Complaint filed on: 01-07-2016
Disposed on: 05-01-2021
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMAKURU
CC.No.96/2016
DATED THIS THE 5th DAY OF JANUARY, 2021
PRESENT
SRI.C.V.MARGOOR, B.Com, L.L.M, PRESIDENT
SRI.KUMARA.N, B.Sc., L.L.B, MEMBER
SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER
Complainant: -
Smt.Soubhagya
W/o late S.Shivaiah,
Aged about 45 years,
Vidyanagar, 10th Cross,
Revanasiddappa Road,
Behind Kanchaghatta
Primary School, Tiptur
(By Sri.M.S.Chandrashekaraiah, Advocate)
V/s
Opposite parties:-
- Vasathiheena Harijana Rajya Sarkari Naukarara Sangha Regd.
Jagathjyothi Basaveshwara Road, Shanthinagar,
Tumkur-572 202
Represented by its President Sri.Thimmaiah
- Vasathiheena Harijana Rajya Sarkari Naukarara Sangha Regd.
Jagathjyothi Basaveshwara Road, Shanthinagar,
Tumkur-572 202
Represented by its Secretary Sri.Narasimha Murthy
(OP No.1&.2-by Sri.M.Mallikarjunaiah, Advocate)
ORDER
SRI.C.V.MARGOOR, PRESIDENT
This complaint is filed to direct the Opposite party to allot another site in place of site No.107/A as the same is not useful for residential purpose and further direct the Opposite party to pay damages to the tune of Rs.5,00,000=00 towards mental agony. The complainant further prays to award a sum of Rs.10,000=00 towards litigation expenses.
2. It is the case of complainant that her late husband S.Shivaiah was the member of OP-Society i.e. Vasathiheena Harijana Rajya Sarkari Naukarara Sangha Regd. Tumkur and Membership of late S.Shivaiah bearing No.655. During the life time of S.Shivaiah he had paid Rs.10,000=00 towards allotment of site. The husband of complainant was died on 16-11-1992. It is further averred in the complaint that during the life time of S.Shivaiah the husband of complainant has not paid the balance amount of site despite issue of several notices by the OP-Society. The complainant also could not pay the balance amount to the OP-Society due to financial problems after the death of her husband in the year 1992.
3. It is further averred in the complaint that on 3-7-2013 the complainant has paid full amount to the OP and OP had assured to allot site no.2013. However at the last moment the OP has allotted the site No.107/A measuring East to West (40+41)/2 and North to South (13.4+ 20)/2 feet totally measuring 675 sq. ft. The said site is not useful for construction of the house and it cannot be sold. The OP assured the complainant that at the time of registration of the sale deed it would allot suitable site. The OP has intentionally executed the sale deed in respect of some other site which is not at all useful. After coming to know the said facts the complainant approached the OP several time with a request to allot alternative site but the OP has failed to respond to the request of complainant. Hence, this complaint.
4. The OP appeared through its learned counsel and filed written version contending that the complaint is barred by law of limitation. The next contention of OP is that in respect of the same subject matter the son of complainant by name M.S.Nagesh has filed a similar complaint before this Forum in CC.No.42/2014 praying the similar relief and on hearing both parties the complaint came to be dismissed on merits on 31-5-2016. The complainant is no other than the mother of M.S.Nagesh as such this complaint is barred by principles of resjudicata.
5. The OP further contention is that the complainant is not a consumer and the OP is not service provider as there is no privity of contract between the complainant and OP. The OP denied that the husband of complainant has paid Rs.10,000=00 towards allotment of site. It is admitted by the OP that during the life time of S.Shivaiah he had not paid the balance amount of site inspite of several notices sent by the OP society thereby he became in eligible for allotment of site in his favour. The OP has followed first come first service and allotted sites to the members of the society. There was many latches and delay on the part of S.Shivaiah during his life time towards the OP society. As per the layout approved by TUDA, Tumakuru no such site bearing No.2013 as claimed by the complainant. The OP had not informed the complainant about allotment of site to the husband of complainant or to the complainant. The OP has not assured to allot site no.2013. The OP has not committed any deficiency in service and not performed any unfair trade practice against the complainant. The OP is not liable to allot other site in place of site no.107/A allotted in favour of complainant since the OP on humanitarian grounds allotted a site now there are no sites remained at the hands of OP to allot alternative site to the complainant. On the above grounds the OP asked to dismiss the complaint with exemplary cost.
6. The complainant filed her affidavit evidence and got marked Ex-P1 to P7 documents.
7. We have heard the oral arguments advanced by the learned counsel for complainant and OP in addition to written brief submitted by the complainant and the points that would arise for determination are as under:
1) Whether the complainant proves the deficiency in service on the part of OP?
2) Whether the OP proves that the complaint is barred by the principles of resjudicata?
3) Is complaint is barred by the law of limitation?
4) Is complainant entitled to the reliefs sought for?
8. Our findings on the aforesaid points are as follows:
Point No.1: In the negative
Point No.2: In the affirmative
Point No.3: In the negative
Point No.4: As per final order for the below
REASONS
9. Point No.1 to 4: The learned counsel for the complainant has vehemently argued that the husband of complainant was the member of OP society and on his death in the year 1992 the complainant became heir of deceased. The OP considering the complainant as heir of deceased S.Shivaiah has allotted site No.107/A in Sy.No.49/3 of Maraluru village. The learned counsel for the complainant further submitted that the site allotted in favour of complainant vide Ex-P1 Hakkupatra dated 31-7-2012 which is not suitable for construction of residential house. As against this the learned counsel representing the OP Society have urged that the complainant and her late husband became defaulter in payment of balance amount of site inspite of several notices and on humanitarian grounds the OP allotted site No.107/A. The OP has already allotted the site in favour of complainant though she was not entitled as such there is no deficiency in service on the part of OP.
10. The complainant in para-4 of the complaint in clear words admitted that she and her late husband could not pay the amount to the OP society for allotment of site despite causing several notices. It is averred in para-4 page-3 of complaint that due to reasons best known to the complainant’s husband he has not paid the remaining amount. Therefore the OP causes several notices to the husband of complainant. The OP has informed that site No.2013 was allotted to the complainant’s husband. However due to some financial problems the complainant could not paid the balance amount to the OP. The complainant in para-5 of the complaint stated that thereafter on 3-7-2013 the complainant has paid full amount to the OP though the OP had assured to allot a site no.2013 at the last moment it is allotted site no.107/A to the complainant’s husband.
11. The complainant has produced Ex-P1 and Ex-P1 is the original allotment (Hakkupatra) letter dated 31-7-2012 and Ex-P6 is Xerox copy of Ex-P1. It is mentioned in the Ex-P1 that the OP has acquired 15 acres of lands in Sy.No.49 of Maraluru village to allot site to 360 members of society. The complainant has produced final approved plan issued by the TUDA site on 31-7-2012 along with Map. According to this approved plan there is no site no.2013 as alleged by the complainant. The complainant has not produced any document to show that the OP has allotted site no.2013 either to her or late husband. It is admitted in the complaint itself that her late husband could not pay the balance amount till his death in the month of November, 1992. The complainant has also could not pay the balance amount till 2013. The complainant has not produced any document to show that the OP has allotted site no.2013. As already observed that the OP has not formed site more than 400 in the acquired land Sy.No.49 of Maraluru village therefore, the question of allotment of alleged assurance made by the OP to complainant or her late husband in respect of site no.2013 does not arise.
12. The complainant allegation is that site no.107/A allotted by the OP is not suitable for construction of residential house or it could not be sold. The complainant has not placed any document like Civil Engineer or Architecture to believe that site no.107/A is not suitable for construction of residential house. Site No.107/A is adjacent to existing side road as per plan approved by the TUDA, Tumakuru. The OP has allotted site No.107/A vide Ex-P1 (Hakkupatra) dated 31-7-2012 in favour of complainant as such there is no deficiency in service on the part of OP. As already observed that the complainant has failed to prove that the allotted site no.107/A is not suitable for construction of residential house.
13. The learned counsel for the OP submitted that this complaint is barred by the principles of resjudicata as already the complaint filed by the son of complainant in CC.No.42/2014 came to be dismissed by this Forum vide order dated 31-5-2016. The OP has produced certified copy of the order passed by this Forum in CC.No.42/2014 on 31-5-2016 along with memo dated 16-9-2020. The son of complainant M.S.Nagesh S/o late S.Shivaiah has filed CC.No.42/2014 making the same allegations of the present complaint that site no.107/A allotted by the OP is not useful for construction of house and it cannot be sold. The OP has resisted the complaint by filing written version. This Hon’ble Forum on hearing the arguments of both parties dismissed the complaint on 31-5-2016. In CC.No.42/2014 the points were arises for determination as under 1) Whether the complainant is a consumer under the Consumer Protection Act? 2) Whether there was deficiency in service on the part of the OPs as alleged by the complainant?. Both points were answered in the negative. This Forum in respect of point no.2 in para-9 of the order observed that “the issue is with regard to allotment of site is on seniority basis”. The complainant himself submitted that neither the complainant nor his mother could not pay the balance payment for the site even after several notices since site has already been allotted to the complainant’s mother, the complainant have any grievance as his mother has not approached this Forum. Hence, on above discussion looking from any angle, we are of the opinion that the complainant failed to prove the deficiency of service on the part of OPs as well as maintainability of the complaint before this Forum. Accordingly, we answer point Nos.1 and 2 in the negative.
14. The subject matter involved in the present complaint was the same in CC.No.42/2014. Already in CC.No.42/2014 this Forum has held that there is no deficiency in service on the part of OP. It is well settled that doctrine of resjudicata is applicable in consumer complaint. The Hon’ble National Consumer Commission in Anwar Hussein Mohamed Chokwal –vs- SBI and others – 2018 (3) CPR 45 held doctrine of resjudicata is applicable in consumer complaint. Already in CC.No.42/2014 the subject matter in issue in the present complaint is decided and held against the complainant as such the complaint is barred by the principles of resjudicata.
15. The learned counsel for the OP submitted that the cause of action has aroused to file this complaint on 3-7-2013 the date of which allotment of site made in respect of 107/A but this complaint is filed on 29-6-2016 after expiry of period of limitation of two years as per Section 24A of CP Act, 1986. The learned counsel for OP society had filed an application under Section 24A of CP Act, 1986 is on 27-9-2016 to dismiss the complaint as it is barred by the law of limitation. This Forum vide order dated 6-8-2018 dismissed the interim application filed by the OP under Section 24A of CP Act, 1986 hold that the present complaint is having continuous cause of action and hence the complaint is within the period of limitation. The OP has challenged the order dated 6-8-2018 passed by this Forum by filing Revision Petition No.143/2018 before the Hon’ble State Consumer Commission on 31-1-2020 dismissed the Revision petition upheld the order passed by this Forum that the complaint is within the period of limitation. In view of order of the Hon’ble State Consumer Commission the limitation point cannot be again discussed as it has attained finality. In view of the points on the deficiency in service and principles of resjudicata the complaint is liable to be dismissed. Accordingly, we proceed to pass the following;
ORDER
The complaint filed by Smt.Soubhagya w/o. late S.Shivaiah is dismissed without costs.
Furnish the copy of order to the complainant and opposite parties at free of cost.
(Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 5th day of January, 2021).
LADY MEMBER MEMBER PRESIDENT
