Kum. T. Bindu
...........Appellant(s)
Vs.

Commissioner, Bangalore Development Authority
...........Respondent(s)


ORDER

1(a). This Complaint is filed on 9.1.2009 by the Complainant alleging deficiency of service on the part of the Opposite Party-BDA and seeking certain reliefs which according to her, are appropriate. (b) The Complaint in brief is as hereunder: The Opposite Party-BDA had allotted a site bearing No.1244 to the Complainant in their new layout located at Banashankari 6th Stage, 4th ‘B’ Block Extension, Bangalore. In that regard, a Sale Deed also came into existence subsequently infavour of the Complainant touching that site for a valuable consideration of Rs.76,200/-. Strangely, the Complainant could not enjoy that site for the reason that the Forest Department raised an objection contending that there is encroachment of their land by the BDA and so contending, they started digging trenches. Having realized the position, the Opposite Party-BDA agreed to provide another site to the Complainant bearing No.106 and it came to be registered on 18.10.2007 for a valuable consideration of Rs.75,000/-. While so entering into the second sale transaction, the Opposite Party-BDA had collected a sum of Rs.630/- from the Complainant for the cancellation of the earlier Sale Deed.


For no fault by the Complainant, she was made to bear the cost of registration of the second Sale Deed apart from that cost of Rs.630/- and assessment in a sum of Rs.2,250/-.

The Complainant had learnt that in several such cases, the Opposite Party-BDA had refunded the cost of registration especially in their Anjanapura Layout. However, that was denied to the Complainant and some other Purchasers like the Complainant. The Complainant had made several requests to refund the same. However, those attempts went in vain. The above conduct of the Opposite Party-BDA since amounted to deficiency of service and since the Complainant had been put to agony, discomfort and loss, this Complaint is necessitated to direct the Opposite Party-BDA to compensate her in a sum of Rs.76,200/- along with an interest at 21% p.a. and cost of litigation in a sum of Rs.8,000/-. (c) The Complainant has made available certain documents marking them at Annexure A to F along with the Complaint. They are xerox copies.


2 (a). The Opposite Party-BDA entered appearance through Counsel and produced their Version on 18.3.2009. In brief, it is as hereunder: This very Complaint is neither maintainable at law, nor on facts of the case. This Complaint is a malafide one. This Forum has no jurisdiction to entertain this Complaint. This Complaint is barred by the law of limitation. There is no cause of action for the Complainant to file this Complaint against this Opposite Party.

(b) It is true that site bearing No.1244 located at 6th Stage, 4th ‘B’ Block in Banashankari, Bangalore was sold to the Complainant by the Opposite Party-BDA through a registered Deed of Sale. However, the allegation that the said land came within the ownership of the Forest Department has no relevance here. Infact, the Opposite Party-BDA had executed a registered Deed of Sale in the alternative in favour of the Complainant in respect of another site which is free from all encumbrances. The averment that the Opposite Party-BDA had refunded stamp duty in respect of 17 allotees has no relevance here. There is no provision either in the BDA Act or in the Rules framed thereunder for refund of stamp duty and registration fee since the said amount goes to the State Exchequer and not to the Vendor. For all these reasons, this Complaint has to be dismissed.


3. By way of evidence, the Complainant has chosen to swear to an affidavit which is made available on 30.3.2009. For the Opposite Party-BDA, an affidavit of their Deputy Secretary (name not mentioned) is made available in evidence on 8.4.2009. At the end, this Forum heard on merits.


4. In the circumstances, the following points do arise for our consideration and decision in this Proceeding and they are:
(i) Whether the Opposite Party-BDA was deficient in rendering services to the Complainant as alleged by the Complainant?
(ii) Whether the Complainant is entitled for any relief against the Opposite Party-BDA in this case?

(iii) What Order? 5. Our Findings to these points are as hereunder:
i) Yes
ii) Yes
iii) As per the operative portion of the Order here below.


6. We shall substantiate our findings on the following:


R E A S O N S


POINT NO.1: (a) In this case, it is an admitted fact that the Opposite Party-BDA had allotted and sold a site bearing No.1244 located in 6th Stage, 4th ‘B’ Block in Banashankari, Bangalore as per the registered Deed of Sale dt.20.4.2005. However, in view of the peculiar situation arose subsequently, the Opposite Party-BDA had to execute another Sale Deed in the alternative in favour of the Complainant in respect of another site in favour of the Complainant in the very same layout.


The grievance of the Complainant is, the Opposite Party-BDA without having sufficient title over the previous plot, had so sold to the Complainant and subsequently, when the true owner namely the Forest Department of Government of Karnataka objected to the same, the Opposite Party-BDA became enlightened and thought of providing a site to the Complainant in the alternative through a registered Deed of Sale by collecting the stamp duty and registration charges from the Complainant.

According to the Complainant, the Opposite Party-BDA could not have so collected the stamp duty and the registration fee in respect of the second Sale Deed from her for their own commissions and omissions. As far as the above contention is concerned, the defence of the Opposite Party-BDA is that the said development has no relevance here since the wrong has been set-right by them by executing a Sale Deed in the alternative in respect of a different site which is free from any legal entanglement.

Therefore according to the Opposite Party-BDA, there is no substance in the allegation of the Complainant that they were deficient in rendering services to her. (b) Now the thing is, whether the Opposite Party-BDA is justified in simply contending that the above development is irrelevant for the purpose of this case and seek for the very dismissal of the Complaint? No. (c) In the context, it was for the Opposite Party-BDA to explain how exactly and why exactly such a development took place.


If really the plot wherein first site was situate had been acquired by the Forest Department, it was for the Opposite Party-BDA to explain when exactly and how exactly it was so acquired. Moreover, we do not know whether any such acquisition by the Forest Department was prior to or subsequent to the first Sale Deed so executed in favour of the Complainant. If really the Opposite Party-BDA had an absolute right over the site touching that first Sale Deed at the time of the registration of the Sale Deed. The Opposite Party-BDA ought to have enlightened this Forum in that regard properly.


Nodoubt, the Opposite Party-BDA had provided an alternative site to the Complainant. The question is, if really the Forest Department had no right whatsoever over the site touching the first Sale Deed and the alleged encroachment was subsequent to the said Sale Deed, the Opposite Party-BDA could not have decided to provide an alternative site to the Complainant and on the other hand, they could have simply informed the Complainant to take recourse to law against the Forest Department.


However, they did not do so. On the other hand, they have readily agreed to provide an alternate site to the Complainant by executing another Sale Deed. This very conduct of the Opposite Party-BDA in the circumstances would clearly probabilise that the very title of the Vendor-BDA over the first site was defective at the time of first Sale Deed itself and that when that was realized, they must have thought of rectifying the same by deciding to provide an alternate site to the Complainant.


(d) Nodoubt, the property is an immovable property. However under law, if the defect in the ownership over the property is patent, it could have been observed that the Complainant as a Prospective Purchaser ought to have taken enough care before entering into that sale transaction. On the other hand, if the defect touching the ownership over the property is latent, it is for the Prospective Vendor to disclose the same to the Prospective Purchaser without any suppression. In the circumstances, there is every reason to hold that the Opposite Party-BDA had proceeded to allot and sell an alternative site to the Complainant only on account of their own fault and in the circumstances, the Complainant cannot be found fault with.


(e) Further, on account of the above development, it is needless to say that the Complainant was put to agony, sufferance and loss. Nodoubt, the Opposite Party-BDA had provided an alternative site to the Complainant of the same dimension without collecting any extra amount from the Complainant in the same layout. Even then, the fact remains that according to the Complainant, the alternative site is located not in a good locality and having no other option, she had to go for it. Admittedly, the Complainant had borne the cost of registration and stamp duty in respect of both the Sale Deeds.

Had the Opposite Party-BDA vigilant in allotting and selling the site to the Complainant, certainly they could have avoided the earlier Sale Deed and in that event, there would not have been any necessity for the Complainant to spend for that stamp duty and registration. Nodoubt, the costs so paid goes to the Government and not to the Opposite Party-BDA.

Even then, it shall not be forgotten that it was only on account of the commissions and omissions of the Opposite Party-BDA, the Complainant was made to spend in that regard. Further, to get an alternate site also, it was not that easy for the Complainant as contended by the Complainant, she had to visit the office of the Opposite Party-BDA several times and had to spend a lot meeting the cancellation expenses touching the first Sale Deed. Further, it is the very case of the Complainant that she was made to pay the stamp duty and registration charges for the second Sale Deed for no fault on her part. When these relevant aspects are taken into consideration together, there is justification on the part of the Complainant in seeking compensation from the Opposite Party-BDA.

The Complainant in that regard as revealed in the evidence, had requested the Opposite Party-BDA atleast to refund the amount spent by her towards stamp duty and registration charges in respect of the first Sale Deed. There is documentary evidence on record in this case in that regard. Instead of coming to the rescue of the Complainant in the given situation, the Opposite Party-BDA have chosen to contend that the allegations are irrelevant and that the Act and Rules and Regulations governing them do not provide for refund of those charges. It may be that the stamp duty and registration charges go to the State Exchequer.

Even then, on account of the above commissions and omissions of the Opposite Party-BDA, the Complainant had to unnecessarily suffer mental agony, physical discomfort and financial loss and that need be compensated reasonably to secure the ends of justice. Accordingly, this point is answered in favour of the Complainant. 7. POINT NO.2: Nodoubt, the Complainant has claimed a sum of Rs.76,200/- with interest by way of compensation and another sum of Rs.8,000/- by way of cost of litigation.


However, the compensation in a sum of Rs.76,200/- according to us, is on the higher side. It shall not be forgotten that the Opposite Party-BDA had provided an alternate site to the Complainant. Wherefore, compensation if any in a situation like this need be reasonable and according to us, if a sum of Rs.20,000/- is fixed by way of compensation, ends of justice would meet.


Accordingly, this point is answered.


8. POINT NO.3: In the result, we proceed to pass the following: O R D E R Since the Opposite Party-BDA is found deficient in rendering services to the Complainant in respect of the transaction touching this Complaint and since the Complainant had to suffer physically, mentally and financially on account of the same, the Opposite Party-BDA is directed to compensate the Complainant in a sum of Rs.20,000/- (Rupees twenty thousand) which is inclusive of the cost of this litigation within 30 days from this date and report compliance positively. If not complied with by then, the said amount shall carry interest at 12% p.a. on the completion of the 30th day from this date, till payment.