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 154-10 DATED 01.07.2010<br /> ORDER<br /> <br /> Complainant K.Madegowda,<br /> S/o Kunne Gowda, R/at 2nd Main, 7th Cross, Janatha Nagar, <br /> Mysore-570009.<br /> <br /> (By Sri. D.S.S., Advocate)<br /> <br /> Vs. <br /> Opposite Party Secretary, Mysore and Chamaraja Nagar District Primary Teachers House Building Co-operative Society, No.114, Vivekananda Block, Radhakrishnan Nagar, Yeragana Halli Extension, <br /> Mysore-11.<br /> <br /> (By Sri. K.R.S, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 21.04.2010<br /> Date of appearance of O.P. : 06.05.2010<br /> Date of order : 01.07.2010<br /> Duration of Proceeding : 1 MONTH 24 DAYS<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 C.P.Act, seeking direction to the opposite party to allot a site measuring 30’ x 40’ in the first stage, refund Rs.1,42,400/-, the difference amount between the original cost and the amount collected for the site in the second stage and damages of Rs.50,000/- for causing mental agony and such other reliefs deemed fit. <br /> <br /> 2. In the complaint, it is alleged that, the complainant is senior member of the opposite party Housing Co-operative Society. His membership number is 663. After becoming the member of the opposite party society, complainant deposited and paid the amount as and when demanded. In the General Body, time was fixed for payment of the amount till 10.02.1988. The amount to be paid as on the said date for a site measuring 30’ x 40’ was Rs.7,500/-. The opposite party society in violation of the resolution, allotted the sites to junior members who did not pay the required deposits within the fixed time. Aggrieved by the act of the society, the complainant had approached this Forum in CC No.83/2007. It was disposed on 20.06.2007 observing that, since society is not having any site for allotment and the complainant agreed to wait for some time, till society get sites for it’s disposal, giving liberty to file fresh complaint, if warranted.<br /> <br /> 2 B. After disposal of the said complaint, the complainant learnt that, 15 sites were available with the opposite party as on the date of disposal of the earlier complaint. The opposite party suppressed that fact and falsely contended that, it had no sites for allotment in favour of the complainant. It was mis-representation with ulterior motive by the opposite party to deprive the site to the complainant. It amounts to not only cheating the complainant, but contempt towards the Forum by making false statement. Report of the Deputy Registrar of Co-operative Societies dated 23.06.2008 discloses that, 15 sites were available in the first stage for allotment. The opposite party society has allotted sites in the first stage, ignoring the seniority of the complainant to be junior members.<br /> <br /> 2 C. When the matters stood thus, opposite party informed the complainant that, the developer had filed a case before the Joint Registrar of Co-operative Societies has been disposed off and complainant should immediately get the site registered by paying a sum of Rs.1,60,000/- in the second stage. The complainant demanded the opposite party that, as he is entitled to get a site in the first stage for a sum of Rs.17,600/-, why he is asked to pay Rs.1,60,000/-. Opposite party informed that, there was every possibility of the developer approaching higher courts to get stay and to avoid it, it was adviced to get sites registered immediately. The complainant being of advanced age and eager to take up construction of the house in the site to be allotted, paid the said amount and to got the site No.197 by draw-up lots as was done by other members also. It was assured by the opposite party that, the site which is going to be allotted is fully developed and completed in all respect with civic amenities. Believing the same and in view of the urgency shown, complainant got registered the site measuring 30’ x 40’ for a sum of Rs.1,60,000/- on 07.08.2008.<br /> <br /> 2 D. Thereafter, the complainant inspected the site. To his utter shock and surprise, there was no site anywhere and the entire area was uncdeveloped land having not semblance of developed residential layout. On being contacted the opposite party, complainant was told that, there is an order of the status 940 by the KAT and hence, opposite party cannot take up any developmental work. Act of the opposite party giving false assurance to get the site registered collecting huge amount for undeveloped site and later on pleading inability to develop the same, is a case of cheating besides deficiency in service. In fact, complainant was entitled for a site in the first stage itself for a sum of Rs.17,600/-. But, the opposite party cheated him by charging Rs.1,60,000/- that too for undeveloped site. In fact, in respect of the site, for which sale deed has been executed, opposite party has not yet get the sites released from MUDA and even dimension of the sites are not obtained. It is cheating besides violation of Rules relating to allotment of sites. 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 either in law or on facts. The Directors of the opposite party society have submitted their resignation and Special Officer is appointed by the Joint Registrar of Co-operative Societies, Mysroe. He is looking after the administration of the society. Without making him as a party, the complaint is not maintainable.<br /> <br /> 3 B. Certain facts alleged in the complaint are admitted. Same are no repeated. The deficiency in service as well as cheating, mis-representation etc., alleged is specifically denied. It is contended that, the complainant voluntarily paid the amount to the opposite party and got the sale deed registered in respect of site No.197 in the second stage. Since, the complainant himself got the document registered, now, he is not entitled for any reliefs sought. It is contended that, opposite party has made some work in the site allotted to the complainant. Some dispute is pending before the KAT between the developer and the opposite party. Further, it is contended that, as per the decision taken in the Annual General Body Meeting, complainant had to pay a sum of Rs.7,500/- on or before 10.02.1988, but he had paid only Rs.5,300/-. If the complainant had paid the amount as called for by the opposite party, he could have got the site. It is stated that, as per the norms of the Government for allotment of sites to the Schedule caste and Schedule Tribe members, and physical handicapped, the society allotted sites to them. Since, case was pending before the Joint Registrar of Co-operative Societies, sites were not registered, though same were allotted to 14 members. After disposal of the case in the year 2007, said sites were registered to the respective allotees. It is submitted that, earlier 15 sites also including in the second stage and all the sites together in the lot allotted the said members. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. In support of his case, the complainant has filed his affidavit and produced certain documents. On the other hand, Secretary of the opposite party society has filed her affidavit and produced several documents. For the complainant, written arguments are filed. Also, we have heard the learned advocates for both parties and perused the 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 affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The facts alleged in the complaint and the defense of the opposite party in the version, are narrated in detail in the earlier paragraphs and as such, same need not be repeated.<br /> <br /> 8. As could be seen from the material on record, main grievance of the complainant is that, when he had filed the complaint before this Forum at CC No.83/07, a representation was made for the opposite party society that, no sites were available for allotment, but in fact 15 sites were available. To substantiate the fact that, 15 sites were available in the first stage, the complainant has produced the information furnished along with letter at red ink page 61 and 62 of the file. Here it is relevant to note that, non-availability of sites for allotment to the complainant submitted by the opposite party society in the earlier proceedings between the parties is mainly on account of an attachment order of the Competent Authority. Certificate copy of the order passed by this Forum is at red ink page 56 of the file. As stated therein, between the society and the developer, dispute before the Authority under the Co-operative Societies was pending and developer had obtained an attachment order of the land or sites and in view of that fact, for the society submission was made that, till attachment was vacated, the society was not in a position to take any decision for allotment of sites. Hence, it is not that the opposite party society had contended that, no sites were available at all, but non-available of sites for allotment was due to attachment order. <br /> <br /> 9. The next grievance of the complainant is that, said sites in the first stage have been allotted to junior members ignoring the fact that, he is the senior member and had deposited the minimum required amount. From the records, it is fact that, by drawing lottery said sites have been allotted. In view of this, the grievance of the complainant that ignoring his seniority sites have been allotted to the junior members, cannot be appreciated.<br /> <br /> 10. The main reliefs sought by the complainant is, in the first stage price fixed by the opposite party society for a site measuring 30’ x 40’ was Rs.7,500/- and that amount he had paid, but the site was not allotted. His further contention is that, in the second stage, site No.197 has been sold to him by executing sale deed for a sum of Rs.1,60,000/-. Hence, it is prayed by the complainant, firstly, to allot a site in the first stage and secondly, to refund the difference amount. As regards allotment of site in the first stage as noted above, in the lottery drawn the remaining sites have been allotted to other members and hence, as on today no sites in the first stage are available and as such, complainant is not entitled for alternative site in the first stage. As regard, refund of the difference amount, for the opposite party society it is contended that, by the resolution, time for payment of the amount was extended upto 10.2.1988, but within that time, the complainant had not paid the entire amount, but in fact he had paid only Rs.5,300/-. In this regard, account extract is produced at page 86 of the file. <br /> <br /> 11. For the opposite party a ruling reported in II (2009) CPJ 450 relied upon. The Hon’ble Hariyana State Commission in this ruling has held that, when the complainant accepted plot out of his free will, without protest is estopped from claiming relief for price of alternative plot. In the case on hand also, when the opposite party society made offer for allotment of site No.197 in the second stage, the complainant accepted it and paid the amount in all Rs.1,60,000/- and got executed the sale deed. Hence, the complainant is not entitled for refund of difference amount.<br /> <br /> 12. However, it is important to note that, it is the definite and specific case of the complainant that, there is no development at all in the second stage and when the complainant after getting the sale deed registered went to the spot found no site bearing No.197 anywhere and entire area was uncultivated land having no semblance of developed residential layout. This aspect has not been specifically denied or disputed by the opposite party society. On the other hand, in the version, opposite party has stated in seventh paragraph that, it has made some work in the site allotted to the complainant. But, what is that some work is done is not narrated and explained. Hence, considering the material on record, including recital in the sale deed in favour of the complainant, we are of the considered opinion that, said site is not at all yet developed with all civic amenities. The opposite party society having allotted such a site to the complainant that too for a sum of Rs.1,60,000/-, though he became member of the society nearly more than 22 years back and had paid major portion of the price of the site for the first stage, we feel it just to award compensation that the complainant has claimed. If the interest at rate of 18% p.a. is taken into consideration on the amount paid by the complainant to the opposite party society from the year 1986 till the date execution of the sale deed and comparing the price that the society has allotted the site to other members, nearly half of the amount that the complainant has paid will work out. Under the circumstances, claim of compensation of Rs.50,000/- by the complainant is just and reasonable. However, further we would like to make it clear that, the opposite party society is required to develop the site allotted to the complainant with all civic amenities, failing which the complainant is at liberty to take further appropriate steps in accordance with law. With this observation, our finding on the above point is partly in affirmative.<br /> <br /> 13. 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 /> 2. The opposite party society is hereby directed to pay compensation of Rs.50,000/- to the complainant with interest at the rate of 18% p.a. from the date of sale deed in his favour dated 07.08.2008 till realization, within the month from the date of this order.<br /> 3. The opposite party is further directed to develop the site allotted to the complainant with all civic amenities required by law within 6 months from the date of this order, failing which the complainant is at liberty to take appropriate steps in accordance with law.<br /> 4. The opposite party also to pay cost of the proceedings to the complainant amounting to Rs.5,000/-.<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 1st July 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 />