Complaint filed on: 17-04-2012
Disposed on: 12-10-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.812/2012
DATED THIS THE 12th OCTOBER 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
G.Guru Prasad,
S/o. Sri.Guthala Gowda,
No.3875, 3rd Main Road,
Shankaranagar,
Mandy City
V/s
Opposite parties: -
1. The President, National Technological Institution Housing Co-operative Society Ltd, No.G-5, Palace Orchards Apartments No.51, 6th A Cross, 9th Main Road, R.M.V. Extension Bangalore-80
2. Secretary, National
Technological Institution Housing Co-operative Society Ltd, No.G-5, Palace Orchards Apartments No.51, 6th A Cross, 9th Main Road, R.M.V. Extension, Bangalore-80
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act’1986, praying to pass an order, directing the OPs to deliver the possession of site bearing no.831, and to pay Rs.2,00,000=00 towards compensation and to award 15% interest per annum on the total price value of the site paid to the OPs and to pay Rs.10,000=00 towards cost of litigation.
2. The brief facts of the complaint can be stated as under.
The OPs society is a registered society under the Karnataka Co-operative society Act, and the complainant is a member of the OPs society. The main aim of the society is to develop the land into sites and distribute the sites to the members of the society. Accordingly, on 25-11-1996, the OPs have sanctioned a site bearing no.831 in the name of the complainant measuring 40 X 30 sq ft situated at Rajiv Gandhi Nagar, NTI layout, 2nd stage, Bangalore having boundary towards East: site no.832, West: Road, North: site no.830 and South: Road and the complainant has paid the amount of Rs.50,000=00 and 7,500=00 to the OPs and the OPs have executed the registered sale deed in favour of the complainant, but till this date, the possession of the site has not been handed over to the complainant. In this regard, the complainant made requests many times to the OPs to handover the possession of the site, but efforts of the complainant ended in vain. On 15-9-2011, the complainant sent a letter to OPs, but no reply was given by the OPs, thereafter, on 22-12-2011 a legal notice was issued and reply dated 17-1-2012 was given stating that, the site allotted to the complainant has been encroached by somebody, and in lieu of the site, two bed rooms flat will be given to the complainant and the case is pending before the court, the complainant is not knowing about this aspect. In this regard, the complainant sent a letter dated 15-3-2012 to the OPs, no response was given by OPs, so there is deficiency of service on the part of the OP as per the provision of CP Act. The complainant had planned to acquire a residential site in Bangalore and build a house of his own, but the dream of the complainant in building the house at Bangalore has been shattered totally. The complainant is not having any other site at Bangalore except the site bearing no.831. So, on account of non availability of the site, the complainant has become mentally upset. If the said site had been allotted earlier, the complainant would have constructed the house and lived happily. So due to non availability of the site by OPs, the complainant has suffered a lot both mentally and financially. So the present complaint is filed.
3. After filing of the complaint, notices were issued to OPs and OPs have appeared through their counsel and filed objection, contending interalia as under.
The complainant has filed this complaint praying for a direction to the OP to hand over the site bearing no.831 measuring 40 X 30 sq ft allotted in his favour and also for compensation and interest on the market value of the site alongwith cost of litigation. The complainant of the complaint is not maintainable. Immediately after the allotment of the site, a lease-cum sale deed has been executed in favour of the complainant and the possession of the site was also handed over to the complainant. The allegation of the complainant that the possession of the site was not handed over to him is not correct. In the lease-cum-sale deed executed by the society in favour of the complainant it is stated that the complainant has been put in possession of the site and lease-cum-sale deed was registered on 26-11-1996 in the office of the sub registrar, Yelahanka. Thereafter, a deed of rectification was also entered into rectifying certain defects with regard to the measurement of the site. So the allegation of the complainant that he was not put in possession is totally incorrect. It is for the complainant to protect and safeguard his interest in the site which has been registered in his favour. Once the sale deed is executed and the complainant is put in possession, it is for the complainant to safeguard his site. However, the developers of the apartments at Sy.No.38, Kothihosahalli village have constructed an apartment complex and it appears that they have encroached upon a portion of the site allotted in favour of the complainant. It is true that, the complainant had written a letter dated 15-9-2011 and thereafter a notice dated 23-12-2011 was also issued to NTI housing society. On behalf of the OPs a reply was sent to the advocate of the complainant, and in the said reply, it was brought to the notice of the complainant that in the annual general body meeting of the society held on 30-3-2008 it had been resolved to provide “A” class constructed flats of minimum area of 600 sq. ft, 800 sq. ft. and 1100 sq. ft of super built up area with a parking slot as compensation for those allottees who had lost their sites allotted in their favour in I phase. It was also brought to the notice of the complainant that registrar of co-operative societies had accorded permission for construction of multi-storied apartments as per joint venture dated 21-5-2008. Taking into consideration the fact that some private developer had encroached upon portion of the site allotted in favour of the complainant, the society thought of accommodating the complainant by allotting an apartment in his favour and this was intimated to the complainant only on humanitarian grounds though the society is not legally liable to compensate the complainant. Not being satisfied with the reply given by the society, the complainant has filed the present complaint. The dispute between the complainant and the OPs is not a consumer dispute as projected in the complaint. There is neither deficiency in service nor any inaction on the part of the OPs. The dispute between the complainant and the OPs is not a consumer dispute as defined under the CP Act, so the complaint is not maintainable. If at all there is any encroachment of the site allotted in favour of the complainant, the OPs is not responsible for the same and it is for the complainant to seek necessary relief against the encroacher. The offer made on behalf of the society in its reply is only on humanitarian grounds. The OP society has executed the registered lease-cum-sale deed in favour of the complainant as long back as in the year 1996 itself and possession was also delivered to him on the same date. Hence it prayed to dismiss the complaint in the interest of justice.
4. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.
1. Whether the complainant proves that, the OPs have committed deficiency in the service as prayed in the complaint?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled
to any relief as prayed in the complaint
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced seven documents and one more document alongwith a memo. On the other hand, one R.Prakash who being the secretary of the OPs society has filed his affidavit by way of evidence on behalf of the OPs and produced one copy of final notice. We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties scrupulously.
7. One G.Guruprasad, who being the complainant has stated in his affidavit that, he became a member of OPs society and main aim of the OPs society is to distribute the sites to the members, after making development of land. Accordingly on 25-11-1996 the OPs society has allotted a site no.831 situated at Rajiv Gandhi Nagar, NPI layout, 2nd stage, Bangalore in his name measuring East to West: 40 sq. ft and North to South: 30 Sq. ft. after taking a sum of Rs.50,000=00 and Rs.7,500=00 from him and executed the registered sale deed, but the OPs has not handed over the possession of the said site to him, and he issued a letter dated 15-9-2011 to OPs and inspite of it, the OP did not give any reply, thereafter on 22-12-2011 a legal notice was issued, the OPs have informed on 17-1-2012 stating that, the site allotted him has been encroached by somebody and in lieu of it, two bed room flat will be given and it has been rejected by him and again on 15-3-2012 a legal notice was issued, but reply was given and he is not having any other site in Bangalore except site in question. So as per the rules of the society action be taken to get the site to him and also to award compensation of Rs.2,00,000=00 for mental agony. So the present complaint is filed, so order be passed as prayed in the complaint.
8. By careful reading of the averments of complaint and evidence of the complainant as mention above, it is made crystal clear that, the complainant has tendered his evidence in accordance with the averments of the complaint. Let us have a look at the relevant documents of the complainant to know whether the oral evidence of the complainant is supported by any documentary evidence or not. Document no.1 of the complainant is the copy of Lease-cum-sale-deed dated 25-11-1996 executed by OPs in the name of the complainant in respect of site no.831 situated at Rajiv Gandhi Nagar, NPI layout, 2nd stage, Bangalore, measuring East to West: 40 sq. feet and North to South: 30 sq. feet, and that document has been duly registered in the office of Sub registrar, Yelahanka, Bangalore and at page no.5 of the document at sl.no.1, it is stated specifically that, the vendor society hereby conveys and transfers to the vendee the site no.831 more fully and specifically described in the schedule here to and the vendee who being the complainant is hereby put in possession the property as full owner. Document no.2 is the copy of letter dated 15-9-2011 issued by the complainant in the name of secretary of the OPs society stating that, he is ready to pay additional amount as suggested by the OPs and he has been informed that the site bearing no.831 has been encroached, so he prayed to allot alternative site. Document no.3 contains copies of postal acknowledgment cards of the OPs. Document no.4 is the copy of legal notice dated 23-12-2011 issued by the complainant’s lawyer to the OPs calling upon the OPs to allot alternative site to the complainant, if there is an encroachment of site no.831 alongwith compensation of Rs.2,50,000=00 and cost of this legal notice within a period of one month. Document no.5 is the copy of reply given by the OPs dated 17-1-2012 to the lawyer of the complainant stating that, the site no.831 registered in the name of the complainant has been encroached by the developers and as per the directions of the general body, the complainant would become eligible for two bed rooms flat in third phase of Rajiv Gandhi Nagar, Bangalore. The Registrar of Co-operative societies accorded permission for construction of multi storied apartments on joint venture on 21-5-2008 and as soon as the place is ready with cleaning and fencing and putting the name board, the project will resume, kindly bear with them for some time. Document no.6 is the copy a legal notice dated 15-3-2012 issued by the complainant to OPs calling upon to allot of alternative site to him in the layout formed by the OPs society and the last document of the complainant consists of AD cards of the OP.
9. So making careful scrutiny of the documents of complainant as mentioned above, it is no doubt true that, the OPs have allotted a site bearing no.831 existing in the layout of the OPs situated in Rajiv Gandhi Nagar, NPI layout, 2nd stage, Bangalore in the name of the complainant after receiving an amount of Rs.50,000=00 and executed the registered sale deed on 25-11-1996 and in the sale deed there is clear mention made for having delivered the possession of the said site to the complainant. After taking registered sale deed from the OPs in the year 1996 till 15-9-2011, the complainant has kept silent without putting any construction over the said site. No explanation is coming forth on behalf of the complainant as to why he did not take action either for putting structure over the said site or pursuing the OPs for not handing over the possession of the said site. The entire complaint and evidence of the complainant are silent on this material aspects and it is only on 15-9-2011 the complainant woke up and sent a letter to OPs on the said date praying to allot alternative site to him as his site allotted bearing no.831 has been encroached and subsequently on 22-12-2011 and 15-3-2012 the complainant has got issued a legal notice to the OPs calling upon to allot alternative site. The OP has given reply to one of the legal notice of the complainant on 17-1-2012 stating that, the site no.831 which was registered in the name of the complainant has been encroached by the developer and they will allot two bed room flat to the complainant in 3rd phase of Rajiv Gandhi Nagar, NPI layout, 2nd stage, Bangalore, and thereafter the complainant has come up with the present complaint under section 12 of the CP Act praying to hand over the site to him which was registered in his favour and pay compensation and also to award interest on the entire amount paid in respect of sital value and cost of litigation. After having executed registered sale deed by the OPs in the name of the complainant on 25-11-1996 in respect of site no.831, this forum ceases jurisdiction to entertain the complaint. The only option for the complainant is to approach the Civil court by filing civil suit seeking for possession of site and also other relief as prayed in the complaint and ventilate his grievances and not by filing the present complaint under section 12 of the CP Act. So viewing the case of the complainant, on the back ground of relevant documents of the complainant namely copy of registered sale deed dated 25-11-1996, the fact keeping silent by the complainant from 1996 to 15-9-2011 and making correspondences with the OPs only after 15-9-2011, we are of the opinion that, after execution of registered sale deed by the OPs in the name of the complainant dated 25-11-1996 in respect of site no.831 and handing over the possession of the site on the same date to the complainant, this forum is not having any jurisdiction to try the present complaint of the complainant under section 12 of the CP Act and grant relief, and accordingly we hold that, the complainant has failed to prove the deficiency of service on the part of the OPs by placing convincing documentary evidence. So due to paucity of material evidence, we answer this point in a negative.
10. In view of our negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 12th day of October 2012.
MEMBER MEMBER PRESIDENT
