O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> The brief facts of the complaint filed by the complainant against the Op are, that Op is a House Building Co-operative Society of University of Agricultural Science. That he became a member of op Society during the year 1988 applied for a plot measuring 60’ X 40’ and paid Rs.24,000/- in all as on 08/03/1991. Thereafter, he approached the Op Society many times seeking allotment of a plot. Then Op called upon him to pay Rs.48,000/- towards allotment of plot by 30’ X 40’. That he earlier opting for 60’ X 40’ site deposited a Rs.24,000/-. Thereafter he through his letter requested the Op to allot plot measuring 30’ X 40’ as against 60’ X 40’ as originally requested, through his letter dated 11/04/2003. Thereafter, he deposited Rs.15,000/- as per the circular of Op dated 16/07/2004 for allotment of 30’ X 40’ again Rs.15,000/- on 01/08/2004 which are acknowledged by the Op. Then the Op through circular dated 28/03/2006 informed him to pay additional sum of Rs.40,000/- towards site measuring 30’ X 40’ on or before 05/05/2006. Accordingly, he paid that amount also. Then he was called upon by the Op to produce certain documents to ascertain his genuineness. Then he also sent all the required documents. He therefore has paid Rs.1,68,000/- as called upon by the Op towards allotment of site measuring 30’ X 40’. But the Op has failed to allot him a site and has therefore prayed for a direction to the Op to allot him a site measuring 30’ X 40’ at Phase 3 B Jakkur Shivanahalli Layout on the alternative to allot a site of that dimension or plot of even differents measuring dimension in the said layout and to award compensation of Rs.2.00 lakhs for his mental agony and to pay cost of Rs.25,000/-.<br /> <br /> Op has appeared through his advocate and filed version contending that complaint is not maintainable. That he is not liable to pay cost and compensation. That he has not caused any deficiency in service and the complaint is liable to be dismissed. It is further alleged that the complainant had earlier filed a complaint before the forum seeking refund of money but that came to be dismissed for want of jurisdiction. Therefore now he is estopped from claiming the allotment of site. Op admitted that the complainant who is a member of their society stated that complainant had applied for site measuring 40’ X 60’ paid Rs.1,68,000/- as against Rs.3,60,000/- fixed and Op by giving details of payment made has stated that the complainant did not make 5th and 6th installment as per the demand and denying any application given by the complainant for allotment of lesser site, has stated that the complainant after committing default in paying installment for allotting 40’ X 60’ site claimed for allotment of site 30’ X 40’, has further stated as on today, the complainant has not filed any application before them for allotment of site of lesser dimension. It was able to get 13 acres 8 guntas of land as against the claim for 34 acres 5 guntas and after forming sites BDA has released sites which are already released in favour of the genuine members and on resolving of the litigation if it gets the remaining land they would be able to allot sites in favour of the members who have paid the full cost. The complainant therefore has not paid the full cost of the site measuring 40’ X 60’ is not entitle for allotment and has prayed for dismissal of the complaint.<br /> <br /> In the course of enquiry in to the complaint, the complainant and Op have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. Complainant has produced copies of receipts for having paid installment to the Op, copies of several correspondences that took place between them, copy of the list of genuine members which contains his name and copy of legal notice he got issued to Op. OP has produced copies of correspondences that took place between him and the complainant and copies of circular they got issued to the members, with a copy of members who have paid installments for allotment of site. Counsel for both parties have filed written arguments. We have heard the arguments of the counsel for both in brief and perused written arguments of the complainant and also the documents. <br /> <br /> <br /> <br /> <br /> On the above materials, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Op has caused deficiency in his service in not allotting him a site in the layout in question?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> Point No.1 : In the affirmative<br /> Point No.2 : See the final order.<br /> <br /> Answer on point No.1: On perusal of the records, hearing the counsel for both parties, we find no dispute with regard to the fact that the complainant was a member of the Op Society initially applied for allotment of plot measuring 40’ X 60’ in the layout in question formed by the OP. It is also not in dispute further that the complainant right from 5/08/1988 has paid a total sum of Rs.1,68,000/-. Until on 26/09/2006 with non-payment of two installment due as on 05/11/1992 and 05/02/1993. It is the case of the complainant that he in the course of making payments he changed his intention to seek allotment of site measuring 30’ X 40’ instead of a site measuring 40’ X 60’ and stated to had addressed a letter in this regard to Op on 11/04/2003. The complainant in support of his contention produced a copy of his letter in this proceedings in having had addressed such letter to the Op requesting for a site measuring 30’ X 40’. But the Op has denied receipt of any such requests of the complainant for changing from a larger dimension site to a lesser dimension site. When such a denial is made by the Op then the burden is on the complainant to prove that his letter dated 11/04/2003 had reached the hands of the Op. The complainant has not produced any such proof to prove that his letter had been delivered to OP. But on perusal of the uncontroverted documents the complainant has produced which is not denied by the Op establish that the complainant later on on many occasions exhibited his desire to have a smaller site and paid the balance amount towards the cost of smaller site. <br /> <br /> The complainant has produced a circular of Op dated 16/07/2004 addressed to the complainant requesting him to pay the 7th installment in which applicants who had applied for 30’ X 40’ site were required to pay15,000/- towards site measuring 30’ X 40’ and Rs.30,000/- towards a site measuring 40’ X 60’ and even towards site measuring 50’ X 80’. The complainant on receipt of this circular, through his letter dated 02/08/2004 wrote a letter to the Op even inviting the attention of the Op to the circular dated 16/07/2004 sent a DD for Rs.15,000/- as further payment towards cost of 30’ X 40’ site. Again Op issued another Circular dated 28/03/2006 to the complainant calling upon him to pay 8th installment under which the complainant and other members required to pay Rs.45,000/- towards site measuring 30’ X 40’ and double that amount for site measuring 60’ X 40’. The complainant again obtained a DD for Rs.40,000/- on 15/04/2006 and sent the DD to the Op through his letter dated 17/04/2006 informing them about the deposit or payment of that installment towards 30’ X 40’ site. Then the Op issued a third circular dated 27/06/2006 to the complainant and other members under which the members who asked for 30’ X 40’ site were required to pay 9th installment amounting to Rs.40,000/- and Rs.80,000/- towards 40’ X 60’ site. In response to this circular, the complainant sent Rs.40,000/- through DD dated 06/06/2006 and also requested for issue of receipt. It is therefore clear that in response to all these circulars issued by the Op the complainant continued to pay balance sital value towards allotment of 30’ x 40’ site only and not for 40’ X 60’ site. It is thereafter Op sent another circular on 14/08/2006 requesting the complainant to send certain documents for ascertaining the genuineness of the applicants who had applied for allotment of sites. In response to the same the complainant on 30/08/2006 forwarded all the documents sought.<br /> <br /> Op though denied receipt of letter of the complainant dated 11/04/2003 requesting for allotment of smaller site but has nowhere denied issue of the above circulars and payment of remaining installments by the complainant which are towards smaller site and not towards larger site. The OP who received these amounts and documents and initiated process for allotment of sites never bothered to inform the complainant about non accepting the request of the complainant for allotment of lesser dimension site nor informed him that the installments that were paid by the complainant are taken towards 40’ X 60’ site and that the payments he as made has fallen shorts towards allotment of 40’ X 60’ sites. The complainant believing that the Op has accepted his request for 30’ X 40’ continued to pay the balance installments towards smaller site as called for by the Op. OP even in their letter dated 03/11/2008 have refused to this claim of the complainant and given details of payment made by him and has categorically stated that the complainant in order to get away from the status of defaulter has got himself identified with the depositors of smaller site and admitted that complainant has paid 4 installments towards site measuring 30’ X 40’. It is therefore evident that the complainant right from 2004 up to 2006 continued to pay installments towards 30’ X 40’ site but the Op refused to allot him a site on the ground that his name is included in the list of members applied for 40’ X 60’ site and because of non-availability of smaller site they cannot allot him a site.<br /> <br /> It is not the case of the Op that a member who initially applied for allotment of a larger site cannot change over for allotment of smaller site. For the reasons of their own, the members can definitely switch over for one measurement to another measurement and that cannot be denied of course subject to adjustments of their places in the seniority list of the applicants considering the payments made by such persons. Even assuming that the Op did not receive the letter dated 11/04/2003 for changing over from larger site to smaller site, but when the complainant continued to pay the balance installment right from the year 2004 towards a smaller site then the Op who have received that payments were not willing or they were not able to get the smaller site they could have inform the complainant that he can not be accommodated in the list of the members who had applied for smaller site and payment made by him fall short of payment towards bigger site. He should have been called upon to pay the remaining part of the installments towards full payment of site measuring 40’ X 60’. But the Ops till date did not do so but have in a casual apposed the complaint with a contention that complainant is a defaulter in the list of members who had sought for bigger site and he could not be accommodated for allotment of smaller site. Considering these facts and the lapses on the part of the Op it can be said that the complainant who has been struggling right from the inception of the idea for forming layout has paid his hard earned money with a hope of getting a site is at fault. The act and intention of the complainant in asking for smaller site when was not refused or denied he shall not be thrown to a uncertainty. It is even found from the list of the members who had applied for allotment of 40’ X 60’ site contained the name of the complainant also and is shown as a genuine member and the Op has forwarded list of these genuine members to the Registrar of Co-operative Society (Industries and others on 31/08/2007) while sending that list of genuine members, the complainant was not shown as defaulter but later on Op having failed to examine the case of the complainant taking note of his request has rejected the claim of the complainant on the ground that he is a defaulter in having not paid full amount for 40’ X 60’ site and he cannot be included in the list of members applied for smaller site. The complainant even on 19/07/2007 gave a letter to this effect to the Op who has received this letter on the same date with his signature and seal. But the Op despite such request and details of payment made towards allotment of 30’ X 40’ site did not take any decision in that regard. The Op in our view has failed to act upon the requests and payment made and therefore the denial to accommodate him for allotment of smaller site despite the amount paid by amounts to deficiency in the service of Op. Hence, we hold that the complaint deserve to be allowed. Here would like to observe that Op shall at least on the date when the complainant sent Rs.15,000/- in response to the OP circular dated 16/07/2004 opting towards 30’ X 40’ site ought to have accommodated him in the list of 30’ X 40’ measurement site applicants as per the norms and consider his case for allotment of site. With this, we answer point no.1 in the affirmative and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is allowed. <br /> <br /> Op shall allot a site measuring 30’ X 40’ in Jakkur Shivanahalli Layout, 3 B Stage, within 3 months from the date of this order and execute title deed, on the complainant meeting the necessary legal expenditure and put him in possession of the same.<br /> <br /> Parties to bear their own cost.<br /> <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 21st April 2010.<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />