br /> III. Whether the Complaints are barred by time?<br /> IV. Whether the opposite party proves that the complaints are hit by the provisions of the Karnataka Urban Development Authorities Act?<br /> V. What relief or order?<br /> 8 Our findings are as under:<br /> Point I : In the negative.<br /> Point II : In the negative.<br /> Point III : In the negative.<br /> Point IV : In the negative.<br /> Point V : As per final order<br /> <br /> REASONS<br /> 9 Point I:- The opposite party has produced the entire office file pertaining to site No.814 claimed by the complainant to have been allotted to him. It is true that the said site was allotted to him on 25.2.2001. But the letter was posted only in May, 2001. The envelop found in the file reveals that the letter could not be delivered as the addressee was not residing at the address mentioned in the letter. The complainant’s allegation is that he did not receive the allotment letter. The office note found in the file reveals that the opposite party had released a newspaper notice on 9.5.2005 that those allottees who had not received the allotment letter should contact the office within a month and obtain the allotment letter by furnishing certain particulars. The opposite party’s contention is that the complainant failed to make use of this opportunity also and as such he is not entitled to any relief. It is seen from the office file that allotment was cancelled on 21.6.2005 and the cancellation order was sent on 27.6.2005. It is, therefore, apparent that the complainant was not vigilant and failed to make use of the opportunity. The said site has been re-allotted to one Shri.Manjunath Aiyyar. <br /> 10 The complainant appears to have woken up rather late as he has given a representation to the opposite party on 17.1.2006 stating that he had not received the allotment letter and as such he must be given that site. The opposite party has replied that since the allotment had already been cancelled, nothing can be done. The complainant who applied for the site in the year 1991 does not appear to have made any attempt to find out the status of his application for over 15 years. The opposite party who allotted the site in 2001 waited for five years for the complainant to make payment. No individual notice is contemplated in the scheme. Hence, we do not see any deficiency in the service of the opposite party. Therefore, we answer the point in the negative.<br /> 11 Point II:- The opposite party has produced the original office file from which it is seen that the final notice was issued on 16.08.2004, 06.12.2004, 31.01.2005 & 19.05.2005. Since, the complainant disputed the dispatch of these notices the opposite party has produced the speed post booking journal corresponding to those dates from which it is seen that the notices were indeed dispatched by the opposite part. However, it is also true that the complainant has not received these notices has they have been returned with endorsements “addressee refused. Returned to sender” and “no such addressee in this door number hence returned to sender”. Though these endorsements appear to be strange because the complainant has categorically stated that there is no change in his address, in the absence of any rebuttal evidence, we conclude that the opposite party has successfully proved the dispatch of the final notice.<br /> 12 The complainant has no doubt produced extracts of his Savings Bank Account to show that he had sufficient funds in his account to pay the balance amount to the opposite party when the allotment of site made to him but for the refusal of the case worker to issue the challan. However, this contention fails in view of the fact that the allotment letter contains an option to the allottee to make the payment either using the challan or through a Demand Draft or Pay Order. Thus the complainant could have exercised the option of paying the balance amount through D.D. or Pay Order. It is therefore clear that the complainant never approached the opposite party after the receipt of the allotment letter. To support this conclusion, we have found in the file produced by the opposite party a letter written by the complainant seeking extension of time to pay the balance amount. No doubt, the complainant has disputed the contents of the letter and his signature on the letter. In any case, not paying the balance amount through a D.D. or Pay Order is fatal to the cause of the complainant. In addition to this, the opposite party has successfully proved dispatch of the final notices. Therefore, the complainant is not entitled for any relief and as such we answer the point in the negative.<br /> 13 Point No.III:- Both the complainants have made allegations which give raise to continuous cause of action. In CC 75/06 the complainant has alleged that he did not receive either the allotment letter or refund of the initial deposit. It is also his case that he learnt about the allotment of the site only in the year 2006. In the case of the complainant in CC 265/06 the cause of action has arisen when he learnt about cancellation of allotment in March 2006. Therefore, neither complaint is barred by time. Hence, we answer the point in the negative.<br /> 14 Point No.IV:- It is now settled law that any deficiency in service committed by statutory bodies engaged in allotment of sites and houses comes within the purview of Consumer Protection Act and the Fora can try such complaints. Further, section 3 of the Consumer Protection Act makes it clear that the provisions of this act or in addition to and not in derogation of the provisions of any other law. Hence, the complaints are maintainable before this Forum. We therefore answer the point in the negative. <br /> 15 Before, we part with this order, we wish to observe that the office files produced by the opposite party reflects that his subordinates are not discharging their duties properly. It is seen from the office file of the complainant in CC 75/06 that site no.814 was allotted to the complainant first and then cancelled on 21.06.2005. However, even before such cancellation it was allotted to one Mohan Shashi Shekar Raj on 06.10.2001 and was cancelled on 01.04.2005 and even while these two allotments were still in force the same site was allotted to one Shri.Manjunath Aiyyar on 14.07.2003, it is astonishing that one site was allotted to three persons at a time. Similarly in the case of the complainant in CC 265/06, the signature of the complainant on the letter seeking extension of time to pay the balance amount does not tally with his signature on the power filed to the Forum and his sworn statement. They are prima facie different. The endorsements found on the envelops used for sending the final notices are also difficult to believe. Yet, we cannot look beyond the records placed before us and grant relief to the complainants. These discrepancies will not make the complainants entitled to relief. However, considering the fact that both complainants applied for sites 15 years back and have lost the opportunity of owning the sites only because they could not produce any legally acceptable evidence, we urge the opposite party to consider the case of the complainants sympathetically and examine whether they can be granted any relief. However, it is hereby made clear that these observations of ours will not create any legally enforceable right in the complainants to claim any relief from the opposite party. With these observations, we proceed to pass the following.<br /> ORDER<br /> <br /> A. Both Complaints are dismissed.<br /> B. Parties to bear their own costs.<br /> C. Keep original order copy in CC 75/06 and Xerox copy in CC 265/06.<br /> D. Give a copy of this order to both the parties according to Rules.<br />