Karnataka

Gadag

CC/5/2014

Smt.Honnamma W/o A Nadaf - Complainant(s)

Versus

The Commissioner, K.H.B. - Opp.Party(s)

Sri.R.V.Kumar,

18 Mar 2016

ORDER

JUDGEMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The complainant has filed this Complaint against the Opposite Parties (herein after referred in short as OPs) u/s 12 (2) of Consumer Protection Act, 1986 alleging deficiency in service against OPs.

2.    The brief fact of the case is that the Complainant is permanent resident of Gadag. She does not owns a house, she stays in a rental house. The OPs published an advertisement to distribute the vacant developed sites in Gadag, for which the Complainant applied for a MIG site on 08.12.2011 bearing Application No.44663. The Complainant had paid the Registration Fee along with the EMD of Rs.1,00,905/- through D.D.

 

3.      The OP issued a distribution letter dated: 11.07.2012 stating that MIG site No.372 measuring 15 X 19 in Survey No.399, 400 of Gadag-Betegeri has been allotted to the Complainant for which total amount of Rs.4,35,942/- had been fixed, but the Complainant had not applied for site in the above said survey number, without consent of the Complainant and without informing the Complainant. The OP had allotted the site in Survey number where the Complainant had not applied. The site in Survey No.399 and 400 which had been allotted to the Complainant is an undeveloped area were basic facilities and amenities had not been provided from which the Complainant had faced mental agony and financial problem by which the OP had committed deficiency in service.

 

4.      Further, the Complainant wrote a letter on 23.08.2012 to the OPs stating that shift the allotment of MIG site to Survey No.292, 293 and 294 i.e. behind the D.C. Office, Gadag but OP had not taken any action. Hence, on 19.12.2012 the Complainant issued a notice through his counsel to the OPs, for which the OP had replied on 08.01.2013 that the unsuccessful applicants in the process of lucky dip had been allotted to sites in the some other extension by obtaining the consent letter from the respective applicants.

 

5.      Further, Complainant stated that she had applied for above said site and paid amount by taking hand loans with difficulties and prayed to direct the OP to allot a MIG site in Survey No.292, 293 and 294 or else order to repay the paid amount with interest along with compensation of Rs.50,000/- for mental agony and harassment and Rs.5,000/- towards the litigation charges and other relief that a court deemed fit.

 

6.  The predecessor on seat registered the Complaint and notice were ordered as such OPs appeared through their advocate and filed their Vakalat and Written Version.

 

Brief facts of the Written Version of OPs:

That the OP had denied the contents of the Complaint and further stated that the OP had informed the Complainant that the sites for distribution in Survey Nos.292, 293 and 294 are not available hence the sites in developed area situated in Survey No. 399 and 400 are available for distribution, to the unsuccessful applicant in the lucky dip process, the sites will be allotted to the applicant in above said Survey Number to the consent of the respective applicant. This has been informed to the Complainant and other applicants, immediately after the lucky dip process.

 

7.      The OP further states that the sites had been allotted to the applicant only after receiving oral or written consent. The allotment letter of the Complainant had been sent on 11.07.2012. The development work in Survey Nos.399 and 400 had been done as same as the area developed in Survey Nos.292, 293 and 294 and the sites allotted to the Complainant had been allotted by getting the written consent from the Complainant. The lucky dip and site distribution process had been completed as per the Norms and Regulations of Karnataka Housing Board (KHB).

 

8.      Further, OP had stated in his written version that the Ops-Institution is distributing the sites in no loss and no profit basis to facilitate the public. This being the fact, the OP had never hurted the Complainant physically or mentally. Hence, OP had prayed to dismiss the Complaint with costs.  

 

9.     In the background of the above said pleadings, the Complainant has examined PW1 in her support of the allegation. The documents produced are:

1. Copy of the public notice issued by the OP EX. P1

2. Copy of the application filed by the Complainant for a site EX. P2

3. Copy of the affidavit EX P3.

4. Copy of the residential certificate EX P4.

5. Photocopy of the Bankers Cheque (D.D.) EX. P5.

6. Acknowledgement issued by the Vijaya Bank EX P6.

7. Bank Channel EX. P7.

8. Allotment Letter EX. P8.

9. Copy of the Terms and Conditions EX P9.

10. N.O.C. to avail financial assistance EX. P10

11. Letter written by the Complainant to the OP EX. P11.

12. Speed post acknowledgement EX. P12.

13. Postal Acknowledgement EX. P13.

14. Office copy of the Notice EX. P14.

15. Receipt in (No.2) EX. P15 and 17 and

16. Postal Acknowledgement EX. P16 and P18

17. Letter of reply by the OP EX. P19.

These documents have been marked as EX P1 to P19 in the defence of the Complainant. On the other hand, Ops filed the Written Version one Sri.Shankrappa, Assistant Executive Engineer, Sub-Division Office, K.H.B., Gadag had swear on behalf of the Ops and filed Chief Affidavit and following documents had been marked as EX. OP1 to OP5 on behalf of Ops.

1. Copy of the Consent letter EX. OP 1.
2. Public Notice issued by the OP EX. OP 2
3. Circular EX. OP3.
4. Final Notice issued by the OP to the Complainant EX. OP4.
5. Certified copy of Postal acknowledgment EX. OP5 and filed written argument.

            On perusal of above documents and arguments heard on both the sides, we conceived that the dispute is regarding the allotment of site by the Ops in some other area where the Complainant had not applied. The OP had denied averments made in the Complaint. This being the pleadings, the points arises before us for adjudication are as follows:

 

1.	Whether the Complainant proves that the OP made any deficiency in service?
2.   3.	Whether the Complainant is entitled for relief?   What Order?

 

Our Answer to the above Points are:-

Point No.1 – Affirmative,

Point No.2 – Partly Affirmative,

Point No.3 - As per the final order.

 

10.    On consideration of pleading, objection, evidence, documents and arguments of the parties, we answer the above points as under:

                        R E A S O N S

 11.  POINT NO.1 and 2:  Since the pint No.1 and 2 are identical and to avoid the repetition of the fact we consider both the points together for discussion.

 

12.    The Complainant had produced the application copy applied for a vacant site in which she had clearly mentioned the survey No.292, 293 and 294. Where she intends to get the site, same had been marked as EX. P2 and she had produced the copy of Bankers Cheque for an amount of Rs.1,00,905/- issued in favour of OP towards E.M.D. and registration fee which had been marked as EX. P5. These are the facts which have not been disputed by the OP.

 

   13.      The OP denies other allegations made in a Complaint, after scanning the documents carefully the controversial point in this Complaint is that the site allotted by the OP to the Complainant is not satisfied to the Complainant because the Complainant had not applied in Survey No.399 and 400 where the sites had been allotted. The OP stated that the sites allotted in Survey No.292, 293 and 294 have been distributed by lucky-dip system, the unsuccessful applicant in this lucky dip have been immediately informed that the site will be allotted to them in Survey No.399 and 400 for which a letter of concern had been taken by the Complainant. These are the allegation and defence of the Complainant and the OPs.

 

     14.    Here the controversy arises when the Complainant denied that she had not given the consent letter for the allotment of the site in survey No.399 and 400, while arguing the case. The counsel of the Complainant and Complainant denied that the signature on the consent letter is not of the Complainant.

 

    15.       After observing the documents carefully, it seems that there is a lot of difference between the other signature of the Complainant when compare to the signature in the consent letter. Anyhow, we do not go deep in this discussion. Apart from this, the Complainant after receiving the allotment letter on 11.07.2012, the Complainant had replied to the OP on 23.08.2012 that she is not interested to accept the site where allotted and she had requested the OP to shift the allotment to the area behind D.C. Office, Gadag. This clearly discloses that the Complainant was unsatisfied with the site allotted to her by the OP in survey No.399 and 400, she was wishing to get the site in Survey No.292, 293 and 294, where she had applied but OP had never replied to the above said Complainant’s letter. After a period of four months, the Complainant again issued a legal notice through her counsel to change the location of the site or to refund the amount along with interest at Rs.25% and compensation of Rs.2,00,000/-, the OP had replied to this notice stating that the sites  for the distribution in Survey No.292, 293 and 294 are unavailable for allotment. Hence, the site No.372 in survey No.399 and 400 had allotted the Complainant by her consent. If the Complainant is not satisfied with this, she may wait till the next availability nor she can get back the amount paid. The OP Karnataka Housing Board is ready to refund the amount as per the norms of the KHB and stated that interest will not be paid in any manner to the Complainant.

 

    16.     The Ops would have replied the same fact while the Complainant had written the letter to OP for shifting the place of allotment but the OP had never replied and remained mum even OP had not came forward to solve the problem of the Complainant. The Complainant had deposited the amount of Rs.1,00,905/- to the Ops Account on 06.12.2011 which had been utilized by the OPs, what is our concern in this sentence is that the OPs have utilized the amount which was deposited by the Complainant from 06.12.2011 till the date. We cannot ignore the amount deposited by the Complainant carries its own value. As per the conditions of the OP, the registration fee of Rs.1,000/- is not refundable deposit if the OP was on good intention they would have refunded the amount deposited by the Complainant immediately when she had shown unwillingness to get the allotted site, only after issuing legal notice, the OP had informed the Complainant that they would refund the amount without interest if we thinks for a while the OP had utilize the amount for long term. A Circular dated: 12.08.2012 which has been marked as EX. OP3, if the installment will not be paid within the stipulated time interest at Rs.13.50% will be levied on the balance amount for period delayed. While this being the condition of the OP, the amount deposited by the Complainant also holds its own value, if the OPs have replied immediately after receiving a letter of the Complainant and would have refund the same, if the sites are not available for allotment, the question of interest for the amount would have not arises, on the other hand while the OP imposes interest for the late payment. It will be un-justice to the Complainant if the interest not paid for amount utilized by the OP. By this, we come to the conclusion that the OP had made a deficiency in service. We answer the Point No.1 as affirmative, hence the Complainant is entitled for partial relief we answer the Point No.2 in partially affirmative.    

 

          17.  POINT No.3:  For the reasons and discussion made above and finding on the above points, we proceed to pass following:  

//ORDER//

1. This Complaint is partially allowed.

 

2. Ops are directed to refund an amount of Rs.99,905/- (Rupees ninety nine thousand nine hundred and five only) along with interest at the rate of 06% p.a. from the date of filing of this Complaint.

 

3. Ops are directed to comply this order within a period of 30 days from the date of this order, failing which the Ops are liable to pay interest at 08% p.a., till realization.
4. OPs have to pay litigation charges of Rs.2,000/- (Rupees two thousand) to the Complainant.  
5. Send a copy of this Order to both  parties  free of

 cost.  

 (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 23^rd day of March, 2016)

 

Member

Member

President