COMPLAINT FILED ON: 16.08.2010
DISPOSED ON: 24.02.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
24TH FEBRUARY 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.1911/2010
Complainant | Smt. S.K.Vidya No.112, 3rd cross, Bhuvaneshwari nagar, BSK 3rd stage, Kathriguppe, Bangalore-560 085. In person V/s. |
OPPOSITE PARTIES | 1. The Commissioner BBMP Bangalore City Corporation Bangalore. Exparte 2. The Commissioner, Bangalore Development Authority, Kumara Park West, Bangalore. Advocte : Prakash Rao |
| | | |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a complaint filed u/s.12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the OP1 (herein after called as O.P) to issue Khatha certificate along with cost of escalation from 2008 if not possible to direct OP-2 to allot a site of the same dimension within 5 Kms radius from majestic on the allegations of deficiency in service.
2. The brief averments made in the complaint are as follows:
OP-2 allotted a site bearing No.973 situated at MRCR Layout, Vijayanagar, Bangalore in favour of the complainant in auction sale held on 23.02.2004 after prolonged legal battle with litigants by OP-2. Complainant was given registered sale deed on 17.03.2008 along with possession certificate. Complainant applied for Khatha certificate with OP-1 on 07.07.2008 and paid Rs.7,200/- by way of DD to OP-1 towards the Khata certificate. Till today OP-1 failed to issue Khatha certificate. On 15.04.2010 complainant gave another representation to both OP-1 and OP-2 requesting them to issue Khatha certificate or to give negative reply within 15 days failing which complainant will move the consumer forum for the necessary reliefs. On 26.04.2010 OP-2 gave a letter of intimation to OP-1 to effect Khatha in the name of the complainant. Inspite of that OP-1 failed to issue Khatha certificate to the complainant. Inspite of repeated requests when OPs failed to issue Khatha certificate complainant felt deficiency in service on the part of the OPs. Under the circumstances she was advised to file this complaint for the necessary relief.
3. On registration of the complaint notices are sent to OP-1 and 2. Inspite of service of notice OP-1 remained absent without any sufficient reason or cause. Hence OP-1 is placed ex-parte.
4. On appearance OP-2 filed the version mainly contending that there is no cause of action against OP-2. Complainant has filed vexatious, frivolous and fabricated complaint for the purpose of unduly harassing OP-2. The prayer made in the complaint is in compatible and inept. OP-2 admits the allotment of site No.973, MRCR Layout, Vijayanagar, Bangalore to the complainant, in auction sale held on 23.02.2004 fallowed by issuance of confirmation of sale dated 24.06.2007. Sale deed was executed on 17.03.2008 and possession certificate was also issued. Entire layout was already handed over to BBMP much earlier on 01.10.1969. After execution of sale deed and issuance of possession certificate OP-2 caused letter of intimation dated 26.04.2010 to OP-1 to effect the Khatha in the name of the complainant in respect of schedule site. OP-2 has nothing to do with the prayer of the complainant. OP-2 reserves liberty to file additional version; Complaint averments regarding execution of sale deed, is not in dispute. The original allottee (mother of complainant) died on 24.06.2007 bequeathing a will. Accordingly complainant applied for Khatha before OP-1. OP-1 in turn refused the same. Which made the complainant to file this complaint. Other averments are not within the knowledge of OP-2. Among other grounds OP-2 prayed for dismissal of the complaint.
5. To substantiate the complaint averments complainant filed her affidavit evidence and produced the copy of the correspondence dated 07.08.2008, 21.08.2008 and 15.04.2010 made with OPs and endorsement issued by OP-2 dated 27.04.2010 and copy of the letter issued by OP-2 to the Assistant Revenue Officer, B.B.M.P, Dasarahalli, copy of the order in W.A.No.1749,1750,1751/2007 of the Hon’ble High Court of Karnataka, Bangalore. OP-1 did not participate in the proceedings. On behalf of OP-2 its Deputy Secretary filed affidavit evidence and not produced any documents. Heard arguments from both the sides.
6. In view of the above said facts the points now that arise for our consideration in this complaint are as under:
Point No. 1 :- Whether the complainant has Proved
the deficiency in service on the part of
the OPs?
Point No. 2 :- If so, whether the complainant is
entitled for the relief’s now claimed?
Point No. 3 :- To what Order?
7. We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:
Point No.1:- Affirmative
Point No.2:- Affirmative in part
Point No.3:- As per final Order.
R E A S O N S
8. At the out set it is not in dispute that complainant and other three persons purchased site bearing No.973, MRCR layout, vijayanagar, Bangalore in the auction sale held on 23.02.2005. OP-2 executed registered sale deed in favour of the complainant and other three persons on 17.03.2008. On 07.07.2008 complainant paid Rs.7,200/- to OP-1 and applied for Khatha Certificate. OPs failed to issue the Khatha Certificate in respect of the above property to the complainant. Hence complainant again on 15.04.2010 gave another representation to OP-1 requesting to issue Khatha Certificate within 15 days failing which she will move the consumer forum. We have perused the copies of the representation given to OP-1 and 2. OP-1 did not give any reply to that representation. On the same day complainant gave another representation to OP-2 stating OP-1 has refused to issue Khatha certificate; on account of court verdict. Hence she was put to hardship and suffered loss from 23.02.2005 for non registration of site, now after registration of site for non issuance of Khatha Certificate. She also requested to allot an alternative site of same measurement within 5 KM radius from Subhashnagar bus stand (Majestic). If the complainant did not hear anything within 15 days from OP-2 she will refer the matter to the consumer forum. Inspite of repeated requests when OPs failed to respond complainant felt deficiency in service against OPs and approached this Forum.
9. As against the case of the complainant OP-2 admits allotment of site No.973, MRCR layout, Vijaynagar, Bangalore in favour of the complainant in auction sale held on 23.02.2005 and also issuance of confirmation of sale dated 24.06.2007. Sale deed was executed on 17.03.2008 and possession certificate was also issued entire layout has been handed over to BBMP prior to 01.10.1969 itself. OP-2 caused letter of intimation dated 26.04.2010 to OP-1 to effect the Khatha in the name of the complainant in respect of schedule site. OP-2 has nothing to do with the prayer of the complainant.
10. We have perused copy of the application sent by complainant to OP-1 & 2. We have also perused the order of the Hon’ble High Court of Karnataka in W.A.No.1749/07 (BDA) C/w W.A.No.1750/07 and W.A.No.1751/07 dated 24.04.2009. Wherein Hon’ble High Court of Karnataka while dismissing the above Writ Appeals directed BDA to dispose of the six intermediary sites including site No.973 of the complainant as per Rule 3 of BDA (Allotment of sites), Rules 1984 by inviting applications for allotment to the eligible persons. On 27.04.2010 OP-2 sent an endorsement to the complainant stating on 26.04.2010 OP-2 has sent a letter to Assistant Revenue Officer, BBMP, Dasarahalli, Bangalore to transfer the Khatha in the name of the complainant as per the order of the Hon’ble High Court in W.A. 1749/07 dated 24.04.2009 and complainant can get the Khatha transfer from OP-1. We have perused the letter sent by OP-2 dated 26.04.2010 addressed to Assistant Revenue Officer, BBMP, Bangalore stating as per the order in W.A.No.1749/2007 Khatha can be transferred in the name of the complainant. OP-2 ought not to have issued such an endorsement to OP-1. Which is against the order of the Hon’ble High Court of Karnataka which clearly amounts to disobedience of the order of the Hon’ble High Court. Now complainant is not interested in refund of amount. Complainant sought for a direction to OP-1 to issue Khatha Certificate along with cost of escalation from 2008 or in alternative direction against OP-2 to allot an alternative site of same dimension within the radius of 5 KM from majestic. Since this Forum is not vested with power to issue direction to allot an alternative site, it is for OP-2 to consider the request of the complainant and pass appropriate order for allotment of alternative site.
11. We have perused the affidavit evidence and documents produced by the complainant. From the evidence available on records we are satisfied that inspite of repeated requests OP-1 failed to respond to the complainant. Keeping pending of the application dated 07.08.2008, 21.08.2008 and 15.04.2010 of the complainant without responding reply till date amounts to deficiency in service on the part of the OP-1. Inspite of due service of notice OP-1 remained absent. From the absence of the OP-1 we can draw the inference that OP 1 admits all the allegations made by the complainant in toto. Inaction on the part of the OP-1 made the complainant to approach this forum and incurr some expenses. OP-1 has kept the application pending without responding since 07.07.2008.
In view of the direction issued in Writ Appeal No.1749/07 clubbed with Writ Appeal No.1750/07 and 1751/07 by the Hon’ble High Court directing OP-2 BDA to dispose of site No.973 (which has been purchased by the complainant) as per Rule 3 of BDA (allotment of sites) Rules 1984 by inviting applications for allotment to the eligible persons, the complainant may not be entitled to get khatha registered in her name. OP-2 BDA has to comply the direction of the Hon’ble High Court to dispose of the said site by following rules of allotment by allotting the same to the eligible persons. Therefore OP-2 cannot wash of its hands just by giving an endorsement to OP-1 to change the Khatha. OP-2 has to consider the representation dated 15.04.2010 of the complainant requesting for allotment an alternative site. We are satisfied that complainant is able to prove deficiency in service on the part of OPs-1 and 2. Under these circumstances we are considered view that the complainant is entitled for some reliefs. Accordingly we proceed to pass the following:
O R D E R
The complaint is allowed in part. OP-1 is directed to consider the representation of the complainant for change of khatha and pass appropriate order on the application made by the complainant.
OP-2 is directed to consider the representation of the complainant dated 15.04.2010 for allotment of alternative site and pass appropriate order.
OPs-1 and 2 each to pay litigation cost of Rs.1,000/- to the complainant.
This order is to be complied within 30 days from the date of communication of this order.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 24th day of February – 2011.)
PRESIDENT
MEMBER MEMBER
gm/Snm:
