BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 04^TH DAY OF MARCH 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OPs to allot the BDA approved site measuring 40X60 to the complainant and to deliver possession of site. or
2. To direct the OPs to pay present market value of BDA approved site measuring 40X60 as compensation to the complainant.
3. To direct the OP to pay the compensation of Rs.10,00,000/- for mental harassment caused to the complainant.
4. Direct the OP to pay Rs.50,000/- for litigation charges to the complainant.
5. Grant such other reliefs as this Hon’ble Commission deems fit.

2. The case set up by the complainant in brief is as under:-

Father of the complainant Sri.Suresh Chandra Jain was a member of the OP society and allotted roll No.2804 and allocated account No.4951.  The father of the complainant has followed the due process of allotment of site and paid the amount for provisional allotment of site measuring 40X60 at Vishweshwaraiah II Stage Layout, Bengaluru.  On 15.02.1985 OP society had sent a letter to the father of the complainant regarding allotment of site measuring 40X60 feet and fixed site price for Rs.38,000/-. The father of the complainant has allotted new membership No.4483. The father of the complainant approached the OP frequently for allotment of site from 1982 to 2016 and the parents of complainant also paid payment of Rs.60000/- to the society as per their demand.

3. Complainant further submits that father of the complainant died on 23.05.2016 leaving behind his wife Smt.Sharda Jain as his legal heir and she was nominee of her husband.  The mother of the complainant had approached the OP and also sent a letter to the OP on 10.08.2017 and the OP have replied on 16.10.2017 by sending reply stating that they had lost 478 acres of land at Bannerghatta Road due to the order of the Supreme Court of India.  The OP had undertaken and assured that they will allot alternative site after allotment of the alternative land and they will inform to all the members.  As per the request of Smt.Sharda Jain the membership account has been transferred to her name from the name of her husband collecting transfer fee on 18.07.2017. After that Smt.Sharda Jain became member of the society. The complainant with his mother had approached the OP since 2016 to 2023, they keep on promising them to get the site allotted to the complainant.  Due to her old age the mother of the complainant also died on 02.09.2023 leaving behind the complainant as her only legal heir.
4. The mother of the complainant also executed a will in favour of the complainant bequeathing the site property i.e., going to be allotted by the OPs in favour of the complainant. Hence the OPs have to allot the site in favour of the complainant.
5. The parents of the complainant and also the complainant made several representations for the OPs to allot the site but they have not yet allotted any site even after lapse of 42 years.  Inspite of repeated demands and request made by the complainant and also his deceased parents the OPs have not at all allotted any site.  The complainant’s parents have paid all their hard earned money to get the allotment of the site but there was no response from the OPs.  Hence the complainant filed this complaint.
6. In response to the notice, OP has not appeared before this commission. Hence OP placed exparte.
7. The complainant has filed his affidavit evidence and relies on 26 documents. 
8. Heard the arguments of advocate for the complainant.   Perused the documents.

9. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

10. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

11. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, affidavit evidence of complainant and documents. Inspite of issue of notice the OP remained absent. Hence OP neither challenged the allegations made in the complaint and also documents and they remained unchallenged.
12. Complainant has filed his affidavit evidence reiterated all the allegations made in the complaint.  It is clear from the evidence and documents produced by the complainant that he is only legal heir of late Suresh Chandra Jain and late Sharda Jain. The father of the complainant has become the member of the OP society in the year 1982 and they have paid entire site value of Rs.38,000/- for the allotment of site measuring 40X60 feet as per the demand made by the OP1 on 15.02.1985.  Again the father of the complainant has paid Rs.60,000/- as per the demand of the OP1.
13. The father of the complainant died on 23.05.2016 leaving behind his wife Smt.Sharda Jain.  The mother of the complainant again approached the OP society for allotment of site by sending a letter on 10.08.2017 and in reply issued by the OPs they have informed the mother of the complainant that in view of the order of the Supreme Court they have lost 478 acres of land at Bannerghatta Road. They further assured the mother of the complainant that they will allot alternative site after forming the layout in the alternative land and they will inform the same to all the members.  
14. The mother of the complainant died on 02.09.2023 leaving behind the complainant as her only legal heir.  She has also executed a will bequeathing the proposed site in the name of the complainant. In view of the will the complainant is entitle for the site i.e., going to be allotted by the OPs.
15. In support of his contention the complainant has relied on 26 documents. Ex.P1 is the Domicile certificate, Ex.P2 and 3 are the FD receipts, Ex.P4 is the letter and affidavit, Ex.P5 is the copy of the letter for allotment of site dated 15.02.1985 and Ex.P6 is the copy of the representation of site dated 05.09.1985, Ex.P7 is the three site purchase deposit slips, Ex.P8 to 10, 12 to 15, 18 and 19 are all the letters given to the OPs by the parents of the complainant and complainant. Ex.P11 is the provisional letter of allotment dated 13.02.1988, Ex.P16 is the copy of the application and acknowledgement, Ex.P17 is the representation, Ex.P20 is the copy of the site purchase deposit slip, Ex.P21 is the copy of the pass book, Ex.P22 and 23 are the copies of death certificates of the parents of the complainant, Ex.P24 is the legal notice, Ex.P25 and 26 are the postal receipts and acknowledgements.
16. It is clear from the evidence and documents that the complainant is waiting for allotment of site by the OPs from the time of his parents i.e., from 1982 to till today. The OPs have already received the entire consideration amount of Rs.38,000/- in the year 1985 and also an additional amount of Rs.60,000/- between 1982 to 2016. Inspite of received the entire amount the OPs have not at all allotted any site either to the parents of the complainant or to the complainant till today.  The parents of the complainant and complainant have waited for the site from the last 42 years.
17. Inspite of service of the legal notice and also the notice from this commission the OPs remained absent and they have not sent any reply.  Under these circumstances, the complainant has clearly established the deficiency in service and lethargy and unfair trade practice, practiced by the OP society.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
18. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OPs are hereby directed to allot the BDA approved site measuring 40X60 feet to the complainant and deliver the possession of the site within three months from the date of this order.
3. If the OPs are failed to allot the site they are directed to pay the present market value of BDA approved site measuring 40X60 feet as compensation to the complainant.
4. OPs are further directed to pay compensation of Rs.1,00,000/- with litigation expenses of Rs.10,000/- to the complainant.
5. The OP shall comply this order within 90 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on the present market value of the BDA approved site measuring 40X60 feet till final payment.
6. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 04^TH day of MARCH 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL