State Consumer Disputes Redressal Commission
Chanchal Bai vs The President, on 23 March, 2023
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Complaint No.187/2016
Date of filing: 28.07.2016
Date of disposal: 23.03.2023
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED: 23.03.2023
PRESENT
HON'BLE Mr. JUSTICE HULUVADI G. RAMESH : PRESIDENT
Mr.K.B SANGANNANAVAR : JUDICIAL MEMBER
Mrs. DIVYASHREE M : LADY MEMBER
CONSUMER COMPLAINT NO.187/2016
Smt.Chanchal Bai,
W/o Gautham Chand,
Aged about 57 years,
Presently residing at No.225/2,
Thimmaiah Road,
Bangalore - 560 001. .....Complainant/s
(Advocate - Smt.Vaijayanthimala B)
V/s
1) The President,
Bangalore City Co-operative Housing
Society Ltd.,
No.2 Seethapathi Agrahara,
Bangalore - 560 002.
2) The Secretary,
Bangalore City Co-operative Housing
Society Ltd.,
No.2 Seethapathi Agrahara,
Bangalore - 560 002.
Both are represented by
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Complaint No.187/2016
Chief Executive Officer,
Bangalore City Co-operative Housing
Society Ltd.,
No.2 Seethapathi Agrahara,
Bangalore - 560 002. .....Opposite Party/s
(Advocate - Sri.Ashok K.L)
ORDER
HON'BLE Mr. JUSTICE HULUVADI G. RAMESH, PRESIDENT This is a complaint filed U/s.17 of C.P Act, 1986 by the complainant for the following prayer:
a) Direct the OP to give the possession of the site No.141 measuring 2400 sq feet in the residential layout formed by the Bangalore City Co-operative Housing Society Ltd., formed in Varjahalli and Raghuvanahalli villages in Bangalore South Taluk as per the sale deed executed in favour of complainant.
Or Direct the OP to pay the complainant the present market value of the site measuring 2400 sq feet in the residential layout which is at Rs.3,760/- per square feet amounting to Rs.90,24,000/-.
b) Direct the OP to pay a sum of Rs.5,00,000/- as compensation to the complainant for their negligence, deficiency in performing their part of obligation and thereby causing inconvenience, loss mental agony to the complainant.
c) Direct the OP to pay cost of the proceeding.
3 Complaint No.187/2016d) To grant such other reliefs.
2. The brief facts of the complaint are as under:
OP society formed residential layout at Raghuvanahalli/ Vajarahalli village, Uttarahalli Hobli, Bangalore South Taluk, for its members. Complainant became member of OP society. OP converted the agricultural land in various survey numbers totally measuring 189-03 acres of said villages. That on 02.12.1994 complainant paid Rs.78,615/- towards value of the site to the OPs. The complainant has paid miscellaneous charges of Rs.17,385/- to the OP. In all the complainant has paid Rs.96,000/- for allotment of site. After the said payment OPs have allotted site No.141 measuring 40'x60' and executed the sale deed in favour complainant on 15.03.1996. That after the sale deed the EC changed to complainant's son's name. At that time of registration, OP had showed complainant the site to the complainant which she is going to buy. After that when complainant was unable to identify the site and requested OP to identify the site, the OP informed the complainant that the site No.141 was taken for the park and she will be allotted any other alternative site.
Complainant further contended that the OP informed the complainant that as there is litigation between the farmers and the society before the Hon'ble High Court and once the dispute is resolved the complainant will be allotted the site. Believing the 4 Complaint No.187/2016 words of the OPs, the complaint kept quiet for some time. When complainant was regularly approaching the Society office bearers, it was learnt that the Appeal was lying before the Apex Court. Apart from that there is no sincere effort from OP to give any alternative site. OPs have not handed over the possession of the said allotted site to complainant by giving one or the other reason. Complainant got issued legal notice to OPs on 08.09.2014. OP society replied and agreed to solve the problem and instructed to produce the required documents. When the complainant approached the OP in person, the OP made it clear that all the sites were sold out in BCCHS layout formed in Raghuvanahalli and Vajrahalli layout therefore the complainant will be given a site in the upcoming project as compensated. Complainant submitted that she lost the original documents while she was travelling from her advocate office. Police complaint also filed to that effect. OP has not given any justification for not giving the possession of site bearing No.141 which was allotted to the complainant. OP has formed the layout and the sites therein are sold to various others and did not given the possession to the complainant even though the complainant had paid the sale consideration. OP had an intention to cheat the complainant and thereby intends to make a wrongful gain for itself.
Complainant further contended that as per the records submitted by the BCCH Society to the society of Registrar that all the allotments were completed in the year 2004. Complainant has produced the documents to show that the society had the sites till 5 Complaint No.187/2016 2014 and it had executed the sale deeds in the year 2014. The society had not informed about the modified plan of the BDA. It is totally illogical to inform the member of the society that the site allotted to the member was taken away from the BDA for the CA site. It is the duty of OP society to do the plan as per the rules and regulations of the BDA and give the proper provisions for the CA sites in the formation of the layouts. OP sold few sites to non- member of the society in the year 2014 much later to the allotment of the complainants for undervalue to get the benefit for themselves. That the OP sold the site on 27.02.2006 to Smt.Suma Ashok, on 03.09.2014 to M.Narasimha and G.Venkatesh. That there is a pending of complainant's possession of the site which was legally due on the part of the OPs society, the OPs sold the availed sites to non-members as well as a stranger to the society. As an initial member of this layout the complainant should have given priority. Taking all the rules and regulations into their own hand the society planned for cheating the complainant. That it should be noted here that it is not because there was no sites in BCCH layout which the complainant was not allotted the alternative site in BCCH layout which the complainant had legally entitled for but it is because the President and Secretary wants to make illegal money and gain the benefit the complainant was deprived off having a site.
Complainant further submitted that the intention behind withholding handing over the possession of the site in favour of 6 Complaint No.187/2016 complainant is that the value of the property in the area has shot up in the recent past and that the OP shall make more profits, if the same sites are sold to any other purchaser for the prevailing market rate which is around Rs.3,760/- per sq feet and the government fixed rate is Rs.2,900/- per sq. feet. The intention of the President and Secretary is to cheat and make benefit for themselves. Complainant has approached this Commission as a last resort as the OP has been dodging the issue for over 20 years from receiving the sale consideration at last coming up with an offer of alternative site which is in a very remote area as well as the market value of the site is too low and it is not matching the market value of the site allotted to the complainant which is highly unreasonable.
Complainant further submitted that the very intention of the investment on the plot is to build a house. All her interest were thrown to ashes by OPs society. Unfortunately due to the default on the part of OP in giving the possession of the property till date the complainant had to suffer a lot. Which is unbearable by the complainant. Complainant has sustained huge mental pressure due to the breach committed by the OP and has been put to great mental agony and to the indifferent attitude of OP. OP is liable to give the possession of the sites in terms of the agreement or in the alternative the OP is liable to refund the amount in terms of the present market value of the sites. Complainant felt deficiency in 7 Complaint No.187/2016 service on the part of OPs. Hence filed this complaint for seeking reliefs.
3. Brief facts of version filed by OPs are as under:
OPs have formed residential layout nearly 189 acres of land at Raghuvanahalli / Vajarahalli village, Uttarahalli Hobli, Bengaluru South Taluk for the benefit of its members. On 02.12.1994 the complainant paid the total sale consideration. OPs allotted site No.141, measuring 2400 square feet and registered same in favour of complainant on 15.03.1996. After the sale deed the E.C changed to complainant name. It is false that after the execution of sale deed, the complainant requested the OPs to identify the site in question at that time the OPs have informed her that site No.141 registered in her name was taken by the BDA for part and that she will be allotted another site. The BDA has revised the layout plan formed by the OPs in which certain sites have been retained by the BDA for the purpose of park and other civic amenities, as a consequence of which the site in question along with other sites have been retained by the BDA. OPs have not informed the complainant about non-availability of the site in question and that she would be allotted another alternative site.
OPs have not informed the complainant that there is litigation pending between the farmers and the society before the Hon'ble High Court and that once the dispute is resolved the complainant will be allotted the site is false. The physical delivery of the site in question was handed over to the complainant on the date of 8 Complaint No.187/2016 execution of sale deed and possession certificate was also handed over to her on the very same day.
OPs further submitted that on the date of registration of sale deed in respect of site No.141 the possession certificate was issued to complainant, which would indicate that possession of the site has been handed over as on the date of the registration. There is no fault on the part of OPs in allotment of sites and registration. The BDA in the revised plan has retained some more area and therefore, the OPs cannot be blamed. There is no intention to cheat the complainant as falsely contended by her. The acts of OPs do not in any way be described as cheating and misuse of power. The site in question has been taken by the BDA, the complainant knowing fully had not challenged the said order and now filed false complaint against OPs. There is no intention on the part of OPs to cheat the complainant and make benefit. There is no suffering by the complainant as has been falsely contended. There is no mental pressure on the complainant as falsely averred by her. That on payment of the sale consideration by the complainant, the sale deed was registered, possession certificate was given but due to act of the BDA the site got deleted in the approved plan and the said action was not challenged by the complainant for which the OPs cannot be held responsible. There is no injury caused to the complainant at all in not handing over possession of the site. The complainant is not entitled to any compensation as claimed. OPs being a housing society is working on no profit no loss basis and as 9 Complaint No.187/2016 such there cannot be refund of amount by the OPs in terms of the present market value. There is no question of the OPs to buy back the site in question from the complainant at present market value. The site in question and certain other sites were retained by the BDA as already contended by OPs and therefore the same is not in the approved plan of the BDA. There is no negligence on part of OPs. There is no merit in the belated complaint. Rest of the allegations made by the complainant is denied by OPs. Hence OPs prayed for dismissal of the complaint with exemplary cost.
4. To substantiate the case, the complainant has filed his affidavit evidence and produced documents. The OPs also filed their affidavit evidence and produced documents. The Commission heard the counsels for both parties and examined the materials placed on record by them. Now, the point that arises for our consideration is, whether the Complainant is entitled for the relief sought as against the OPs alleging deficiency in service?
5. Heard the arguments of both parties.
6. On going through the pleadings, documents and affidavits produced by either of the parties, there is no dispute that, the complainant was a member of the OPs society. It is also not in dispute that the complainant had paid total sale consideration amount to OPs on different dates towards allotment of the site measuring 40'x60' sq. ft. formed by them. After receipt of the total 10 Complaint No.187/2016 consideration amount, the Opposite Parties have issued allotment letter dated 06.12.1995 by allotting site No.141 measuring 40'x60' sq. ft in favour of complainant. As per the documents produced by the complainant, we noticed that the Opposite Parties No.1 & 2 have executed sale deed in the name of complainant on 15.03.1996. Complainant requested OPs to identify the site allotted to her, OPs informed that the site No.141 was taken for the park and complainant will be allotted any other alternative site. But till date the OPs have not allotted any alternative site in favour of complainant in place of earlier allotted site. Further the OPs in their written arguments admitted that "due to modification of the layout plan by the BDA, the site registered in the name of complainant was retained by the BDA towards civic amenity. Because of this reason, the possession of the site could not be handed over to the complainant and possession certificate was not issued by the OP".
7. In this regard considering the fact that such amount was deposited by complainant son during 1994 and had she been deposited such amount in similar such projects could have earned more or got a site of her dream in and around Bangalore city. The OPs have not made any efforts to allot alternative site and execute the same in favour of the complainant. We found it is clear case of deficiency of service on the part of the OPs in not allotting alternative site and not registering the sale deed in favour of the complainant. We noticed here that the complainant had paid total consideration amount way long back at the time of allotment of the 11 Complaint No.187/2016 site itself. Therefore, the Opposite Parties are liable to execute the sale deed in favour of the complainant. We found there is extreme delay in not allotting alternate site and also not registering the same in favour of complainant which amounts to deficiency of service and unfair trade practice on the part of OPs. Accordingly, we proceed to pass the following:
ORDER The complaint is allowed in part.
The Opposite Parties are directed to execute the sale deed in favour of complainant in respect of site measuring 40'x60' by accepting balance amount if any from the complainant within 3 months from the date of receipt of the order.
Parties to bear their own costs.
Provide copy of this order to the parties.
LADY MEMBER JUDICIAL MEMBER PRESIDENT vln*