Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The Complainant in this Complaint has come up with his grievance against the Opposite party that he had applied for allotment of a site measuring 40’ x 60’ to the Opposite party paid initial deposit of Rs.1, 350/-. Thereafter on 21.09.1998 he gave a representation with change of his address to the Opposite party to send all intimations to that address, accordingly the Opposite party had agreed. He contacted the Opposite party several times regarding allotment of a site and when he finally through the commissioner of the Opposite party contacted a staff in the office of the Opposite party, he was informed that he was allotted a site bearing No.10887 in 2nd Stage, 4th Phase of Vijayanagar, Mysore, but he had not received any allotment letter. When he gave a representation in this regard he was informed that allotment letter was sent to his old address. This has been done despite he having had given his changed address, but the Opposite party on 02.02.2007 issued an endorsement that he has received allotment letter on 13.11.1998, though he had not received the allotment and he came to know that the allotment made in his favour came to be cancelled and therefore has prayed for a direction to the Opposite party to issue him allotment letter, to issue title deed and possession certificate of the site with damages of Rs.90,000/-.<br /> 2. The Opposite party has filed version admitting the application of the Complainant for allotment of a site measuring 40’ x 60’ giving the address where the Complainant was residing. That it had issued notice to the Complainant on 31.07.1998 to produce his caste certificate and accordingly, the Complainant submitted a caste certificate and also his changed address on 21.9.1998. Thereafter, it allotted a site bearing No.10887 on 28.08.1998 for a sum of Rs.1,00,000/- and Complainant received the allotment letter personally on 13.11.1998 and the Complainant after receipt of the allotment letter has not paid the balance amount. Therefore, for non-payment of the balance amount the allotment was cancelled on 18.04.2005 and thus contending that there is no cause of action to the Complainant has prayed for dismissal of the Complaint.<br /> 3. In the course of enquiry, the Complainant and the Secretary of the Opposite party have filed their affidavit evidence reproducing what has been stated by them in the respective Complaint and version. The Complainant has produced copies of certain documents and correspondence letters. The Opposite party has produced the original file maintained by it.<br /> 4. 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 Complainant proves that the Opposite party by not sending allotment letter and subsequent correspondence letters to him to his changed address has cancelled the allotment and thereby caused deficiency in its service?<br /> 2. Whether the complainant is entitled for the relief sought for?<br /> 3. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : In the affirmative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Points no. 1 & 2:- As could be gathered from the admissions of the Opposite party, the Complainant had applied for allotment of a site measuring 40’ x 60’ paid initial deposit of Rs.1,350/- and after he changed his address had given an application to the Opposite party informing his change of address on 21.09.1998. It is also admitted that the Complainant belongs to schedule caste, in that category he was allotted a site tentatively and was asked to produce his caste certificate, accordingly along with his caste certificate he gave his changed address to the Opposite party and that new address given by the Complainant to the Opposite party is also found in the file of the Opposite party. Therefore, it is clear from the admissions of the Opposite party and also the relevant papers found in the file of the Opposite party that the Complainant on 21.09.1998 itself gave his changed address and requested the Opposite party to send allotment letter and all other correspondences to him to his changed address. Therefore from 21.09.1998 onwards the Opposite party ought to have sent the allotment letter and all correspondences to the Complainant to his changed address. With this now we shall examine as to what the Opposite party has done in this case and whether such an act would amounts to deficiency in their service.<br /> 8. As could be found from the note sheet dated 29.10.1998 found in the file of the Opposite party that on 28.08.1998, the Complainant was allotted a site from out of the sites reserved for SC and ST allotting site No.19887 and the office was directed to obtain caste certificate from the Complainant and after verifying it to be correct then issue allotment letter to the Complainant. Thereafter, a communication was sent to the Complainant to furnish his caste certificate, accordingly the Complainant on 21.09.1998 gave a representation to the Complainant by enclosing his caste certificate and requested the Opposite party to send allotment letter to his newly given address. Therefore, the allotment of site was made tentatively on 28.08.1998 subject to production of caste certificate. The Complainant who was informed to produce the caste certificate had requested to send allotment letter and other future correspondences to his newly given address. These letters are found in the file of the Opposite party. As against this the Opposite party who after receipt of the caste certificate satisfying that the Complainant comes within the reserved category decided to send allotment letter to him. Then they prepared allotment letter, but unfortunately it is addressed to the Complainant to his old address, which was given in the original application. Even here also, the Opposite party appears to have played fraud in correcting the date and month of issue of this allotment letter. The date and month originally typed in this allotment letter is over written to appear as if it had been prepared on 28.08.1998. This date and month during which the allotment letter was prepared and sent, do not go in conformity with the noting dated 29.10.1998. The Opposite party as found in the file, discloses that tentative allotment was made on 28.08.1998 and a direction was given to the office to obtain caste certificate and after verifying it then to issue allotment letter. This noting is made on 29.10.1998 therefore allotment letter could not have been prepared prior to 29.10.1998 and it should have been prepared after 29.10.1998 that to after receipt of the caste certificate of the Complainant. Leaving this manipulation, as it is no-doubt the Opposite party has produced the allotment letter with its file and contended that the Complainant received the allotment letter on 13.11.1998. Though this allotment letter as we have already stated which ought to have been addressed to the newly given address of the Complainant was addressed to the old address. However, some how the Opposite party has taken the signature of the Complainant having delivered the allotment letter to him on 13.11.1998. No doubt, the Complainant has not seriously denied the receipt of this allotment letter and has not even denied his signature found on the reverse of this allotment letter or having come to know of the allotment of site made in his favour. <br /> 9. In the allotment letter served on the Complainant, the Opposite party has no doubt categorically informed the Complainant that the balance amount to be paid by him and called upon the Complainant to pay certain amount of the balance within 15 days from the date of receipt of the letter and certain amount as shown in coloumn No.8 within 90 days from the date of receipt of the letter and to take lease cum sale deed within 45 days from the date of payment of the entire amount with a condition, in the event of failure of the Complainant to pay the balance amount within the stipulated period the allotment stands cancelled leading to forfeiture of the advance payment. The Complainant who undisputedly received the allotment letter on 13.11.1998 ought to have paid the balance sital value within the period mentioned in the allotment letter and on his failure he would have lost his claim for allotment of a site and further leading to forfeiture of the advance amount. Therefore to this effect, the question of the Opposite party not taking into consideration the change of address given by the Complainant and not sending the allotment letter to his changed address would not have had any adverse effect on it and if the Opposite party had cancelled the allotment on the Complainant failure to comply the conditions found in the allotment letter during the year 1998 or immediately thereafter, on that step the Complainant could not have raised any grievance and in such an eventuality this Forum also could not have entertained the Complaint and grant any relief to him. But the Opposite party did not do so by cancelling the allotment on the violations of the conditions by the Complainant as enumerated in the Complainant, but cancels allotment only on 31.03.2005 after several years. That too alleging that it gave number of opportunities to the Complainant to pay the balance amount, but when he failed to avail those opportunities it contended to have cancelled the allotment finally on 31.03.2005. With these contentions of the Opposite party let us examine whether the Opposite party in its subsequent acts has caused deficiency in its service depriving the Complainant of a site. <br /> 10. As already pointed out above by us if the Opposite party had cancelled the allotment of site on the Complainant failing to comply the conditions enumerated in the allotment letter during that year 1998 or immediately thereafter, the Complainant could not have any grounds to agitate before this Forum. But the Opposite party did not cancel this allotment and stopped there it thought of extending time to the Complainant to pay the balance sital value. In this regard, the Opposite party thought of extending time to the Complainant to pay the balance sital value and addressed a letter to him on 19.11.2002 informing the Complainant that the value of the site allotted to him is Rs.1,00,000/- that the Complainant has only paid Rs.1,350/- and was called upon to pay the balance amount of Rs.98,650/- within 30 days with interest and sent this letter to the Complainant to his old address as given in his original application. Again on 19.01.2005 a similar letter was also addressed to the Complainant giving him another 15 days time to pay the balance sital value of Rs.98,650/- and again commits the same mistake of sending this letter or notice to the Complainant to his old address and finally the Opposite party on 31.03.2005 passed an order cancelling the allotment of site made in favour of the Complainant, besides forfeiting the advance amount to it and again committed a same mistake of sending this cancellation letter also to the Complainant to his old address. Therefore, it is manifest from these correspondences found in the file of the Opposite party that despite it had the representation of the Complainant to note down his changed address dated 21.01.1998 available in the same file, the Opposite party blindly sends all the correspondences to the old address of the Complainant. Further, we also find a copy of the resolution of the Opposite party shown to had been passed on 07.07.2004, in which the Opposite party appears to have resolved to give opportunity to the allottees of the sites whose allotments were not cancelled to pay the balance sital value with interest within the given period. Therefore even as on 02.07.2004, the Opposite party had resolved to give some more opportunities to the allottees whose allotment were not cancelled to pay the balance sital value with interest. With all these, the Opposite party cancelled the allotment of the Complainant on 31.03.2005 without affording any opportunity to him. Therefore, when the Opposite party did not exercise its power of cancellation of the allotment as found in the conditions of allotment printed in the allotment letter and decided to give some more opportunity to the Complainant it should have informed him and called upon him to pay the balance sital value with a warning as to the consequence of failure. Therefore, the Opposite party before cancelling the allotment should have ascertained whether the Complainant has been given the opportunities or whether those notices addressed to him have been sent to his correct address and served on him or not, without knowing this basic necessities the Opposite party has cancelled the allotment which in our view is nothing but arbitrariness and deficient. Thus, the Complainant on the basis of these materials available on the file of the Opposite party has proved that the Complainant without sending any communications to him as requested by him have either deliberately or with some intention shown to had sent those communications to his old address and then cancelled the allotment. Therefore, this act of the Opposite party in our view squarely fall within the definition of deficiency and therefore, the Complainant in our view is entitled for the relief as prayed for.<br /> 11. This Forum in its number of orders passed against Opposite party has pointed out the short comings of its officials and failure of the Commissioners in not independently erasing the case file and acting on the misleading notings of the officials. Therefore, it is necessary that the commissioner shall take note of the lapses of the officials concerned and to deal them departmentally.<br /> 12. The Complainant admittedly had paid only a sum of Rs.1,350/- in place of 1 lakh and therefore had retained his money without paying it to the Opposite party, the sital value has now gone up exorbitantly. Thus when the Complainant is benefited by getting such a site is liable to pay interest on the amount due at reasonable rate till the date of payment. With the result, we answer points no.1 & 2 in the affirmative and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The Complainant shall pay the balance sital value of Rs.98,650/- to Opposite party with interest at 12% p.a. from 28.08.1998 on which date the site was tentatively allotted to him till that amount is paid and the Complainant shall pay or deposit that amount within 60 days from that date of this order.<br /> 3. On the Complainant depositing the balance sital value with interest at 12% p.a. as indicated above, within 60 days from the date of such deposit the Opposite party shall allot him the site No.10887 of 2nd Stage, 4th Phase, Vijayanagar, if it is available for allotment, execute a sale deed and deliver him possession of the same, in case if that site has already been allotted to someone else the Opposite party shall allot a site of the same measurement in any of its layouts formed during the period of formation of the Vijayanagar layout or in the layouts formed immediately thereafter. <br /> 4. The Opposite party is also directed to deposit a sum of Rs.5,000/- to the account of this Forum.<br /> 5. The Opposite party is also directed to pay cost of Rs.500/- to the Complainant. <br /> 6. Give a copy of this order to each party according to Rules.<br />