Karnataka

Chitradurga

CC/94/2017

DR.Umamaheshwarappa - Complainant(s)

Versus

The Comissioner,Town Muncipal council - Opp.Party(s)

Sri.P.S.Sathyanarayanarao

12 Jan 2018

ORDER

COMPLAINT FILED ON:03/10/2017

DISPOSED      ON:12/01/2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 94/2017

 

DATED: 12^th JANUARY 2018

PRESENT: - SRI. T.N. SREENIVASAIAH        : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        : MEMBER

                          B.A., LL.B.,   

……COMPLAINANT/S	Dr. P. Umamaheswarappa, S/o Late Putta Naik, Age: 43  years, “ Sri Sevalal Sadana”, Behind Market Yard, Opp: to Urdu School, Vedavathi Nagar, Hiriyur – 577 599 hitradurga District.   (Rep by Sri.P.S. Sathyanarayana Rao, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Commissioner, Town Municipal Council, Hiriyur.                                                 2. The Health Officer, Town Municipal Council, Hiriyur.              3. The Revenue Inspectors, Town Municipal Council, Hiriyur.   4. The President, Town Municipal Council, Hiriyur. (Rep by Sri. C.M. Veeranna, District Government Pleader)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P. Act, 1986 for the relief to direct the OPs to pay Rs.3,00,000/- towards damages, Rs.75,000/- towards cost of material and transportation charges and Rs.1,00,000/- towards mental agony and pain sustained by the complainant from illegal acts of the OPs and Rs.20,000/- towards costs of the proceedings and such other relief.

2.     The brief facts of the case of the above complainants are that, complainant is the absolute owner in peaceful possession and enjoyment of the House built in site No:18, Khatha/Assessment No:2000/37/1A4/18/2000, at Ward No:03, Behind RMC Yard, Vedavathi Nagara, Hiriyur Town.   Complainant is the absolute owner of the above said property measuring east-west 10.44 meters, north-south 10.44 meters situated at Vedavathi Nagar, Hiriyur Town bounded towards 40 feet road, west site No.17, north 40 feet road and south 24 feet.  The same was purchased under registered sale deed dated 08.08.2011 from its lawful vendor.  The OP No.2 is the Health Inspector and OP No.3 is the Revenue Inspector, OP No.4 is the President of City Municipality, Hiriyur.  The complainant after obtaining valid license from the office of the OPs for the purpose of construction of residential house.  As per the measurement approved by the authority, the complainant has constructed the house, keeping the remaining portion of the vacant space towards eastern side of his house and built the compound wall.  The complainant is in peaceful possession and enjoyment of the same without any interruption.  The complainant has invested nearly Rs.3,00,000/- for the purpose of construction of the compound wall.  The OPs have interfere with the complainant peaceful possession and enjoyment of the property i.e., residential house including the compound wall.  The OPs have demolished the compound wall by using the JCB and man power illegally without issuing notice to the complainant.  First time the OPs have demolished the compound wall by that time, the complainant has lodged a complaint before the concerned Circle Inspector of Police.  The Circle Inspector has compromised the matter and the OPs have permitted to the complainant to construct the compound wall.  The complainant as per the promise made by the OPs, the complainant has constructed the compound wall.  Again the OPs without any intimation demolished the compound wall by forcibly without following the procedure as contemplated under law.  The complainant has spent nearly Rs.3,00,000/- for construction of the compound wall.  Hence, complainant prays this Forum to pass an order for compensation of Rs.3,00,000/- towards damages, Rs.75,000/- towards cost and materials and transportation charges, Rs.1,00,000/- towards mental agony and Rs.20,000/- towards costs.  The cause of action for this complaint arose on 04.09.2017 when the OPs have demolished the compound wall by second time which is within the jurisdiction of this Forum.            

      3.       On service of notice, OPs appeared through Sri. C.M. Veeranna, District Government Pleader and filed version denying the entire allegations made in para 1 to 8 of the complaint.  The OPs in their version have stated that, the complainant has not obtained the license for construction of the compound wall and that the place is not belongs to him and it is below the high tension wire and the property is vested with the Municipality for the purpose of public utility and the complainant knowing fully well that, he has constructed the compound wall illegally, the same belongs to the OPs.  The complainant has no right to interfere with the property of OPs and the complainant has violated the terms and conditions of the Municipality’s Act.  Further it is stated that, the OPs are lower office staff, have not demolished the compound wall and the other allegations made in para 1 to 8 are denied as false.  Further it is submitted that the complainant is the absolute owner of the property situated at Vedavathi Nagar is not known by the OPs and further the complainant has purchased property by virtue of sale deed is not known by this OPs.  The complaint is not maintainable either in law or on facts and this Forum has no jurisdiction to entertain this complaint because, the complainant is not a consumer.  If the complainant has suffered anything or he is suffering every right to approach this Hon’ble Civil Court.  The complainant is not comes within the purview of definition of consumer dispute or deficiency in service and unfair trade practice will not attracts the C.P Act.  This Forum has no jurisdiction to entertain this complaint as the complainant is not a consumer.  Hence, prays for dismissal of this complaint.        

         4.    Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-7 were got marked and closed his side. On behalf of OPs, one Sri. Ramesh Sunagar, the Commissioner of Municipality, Hiriyur has examined as DW-1 by filing the affidavit evidence and no documents have been got marked.  

 

5.     Arguments of both sides heard.

6.     Now the points that arise for our consideration for decision of above complaints are that;

 

1. Whether the complainant proves that, he is the consumer under the C.P Act?

 

(2) Whether the complainant prove that the OPs have demolished the compound wall constructed by him without following the procedure as contemplated under law and committed deficiency of service and entitled for the reliefs as prayed for in the above complaint?

 

              (2) What order?

        7.     Our findings on the above points are as follows:-

        Point No.1:- Partly in Affirmative.

Point No.2:- Partly in Affirmative.

        Point No.3:- As per final order.

REASONS

8.     Point No.1:- Complainant has filed this complaint against the OPs and stated that the OPs have demolished the compound wall without following the procedure.  According to the complainant, the complainant is the absolute owner in possession and enjoyment of the site No.18, Khatha/Assessment No:2000/37/1A4/18/2000, at Ward No:03, Behind RMC Yard, Vedavathi Nagara, Hiriyur Town.  The complainant has purchased Ex.A-1, the registered sale deed.  As per the sale deed, the complainant is having site measuring East-West 10.44 meters and North-South 9.14 meters and boundaries given in the schedule east 40 feet road, west site No.17, north 40 feet road and south site No.24.  Ex.A-2 the kandayam paid receipt which shows the complainant has paid the kandayam to the OPs, therefore, he is the consumer to the OPs and hence, this Forum has got jurisdiction to entertain this complaint.  Hence, Point No.1 is held partly affirmative.   

9.  Point No.2:- The complainant is the absolute owner in possession and enjoyment of the site No.18, Khatha/Assessment No:2000/37/1A4/18/2000, at Ward No:03, Behind RMC Yard, Vedavathi Nagara, Hiriyur Town.  The same has been purchased from its lawful vendor under the registered sale deed dated 08.08.2011.  After purchasing the same, the complainant has applied for the license before the OPs and also produced the plan as per Ex.A-3.  The complainant has paid kandayam/tax to the OPs as per Ex.A-2.  The boundaries given in the registered sale deed clearly shows that, the compound wall space is also belongs to the complainant as per Ex.A-1.  The plan produced by the complainant i.e., Ex.A-3, the compound wall is also adjacent to the house of the complainant and the complainant has obtained the valuation certificate from one Civil Engineer.  The Civil Engineer has given the valuation report for the expenses of compound wall is of Rs.2,50,000/-.  According to the complainant, the OPs have not followed any procedure before demolishing the compound wall.  If the property belongs to the Municipality or KEB, the Municipal Authority have not followed the procedure as contemplated under law and they have not issued any notice to the complainant before demolishing the compound wall.  Therefore, we come to the conclusion that, there is a deficiency of service on the part of OPs.  Accordingly, this Point No.2 is held as partly affirmative to the complainant.          

          10.     Point No.3:- As discussed on the above points and for the reasons stated therein we pass the following:-

ORDER

          The complaint filed by the complainant U/s 12 of CP Act 1986 is hereby partly allowed.

          It is ordered that, OP No.1 is hereby directed to receive the application from the complainant and regularize the open space towards eastern side of the house of the complainant in the name of complainant after collecting necessary fee and issue possession certificate to the complainant and permit him to construct the compound wall.

           It is ordered that the OPs are hereby directed to pay a sum of Rs.5,000/- each towards mental agony and Rs.10,000/- costs of the proceedings.

          It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

(This order is made with the consent of Member after the correction of the draft on 12/01/2018 and it is pronounced in the open Court after our signatures)      

                               

 MEMBER                                                PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

 

Witnesses examined on behalf of OPs:

DW-1:  Ramesh Sunagar, the Commissioner of Municipality, Hiriyur by way of affidavit evidence. 

Documents marked on behalf of Complainants:

01	Ex-A-1:-	Sale deed
02	Ex-A-2:-	Tax Paid receipt
03	Ex-A-3:-	Layout map
04	Ex-A-4:-	Estimation of loss
05	Ex-A-5:-	Legal notice dated 31.08.2017
06	Ex-A-6:-	Postal receipt with acknowledgements
07	Ex-A-7:-	6 photos

 

Documents marked on behalf of OPs:

-Nil-

MEMBER                                                  PRESIDENT

Rhr**