B.N.VENKATESH MURTHY vs COMMISSIONER BANALORE DEVELOPMENT AUTHORITY

IN this complaint, the complainant has sought the following reliefs: "Therefore, it is humbly prayed that the authority be directed : (a) to execute a rectification deed at its expense, to the effect that the lease period to operate retrospectively from June, 1988 for the new allotment; (b) to pay damages to the extent of the actual investment made on the site allotted and amount paid by the petitioner for breach of contract with his contractor; (c) to pay damages by way of loss of interest on Rs. 84,900/- from the date of deposit till 27.4.1991, the date of allotment of the alternate site and interest on stamp duty and registration fee, likewise; (d) to reimburse the loss caused to the petitioner by way of interest paid on the loans raised by him from his institution and private parties; (e) to make up the consultation fee paid to the architects/structural designers; (f) to pay expenses in respect of stamp duty/registration fee for cancelling earlier allotment; (g) to reimburse amounts spent towards stamps, registration and miscellaneous charges in respect of the site provisionally allotted; (h) to pay a compensation of Rs. 10,000/- towards mental agony, worry and anxiety of which the petitioner and members of his family have all been subjected to by the absolute negligence of the authority; (i) Lawyer''s fee of Rs. 10,000/- to defend O.S. No. 3887 of 1990; and (j) to direct the payment of other sums and grant such other reliefs as this Hon''ble Commission may deem fit to grant in the circumstances of the case."

IT is the case of the complainant that he applied to the opposite party for allotment of a site, in consequence of which, the opposite party allotted him a site bearing No. 26 in B.T.M. Tavarakere layout, measuring 50'' X 80'' in the year 1987. The complainant paid the site value in a sum of Rs. 85,000/- to the opposite party in the month of Jan.1988. The opposite party did not deliver the possession of the said site and also did not execute lease-cum-sale deed. The complainant further averred that finding that there was certain litigation pending in respect of site bearing No. 26, in B.T.M. Travarekere Layout, applied for allotment of an alternate site; in consequence of which the opposite party allotted him a site bearing No. 110 of the. same size i.e., 50'' X 80'' at B.T.M. Dollar Layout, in the month of Sept. 1989. The Lease-cum-sale deed, was also executed in respect of this site, possession certificate was granted and the possession was also delivered in favour of the complainant. The opposite party also transferred the khata in the name of the complainant, collected taxes from him and issued a licence to build a house as per plan on the said site.

The complainant, after obtaining the approval of the plan, started construction in the month of May 1990. He had, with the assistance of qualified architects, got the plan prepared and engaged the service of an Engineer for constructing the house. He had paid a sum of Rs. 8,000/- to the architects and structural engineers and also a sum of Rs. 5,000/- as an advance money to the engineer.

THE complainant, nextly averred that he got erected a shed for atocking the materials on the site and commenced the earth-work. He also got the well dug up on the site. By about Aug. 1990, he had spent about Rs. 50,000/- for the work on the site, received an ad-interim order of injunction passed by the City Civil Court, in O.S. No. 3887/90, restraining him from proceeding with the construction work. In consequence of which, he stopped further construction and filed objections in O.S. No. 3887/90. THE complainant at the same time also issued a notice to the opposite party intimating the fact that a suit has been filed, construction has been stopped and requested them to take part in the proceedings in O.S.No.3887/90 and safe-guard the interest of the complainant. THEre was no response on the part of the opposite party. The complainant engaged the services of a Lawyer in the said suit, filed objections, but even then the ad-interim injunction order that was issued in the said suit in the month of Aug. 90 came to be confirmed in the month of Jan. 1991.

THE complainant further averred that after the interim order of injunction was made absolute in the month of Jan.1991, gave notice to the opposite party for allotment of an alternate site and in consequence of which an alternate site i.e., site No. 807 measuring 50'' X 80'' in Banashankari 3rd Stage Layout, was allotted in the month of April 1991. The complainant nextly averred that thereafter he obtained necessary permission for construction and commenced construction on site No. 807. The complainant further averred that due to the negligence on the part of the opposite party, he was put to considerable loss by spending huge sums of money in proceeding with the construction on site No. 110 in B.T.M. Dollar layout and also spent money over stamp duty and registration fee etc. The complainant, on the basis of these averments, claimed various sums of money as detailed above towards compensation from the opposite party. The opposite party filed statement of objections and disputed the claim made by the complainant. The opposite party further averred that the complainant had commenced the construction work on site No. 110, B.T.M. Dollar layout without obtaining the commencement certificate from the opposite party and so he was not entitled to claim any compensation from the opposite party. The opposite party further averred that at the time when site No. 110 in B.T.M. Dollar Layout was allotted in favour of the complainant there was no suit pending; the suit, O.S. No. 3887/90 came to be filed only after the complainant commenced the construction and so there was no deficiency in service on the part of the opposite party in allotting site No. 110 in favour of the complainant.

THE opposite party on the basis of these averments sought the complaint to be dismissed.

DURING the enquiry, the complainant examined himself as C.W-2 and the Commissioner who inspected site No. 110 as C.W 1, and got Ex.C-1 to C-24 marked in evidence. The opposite party examined R.W-1, Sri L Poovaiah, the Assistant Engineer. The complainant argued that the opposite party had no right or title to allot site No. 110 in B.T.M. Dollar layout in the year 1989 and by allotting such a site in favour of the complainant, the opposite party, by its own negligence, put the complainant to a considerable loss. The complainant further submitted that the fact that the opposite party allotted such a site in favour of the complainant, to which it had no title or right whatsoever, and so this is clearly a deficiency in service rendered by the opposite party.

The learned Counsel for the opposite party submitted that when the site was allotted in favour of the complainant in the month of Sept. 1989, there was no litigation pending in respect of the said site, it was in the month of July-Aug. 1990 that the land owner raised the dispute and filed a suit and so the opposite party was in no way concerned with the site litigation and in consequence of which the loss, if any, sustained by the complainant was not the result of deficiency in service rendered by the opposite party. The learned Counsel further submitted that it is evident from the evidence of R.W-1 that the said site in B.T.M. Dollar layout subsequently became free from litigation.

HAVING regard to the material placed on record and submissions made by the parties, the only point that arises for consideration is - whether there was any deficiency in service rendered by the opposite party and in consequence of which did the complainant suffer any loss or injury and, if so, to what compensation the complainant is entitled to? The undisputed facts of the case are that the complainant had applied to the opposite party for allotment of a site. The opposite party in the month of Nov. 1987 allotted, site No. 26, measuring 50'' X 80'' in B.T.M. Layout in favour of the complainant. The, complainant in the month of Jan. 1988 made payment of Rs. 85,000/- towards the value of the said site to the opposite party. When it was found that certain litigations were pending in respect of the said site, the complainant applied for an alternate site, the opposite parly allotted another site i.e., site No. 110 measuring 50''X 80'' in B.T.M. Dollar Layout in the month of Sept. 1989 in favour of the complainant.

IT is also not disputed that the complainant, in the month of May 1990, commenced the construction work on the said site No. 110. On 14-8-1990, an ad-interim injunction order was passed by the City Civil Court in O.S. No. 3887/90 as per Ex.C-6. The complainant stopped the work-, contested the said suit and the said ad-interim order came to be made absolute on 2-1-1991 as per Ex.C-10. Complainant gave notices as per Ex.C-11 dt. 8-1- 1991 and Ex.C-12 dated 14-1-91 to allot another site free from litigation, the opposite party allotted a site bearing No. 807 measuring 50'' X 80'' in B.S.K. 3rd Stage, in favour of the Complainant in the month of April 1991. The Complainant as per rules, secured permission for construction and commenced the construction on the said site No. 807. The complainant has produced a document, as per Ex. C-24, to show that the possession of the land in Sy. No. 172/2-B of Bilakahalli village was taken by the opposite party only on 18-5-1991. This shows that the opposite party became entitled to allot the plots and hand over the delivery of possession of those plots in the land bearing Sy. No. 172/2-B of Bilakahalli village to the allottees only from 18-5-91. It is the material on record, as referred above, that the opposite party allotted site No. 110, in B.T.M. Dollar Layout, part of the land in Sy. No. 172/2-B of Bilakahalli village in favour of the complainant in the month of Sept. 1989 and delivered on the possession of the same in favour of the complainant, executed the Lease-cum-sale deed and even sanctioned the plan for construction of a house on the said site. The complainant started the construction on the said site in the month of May 1990. This is clearly an act of deficiency in service rendered by the opposite party by allotting the site in favour of the complainant, on the date on which it had no right to allot the same.

THE complainant has stated that he had spent Rs. 39,071/- over the construction on site No. 110, till the date of receipt of the injunction order. THE complainant has in this regard stated thus: "From the date of commencement of the constriction work till I received the injunction order from the Civil Court I had spent Rs. 39,071/- for construction. This amount of Rs. 39,071/- was spent on construction itself apart from this I had also incurred expenses for my travelling."

THE complainant examined the Commissioner CW 1, an Engineer, who had inspected the site No. 110, on which the complainant had undertaken the construction and which was stopped on receipt of the injunction order, has given the report as per Ex. C-1. In the said report, CW 1, at paras 9 and 10, has given the valuation of the amount spent by the complainant on the works on the site, which read as under: "9. THE valuation of the amount incurred on the works of well, column footings and the shed without roof has been worked out taking into consideration KPWD scheduled rates as applicable to Bangalore, City for the year 1990-91. Accordingly, the amount of valuation comes to Rs. 27,700/- . 10. THE valuation has been done based on the schedule rates of PWD where the cement rate is assumed to be Rs. 67/- bag. If the ruling cement pricez at the time of construction was more than Rs. 67/- weightage of 10% requires to be added to this amount which will also cover up the variations in the market rate of items of works which are normally higher than the schedule rate of KPWD. Thus, the valuation amount of the works carried out in site No. 110 comes to Rs. 30,500/- ."

This would go to show that the complainant had spent for the works including the well on site No. 110 in a sum of Rs. 30,500/- and not Rs. 39,071/- as stated by him. Ex. C-2 is the sanctioned plan for construction of a house on site No. 110. The complainant in his evidence has stated thus: "No provision was made in the plan for digging the well, though there was a provision for construction of the garage."

In view of this fact, it is clear that the complainant started construction of a well without obtaining any permission from the opposite party so in our opinion the complainant is not entitled to any compensation for the same. Ex.C-1, the report of the Commissioner, shows that the. complainant had incurred expenses of Rs. 6000/- for the construction of the well. The complainant is not entitled for any compensation on this count.

In our opinion, the complainant would be entitled to be compensated for this in a sum of Rs. 30,500/- minus Rs. 6,000/- = Rs. 24,500/- which he had spent over the construction on site No. 110 which he was subsequently compelled W abandon. This loss sustained by him, i.e., by the complainant, was clearly due to the negligence on the part of the opposite party. Therefore, the complainant is entitled to be compensated for this in a sum of Rs. 24,500/- .

THE complainant has claimed a sum of Rs. 8,000/- paid by him towards the consultation fee of architects and structural engineers. THE complainant is not entitled for this sum, because there is no material on record to show that he was obliged to make or made payment towards consultation fees for architects and structural engineers for the construction work which he undertook on site No. 807 subsequently. THE complainant has further claimed a sum of Rs. 5,000/- paid by him to a contractor towards advance payment of his consultation charges, as per Ex.C-22, receipt issued by the contractor on 7-5-1990. THE complainant has in this regard, in his evidence, has stated thus; "As per the terms of agreement, I had paid Rs. 5,000/- to the contractor, as per Ex.C-22, which I were to forefeit as the work was stopped."

THE complainant has not examined the Engineer-Contractor to whom he had paid this sum of Rs. 5,000/- . THE complainant, except his assertion has not placed any material on record to show that the Engineer-Contractor had forfeited the said sum of Rs. 5,000/- . Having regard to this fact, we are constrained to hold that the complainant is not entitled for this sum. The complainant has claimed various sums of money towards the stamp duty, registration charges, and also towards licence fee etc. The complainant has produced a xerox copy of the leasecum-sale deed in respect of site No. 110. We think that the complainant is entitled to be paid Rs. 10,268/- being the stamp duty, i.e., Rs. 8,510/- and Regn. charges i.e., Rs. 1,757/- which he incurred in respect of site No. 110.

THE complainant has also claimed interest on the sum of Rs. 84,900/- , the site value paid by him from the date of payment till 27-4-1991. THE opposite party immediately on finding that site No. 110 that was allotted in favour of the complainant has become the subject matter of litigation, allotted an alternate site bearing site No. 807 of the same size i.e., 50'' X 80'' in favour of the complainant though they collected additional sum of Rs. 5,000/- from the complainant. But in our opinion, having regard to the fact that alternate site of the same size was allotted in favour of the complainant promptly by the opposite party- the complainant is not entitled for the interest as claimed on the said amount. The complainant has claimed a sum of Rs. 10,000/- towards lawyer''s fee paid by him to defend the case in O.S. No. 3887/90. The complainant has neither produced any receipt nor examined the learned Counsel, not he has stated in his statement in this regard. So, in view of this fact, the complainant is not entitled for this sum of Rs. 10,000/- claimed by him. The complainant has also claimed a sum of Rs. 10,000/- towards mental agony and anxiety etc. The complainant as soon as the interim injunction order was made absolute in the month of Jan. 1991, gave notices to the opposite party on 8.1. 1991 as per Ex.C-11 and on 24.1.1991 as per Ex.C-12 seeking allotment of an alternate site, the opposite party allotted site No. 807 in Banashankari Layout in favour of the complainant on 3-4-1991, as per Ex.C-13, hence we are constrained to hold that the complainant is not entitled to this sum as well, as the opposite, party promptly allotted an alternate site of the same size, i.e., 50'' X 80'' in favour of the complainant. In our opinion, as per the facts and the. circumstances narrated above, the. complainant is entitled to be compensated by the opposite party only in a sum of Rs. 24,500/- , the amount spent over construction on site No. 110, and Rs. 10,268/- being the stamp duty and registration charges in respect of site. No. 110, in all Rs. 34,768/- . In the result, therefore, this complaint is allowed in part. The opposite, party - B.D.A. is directed to pay a sum of Rs. 34,768/- with interest thereon at 12% p.a. from 25-7-1990, the date on which the interim order of injunction was made, till the date, of payment and also Rs. 1,000/- towards costs within two months from this day. Complaint allowed in part.