1. Mr. Batana Tirupathi Rao, S/o B. Simhachalam, Hindu, aged 46 years, R/o D.No.55-43-69, Doctors Colony, Visakhapatnam – 13.

2. Mr. Batana Gopala Rao, S/o B. Simhachalam, Hindu, aged 40 years, R/o D.No.50-2-30/4, Gandhinagar, Visakhapatnam – 13.

… Complainants

The Andhra Pradesh Housing Board, Near Isukathota Junction, Viskahapatnam – 17.

... Opposite Party

: O R D E R :

1. The complainant averments in brief are, the complainant a resident of Visakhapatnam, participated in the auction held on 07-06-2000, as per proclamation dated 20-05-2000 by the opposite party and for allotment of house sites and was successful bidder of plot No.3 of extent of 405.16sq.yards and paid an amount of Rs.16,24,692/-.

Further the sale deed was executed for an extent of 383.33sq.yards only but not 405.16sq.yards by the opposite party, on a mis-representation that the remaining abutting site was the property of Visakhapatnam Steel Plant. An amount of Rs.88,474/- also refunded to the complainant, which was received on protest.

It is further pleaded that subsequently the complainant learnt that the remaining site does not belong to the Steel Plant, but belongs to the opposite party only and requested it to register the remaining site also in his favour, but the same was not considered inspite of repeated requests. This act of the opposite party, in not registering the remaining site of 105.55sq.yards to the complainant and returning the cost of it to the complainant, who is a successful purchaser in public auction, amounts to deficiency in service.

Hence by the refusal of the opposite party in registering that bit also to the complainant, he was deprived of having site with three sides roads and also putting that small bit into public auction again is against the rules. Hence this complaint to direct the opposite party to register the site adjacent to plot No.3 purchased by the complainant in the public auction conducted on 07-06-2003 as the complainant already paid the value of it in the public action but refunded by the opposite party on mis-representation. He also claimed Rs.1,50,000/- as damages for the financial constraint and mental agony suffered by him together with costs.

2. Opposite party filed a counter admitting public auction of 405.16sq.yards of site and payment of total amount including auction charges by the complainant. Further the complainant himself objected, after payment stating that set backs has to be given to the existing structure i.e., pump house constructed by Steel Plant authorities on northern and Eastern direction and accordingly registration charges were revived and arrived at 383.33sq.yards. i.e., reducing 21.83sq.yards. The balance areas available at present is 105.55sq.yards abutting the plot No.3 alienated to the complainant. The Steel Plant has constructed a pump house in the vacant land long time back and later on it was abandoned.

After thorough examination, the respondent has identified the pump house as un-authorized construction and tried to evict the same. These are all later developments and the complainant is also aware of the fact. The complainant made a representation for its allotment to him, but the same was rejected keeping in view the High Courts order as area exceeding 100sq.yards shall be invariably soled in public auction, and accordingly complainant was informed and asked him to participate in the public auction whenever it takes place by a letter dated 29-06-2005.

The complainant was refunded amount representing the value of the site exceeding 383.33sq.yards even before execution of the sale deed. Thus there is no deficiency in service on the part of the opposite party and complaint is liable to be dismissed. Infact the complainant filed earlier CD.No.1478/2003 before this Forum and later has withdrawn the same.

3. At the time of enquiry both the parties field affidavits in support of their respective contentions. The complainant filed documents marked as Ex.A.1 to Ex.A.40, which includes the correspondence between the parties and also copies of the earlier proceedings of CC.No.1478/2003. Both the counsels were heard, who reiterated their contentions.

4. In view of the pleadings and contentions raised by either side, the point that would arise for determination is :

5. Whether refusal of the opposite party to alienate the extent of 105.55sq.yards abutting plot No.3 in favour of the complainant amounts to deficiency in service on the part of the opposite party and the complainant is entitled for the relief asked for?

6. The factual matrix of the dispute would disclose the complainant was successful bidder of plot No.3 in the public auction held by the opposite party for an extent of 405.16 sq.yards and paid away its entire value to the opposite party. Further, before execution of the sale deed in favour of the complainant it was found that some portion of the site in this plot No.3 was in possession of the Visakhapatnam Steel Plant.

In view of this fact, a sale deed was executed only for 383.33sq.yards under Ex.A.24 dated 05-06-2002 and the complainant was admittedly refunded the amount of Rs.88,474/-, being the value of site, for which the sale deed was not executed. The reduction in the extent of the site was said to be at the instance of the complaint in view of the presence of structures put up by Visakhapatnam Steel Plant. The refund of the amount was accepted by the complainant even prior to the sale deed and though the same was said to be under protest, there is absolutely no material to support it.

It is the case of the opposite party that subsequently it was found that the site in the occupation of the Visakhapatnam Steel Plant was an unauthorized one and so it resumed possession from the Visakhapatnam Steel Plant authorities and hence that bit of 105.55sq.yards were put up for public auction again, in view of the direction of the Hon’ble High Court that any site exceeding 100sq.yards should be put to public auction only. Even before it was put to public auction, the complainant approached the opposite party with a request to allotment of that site to him as he was the successful bidder for the entire plot and the amount already paid was refunded to him.

There was exchange of notices also between the complainant and the Visakhapatnam Steel Plant authorities under Ex.A.15 and Ex.A.16 and in Ex.A.16 dated 14-01-2003, Visakhapatnam Steel Plant asserted its right over the site and it never conceded that it does not belong to it. When this remaining bit was put up for public auction the complainant filed CD 1473/2003 and even sought for injunction against the opposite party but unsuccessful in obtaining an order, as can be seen from Ex.A.34.

In the public auction held it is the complainant’s father, who was the successful bidder for this bit of 105.55sq.yards. Surprisingly the complainant has withdrawn the earlier complaint CD.No.1473/2003 on 18/02/2005, as can be seen from Ex.A.37 copy of the memo, which was without notice to the opposite party. The reason assigned by him was that the Respondent Officials assured the complainant that they would comply with the request of the complainant. In these circumstances whether there is any deficiency in service on the part of the opposite party is to be seen.

7. The fact remains that though the complainant was successful bidder for an extent of 405.16sq.yards and even paid the entire consideration he choose to obtain saledeed for a lesser extent of 383.33sq.yards, evidently in view of the remaining site had been under occupation of the Visakhapatnam Steel Plant authorities. He even took back the amount of Rs.88,474/-, representing the value of the site not available for the alienation and obtained delivery of the possession.

Though the acceptance of such refund was said to be under protest there is absolutely no material to support it. On the other hand it is evidently in view of the non availability of site being under the occupation of the Visakhapatnam Steel Plant. As a matter of fact subsequent to sale deed there is exchange of the notices between the complainant and the Visakhapatnam Steel Plant and later asserted its right over the site. So as the things stand, as on the date of the sale deed both the parties were under the impression that this extent of 105.55sq.yards belonging to the Visakhapatnam Steel Plant.

8. It was ultimately found that the site in possession of the Visakhapatnam Steel Plant was an encroachment and actually belong to the opposite party which evidently resumed the same. It is only development subsequent to alienation in favour of the complainant. Such being the case, having accepted to obtain sale deed for a lesser extent the complainant cannot as a matter of right put forward a claim over a site abutting his plot simply because earlier it was offered to be sold to him.

9. Moreover the opposite party has put up this small site for the public auction in view of the direction of the Hon’ble High Court. In fact the complainant was informed by Ex.A.22 letter dated 29-06-2005 about the auction to be conducted in pursuance of the orders of the Hon’ble High Court and he is requested to participate in the public auction whenever it is invited. It is an undisputed fact that the father of the complainant himself is successful bidder in the public auction conducted later.

10. When earlier similar complaint is filed and sought for injunction from conducting public auction and was unsuccessful and later even withdrawn the same without notice to the opposite party, this complaint for the same relief, in our view is nothing but misuse of legal remedies under the Act. The assertion in the memo that the officers of the opposite party promised to comply his request for allotment of 105.55sq.yards to him and so withdrawn that complaint, cannot have any validity as oral assurance, that too from a public authority cannot have any force, even if true and cannot bind the opposite party.

He having come to know that the site actually belonging to the opposite party only, he put forward a claim for allotment of the same site to him directly and even attempted to stall the public auction, but was unsuccessful and quietly withdrawn the earlier CD and made his father to participate in that auction who ultimately became highest bidder. It is quite evident that he does not have any legal and enforceable claim over this 105.55sq.yards belonging to the opposite party and inspite of it, filed a 2nd complaint under the Act.

The opposite party is acting in accordance with rules and directions of the Hon’ble High Court in putting this small site to the public auction and the complainant, who does not have any right over it, cannot term the refusal of allotment by the opposite party, as deficiency in service. This conduct of the complaint in our view is nothing but misuse of beneficial legislation to protect the rights of the consumer. In these circumstances we are of the view that while dismissing the complaint it would be just and proper that he should pay Rs.5,000/- as costs to the opposite party

11. In the result, the complaint is dismissed and the complainant is directed to pay costs of Rs.5,000/- to the opposite party.