Date of Filing : 05.05.2011
Date of Order : 30.11.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER
DISPUTES REDRESSAL FORUM,
SESHADRIPURAM, BANGALORE – 560 020
Dated 30th day of November 2011
PRESENT
Sri. H.V.RAMACHANDRA RAO …. President
Sri. BALAKRISHNA V. MASALI, B.A., LL.B.(SPL) …. Member
COMPLAINT NO. 869/2011
Smt.N.Dhanalakshmi,
W/o.late.S.B.Prabhakar,
53 years, R/o.No.150, 1st Stage,
2nd Phase, behind Aishwarya Corner,
Gayatripuram, Mysore 570 019.
(By Advocate Sri.C.V.Sheelvant) ……. Complainant
V/s.
The Commissioner,
Bangalore Development Authority,
Kumara Park West,
T.Chowdaiah Road,
Bangalore 560 020.
(By Advocate Sri.Prakash Rao K) ….Opposite Party
ORDER
(By the President Sri. H.V.RAMACHANDRA RAO)
The brief antecedents that led to be filing of the complaint under section 12 of the Consumer Protection Act Seeking direction to allot a developed alternative site of 30 X 40’ and to pay Rs.40,000/- compensation are necessary:
1. The complainant purchased a site bearing No.56/30, Khata No.74, in Ramasandra village, Kengeri Hobli, Bangalore South Taluk, having boundaries through a registered sale deed on 15.12.1995 which had ACC mud wall, constructed house. The OP acquired the said site of the complainant and the adjustment properties. At the time of acquisition it was assured that after development of the acquired land, developed site of the same dimension will be allotted to the complainant and advised the complainant to apply for an allotment of a site by registering an application with registration fee. Accordingly the complainant submitted the application on 13.12.2002 with registration fee of Rs.100/-. On 03.02.2006 the OP asked the complainant to contact the Assistant Engineer and other officers at Doddabasti Village Bus stand on 15.02.2006. the complainant met the said officers and showed them the documents, who assured the complainant of the site. As there was delay in allotment, the complainant filed complaint in No.3249/2006 before the 4th Additional DCDRF, which allowed the complaint on 30.03.2007, against that order an appeal No.1451/2007 was preferred by the OP and the Hon’ble State Commission on 30.03.2007 remanded the matter. After remand, the complainant was dismissed with liberty to approach the forum after disposal of the Writ Appeal No.29/2007. On 19.02.2010 the Writ appeal was disposed off. Hence the complainant issued notice to the OP on 09.04.2010 as the OP did not comply, this complaint is filed.
2. In brief the version of the OP are:
The complainant is not a consumer and hence the forum has no jurisdiction to entertain the complaint. The site No.56/30 was part of Survey No.29/3 which was acquired. The OP never promised the complainant of any alternative site. The legal proceedings are admitted. The dismissal of the writ appeal does not give any cause of action to file a complaint. The complaint is also barred by time.
3. To substantiate their respective cases the parties have filed their respective affidavits. Arguments were heard.
4. The points that arise for our consideration are
A) Whether there is deficiency in service ?
B) What order ?
5. Our answers to A and B are as per the detailed order for the following
REASONS
6. Reading the pleadings in conjunction with the affidavits and documents on record it is an admitted fact site No.56/30, Khata No.74 situated at Ramasandra village, Kengeri Hobli, Bangalore South Taluk measuring 30 X 40 feet with certain shed construction was part of on Survey No.29/3, and the complainant was the owner of the same said site 15.12.1995. it is also an admitted fact that the OP acquired the said site number for public purpose. The complainant alleged that the OP has assured of giving alternative site and he has registered for alternative site and OP has not allotted the site. Hence he made the complaint No.3249/2006 and that was allowed by the 4th Additional DCDRF on 30.03.2007. It is also an admitted fact that the OP approached the Hon’ble State Commission in Appeal No.1451/2007. Hon’ble State Commission allowed the appeal and remanded the matter for giving an opportunity to the OP and to pass appropriate orders. After remand, the OP filed version. After contest the said Forum passed the order which reads thus:
“Perused the material on record. It is an admitted fact that the site of the complainant which was acquired by the OP along with other land situated in Sy.No.29/03. As per the pleadings and the documents on Kanthamma and others have filed Writ Petition Nos.44031-44037/02 challenged the preliminary notification and final notification issued for Sir M Vishveshwarayya Layout in respect of land measuring 10 Acres 10 Guntas in Sy.No.29/3 and after clubbing together writ Petition common order was passed on 30/09/2004 and direction was issued to grant alternate sites to all those persons whose Revenue sites were being acquired. Aggrieved by it, the OP filed Writ Appeal No.274/06 and permission was granted to the OP to file Review Petition before single Judge to pass the order. Accordingly, Review Petition No.322/06 was filed and the same was dismissed on 21/12/2006. The Review Petitioners have filed Writ Appeal No.29/07 challenging the order dated 13.09.2004 passed in Writ Petition and also against the order passed in Review Petition No.322/06 on 21.12.2006. Hon’ble High Court on 06.03.2007 passed an Interim order in the said Writ Appeal directing both the parties to maintain status-co in respect of lands bearing sy.No.29/3.
From the orders of Hon’ble High Court clearly discloses the Site of the complainant which was acquired for the purpose of form layout and the entire Sy.Numbers with other lands are subject matter in respect of acquisition, before Hon’ble High Court. When we peruse the proceedings, the acquisition of the land itself is in question before Hon’ble High Court in Writ Appeal and the direction was given by Hon’ble High Court to maintain status-co. when the subject matter of the property of the complainant is in question in Writ Appeal before Hon’ble High Court, this forum cannot take any decision in respect of the said property or for the allotment of the alternate site when the acquisition of the said site itself is in question. Under such circumstances, presently this complaint is not maintainable as the matter is pending before Hon’ble High Court. The complainant is at liberty to approach this forum or any other authority after the disposal of the Writ Appeal No.29/07 before Hon’ble High Court, if it is required. Accordingly, we pass the following order.
ORDER
Complaint is dismissed. No order as to costs. However the complainant is at liberty to approach this forum after the disposal of the Writ Appeal No.29/07 before Hon’ble High Court if it is required.”
That means this forum had disposed of the complaint giving liberty to the complainant to approach this forum after the disposal of the writ appeal No.29/2007 by the Hon’ble High Court. That writ petition was disposed of on 19.02.2010 by the Hon’ble High Court.
7. Now the OP contended that the complainant is not a consumer. Regarding the very matter the complainant had filed complaint No.3249/2006 on contest the complaint was disposed of accordingly. In the said complaint the OP has not contended that the complainant is not a consumer. Hence it cannot reject the matter again. It is estopped.
8. Even otherwise the complainant has lost his site, that is the price that has been given to the OP. hence it has to allot an alternative site in the developed land. Hence the complainant is a consumer and the OP is service provider as it has assured the complainant is entitled to alternative site.
9. The other contention of the OP is that the complaint is barred by time. This is an untenable contention. It is only after disposal of the writ appeal the complainant was permitted to file the complaint and the writ appeal was disposed of by the Hon’ble high court on 19.02.2010. Hence the complainant filed before the forum on 05.05.2011 is well within the time.
10. As the OP acquired the site of the complainant, as per the direction of the Hon’ble high court, in the writ appeal the complainant is entitled to a developed site, provided the complainant pay development charges. As it has not been given this complaint is filed. Hence we hold the above points and pass the following
ORDER
1. Complaint is allowed in part.
2. OP is directed to allot a developed alternative site of 30’ X 40’ dimension to the complainant and to charge proportionate development charges in this regard within 30 days from the date of this order.
3. OP is also directed to pay Rs.2000/- as cost of this proceedings to the complainant.
4. OP is directed to send the amount as ordered at No. 3 above to the complainant by DD through RPAD and submit to this Forum a compliance report with respect to no.2 and 4 above within 45 days from the date of this Order.
5. Return the extra sets to the concerned parties as under regulation 20(3) of the consumer Protection Regulation 2005.
6. Send copy of this Order to both the parties free of cost immediately.
Pronounced in the Open Forum on this 30th day of November 2011.
MEMBER PRESIDENT
