Heard learned counsel for the complainants.
2. The captioned complaint case is filed under Section 12 of the Consumer Protection Act, 1986 seeking the relief therein.
3. The case of the complainants are that the opposite party had invited applications for allotment of plots under their Housing Scheme namely, “Indira Gandhi Co-housing Colony, Lingipur, Sisupalgarh, Bhubaneswar. The layout plan of the Project had been duly approved by the Bhubaneswar Development Authority. In this respect, a brochure was published by the opposite parties highlighting the amenities to be provided under the Scheme. The complainants are in possession and residing in the houses constructed over the said plots by them. In the year 1994, the complainants were handed over the possession of the respective houses by the opposite party with the assurance that they will be provided necessary amenities including open space reserved for school/playground/park. It is alleged that the opposite party reduced the open space by getting it revised from the approved plan of Bhubaneswar Development Authority. Thereby, the complainant approached this Commission in C.D. Case No. 59 of1994 with a prayer to restrain the opposite parties from selling out the then proposed 26 number of plots as well as for completion of pending devlepmental works in the colony as per the conditions laid down in the brochure and proceed with the matter.
4. In the present case, the complainant asked the opposite party not to reduce the space provided in the lay-out plan. The Hon’ble Commission disposed of the C.D.Case No. 59 of 1994 on 13.3.1997. Accordingly the inhabitants of the Indiragandhi Co-housing Colony have been using the said open space as a playground after developing the site. It is also alleged that apprehending filing of this application against the order of this Commission, the complainant filed Caveat petition before the Hon’ble High Court of Orissa. It is alleged that on 2.8.2013 some of the officials of opposite party Corporation were taking measurements in the aforementioned play ground and on being approached they stated to have planned to sell out the land for further construction. The opposite party by this act of proposed operation has not only transgressed the right but also caused prejudice to the rights of the complainants. Therefore, the complaint was filed.
5. The opposite party nos. 1 and 2 filed written version stating that the case is barred by limitation by the principle of res-judicata and there is no cause of action to file this case. The opposite party admitted that earlier complaint case no. 59 of 1994 was filed before this Commission, where some of the persons were complainants are here in this case. In that case, direction was issued not to reduce space provided in the revised plan by the Corporation in future.
6. It is averred that allottee colony members have constructed a temple over the open space. The complainants appear to be in opposition to the members who have made the construction but openly going against the Corporation. It is further averred that some of the members of the Society namely, Indiragandhi Co-housing Colony Resident’s Association filed C.S. No. 443 of 2006 in the court of Civil Judge (J.D), Bhubaneswar against the Corporation. The same was dismissed. Against that appeal was filed before the District Judge, Khurda. That appeal was dismissed on 2.5.2013. It is further averred that basic amenities like road, drainage, sewerage, open space, school, play ground, electricity etc. have been provided to the residents of the colony. So far as reduction of open space is concerned, the opposite party submitted that reduction of open space is done with due approval of the B.D.A. According to them, the complainant wanted injunction against the Corporation but filed the case.
7. After hearing both the parties, two issues emerged for consideration:-
(I) Whether the complainant has proved the deficiency in service on the part of the opposite party?
(II) Whether the complaint is maintainable?
8. Learned counsel for the complainant at the outset submitted that they have approached this Commission in C.D. No. 59 of 1994 and copy of the judgment is available in Annexure-1. He submitted that according to Annexure-1 and other papers, the complainant has approached this Commission at the first instance and now for second one as the order was not complied, vide Annexure-1. Paragraph-4 of the order passed in Annexure-1 reads as follows:-
“ In the complaint petition though there are allegation that at this time of advertisement as well as allotment, the opposite parties promised to provide some facilities and drinking water facilities, drainage and sewerage and electricity, the provisions now made are not adequate. It has been contended by the learned counsel appearing for the opposite parties that all the provisions assured in the brochure have been provided and there can be no objection as to the adequacy thereof. In the aforesaid circumstances, we dispose of the case with a direction that the open space provided in the revised lay out plan should not be further reduced by the Corporation in future. The case is disposed of accordingly.”
The aforesaid order clearly shows that this Commission was visited by the complainant with the purpose to restrain the opposite party from reducing the open space as per lay out of the BDA. The opposite party on the other hand in their written version clearly admitted that they have reduced the open space as per the BDA approved plan. When the exact area has not been identified in the complaint case to prove reduction of land by the opposite party to construction the shop etc. it must be observed that the BDA has worked on the application made by the opposite parties, the complainant has not taken any steps to find out as to how much area was reduced and for what purpose. Therefore, we are of the view that the complainant has failed to prove reduction of the land by the opposite party for other purpose by depriving the complainant from using the space. On the other hand, the complainant failed to prove the deficiency in service on the part of the opposite party. Issue No.II is answered accordingly.
ISSUE NO.I
9. It is also averred by opposite party that case is barred by res judicata. The counsel for the complainant drew our attention to order passed in CD No. 59 of 1994 where this Commission after analysing the case have directed not to reduce such space. After going through the same, we find that the issue with regard to encroachment has already been decided by this Commission and the present complaint is nothing but repetition. Once this Commission has already decided the issue, on the same issue, the present complaint cannot be entertained as it is barred by res judicata under Section 11 of the CPC. However, we do not take the same seriously because these are consumer disputes.
10. Another anomaly which arises in this case is about the application of provision of Section 12(1)(c) of the Act. which reads as follows:-
“12. Manner in which complaint shall be made- (1) A complaint in relation to any goos sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by-
- xxxx
- xxxx
- One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
11. In the instant case, there are 12 complainants but no petition under the above provision is filed seeking permission of this Commission to file the present complaint. Therefore, the present complaint is not maintainable. Learned counsel for the complainant strenuously argued that as per Annexure-1, they have obtained the order of this Commission not to reduce further of the play ground. Ofcourse, we have held that there is no any proof of allegation established. Even if there is violation of the order of this Commission, the complaint case is not the proper application to be moved to but proceed with execution of the said order as the right way of implementing the order of this Commission passed earlier. In this regard, this complaint is not maintainable. Issue No.I is answered accordingly.
12. In view of the aforesaid discussion, we are of the view that complaint petition deserves no consideration and accordingly dismissed on contest against the opposite parties. No cost.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
