Per:  Akatha.H.D.  

JUDGMENT

            This is the complaint filed by the complainant u/s 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service in not giving permission for construction of the building even after paying the required fee to the OP. Hence, prays for relief to give permission for construction of building along with compensation for physical and mental agony and deficiency in service and the loss occurred of Rs.10,00,000/- along with Rs.10,000/- for litigation and miscellaneous expenses.

             Brief averments of the Complaint are as under;

            2.  That the complainant further alleged that the OP after verifying clearly the documents they gave a legal permission letter for the construction of building on 04.06.2013. After getting the licences, the complainant taking financial assistance made arrangements for all the construction materials like bricks, sand, cement, steel, stones purchased to the tune of Rs.5,00,000/-.

3.         The complainant further alleged that on 04.12.2013, the OP office has issued notice to him. In that notice, it was mentioned that the said licences for the construction of building in plot No.1023 has been cancelled and the acknowledgement was also given on that day itself. Then the complainant was informed that the complainant has to settle the dispute of the middle road along with the localities between plot No.1623, 1621 and 1622.

4.         The complainant further alleged that the objections were given by G.K.Deshpande and Vijaya Rao Kalalabandi to the OP Office. The said documents which were submitted to the OP-Office i.e. the Sale Deed is a false document and created one. At the time of giving the application by them, the said building was not in their possession and even that time also is not mentioned in it clearly.

5.         The complainant alleged that the sale deed which was submitted before the OP-Office is a created one and the same is not registered and the said sale deed may not be taken for consideration. The complainant further alleged that it is not satisfiable that after giving the permission for the licence of construction of building, the OP at once cannot withdraw its licence back.

6.         The complainant further alleged that after paying the requisite fee a receipt has been given for the construction of the building. From this, it clearly shows that there is deficiency in service. Since 2013 the complainant is moving to the OP Office and other concerned offices every day for the permission/licences for the construction of building till today, due to this act, the complainant is suffering from physical and mental agony and lots of financial problems have been occurred.

7.         The complainant further alleged that after taking financial assistance from the financial institutions, he is paying the interest on it and the material purchased for the construction of the building was wasted. Due to this, the complainant has suffered to the damages of Rs.10,00,000/-. The complainant alleged that the vacant site next to his site is a government land.

8.         The complainant further alleged that for this reason, the complainant has issued a legal notice to the OP-Office through his counsel and the said notice is served on the OP. But the OP has not given any reply to it. Hence filed this complaint praying for to grant permission/licences for construction of building along with compensation of Rs.10,00,000/- towards deficiency in service, physical and mental agony and for the loss occurred and Rs.10,000/- towards litigation expenses and miscellaneous charges as prayed above.

9.         The Forum after admitting the complaint, a notice was issued to the OP and the said notice is served upon the OP. The OP appeared before the Forum through their counsel and filed Vakalatnama along with main Objections/Written Version to the main petition.

10.  The Objections of the OP are as under:-

That the OP submitted that the complaint is not maintainable u/s 12 of the Consumer Protection Act, 1986.  The complainant is not the Consumer in any manner as per the C.P. Act. The OP has not sold any goods or has not given any services to the complainant. Hence, question of deficiency in service does not arise at all as alleged in Para 6. Hence, on these grounds this complaint is not maintainable under this Act. Hence, it is fit to be dismissed as not maintainable.   

11.       OP further submits that it is true that the complainant has obtained the construction permission by paying the legally required fee from the OP. But, the complainant has obtained the said permission by suppressing the material facts that, the road lies which measure 10 feet East-West and 63 feet, North-South. The said road was left in this said plot property M.B. 9-4-326/9-3-201 by it’s previous owner late Sri.Basavayya S/o Siddaveerayya R/o Koppal to the resident of this locality in the year 1984 and also the said Basavayya had executed the agreement to the residents 1) Swamy Rao Kalabandi, 2) Gururao S/o Dikshit Rao Deshpande. Since then that portion is the road and it is daily used by the resident of that locality. The material facts suppressed and got the construction permission illegally.

12.       OP further submits that this complainant also has executed agreement letter to the OP on 07.12.2005 wherein he has specifically agreed to continue the said 10 ft extent of road in the said plot No.1623 as the previous owners left for the same. And then complainant got registered the sale deed of the plot No.1623 on 22.12.2015. It clearly shows that the complainant knowingly well that the said road is already existed in the said plot before purchasing the said plot No.1623 from it’s previous owner even then the complainant got registered the sale deed of the said plot to the whole extent 5292 sq. ft (588 salagaja) without deducting the existing road extent 10 X 63 feet. On this ground it is clear that this complainant has not approached this Hon’ble Court with clean hands. Hence, this complaint is fit to be dismissed.

13.       The OP further submits that the contents of Para 3 of this complaint are all false, it is false to say that the complainant has stocked the raw materials those are, sand cement, steel worth of Rs.5,00,000/- by taking the financial assistance for the construction, these contents, are all false. Hence, they are denied by this OP. Hence, the complainant is called for the fact proof of this same.

14.       The OP further submits that the contents of Para No.4 are true and correct. The said construction permission has been cancelled by this OP as the complainant has taken the said construction permission by suppressing the material facts regarding the existence of this road in the said plot. The said road was left by the previous owner Sri.G.Basavayya S/o Siddaveerayya during his life time and further, this complainant also agreed to continue the same and in this regard he executed the agreement letter in favour of the OP. Hence, this OP cancelled the said construction permission and issued endorsement to get settle the road dispute in between this complainant and residents of that locality.

15.       The OP further submits that the content of the Para 5 of the complainant are partly true and partly are false. Hence, false contents are specifically denied by the OP. It is true that, G.K.Deshpande and Vijay Rao Kalalbandi submitted their objections and also submitted the deed of agreement regarding leaving the road which was executed by the previous owner Basavayya, but it is false to say it is created document if it is a created one, why he has not taken legal steps before the competent court of law and more over on pursing the further contents of this said para it clearly shows that the said portion is not in the possession of the complainant and further this complainant is not in actual possession of that said road portion 10 X 63 feet till today. Hence, he is not entitled for any relief and further this Forum has no jurisdiction to decide the genuineness of the documents.

16.       The OP further submits that the contents of the Para 6 of the complaint are partly true and partly are false. Hence, false facts are specifically denied by this OP. It is false to say that without giving any intimations and enquiry cancelled the construction permission suddenly. It is true that, the complainant has paid the necessary legal fee for construction permission but mere paying the fee, the complainant is not coming under the definition of Consumer. Hence, this complaint is not surviving under this law. The OP is not giving any services to the complainant on this count also this complaint is not maintainable under the law. Hence, further content of this Para are all false. They are not admitted by this OP. Hence, the complainant is called for the strict proof of the same.  On these grounds the complaint is not maintainable under this law and the complainant is not the Consumer under this law. Hence, he is not entitled for any compensation. Hence OP prays for dismissed of the complaint with heavy exemplary costs.

17.       On the basis of the above pleadings, the following points have been framed: 

POINTS

1.  Whether the said complaint filed by the complainant is maintainable?

2. What order?

18.   To prove the case of the complainant, the complainant himself examined as PW1 and he has got marked documents as per Ex.A.1 to Ex.A.20 and closed their side of evidence.  The OP himself examined as RW1 and got marked documents as per EX B1 to EX B4 and closed their side of evidence.

19.    Heard the arguments.

20.    Our findings on the above points are as under;

Point No. 1 :   In the Negative,

                  Point No. 3 :  As per final Order for the following

REASONS

21.  POINT No. 1:  On perusal of the pleadings, evidence coupled with the documents of respective parties on record there is a dispute regarding the middle road between plot No.1623, 1621 and 1622. The OP in their Written Version has contended and admitted that the complainant had obtained the construction permission by paying the legally required fee from the OP. The OP further contended that the complainant has obtained the said permission by suppressing the material facts that the road is existing which measures 10 feet East-West and 63 feet North-South. The said road was left in this said plot property M.B. 9-4326/9-3-201 by its previous owner late Sri. Basavayya S/o Siddaveerayya, R/o Koppal to the resident of this locality in the year 1984 and also the said Basayya had executed the agreement to the residents one Sri.Swamy Rao Lalalbandi and Gururao S/o Dikshit Rao Deshpande and the said portion is the road and it is daily used by the resident of that locality. The OP further contended that by suppressing these material facts he got the construction permission illegally.

22.       It is also averred by the complainant in his examination in Chief that the Sale Deed produced by the localities is not valid and it is a created document by them.

23.       The OP further contended that the complainant also has executed an agreement letter to the OP on 07.12.2005 wherein he specifically agreed to continue the said 10 ft. extent of road in the said plot No.1623 as the previous owner left for the same and then the complainant got registered the sale deed of the plot No.1623 on 22.12.2015 of the said plot to the whole extent 5292 sq. ft. (588 salagaja) without deducting the existing road extent 10 X 63 feet. Here the question of valid sale deed and agreements regarding the existing road to the extent of 10 X 63 feet cannot be adjudicated by a Consumer Court which is to dispose of the case in a summary fashion. It is settled law that where the validity of sale deed agreements and the existing road to the extent of 10 X 63 feet is in question, the complainant should be advised to knock at the doors of the Civil Court looking to number of disputed facts between the parties, the complainant was required to seek remedy before the appropriate authority/Court for reddressal of his grievance instead of Consumer forum. We are of the view that the questions that arise for consideration in their case cannot be adjudicated in summary proceedings by this Forum. The matter involved examination and Cross Examination of Witnesses and appreciation of documentary evidence. As stated above the complainant has averred that the sale deed Agreement submitted before the OP-Office is a created by them. Such disputed question of fact cannot be decided in summary proceedings by this Forum. As such the parties are required to be relegated to Civil Court for proper adjudication of the matter.

24.       We are fortified by a decision reported in Oriental Insurance Company Ltd., V.Munimahesh Patel, IV (2006) CPJ I, where in the Insurance Company disputed the genuineness of the documents and the Hon’ble Supreme Court held that where the matter involves adjudication of issues involving disputed factual questions, Consumer Forum cannot adjudicate the matters and the complainant was entitled to seek relief in court of competent jurisdiction.

25.       The Hon’ble National Commission in transport Corporation Employees Provident Fund Trust V/s Orissa Small Industries and Another III (2007) CPJ 316 (NC) held that the matter involving adjudication of disputed questions of facts has to be tried by competent Court. Thus we are inclined to give an opportunity to the complainant to approach competent court for adjudication of the matter.

26.       In view of the above discussion and findings we proceed to pass the followings.

ORDER

1. In the result, the complaint is dismissed with liberty to the complainant to approach the Civil Court within the time prescribed under law.
2.  There shall be no order as to costs.
3. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 24^th day of May, 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

List of Documents Exhibited for the Opposite Party

Witnesses examined for the Complainant / Respondent.