BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 4^th DAY OF APRIL 2023

ORDER

SMT.K.ANITA SHIVAKUMAR, MEMBER

Complainant filed compliant under section 35 of Consumer Protection Act 2019, seeking direction to OP’s to execute the alternative site in lieu of site bearing No.310 measuring 30*40 feet situated at MKS layout, first stage formed in survey No. 6(p) & 7(p), Lingadheeranhalli village, Kengeri Hobli, Bangalore and to execute the absolute sale deed to the proposed alternative site in favor of complainant.

2. Brief facts of the case are as follows:-

Complainant was an employee of Bangalore Development Authority and OP No.1 is president having office in the name of BDA Employees Welfare Association which is registered and incorporated under Karnataka State Co-operative Society Act 1959. The BDA has granted certain land in favor of OP No.1, to form the layout and allot sites to its employees. OP No.1 offered the employees of BDA to get membership and register their name in the said BDA Employees Welfare Association. The main objective of the association to provide site to its members. Complainant stated that he is the member of said Employees Welfare Association, was allotted a site bearing No.310 measuring 30*40 feet situated at MKS layout, first stage formed in survey No. 6(p) & 7(p), Lingadheeranhalli village, Kengeri Hobli, Bangalore and the allotment letter was issued on 07.12.2007. Complainant further stated OP No.1 has issued letter on 07.12.2007 calling upon the complainant to pay the balance amount of Rs.1,60,000/- and informed him about the allotment of the site bearing No. 310. Accordingly complainant has paid entire site amount of Rs.3,10,000/- to OP No.1.  After receiving the entire amount, OP has issued possession certificate on 03.03.2015 in favor of Sri. Shivanna S/o Mallegowda. Complainant alleges that OP No.1 has not issued allotment letter to him but fraudulently has issued possession certificate to one Sri. Shivanna. The absolute sale deed was executed in favor of the Shivanna on 03.03.2015. Further complainant stated that after receiving allotment to him, visited the site and taken full possession of the site and disposes the complaint with regard to the site in question. After thorough verification, complainant came to know that the OP has played fraud in executing the absolute sale deed in favor of Sri. Shivanna. Thereafter complainant filed several representations to OP No.1 to allot an alternative site, but no action was taken by OP’s. Hence complainant approached Hon’ble High Court of Karnataka by filing writ petition No.32176/2017 seeking direction to OP No.1 to consider the representation of complainant. After hearing the complaint, Hon’ble High Court of Karnataka dismissed the above writ petition on the ground that it will not fall under article 12 of Constitution of India with liberty to approach the appropriate authority. On that direction, complainant approached this commission seeking the appropriate order or direction to OP’s to allot an alternative site in lieu of site bearing No.310. Due to the pandemic covid-19, the delay in approaching this commission and requested to condone the delay. Complainant prayed in his complaint to direct OP’s to allot alternative site in lieu of site bearing No.310 measuring 30*40 feet, situated at MKS layout, first stage formed in survey No. 6(p) & 7(p), Lingadheeranhalli village, Kengeri Hobli, Bangalore and to execute the absolute sale deed to propose alternative site in favor of complainant.

3.  The complainant filed the application before OP No.1 to allot an alternative site.  Even after receiving the representations, OP No.1 has not allotted any alternative site to the complainant, and OP No.1 left the office. Complainant alleges that OP No.1 has played fraud in allotting the sites to the members of the said association. After executing the sale deed, he retired from the service and he is not in the said office.  At present OP No.2 has taken charge of administrative work of BDA Employees Welfare Association.  Complainant stated that he paid entire site amount by borrowing the loan from friends and relatives and invested his hard earned money on said site. On several request from complainant, OP did not execute the sale deed in favor of him with regard to site No.310, hence he alleged the deficiency of service caused by OP’s.  Hence he approached this commission to get relief.

4. After issuance of the notice, OP No.1 & 2 not represented before this commission on the date of appearance. Hence OP No.1 & 2 are Ex-parte.

5. The case has been set down for affidavit evidence of the complainant, accordingly complainant filed his affidavit evidence along with 8 documents. Complainant reiterated as stated in his complaint. Heard the arguments of the complainant. We perused the materials on record.

6. On the basis of the pleadings, the following points will do arise for our consideration:-

i) Point No.1:- Whether the complainant has proved deficiency of service on the part of OP’s?

ii) Point No.2:- Whether the complainant is entitled for the relief as sought in the prayer?

iii) Point No.3:- What order?

7. Our answers to the above points are as follows:-

i) Point No.1:- In the affirmative.

ii) Point No.2:- In the affirmative.

iii) Point No.3:- As per the final order.

REASONS

8. Point No.1&2:- These points are inter-related to each other, for the sake of argument and to avoid repetition we would like to discuss and answer Point No.1&2 together.

9. On perusal of the pleadings and documents placed on record, the complainant has paid Rs.1,50,000/- towards the site of 30*40 feet. As he was an employee of BDA, he become registered member in BDA Employees Welfare Association formed to allot sites to its employees. Complainant also became member and applied for the site. OP No.1 is the president of Employees Welfare Association and formed the layout to allot the site to the BDA Employees Welfare Association members. On 07.12.2007 complainant received allotment letter from OP No.1, purchase of the site size of 30*40 feet bearing No.310 at Bangalore, which is at Ex-P1.

10. The said documents discloses that complainant has paid Rs.1,50,000/- towards the said site and due for Rs.1,60,000/- which is to be paid within 30days from the date of allotment. The letter dated 07.12.2007 which is at Ex-P2 discloses that complainant has to pay Rs.1,60,000/- within 30days from 07.12.2007. As per the letter of Ex-P2, complainant paid Rs.1,50,000/- to OP No.1.  The total amount of sital value Rs.3,10,000/- has paid by complainant to OP No.1.

11. On perusal of the documents placed by complainant in the present case, the absolute sale deed is executed in favor of one Sri. Shivanna on 03.03.2015 as per Ex-P3.  Here there is no dispute with regard to the payment of site value. Ex-P1 and P2 discloses the transaction between OP’s and complainant with regard to the said site No.310 and the payment towards that. The crux of the matter here is, after the payment of Rs.3,10,000/- and allotment of site No.310 is revealed in Ex-P1 and P2. Complainant and his wife submitted representations to OP No.1 on several occasion. Despite the representation submitted on 16.02.2015 prior to execution of sale deed OP No.1 executed sale deed in the name of Sri. Shivanna who is nowhere related to complainant which is at Ex-P5 and Ex-P4 respectively. Even complainant has submitted representations to OP No.1 requesting them to register the sale deed in his name on 16.02.2015, 20.11.2015, 22.02.2016. OP No.1 and 2 neither responded to the representation of the complainant nor register the sale deed pertains to site No.310.

12. As complainant submitted in his complaint that the complainant approached Hon’ble High Court of Karnataka by filing writ petition No.32176/2017 seeking direction to OP No.1 to consider the representations of complainant. The order passed by Hon’ble High Court is disposed in Ex-P8. The very order of Hon’ble High Court has dismissed the writ petition as it is not maintainable and also given liberty to complainant to approach appropriate forum. Therefore complainant approached this commission to get relief for his grievance.

13. Upon going through the documents placed before this commission, we observed that the entire sital amount has paid by complainant but OP No.1 fraudulently alloted the said site No.310 to Sri. Shivanna instead of complainant, is not fair and just. Hence it is primafacie case that OP No.1 is negligent and intentionally committed mistake by OP No.1. OP’s is neither appeared nor contested the matter to defend their case, hence the documents placed by complainant are unchallenged.  OP’s could consider the representation submitted by complainant and his wife, to register the sale deed in favor of them, but OP No.1 did not do so. Complainant attempted several times to approach OP No.1 but OP No.1 has left the office. OP No.2 has taken administrative charge of OP No.1, even OP No.1 did not reply to the representation of the complaint, therefore complainant had no knowledge about the said site which has registered in third person’s name. Hence this complaint, the complainant requested direction to OP to allot alternative site in lieu of site No.310 which is justifiable.  

14. Per contra, claiming for alternative site in lieu of allotted site is also fair on the part of the complainant on the reason that he has paid Rs.3,10,000/- towards the said measurement of site. After collecting the amount of Rs.3,10,000/- without allotting him site No.310 or the alternative one to the complainant is unjust and unfair on the part of OP’s. With all these, OP’s caused deficiency of service by not allotting site in lieu of allotted one, has to compensate him. Hence complainant is entitled to get alternative site measuring 30*40 at the same layout and also he is deprived by the site by paying huge amount towards it. Therefore complainant is also entitled to get compensation for waiting long period of time to get the alternative site, caused mental agony and OP’s made him to approach this commission to get the alternative site, is also entitled to get cost of litigation money incurred on filing this complaint.

15. It is deficiency of service on the part of OP’s by not allotting him alternative site in spite of several requests. It was bonafide responsibility of OP’s to allot alternative one without his request but OP did not do so. It is clearly exhibiting their ignorance, deficiency of service and unfair trade practice and the site allotted to No.310 is registered to the other person by retaining the amount for these many years from 2015 without allotting him a site even after collecting Rs.3,10,000/- from the complainant. Hence they are liable to pay compensation and cost along with alternative site.

16. Bangalore Development Authority is being statutory body and trust worthy to provide service to the beneficiaries. It is an authority to form layouts and people believed in the functioning of BDA. The authority has sanctioned a piece of land for the purpose of allotting the site’s to the employees of BDA. OP No.1 being the association represented by its president has allotted this kind of site’s to grant. But present case in hand seems to be unfair, it is considered to be unfair trade practice under the Consumer Protection Act 2019 under section 39(1)(g). Hence in our considered view, BDA being Government statutory body must be alert to practice good trade practice, otherwise may loose the trust of people. Complainant one of the beneficiary of OP’s might approached this commission for relief, many may not. Hence OP’s are directed cautious in allotting and executing the sale deed fairly, under section 39(1)(g) of Consumer Protection Act 2019 not to repeat the same which might have affected public at large. For the foregoing reasons, we answer Point No.1 and 2 accordingly.

16. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed under section 35 of Consumer Protection Act 2019 is allowed.

2. OP’s are jointly and severally liable to allot alternative site with the measurement of 30*40 feet situated at MKS layout, first stage formed in survey No. 6(p) & 7(p), Lingadheeranhalli village, Kengeri Hobli, Bangalore or any alternative site formed by OP’s and to execute the absolute sale deed of the proposed alternative site to the complainant.

3. OP’s are directed to pay Rs.1,00,000/- towards compensation towards mental agony, waited for long years to the complainant and Rs.10,000/- cost of litigation within 30 days from the date of order, failing which OP’s are liable to pay 10% interest on Award amount from the date of 26.08.2014 till realization.

Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 03^rd day of MAY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;