State Consumer Disputes Redressal Commission
The Commissioner, City Municipal ... vs Tukaram Ananthshet on 24 April, 2023
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. First Appeal No. A/712/2012 ( Date of Filing : 13 Apr 2012 ) (Arisen out of Order Dated 17/08/2011 in Case No. Complaint Case No. CC/107/2011 of District Shimoga) 1. The Commissioner, City Municipal Council Sagar, Shimoga Dist. . ...........Appellant(s) Versus 1. Tukaram Ananthshet S/o. Ananthanarayana Shet, Aged about 63 years, Subhash Nagar, Sagar Town . ...........Respondent(s) BEFORE: HON'BLE MR. Ravishankar PRESIDING MEMBER HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi MEMBER PRESENT: Dated : 24 Apr 2023 Final Order / Judgement BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (ADDL. BENCH) DATED THIS THE 24th DAY OF APRIL 2023 PRESENT MR. RAVISHANKAR : JUDICIAL MEMBER MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER APPEAL NO. 712/2012 The Commissioner, City Municipal Council, Sagar, Shimoga District. (By Sri Deshraj) ......Appellant/s V/s Tukaram Ananthshet, S/o Ananthanarayana Shet, Aged about 63 years, Subhash Nagar, Sagar Town. (By Sri G.M. Nataraj) .....Respondent/s ORDER
BY MRS. SUNITA CHANNABASAPPA BAGEWADI, MEMBER
1. The appellant/Opposite Party has preferred this appeal being aggrieved by the Order dt.17.08.2011 passed in CC.No.107/2011 on the file of District Consumer Disputes Redressal Commission, Shimoga.
2. The brief facts of the case are as hereunder;
It is the case of the complainant the OP allotted site No.262 measuring an extent of 9 x 12 meters in Kambali Koppa Extension of Sagar Taluk. Towards the same, the then Town Municipality issued a written notice bearing No.HTS.CR.3/78-79 informing about the grant. As per the notice dated 04-05-1979 the complainant deposited Rs.100/- to the OP and obtained the receipt. After on 21-04-1981 as per CR 3/78-79 a notice has been issued to the OP, accordingly the complainant on 4-5-1981 submitted all the relevant documents and supplied all relevant information to the OP. Even though the OP failed to give possession and grant certificate to the complainant. When the complainant approached the OP on 26-08-1989 with regard to the same, the OP issued an endorsement stating that the land granted to the complainant has been encroached by someone and they have already constructed a house at the time of the OP granting the sites and the request of the complainant will be considered at the time. The complainant orally approached the OP and the Op replied that no house site in the said survey number is allotted to any body. But on 24-02-2011 the OP got published a public auction notice is relating to auction of sites nearest to the sites already allotted by the OP to the complainant. The said fact is came to the knowledge of the complainant from the above auction notification. The complainant on 6-6-2011 had given a written requestion to the OP for issuance of grant certificate for house site, for that, the OP neither complied nor replied and thereby committed deficiency in service. Hence, the complaint.
3. After service of notice, the Opposite Party appeared and filed version and contended that the OP at any point of time had not allotted any site measuring to an extent of 9x12 meters bearing Site No.262 and with regard to the same the then town municipality had issued notice in HTS.CR.3/78-79 and accordingly the complainant on 4-5-1979 paid Rs.100/- to the OP and obtained receipt and the OP as per CR.3/78-79 dated 21-04-1981 the OP issued a notice to produce all relevant documents to the office of the OP and the OP without issuing grant certificate and without giving possession of the house site are all created to the story of the complainant.
4. The complainant in para -3 of the complaint alleged that on 26-08-1989 the OP issued an endorsement stating that the house site allotted to the complainant was encroached by someone else and that the OP is going to grant some other site at the time of the OP allotting the site and the request of the complainant will be considered at that time and when the complainant orally approached the OP and the OP replied that no sited are allotted to any body and on 24-02-2011 the OP issued a paper publication regarding auction of sites nearest to the site allotted to the complainant and on 6-6-2011 after noticing the same the complainant had given a requisition in writing to the OP for grant of site and issuance of grant certificates, for that the OP neither replied nor complied, are all the created stories of the complainant. And other averments of the complainant in his complaint that the OP committed deficiency in service in non-allotting the sites to the complainant and the complainant suffered heavy mental agony due to the non-allotment of the site and the OP is liable to pay compensation amounting to Rs.1,00,000/- are all with malafide intention of the complainant.
5. The complainant if paid any amount of Rs.100/- is only for filing application for grant of site and it is not an assurance for grant of site. It as per complainant the OP had granted any site in the year 1979, the complainant ought to have taken any steps in the same year itself. Now it has already lapsed 30 years and hence the complainant is not able to claim the same and the complaint is hopelessly barred by limitation. The OP after following all the lawful procedure only allots the sites and auction the sites. The OP is a public institution and there is no service deficiency on its part in any manner and therefore the OP prays to dismiss the complaint with cost.
6. After trial, the District Commission partly allowed the complaint with costs.
7. Aggrieved by the said Order, the appellant/ Opposite Party is in appeal. Heard the arguments.
8. Perused the appeal memo and Order passed by the District Commission and materials on record, we noticed that as per the office note there is a delay of 196 days in filing the appeal and the appellant has filed an application u/s 5 of Limitation Act to condone the delay and sworn affidavit that he has received the certified copy of the Order during the last week of August 2011 an due to official reasons to take instructions from the Deputy Commissioner, Shimoga and retirement of the Commissioner from service on 31.03.2012, there is a delay in filing the appeal and prayed to allow the delay application as because the delay is not intentional and it is for bonafide reasons.
9. Subsequently, the respondent has filed objections to the said application and stated that the appellant has suppressed the material facts that the delay in filing the appeal has been caused due to dereliction and inaction of the appellant. The respondent has filed EA.No.6/2012 and inspite of receipt of cause notice by the District Commission, the appellant has not complied the Order. It is only thereafter the appellant has taken the steps to file the appeal and prayed to dismiss the delay condonation application. Kept open the IA, this Commission has posted the matter for arguments on merits.
10. Perused the application, sworn affidavit and objections filed by the respondent, we noticed that the District Commission has passed the order on 17.08.2011 and certified copy of the order was received by the appellant on last week of August 2011. When the appellant has failed to comply the Order of the District Commission, the respondent filed EA.No.6/2012 and cause notice was issued by the District Commission and the same was received by the appellant on 14.02.2012. Then the appellant has taken steps to file this appeal before this Commission and stated official reasons for delay. In our opinion, which is not satisfactory. Moreover, on 09.08.2012 Commissioner of Town Municipal Council, Sagar was present before the District Commission and submitted that the rate of site would be fixed by the Town Municipal Council and if the respondent accepts the same, they are going to allot alternative site which means the appellant filed an appeal only to sought time and to harass the respondent. The appellant has chose to file appeal after a lapse of 196 days. Hence, in the absence of bonafide reasons, the application for condonation of delay should be construed and the same cannot be condoned, hence, the appeal is liable to be dismissed on the limitation itself.
11. In view of the decision rendered by the Hon'ble National Consumer Disputes Redressal Commission reported in 2018(2) CPR 507 (NC) the matter between M/s TDI Infrastructure Ltd., v/s Kulvinder Singh Bahl and also 2019 (1) CPR 5 (NC) in the case of Care Hospital, Nagpur v/s Naresh Gopalakrishna Vyas & others, it is held that the appeal can be dismissed on the point of delay alone. Hence, we found that there is no justifiable reason to admit the appeal. Hence, the appeal is hereby dismissed as it is barred by limitation.
12. Now coming to merits of the case, we noticed that it is not in dispute that the respondent has applied for residential site in the year 1979 and he has paid Rs.100/- towards the application. Subsequently, the appellant issued notice regarding the allotment of site of Site No.262 in Survey No.1 & 2 in Kamabli Koppa Village. After allotment, the appellant issued a notice to the respondent for production of some documents and the respondent has produced all the documents as per the requirements of the appellant. The allegation of the respondent is that inspite of allotment of site, the respondent failed issue Sale Certificate and possession of the allotted site. On the other hand, the appellant has informed the respondent on 26.08.1982 bearing No.CR3/78-79 and undertakes to allot another site to the respondent as because the allotted site has already encroached by some other person and the house has been built on it, but on such endorsement the appellant has not mentioned particular period within which the appellant is going to allot the site to the respondent and without knowledge of the respondent, auction notice was issued on 24.02.2011 bearing No.CIC:R:09/2008-2009 regarding the site Sl.Nos.36 to 42. Hence, the respondent approached the appellant for claiming allotment of alternative site during auction as per paper publication in a Kannada daily newspaper "Prajavani" dt.16.03.2011, but, the same was postponed. Hence, the respondent has filed a complaint before the District Commission seeking direction to the appellant for grant and allotment and issuance of Sale Certificate towards alternative site in accordance with earlier auction notice dt.24.02.2011 by collecting necessary amount in accordance with Law.
13. Perused the Order passed by the District Commission. We noticed that after perusal of Ex.P-1 to P-6, the District Commission passed an Order and directed the appellant to allot alternative site available in Sl.Nos. 36 to 42 in auction notice dt.24.02.2011 bearing No. CIC:R:9/2008-2009 to the complainant in future public auction of sites and further directed to issue registered Sale Certificate to the complainant, after following the procedure as per rules. Further also directed Rs.2000/- as costs of litigation. We also agree with the Order passed by the District Commission because it is not in dispute that the respondent has applied for the site and appellant has allotted the site to the respondent. However, till today the appellant has not handed over the allotted site and alternative site to the respondent as per his assurance. As per the contention of the appellant, the allotted site to the respondent encroached by another person and he has built a house on the said site. Then, it is the duty of the appellant to allot alternative site to the respondent. Moreover, in EA.No.6/2012, the Commissioner of Town Municipal Council, Sagar has submitted that the rate of the site would be fixed by Town Municipal Council, Sagar and if the respondent accepts the same, they are going to allot the site to the respondent. If the appellant has agreed to allot the alternative site in Execution Application, then it is the duty of the appellant to allot alternative site to the respondent. Hence, considering the facts and discussion made here, we are of the opinion that the Order passed by the District Commission is just and proper. No interference is required. Hence, the following;
ORDER The appeal is dismissed on delay and also on merits.
The amount in deposit shall be transmitted to the District Commission for disbursement of the same to the complainant.
Forward free copies to both parties.
Sd/- Sd/- MEMBER JUDICIAL MEMBER KCS* [HON'BLE MR. Ravishankar] PRESIDING MEMBER [HON'BLE MRS. Smt.Sunita Channabasappa Bagewadi] MEMBER