Date of Filing:15.06.2020

Date of Disposal:31.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,PRESIDENT

1. The complainants files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OP provide approach road to the schedule property and also execute necessary documents in transferring the land equivalent to road portion in site No.3 & 4 in favour of the complainant, OPs to direct to pay betterment charges, property tax to BBMP and other charges and grant such other reliefs.

2.  The following are the complaint's key facts:

The brief facts of the complaint is that the complainant’s brother got allotment of site from the OP who has developed residential layout by obtaining conversion order from the Deputy Commissioner, Bengaluru and OP have formed more than 115 sites in different dimension by providing necessary reasonable civic amenities.As such the complainantbrother purchased the site bearing no.1 in the said layout and registered sale deed has been executed in favour of the complainant’s brother on 06.08.1997. Subsequently, complainant’s brother executed Gift deed in favour of the complainant on 29.11.2017. After getting the registration of the site when the complainant visited the site and when he physically inspected the said site, it came to the knowledgethatthe road provided measuring 30ft. came to be reflected in the document, but on the spot when it was inspected and found that road is not available in the actual possession of the site. Upon which the complainant brother approach the BDA and also by forming welfare association of the residents the complainant brother has approached Hon’ble High Court of Karnataka by way of Writ in WP No.3990/2006, the Hon’ble High court of Karnataka allowed Writ petition and directed the BDA to accept the development charges from the land owners. As per the directions of Hon’ble High Court of Karnataka, the BDA collected development charges from the land owners. Subsequently, when the complainant’s brother approached BDA to depute surveyor to conduct survey as the complainantbrother want to put up construction in the schedule property. The BDA issued endorsement on 08.02.2017 stating entire layout has been denotifiedandit is being a private layout they cannot conduct the survey and to the surprise Forest department have put up fencing from northern side of the layout without leaving any area for approach road to the schedule property of the complainant’s brother. The complainant’s brother being affected personshave approachedthe concerned authorityto remove the fencing put up by them, but OP has failed to provide approach road to the complainant’s brother site. All these acts amounts to clear deficiency in service on the part of the OPland owners who has formed the said layout and sold the sites to the buyers as well as to the complainant’s brother. Aggrieved by the act of the OP the complainant maintained the present complaint by seeking relief as prayed in the complaint.

3. Notice to OP-duly served, represented by counsel and filed written version and chief examination affidavit and OP-2 filed version and affidavit evidence along with relevant documents in support of their contention.

4. The complainant filed chief-examination affidavit along with relevant in support of his contention.

5. Heard arguments. The matter is reserved for order.

6. The points that arise for our consideration are;

1. Whether the complaint is barred by limitation?
2. Whether the Complainant prove that there is deficiency in service on the part of the OP as alleged in the complaint and thereby prove that he is entitle for the relief sought?
3. What order?

7. The findings on the above points are as under:

Point No.1                :Affirmative.

Point No.2                :Does not arise for consideration as per findings given in point no.1.

Point No.3                : As per order

REASONS

8. POINT NO.1:-The brief facts of the complaint is  that the complainant’s brother  got allotment of site from the OP who has developed residential layout by obtaining conversion order from the Deputy Commissioner, Bengaluru and OP have formed more than 115 sites in different dimension by providing necessary reasonable civic amenities.  As such the complainant’s brother purchased the site bearing no.1 in the said layout and registered sale deed has been executed on 06.08.1997. Subsequently, the complainant’s brother executed Gift deed in favour of the complainant on 29.11.2017. After getting the registration of the site when the complainant visited the site and when he physically inspected the said site, it came to the knowledge  thatthe road provided measuring 30ft. came to be reflected in the document, but on the spot when it was inspected and found that road is not available in the actual possession of the site. Upon which when the complainant’s brother  approach the BDA and also by forming welfare association of the residents the complainant’s brother has approached Hon’ble High Court of Karnataka by way of Writ in WP No.3990/2006, the Hon’ble High court of Karnataka allowed Writ petition and directed the BDA to accept the development charges from the land owners. As per the directions of Hon’ble High Court of Karnataka, the BDA collected development charges from the land owners. Subsequently, when the complainant’s brother approached BDA to depute surveyor to conduct survey as the complainant’s brother want to put up construction in the schedule property. The BDA issued endorsement on 08.02.2017 stating entire layout has been denotified and it is being a private layout they cannot conduct the survey and to the surprise Forest department have put up fencing  from northern side of the layout without leaving any area for approach road to the schedule property of the complainant’s brother being affected persons  have approached  the concerned  authority   to remove the fencing put up by them, but  OP has failed to provide approach road to the complainant’s brother site. All these acts amounts to clear deficiency in service on the part of the OP  land owners who has formed the said layout and sold the sites to the buyers as well as to  the complainant’s brother. Aggrieved by the act of the OP the complainant maintained the present complaint by seeking relief as prayed in the complaint.

9. OP-2 represented by counsel have filed written statement along with chief examination affidavit. They contended on point of limitation to file the present complaint. Being the Gift deed holder, the complainant filed by the complaint after the lapse of limitation period of 02 years, the complaint deserves to be dismissed as it is barred by limitation. The complainant has nolocus-standy to initiate any action after the expiry of limitation period as stipulated in the Act as per section 69 of C.P.Act, 2019. On all these grounds they pray for dismissal of complaint as it is barred by limitation. The OP has also denied entire complaint allegations and any deficient service on their part. By contending the same they pray for dismissal of  complaint on these grounds.

10. Since, the OP has raised the question of limitation as such the point of limitation will be considered as preliminary issue and since this point of law which needs to be considered by the commission before going to the merits of the complaint. From the perusal of the events which took between the parties from the date of registration of sale deed is on 06.03.1997 and date of filing of writ petition before the Hon’ble High Court of Karnataka is at 2006 and date of endorsement issued by BDA to complainant’s brother and other is on 08.02.2017. The Hon’ble High Court of Karnataka in WP/26000-3/2002 in the Revision Petition the Hon’ble High Court of Karnataka held that the relief which is sought in these Writ Petitioners have to file a proper civil suit before the appropriate civil courts. By observing all these facts of the complaint, it is crystal clear that the present complaint came to be filed by the complainant after lapse of limitation period of 02 years from the date actual accrual of cause of action and there is no whisper with regard to delay in filing the present complaint in the entire complaint averments. The annexure-K document is copy of Writ petition as order passed by the Hon’ble High Court of Karnataka, the Hon’ble High Court of Karnataka observed that in its order that the relief which is sought by the complainant’s brother in writ petition is such a nature, the parties will have to file the proper civil suit before the appropriate civil court.  From the observation of this order on the merits, it is observed that the dispute between the complainant and the OP is more of civil in nature and relief which is sought by the complainant is right of way(road) to site which is subject matter of complaint.On the merits of complaint it deserves to be dismissed as this commission has no jurisdiction to adjudicate the case of the complainant, as this commission is estopped and has no power to entertain any complaint of civil in nature.

11. In view of the above observation, the complaint filed by the complainant deserves to be dismissed both on the point of limitation as well as on the point of maintainability of the complaint. As this commission is not vested with any power to deal with the rights of the parties pertaining to civil nature cases. When such being the case the complaint deserves to be dismissed as it is barred by limitation.  Accordingly, the Point No.1 we answer in Affirmative.

12. POINT NO.2:-In view of the finding given in point no.1, point no.2 does not arise for consideration.

13. POINT NO.3: In the result, we passed the following:

                             ORDER

1. Complaint is hereby dismissed as it is barred by limitation.
2. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 31^thMay 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)       

 MEMBER                                  MEMBER

Witness examined on behalf of the complainant by way of affidavit:Smt.Poornima Shashidhar-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP-2 by way of affidavit:Sri Suresh-Who being the OP-2

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*