Karnataka

StateCommission

A/251/2014

Sannamma W/o. Ramaswamy - Complainant(s)

Versus

The President, M/s. Madhuvana Gruha - Opp.Party(s)

K.M. Somashekara

23 Jun 2021

ORDER

 

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

DATED THIS THE 23^RD DAY OF JUNE 2021

 

 

PRESENT

 

MR. KRISHNAMURTHY B. SANGANNAVAR      : JUDICIAL MEMBER

MRS. DIVYASHREE M.                                     : MEMBER

 

Appeal Nos. 249, 250, 251/2014

 

Appeal No. 249/2014 R. Ramachandra S/o. Ramaswamy R/at No. 14/82, 6th Main, 6th Cross, Byreveshwaranagar, Nagarabhavi, Bangalore 560072   (By Sri. K.M. Somashekara)	..…Appellant
Appeal No. 250/2014 C.R. Mahesh Kumar S/o. C. Range Gowda R/at NO. 274, 3rd 'B' Cross, 3rd  Stage, 2nd Block, Basaveshwara Nagar, Bangalore 560079	..…Appellant
Appeal No.251/2014 Sannamma W/o. Ramaswamy R/at No. 31, 2nd Cross, Kali Mandir Road Chandra Layout, Bangalore 560040 V/s	..…Appellant
1.  The President,      M/s. Madhuvana Gruha Nirmana      Sahakara Sangha Ltd. 2.  The Secretary,      M/s. Madhuvana Gruha Nirmana      Sahakara Sangha Ltd.   Both are R/of 3, 4, 5, 2nd Cross, Manasara Road, Indiranagar, Mysore 570010.   Respondents are common in all the cases.   (By Sri. Nityananda V. Nayak)	……Respondents

O R D E R

 

Mr. KRISHNAMURTHY B. SANGANNAVAR, JUDICIAL MEMBER

 

These appeals are filed under Section 27 A of Consumer Protection Act 1986 to set aside the order dated 04.01.2014 passed in Execution Criminal No.19/2012, 18/2012 & 20/2012 respectively on the file of District Consumer Disputes Redressal Forum, Mysore.(for short District Commission).

2. All the three appeals are filed by aggrieved decree holders / complainants in C.C.No.30 to 32/2007.
3. The brief facts of these three cases are: As the complainants initiated consumer complaints under Section 12 of Consumer Protection Act, 1986 in C.C.No.30, 31 and 32/2007 and the District Forum, Mysore, while recording a common order allowed the C.C. Nos. 30 and 32/2007, however, partly allowed C.C.No.31/2007.  In C.C.No.30 & 32/2007 directed OP / Jdr. to allot site to each of these complainants measuring 60’X40’ in Sathagalli layout for the same value that was fixed when they were issued provisional allotment letters or for the price that was revised when the sites in that layout are allotted to other members who were also issued with the provisional allotment letters along with these complainants and get them registered in the names of these complainants at their costs within three months from the date of receipt of this order also by collecting enhanced membership fee.  In case, the sites are not available in Sathagalli layout directed to allot sites of the same measurement in any of the layouts formed by them for the same value as indicated above.  However in C.C.No. 31/2007, the OPs are jointly and severally directed to refund the amount of Rs.54,865/- + Rs.135/- with interest at the rate of 18% p.a. from 20.10.1995 till the date of payment within 2 months.  Thus, this order was assailed before the State Commission not only by the complainant in C.C.No.31/2007, but, also by OPs, in Appeal Nos. 1752, 1821, 1822 and 1933/2007 which came to be disposed of on 22.02.2008 recording a common order directing OP society to issue orders of allotment of sites measuring approximately 40’X60’ at the rate of Rs.300/- per sq.ft. and call upon the complainants to pay the  balance sale consideration within three months from the date of order.  The complainants on receipt of orders of allotment as directed shall pay the amount demanded within 2 months from the date of receipt of the notices.  The OP society on receipt of the amount from the complainants is directed to execute the sale deeds in favour of the complainants if they pay stamp duty and registration charges as per their undertaking.  In the event if they failed to pay the amount within 2 months as directed they have no right whatsoever to ask for the execution of sale deed in their favour on the other hand they are entitled for refund of the amount already paid by them to the society.  Thus, pursuant to this orders the forum in Ex.Cr. Nos. 18 to 20/2012 on 04.01.2014 ordered to reject the execution criminal petition initiated by the decree holders with no order as to costs, which is now in appeal under Section 27A of Consumer Protection Act, 1986 on the grounds that the impugned order is contrary to facts and law is liable to be set aside.  The forum without appreciating the facts, not perceived  the true facts proceeded to reject the execution petition is nothing but erroneous contrary to facts and illegal is liable to be set aside, besides being  contrary to the order passed by the State Commission dated 22.02.2008.
4. The Commission heard the Learned Counsel for parties to these appeals.  We perused the impugned order and the order of this Commission.  Now we have to examine whether impugned order passed by the District Forum in Execution Criminal case Nos.18 to 20/2012  could be maintained Or required to be interfered in these appeals ?.
5. Section 27A of Consumer Protection Act, 1986 provides for parties in the award order to prefer an appeal against order passed under Section 27, both on facts and on law.  At the very outset Commission to make mention of the fact that C.C.No.30/2007 and 32/2007 were allowed as prayed by the complainants with a direction to the OPs to allot a site measuring 60’X40’ in Sathagalli layout for the same value that was fixed when they were issued provisional allotment letters or for the price that was revised when the sites in that layout are allotted to other members who are also issued with the provisional allotment letters along with these complainants, while in C.C.No.31/2007 OPs are directed to refund the amount of Rs.54,865/- + Rs.135/- along with interest at the rate of 18% p.a. from 27.10.1995 till the date of payment. 
6. Thus, when the above orders were assailed before the State Commission in Appeal Nos.1752, 1821 and 1822/2007 filed by OPs and Appeal No.1933/2007 filed by complainant in C.C.No.31/2007 which came to be disposed of in the following terms.  In other words, in substitution of the orders dated 13.06.2007 passed by District Forum in C.C.No.30 to 32/2007, the State Commission directed OPs to issue orders of allotment of sites measuring approximately 40X60’ at the rate of Rs.300/- per sq.ft. and called upon the complainants to pay the balance sale consideration within three months from the date of order. It is not necessary to incorporate the remaining modified  orders passed by the State Commission in order to clarify that this order in so far as allotment of site with a dimension of 40’X60’ does not mean to say either less or more, but it should be 40’X60’.  In our view the word ‘approximately’ pre-fixing 40’X60’ does not give a meaning to interpret as OPs’ likes or no discretionary powers vested on the forum to interpret that 40X60’ even does mean 2015.45 sq.ft. In this regard the appellants / decree holders submitted that the allotment letter did not contain either the measurement or length or width, but, on the back of the allotment letter it was written as East to West – 22.5+18.0/2=20.25 and North to South – (15.5+3.0)/2=9.25 = 187.31 sq.ft.  Further, in the draft sale deed mentioned as 1,161 sq.ft. in place of 2,400 sq.ft.  Thus, such lapses found from the case of OPs / Jdrs. can be said that they have followed the order of this Commission dated 22.02.2008 in a lighter way and not in legal spirit.  In other words the forum has failed to appreciate these things while enquiring into the complaint filed by Decree holders in Execution Criminal No.18 to 20/2012 respectively.  Now at this stage, it would be appropriate herein to incorporate that while disposing of Appeal No.1752/2007 and three connected appeals, it was recorded,… the Secretary of the OP who is now present, submitted that all the sites except the corner sites are allotted in favour of the members of the society.  Therefore, the society is not in a position to allot any sites other than the corner sites.  Further, it is mentioned by the Commission we are told that there are 108 corner sites in Sathagalli, out of 108 sites sold about 20 sites to its members.  He further submits that the said society is ready and willing to sell three corner sites in favour of the complainants of the dimensions measuring 40’X60’ at the rate of Rs.300/- per sq.ft. provided complainants pays the differential amount.  Thus this proposal made was accepted by the respective complainants and even they are ready and willing to pay stamp duty and registration charges.  Accordingly, the Commission ordered to allot sites measuring 40’X60’ at the rate of Rs.300/- per sq.ft.  It does mean 40’X60’, since, substitute order of the forum allotting 60’X40’ merely because Commission ordered approximately pre-fixing to the dimension it is not mean to say as interpreted by the forum in the impugned order.  In such circumstances, if complainants/ decree holders would contend that the order of the state Commission is not implemented or justified to initiate proceedings against OPs / Jdrs. Could be said forum below failed to perceive in right perception, resulting thereby miscarriage of justice, dismissing the execution criminal proceedings initiated by the decree holders and its effect would be nullifying not only the awards passed by the forum but the state commission.  In other words the forum has to bear in mind that the effect of passing of such order is nothing but dismissal of the complaints initiated by respective complainants under Section 12 of Consumer Protection Act and dismissal of the order of the State Commission itself.  It is therefore,   in so far as dimension of site is concerned, forum has to consider  its own orders and the order of the state commission conjointly not in isolation, since, at that point of time, dimension of site was not at all an issue, either before the forum or before the State Commission.  In such view of the matter the impugned order passed by the District Forum in Execution Cr. No.22/2012 dated 14.01.2014 has to be held contrary to the facts and law is liable to be set aside.
7.  Accordingly, Commission order to allow Appeal Nos. 249, 250 and 251/2014 respectively with no order as to costs.  Consequently, order to set aside the common order dated 04.01.2014 passed in Execution Cr. Complaint No.18 to 20/2012 and directed forum to proceed with Ex.Cr. No.18 to 20/2012 in accordance with law providing opportunity to both parties to the appeals and dispose of as early as possible.

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JUDICIAL MEMBER

 

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MEMBER

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