Karnataka

Kolar

CC/1/2017

Vanajakshi - Complainant(s)

Versus

The Chairman - Opp.Party(s)

05 Jun 2017

ORDER

 

Date of Filing: 03/01/2017

Date of Order: 05/06/2017

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 05^th DAY OF JUNE 2017

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 01 OF 2017

Smt. Vanajakashi.T.S,

W/o. T.S. Subramanya Iyer,

R/at: No.1199, Old Extension,

Kolar City.

(Rep. by Sriyuth. N.G.Vasudev Moorthy, Advocate)           ….  Complainant.

V/s

1) The Chairman,

Kolar Urban Development Authority,

Kolar.

(Exparte)

 

2) The Commissioner,

Kolar Urban Development Authority,

Sri Devarajurs Extension,

Tamaka, Kolar City.

(Rep. by Sriyuth. M.G.Venkata Reddy, Advocate)      …. Opposite Parties.

-: ORDER:-

 

BY SMT. A.C. LALITHA,  LADY MEMBER

01.   The complainant having submitted this complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter refereed in short as “the Act”) has sought for issuance of directions to Ops to issue possession certificate and NOC pertaining to Site No.551 measuring 40 x 60 feet bounded on East by site No.552, West by site No.550, North by 60 feet road and South by site No.538 situated at 1^st Stage, 1^st Block, Kolar Urban Development, Tamaka Layout, Kolar and also sought compensation of Rs.10,000/- per month since the date of sale-deed towards loss and damages and any other relief and cots as forum deems fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, she had been granted the aforesaid site from Ops and the same was registered under lease-cum-sale deed on 18.11.1996, subsequently on 22.10.2013, the same was registered under absolute sale-deed to her by the Ops and issued katha certificate on 30.10.2013, but they have not issued possession certificate.

 

(b)    Further it is contended that, she approached Ops under a petition dated: 23.07.2016 for issuance of possession certificate which was/is very much necessary for her to get loan from the Bank to construct the house in the said site.  Ops replied in reply letter dated: 19.10.2016 as, KUDA have allotted the same site to another party by name Rathnamma, W/o. Bychappa on lease-cum-sale deed and also admitted as the complainant was the first allottee and an absolute sale-deed holder.  Further stated that the Lokayuktha Police have registered a case Cr.No.06/2005 against Bychappa, the husband of 2^nd allottee and some of the documents are seized and after completion of the said Lokayuktha proceedings her request would be consider.  She replied through her counsel legal notice dated: 10.11.2016.

 

(c)    Further it is contended that, the said Lokayuktha case C.C. 03/2009 on the file of Hon’ble Principal District & Sessions Judge, Kolar, was disposed off on 28.08.2015 ended with conviction.  Several approaches to Ops for possession certificate and NOC was of no use, thus Ops rendered deficiency in service.  So contending, the complainant has come up with this complaint on hand to seek the above set-out reliefs.

 

03.   In response to the notice served the OP No.2 has put in its appearance through the said learned counsel and has submitted written version.

 

04.   As per the proceedings noted in the order sheet OP No.1 placed exparte on 30.01.2017.

 

05.   OP No.2 in its version by admitting the allotment of the said site and registration of sale-deed and katha in favour of complainant and also admits the entire payment of necessary fee and development charges, katha charges and name of complainant was recorded in all the records also admits notice dated: 10.11.2016 and dated: 28.11.2016.  And OP No.2 denied all other averments of the complainant and specifically contends as this complaint is not maintainable under Consumer Protection Act and also barred by limitation and as this matter is purely Civil in nature, this Forum has no jurisdiction to try the complaint. 

 

(a)    OP No.2 further contends that, the KUDA authority allotted Site No.551 and issued at that time all necessary documents to the complainant as per Law.  At particular time, it is the duty of complainant to take the possession certificate and NOC if any.  But unfortunately, the documents concerned to Bychappa and site No.551 belongs to complainant seized by Lokayuktha Police and pending before the Hon’ble High Court of Karnataka.  Hence, till disposal of said case and till final orders the OP No.2 authority is not in position to issue NOC and Possession Certificate and other documents is not permissible to OP under Law.  The latches if any, is only on the part of Bychappa and not any negligence by KUDA authority Kolar.  After disposal of case and after return of original documents, the KUDA is always ready and willing to perform their duties as per KUDA rules and regulations.  Admittedly OP No.1 authority is concerned to Government and hence till disposal of case and return of documents only possible to consider the complainants prayer.  Further, the Law of lispendancy also attracts to this case on hand.  Hence already KUDA stating the above facts, difficulties and pendency of the case in endorsement dated: 19.10.2016 and also in reply notice dated: 28.11.2016, because KUDA is to follow the Court proceedings.  Hence the delay, if any, is only because of pendency of the case and not by KUDA authority.

 

(b)    And that under the circumstances there could be no deficiency in service, prayed for dismissal of this complaint, costs has been sought. 

 

06.   The complainant has submitted her affidavit evidence and the following documents:-

(a) Copy of paper publication

(b) Copy of application dt: 12.09.1988

(c) Copy of temporary allotment letter dt: 14.07.1994

(d) Copy of allotment letter of site No.551 dt: 29.07.1996

(e) Copy of receipts in 03 nos

(f) Copy of lease cum scheduled dt: 18.11.1996

(g) Copy of receipt for payment of rent dt: 21.10.2013

(h) Copy of receipt for payment of katha charge + tax dt:06.11.2013.

(i) Copy of registered sale deed dated: 22.10.2013

(j) Copy of katha endorsement dated: 30.10.2013

(k) Copy of E.C. for 20 years dt: 20.11.1996 to 23.10.2013

(l) Copy of letter by OP-2 to complainant dt: 19.10.2016

(m) Copy of legal notice dt: 10.11.2016

(n) Copy of reply notice dt: 28.11.2016.

 

07.   On behalf of OP No.2 Sri.C.B.Venkateshappa, the Assistant Director Town Planning and in-charge Commissioner of KUDA, Kolar, has put in his affidavit evidence and the learned counsel appearing for OP No.2 has submitted the following documents:-

1. Copy of the site sanction order sheet in favour of Rathnamma in No. Co. No. Pra : AS 446/1992-93.
2. Copy of Smt.Rathnamma letter dt: 16.04.2016
3. Copy of KUDA letter dated: 20.04.2016
4. Copy of Encumbrance Certificate dt: 01.04.1992 to 31.03.2004.
5. Copy of Encumbrance Certificate dt: 01.04.2004 to 01.04.2016.
6. Copy of the Lokayuktha Notice to KUDA dt: 16.08.2005.
7. Copy of KUDA reply letter to Lokayuktha dt:22.08.2005.
8. Copy of letter to KUDA dt:07.12.1999
9. Copy of Tax Paid Receipt dt: L 10/08/1998 in No.3.
10. Copy of the sale deed Form No.III.
11. Copy of sale deed dt: 04.08.1999.
12. Copy of Katha dt: 24.12.1999.
13. Copy of Possession Certificate dt: 03.12.1999
14. Copy of Notice to Rathnamma dt: 15.02.1999
15. Copy of Notice to Rathnamma dt: 04.06.1995.
16. Copy of cash paid receipt dt: 11.11.1994.
17. Copy of Notice to Rathnamma dt: 14.07.1994.
18. Copy of Application Form No.2.
19. Copy of affidavit dt: 07.04.1992.
20. Copy of cash paid receipt.
21. Copy of reply notice dt: 28.11.2016.

 

08.   Both the parties have submitted their written arguments and heard oral arguments of both sides.

 

09.   Therefore the points that do arise for our consideration in this case are:-

(A) Whether this Forum has jurisdiction to entertain the complaint?

(B) Whether the complaint is barred by limitation?

(C) Whether the dispute on hand could be termed as Consumer dispute only?

(D) Whether the complainant was/is a consumer as envisaged Under Section 2(1)(d) of the Consumer Protection Act, 1986?

(E) If so, whether the repudiation on the part of the Ops with regard to claim of complainant would amount to deficiency in service?

(F) If so, to what relief the complainant is entitled to?

(G) What order?

10.   Findings of this District Forum on the above stated points are:-

POINT (A):-  In the Affirmative

POINT (B):-  In the Negative

POINT (C):-  In the Affirmative

POINT (D):-  In the Affirmative

POINT (E):-  In the Affirmative

POINT (F):-  In the Affirmative

POINT (G):-  As per the final order

                                for the following:-

 

REASONS

POINT (A) TO (D):-

11.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

12.   It is an admitted fact that, the complainant had applied for grant of site at 1^st stage layout formed by the Ops.  Site No.551 as detailed in complaint was grantd to her by Ops and same was registered under absolute sale-deed and also issued katha certificate to complainant.

 

13.   Therefore, when this is the background, no doubt, Ops are the ‘service providers’ and obviously complainant was/is the service availed and consequently the complainant was/is the ‘Consumer’ to receive the said service.  So, the complainant comes within the meaning of section 2(1)(d) of the Consumer Protection Act, as ‘Consumer’.  So, the contention of OP No.2 with regard to jurisdiction, nature of complaint does not tenable.  Hence this dispute is exclusively consumer dispute and on this count this forum has jurisdiction to try this complaint.

 

14.   The another contention of OP No.2 is with regard to limitation and cause of action.  It is an admitted fact that, the complainant is the absolute owner of the said site and Ops have not yet issued possession certificate and moreover Ops sought time till disposal of the Lokayuktha case which is pending in Hon’ble High Court of Karnataka.  Therefore, the complainant being ‘consumer’ of Ops as sale-deed holder of the said site continue to have cause of action as long as they issue possession certificate and also the correspondence between them through notices dated: 10.11.2016, dated: 19.10.2016 and reply notice of Ops dated: 28.11.2016 are all within the scope of limitation as per the Consumer Protection Act, 1986.  Therefore, we hold that, the complaint is well in time.  Hence the finding.

 

POINT (E) TO (F):-

15.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

16.   It is an admitted fact that, the complainant was the 1^st allottee, absolute sale-deed holder and katha holder of the said alleged site No.551.  And OP No.2 contends that, because of mistake done by Sri.Bychappa the same was allotted to Smt. Rathnamma, W/o. Sri.Bychappa.  Even though OP No.2 admits to issue possession certificate after disposal of the Lokayuktha case which is pending in Hon’ble High Court of Karnataka.

 

17.   We cannot agree to this contention of OP No.2 because they have shown a gross negligence while allotting the same site to another, after execution of sale-deed and issuance of katha certificate.  Secondly Ops have rendered deficient in service by asking complainant to wait till disposal of said lokayuktha case, for which she was/is no way concern.  For no fault of complainant why she has to wait till conclusion of that case would be the question?  Therefore, we are of the definite opinion that, Ops have rendered deficient in service and the complainant has suffered humiliation for the act of Ops and thus the complainant is entitled for the reliefs as she sought together with compensation and costs as per the following order.

 

POINT (G):-

18.   We proceed to pass the following:-

ORDER

01.   For foregoing reasons the complaint stands allowed with costs of Rs.5,000/- as hereunder:-

(a)    We direct Ops to issue possession certificate and NOC with regard to site NO.551 measuring 40 x 60 feet bounded on East by site No.552, West by site No.550, North by 60 feet road and South by site No.538 situated at 1^st Stage, 1^st Block, Kolar Urban Development, Tamaka Layout, Kolar.

(b)    The complainant is held entitled to recover a compensation of Rs.30,000/- from Ops jointly and severally together with interest @ 9% per annum from the date of filing of this complaint till realization.

(c)    We grant 30 days time to Ops to comply the order from the date of receipt of this order.

02.   Send a copy of this order to both parties free of cost

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 05^th DAY OF JUNE 2017)

 

 

 

LADY MEMBER                                   PRESIDENT