20th AUGUST 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1442/2008<br /> <br /> <br /> COMPLAINANT Sri. S.K. Malleshaiah,<br /> S/o. S.M. Kariyappa,<br /> Aged about 52 years,<br /> Residing at No. 150/E,<br /> 2nd Cross, BEML Layout,<br /> Basaveshwaranagar,<br /> Bangalore – 560 079.<br /> <br /> <br /> Advocate (Neelkantaiah)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY The Karnataka ‘D’ Group Employees Central Association,<br /> M S Building, <br /> Dr. Ambedkar Veedhi,<br /> Bangalore – 560 001.<br /> Rep. by its General Secretary<br /> Sri. C. Govindaraj. <br /> <br /> <br /> Advocate (M.V. Balaraj)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to allot alternative site measuring 50 X 30 feet in their layout in place of site No. 1148-A and pay compensation on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant became the member of the OP association having No. 1848 and opted to purchase a residential site in the layout formed by the OP at Srigandhada Kaval, Sunkadakatte Dakhle, Yeshwanthpura Hobli, Bangalore North Taluk. Complainant applied for the allotment of the site measuring 30 X 50 feet. OP having accepted his application collected the sital value of Rs.97,000/- and made an allotment of a site bearing No. 556 and issued hakku patra. Thereafter somehow OP failed to execute the registered sale deed with respect to the said site. On the other hand on 19.08.2003 OP executed the sale deed with respect to the site bearing No. 1148-A and delivered the possession. When complainant intended to construct his house in the said site, at that time he came to know that the said site is a part and parcel of the C.A. sites and BDA has fenced around the said site including other neighboring sites. Immediately complainant brought the said fact to the notice of the OP with a request either to clear the said fencing or allot him an alternative site. All the efforts made by the complainant, went in futile. OP expressed its inability. Thus complainant felt the deficiency in service on the part of the OP. Though complainant invested his hard earned money, he is unable to reap the fruits of his investment for all these years. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. Actually BDA is expected to release 55% of the land towards the residential sites, but unfortunately it granted only 49.99% out of the land acquired by the OP for the formation of the said layout. Then immediately OP intimated the said fact to the members of the association expressing its willingness to provide alternative sites to those who have lost the sites in pursuance of BDA action treating certain land as C.A. sites. Complainant did not show his inclination nor he paid the remaining balance of the sital value. Complainant became the defaulter, as such OP is unable to execute the sale deed. They are going to form the new layout in Sy. No. 53 and 54 near Doddaaladamar, Bangalore and they will allot a site to the complainant on priority basis. When such an relief is available to the complainant with a malafide intention he has come up with this false and frivolous complaint. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative <br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant became the member of the OP association and sought for allotment of the site in the layout formed by them at Srigandhada Kaval, Sunkadakatte Dakhle, Yeshwanthpura Hobli, Bangalore North Taluk. Complainant opted for the purchase of site measuring 30 X 50 feet. OP accepted his application collected Rs.97,000/- and issued hakku patra in his favour by allotting site No. 556. Now it is the grievance of the complainant that though OP issued the hakku patra so for so good they did not execute the registered sale deed. On insistence OP came forward to register a site bearing No. 1148-A in place of site No. 556 and executed the sale deed on 19.08.2003. Complainant with no other alternative was forced to accept the same. It is further contended that when he intended to undertake the construction at his site in January 2004 he noticed BDA having fenced the said site and surrounding area.<br /> <br /> 7. It is contended by the complainant that on enquiry he came to know that the site allotted to him formed the part and parcel of the civic amenity like, park, etc. So he was unable to construct his building in the said site. Then he requested the OP to initiate the proceedings against BDA and get the fencing removed. No such steps are taken. Then he sought for an allotment of the alternative site, for that also there was no proper response from the OP. Thus he felt the deficiency in service on the part of the OP.<br /> <br /> 8. As against this it is contended by the OP that though they acquired the required quantity of land for the formation of the said layout and BDA is required to release 55% of the land for residential sites, unfortunately it released only 49.9%. They made request to BDA to release 55% of the land. The correspondence made in that regard is produced. Complainant being the member of the said society should have been aware of all these communications, correspondence etc. When OP is unable to register a site in favour of such of the persons who lost their sites as civic amenities acquired by the BDA it intimated all its members that they are going to provide alternative sites in their next project. The paper publication made in that regard are also produced. It is further contended that complainant is required to pay the remaining balance, but he failed to do so. <br /> <br /> 9. What is the actual sital value is not mentioned by the OP. What is the amount that is due from the complainant is also not mentioned. So under such circumstances the vague and bare defence set out by the OP that complainant failed to pay the balance, thus became the defaulter, as such he is not entitled for the relief claimed rather does not hold much force. This hostile attitude of the OP amounts to deficiency in service.<br /> <br /> 10. Of course OP has come up with a fair offer that the person who lost their site earlier due to the acquisition by the BDA will get alternative site and they are going to allot them in their new layout formed in Sy. No. 53 and 54 at Belalu Village near Doddaaladamar on priority consideration. Complainant must be aware of all these facts also. With all that why he has not opted for seeking alternative site at Doddaaladamar Layout is not known. OP has also produced the orders passed by the Hon’ble High Court of Karnataka in Writ Petition No. 26548/2005. <br /> <br /> 11. It is contended by the OP that they have been restrained from altering the layout and converting some CA sites and reserved areas into residential sites, that is the reason why they are unable to register the alternative site in their earlier layout that is Srigandhada Kaval. Complainant has not produced any other piece of document to show that there are still vacant sites available at Srigandhada Kaval, which are at the disposal of the OP. In absence of such basic proof, we cannot direct the OP to provide the alternative site at Srigandhada Kaval.<br /> <br /> 12. In view of the submission made by the OP in their version and evidence that they are going to allot the alternative site in their new layout at Doddaaladamar, we are of the opinion that the justice will be met by directing the OP to allot the site in Doddaaladamar layout on top priority basis and register the same. The non-registration of the alternative site in favour of the complainant, must have caused both mental agony and financial loss to the complainant. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. Under such circumstances he is entitled for the relief as claimed in part. Accordingly we answer point nos.1 and 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to allot a site measuring 30 X 50 feet at their new layout carved out of Sy. No. 53 and 54 of Belalu Village near Doddaaladamar in place of the site already allotted to him bearing No. 1148-A of Srigandhada Kaval. OP is at liberty to collect the registration and stamp duty from the complainant and so for the receipt of remaining sital value if any. This order is to be complied within 2 months from the date of its communication. In view of the nature of dispute no order as to costs.<br /> <br /> (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 20th day of August 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br />