Telangana

Mahbubnagar

CC/11/39

M.A. Hafeez S/o late M.A. Sattar, - Complainant(s)

Versus

The Divisional Co-operative Officer - Opp.Party(s)

Sri G. Narsimha Murthy

16 Aug 2011

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Tuesday, the 16^th day of August, 2011 

                                                           Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

       Sri A. Veerupakshi, B.A., LL.B., Member     

      Smt. D. Nirmala, B.Com., LL.B.,Member

C.C.NO. 39  Of   2011

Between:-

M.A. Hafeez S/o late M.A. Sattar, aged 45 years, Occ: Business, R/o 5-5-22, Old Palamoor, Mahabubnagar.        … Complainant

And

The Divisional Co-operative Officer, N.G.Os., Co-op House Building Society, Boyapalli gate, Mahabubnagar.

                                                   … Opposite Party

 This C.C. coming on before us for final hearing on 8-8-2011 in the presence of Sri G. Narsimha Murthy, Advocate, Mahabubnagar on behalf of the complainant and Sri K. Vijaya Mohan, Advocate, Mahabubnagar for the opposite party and the matter having stood over for consideration till this day, this Forum made the following:   

O R D E R

 (Sri P. Sridhara Rao, President)

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to hand over the plot No.159 MIG or its present market value and to pay compensation of Rs.25,000/- for mental agony besides costs of the complaint.  

2. The averments of the complaint in brief are that:- The complainant is the son of late M.A. Sattar.  The said M.A. Sattar during his life time was a member of the opposite party being represented by its Divisional Cooperative Officer.  The opposite party has originally allotted plot No.159 MIG to one Brahmaiah, a Junior Assistant in Government Arts College, Mahabubnagar. Later the Society/OP by passing a resolution vide proceedings No.B1/PL/159/MIG/P-II, dt.3-4-1989 transferred the said plot in the name of father of the complainant by collecting Rs.10,760/- towards development charges and land cost and in turn the said amount was paid to the said Brahmaiah. After the death of his father M.A. Sattar the complainant several times approached the opposite party to deliver possession of the plot and so also addressed several letters, but the opposite party did not give any response.  The complainant got issued a legal notice in the name of his father to the opposite party and the opposite party even after receipt of the said legal notice also did not give any reply.   Such act on the part of the opposite party amounts to deficiency of service.  Thus the present complaint is filed for the aforesaid relief.  

3. The opposite party filed counter denying the averments of the complaint and stated that the complainant is not a member of the opposite party society, as such he has no locus standi to file the present complaint, that late M.A. Sattar was a primary member of the opposite party society and the opposite party never collected the said sum of Rs.10,760/- from the father of the complainant and not issued any receipt acknowledging the said amount at any point of time.  It is further stated that as per the proceedings in Rc.No.B1/plot allotted/87, dated 13-11-1987 of the society the said Brahmaiah is the member of the society and he is the original allottee of plot No.159 MIG measuring 240 Sq. Yards in II Phase located in Srinagar Colony, that the said Brahmaiah also remitted the land cost and development charges to the opposite party society and the same has been approved by the managing committee passing a resolution dated 8-10-1987.  Subsequently, on 17-7-1990 as per the oral instructions of the then President transfer proceedings were issued transferring the plot No.159 MIG to M.A. Sattar the father of the complainant but the allotment order has not yet been issued in favour of M.A. Sattar and he had not been remitted the land cost and development charges to the opposite party society.  It is further stated that on the application dated 4-6-1994 made by the said Brahmaiah the opposite party issued a copy of transfer proceedings to   M.A. Sattar, that thereupon the original allottee Brahmaiah had requested the opposite party society stating that the plot No.159 MIG was wrongly transferred to M.A. Sattar and the same plot may be retained to him, that thereupon the then President had instructed several times to both the parties to attend the office to discuss and settle the issue vide Rc.No.B1/plot No.159 MIG/Phase-II, dated 7-6-1994, 21-7-1994, and 26-9-1994, failing which the matter will be decided in their absence.  It is further stated that to the several letters given by the father of the complainant the opposite party society gave him a suitable reply, and that the father of the complainant is not eligible to the ownership of the plot No.159 MIG as he has not deposited the land cost and development charges to the society.  It is also further stated that in view of Section 61 of the A.P. Co-Operative Society Act, such dispute shall be referred to the Registrar of Society for decision, as such this Forum has no jurisdiction to entertain the present complaint and thus the complaint is liable to be dismissed.            

4. Thereupon the complainant in support of his claim filed his affidavit evidence and got marked Exs.A-1 to A-6.  On the other hand, the opposite party filed affidavit evidence in support of their contentions and got marked Exs.B-1 to B-5.     

5.  The points for determination now are: 

1. Whether this Forum is having jurisdiction to entertain the present  complaint?  
2. Whether is there any deficiency on the part of the opposite party in rendering service to the complainant as alleged?    (iii)  Whether the complainant is entitled for the relief sought for by him? 

    (iv)  To what effect? 

6. The undisputed facts in the case are that the complainant is the son of late M.A. Sattar and one Brahmaiah, a member of the society is the original allottee of plot No.159 MIG in question.   

7. Point No.1:- The learned counsel for the opposite party first contended that in view of Section 61 of the A.P. Cooperative Society Act the disputes of the present nature shall be referred to the Registrar of Society for decision, as such this Forum has no jurisdiction to entertain the present complaint and the same is liable to be rejected. On the other hand, the learned counsel for the complainant contended that the complainant is alleging deficiency against the opposite party on the ground that the opposite party, having received the entire amount long ago, not delivered the possession of the allotted plot inspite of making repeated requests and even after getting issued a legal notice and therefore this Forum is having jurisdiction to entertain the present complaint.  It is no doubt true that in view of Section 61 of the A.P. Cooperative Society Act the disputes of the present nature shall be referred to the Registrar of Society for decision.  But at the same time the above mentioned provision does not specifically bar the jurisdiction of any Court, Tribunal or Forum from entertaining such a dispute, and that the provisions of Section 3 of the Consumer Protection Act, 1986 are in addition to and not derogation of the provisions of any other law for time being in force.  Further, the learned counsel for the opposite party is unable to show any provision of the Act which specifically bars the jurisdiction of Courts, Tribunals etc., in respect of disputes between the Society and its members. That apart, in a decision reported in IV (2010) CPJ 9 (SC) (Chandigarh Housing Board Vs. Avtar Singh & Others) it is held that the district forum has jurisdiction to entertain complaints filed by members of societies alleging deficiency in service for non allotment of lands, flats, non refund of earnest amount etc. Therefore, it cannot be said that this Forum has no jurisdiction to entertain the present complaint.  Hence we find that there is no force in the contention of the learned counsel for the opposite party.  The point is answered accordingly in favour of the complainant and against the opposite party.         

8. Point No.2:- It is the contention of the complainant that his late father during his life time was a member of the opposite party society and the opposite party through its proceedings dated 30-4-1989 as under the original of Ex.A-1 transferred the plot bearing No.159 MIGH of Phase-II which was originally allotted to Brahmaiah to his father late M.A. Sattar and so also transferred the amount of Rs.10,760/- deposited by the said  G. Brahmaiah towards land cost and development charges in favour of his father late M.A. Sattar and ultimately failed to deliver possession of the plot either to his father during his life time or to him after the death of his father inspite of making repeated requests and such act on the part of the opposite party amounts to deficiency of service.

9. On the other hand, it is the contention of the learned counsel for the opposite party that the present complainant i.e., M.A. Hafeez is not having any locus standi to file the present complaint since either he or his father has not deposited the land cost and the development charges to the opposite party society, and that they never approached the opposite party at any point of time.  But we are unable to agree with the said contention for the reason that the copy of proceedings Ex.A-1 clearly goes to show that the plot bearing No.159 MIGH of Phase-II which was allotted to Sri Brahmaiah, Junior Assistant, Government Arts and Science College, Mahabubnagar is   transferred to Sri M.A. Sattar, father of the complainant and so also transferred the amount of Rs.10,760/- deposited by Sri G. Brahmaiah towards land cost and development charges in favour of M.A. Sattar, father of the complainant. Furthermore, as per the very counter filed by the opposite party the complainant is the son of late Sri M.A. Sattar and late  Sri M.A. Sattar was a primary member of the opposite party society.  So, in view of the said admission made by the opposite party, it can clearly be said that late M.A. Sattar during his life time was a primary member of the opposite party society. Ex.A-1 copy of the proceedings also clearly establishes the case of the complainant that the plot bearing No.159 MIGH of Phase-II in question which was originally allotted to Brahmaiah and the amount of Rs.10,760/- deposited by him was transferred in favour of   M.A. Sattar the father of the complainant.  Therefore, it cannot be said that the complainant as well as his father has not deposited the land cost and development charges to the opposite party society, as such the complainant has no locus standi to file the present complaint.  Hence, we find that there is no force in the contention of the learned counsel for the opposite party.  At another breath, the next contention of the learned counsel for the opposite party is that when the original allottee Brahmaiah raised dispute with regard to allotment proceedings as under the original of Ex.A-1 the opposite party issued notices several times as under the originals of Exs.B-2 to B-5 to both the parties to attend the office to discuss and settle the issue,  but in fact the father of the complainant did not turn up to settle the issue, as such there is no deficiency on the part of the opposite party.  It is no doubt true that the opposite party issued notices as under the originals of Exs.B-2 to B-5 to the original allottee Brahmaiah and so also to the father of the complainant. But it is the contention of the complainant that inspite of his father attended the office of the opposite party society, but it did not settle the issue. In support of his contention the complainant relied upon Ex.A-2 copy of the letter said to have been addressed by his father to the opposite party society.  A perusal of the recitals of Ex.A-2 clearly goes to show that the father of the complainant while referring the last notice as under the original of Ex.B-5/A-3 demanded the opposite party society to deliver the transferred plot to him.  Therefore, in view of Ex.A-2 it cannot be said that the father of the complainant never approached the opposite party society at any time.  Hence, we find that there is no force in the contention of the learned counsel for the opposite party.  It is also an admitted fact borne out from the record that the possession of the plot in question was not delivered either to M.A. Sattar during his life time or to the complainant after the death of his father.

10. It is the contention of the learned counsel for the complainant that inspite of getting a legal notice issued on the name of his father M.A. Sattar as under the original of Ex.A-5 the opposite party society did not respond in any manner and ultimately failed to deliver possession of the plot in question to him. On the other hand, it is the contention of the learned counsel for the opposite party that the father of the complainant placed several letters to the opposite party, and that the society gave reply to him.  But it appears from the record that admittedly the opposite party society did not produce any proof in that regard.  So, in the absence of any such proof, it can be said that the complainant clearly established the fact of the opposite party society in not delivering the possession of the plot in question inspite of receiving the entire amount long back.  Hence we find that there is no force in the contention of the learned counsel for the opposite party.   Therefore, we find that failure on the part of the opposite party in delivering possession of the plot in question either to the father of the complainant during his life time or to the complainant after the death of his father even after receiving the entire amount for allotment of the plot long back amounts to deficiency of service.  Hence, for the reasons stated above, we hold that the complainant had clearly established the ground of deficiency of service on the part of the opposite party society.  The point is answered accordingly in favour of the complainant and against the opposite party.   

11. Point No.3:- In view of the findings given on point Nos.1 and 2 we hold that the complainant is entitled for any one of the reliefs sought for by him.  The first relief sought for by the complainant is to direct the opposite party to hand over plot No.159 MIG in question.  The alternative relief sought for by him is to direct the opposite party society to pay him the present market value of the plot.

12. So, the question that has to be seen now is what sort of relief among those two is to be given to the complainant to meet the ends of justice and to put an end to the present litigation between both the parties?  As per the counter and the affidavit evidence filed by the opposite party, it is the contention of the opposite party society that in fact the society has acquired the lands in II Phase in Sy.Nos.150 to 206 measuring 54 acres and got approved the layout plan by the Director of Town and Country Planning, A.P., Hyderabad, that after approval of the layout plan the plots were allotted to the members who have deposited the land cost and development charges, that after allotment of the plots to the members the owners of land in Sy.No.166 and 167 covering plot No.159 MIG in question have approached the Hon’ble High Court to delete their lands from land acquisition on the ground that they are small farmers, and that thereupon the Hon’ble High Court accordingly passed orders for cancelling the said land from land acquisition, as such the plot No.159 MIGH in question comes in Sy.No.166 and 167 gone to the land owners and therefore the plot No.159 MIGH in question is not a clear plot at this stage.  The said fact is not disputed by the complainant at anywhere either in his complaint or in his affidavit evidence or any other oral or documentary evidence.  Under the said circumstances and since the plot in question is not a clear one, no useful purpose will be served by directing the opposite party to deliver possession of the same to the complainant except to create multiplicity of further proceedings among both the parties. Further, the complainant, except seeking for the relief of refund of the present market value of the plot in question, did not produce any documentary proof evidencing the present market value of the plot in question.  Therefore, in view of the said situation and to meet out the ends of justice, we are of the view that the opposite party society can be directed to refund the amount of Rs.10,760/- received by it together with some reasonable compensation and costs of the proceedings to the complainant. The point is answered accordingly.     

13. Point No.4:- In the result, the complaint is allowed in part directing the opposite party society to refund the amount of Rs.10,760/- to the complainant and so also to pay a sum of Rs.5,000/- towards compensation and Rs.500/- towards costs of the complaint within one month from the date of the present order.

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 16^th day of August, 2011.    

 

    I agree                                          I agree        

                                                  

MEMBER                                      MEMBER                             PRESIDENT        

                                                                                                 Appendix of evidence

      List of Witness examined

On behalf of Complainant:                             On behalf of Opposite Party:   

- Nil -                                                                     - Nil -                                       

List of documents marked:-

On behalf of Complainant:-    

Ex.A-1: Attested copy of Proceedings issued by OP, dt.30.7.1989.  

Ex.A-2: Attested copy of Letter issued by the complainant to the OP.

Ex.A-3: Copy of Letter issued by the OP, dt.26.9.1994.

Ex.A-4: Copy of Letter issued by the complainant, dt.21.12.2009.

Ex.A-5: Copy of Legal Notice, dt.26.4.2010.

Ex.A-6: Photostat copy of Acknowledgement.  

On behalf of OP.:                  

                        Ex.B-1: Photostat copy of Proceedings issued by OP, dt.13.11.1987. 

Ex.B-2: Photostat copy of Letter issued by the OP, dt.7.6.1994.

Ex.B-3: Photostat copy of Letter issued by the OP, dt.17.6.1994.

Ex.B-4: Photostat copy of Letter issued by the OP, dt.21.7.1994.

Ex.B-5: Photostat copy of Letter issued by the OP, dt.26.9.1994.

                                                                                                                                                                                                                           

                                                                                 PRESIDENT                                                                                                                                                                                    

 

Copy to:-

1. Sri G. Narsimha Murthy, Advocate, Mahabubnagar on behalf of the complainant. 2. Sri K. Vijaya Mohan, Advocate, Mahabubnagar for the opposite party.