Commissioner, Bangalore Development Authority vs S.M. MALLAIAH

IN this appeal, the short point for consideration is as to whether the order passed by the District Forum can be found fault with.

IT is noticed that a site in Survey No. 39 of Agrahara Dasarahalli, forming part of West of Chord Road, 4th Block, 4th Stage, Bangalore was allotted to the complainant, by the opposite party-B.D. A. back in the year 1987. The possession appears to have been given on 8.8.1988. The complainant also constructed a house in the said site. Unfortunately, however, there was obstruction by certain persons for the complainant to make use of the road which was laying on the west of the site. As a matter of fact, the said road was even described as the western boundary in the Possession Certificate issued by the opposite party in the allotment letter. The complainant brought the same to the notice of the opposite party. However, the opposite party did not take any action in that behalf for the removal of the obstruction. IT appears that there were certain proceedings before the Hon''ble High Court of Karnataka, which were initiated by one Sri Venkateshappa, who was a revenue site holder and he had challenged the allotment made by the opposite party-BDA. However, the said writ petition terminated against Sri Venkateshappa. IT is, therefore, not necessary for us to go into the details of that proceedings. The complainant also appears to have filed a suit in O.S. No. 5384/ 88 before the City Civil Court against the self- same Venkateshappa. IT also appears that interim order was issued by the Civil Court. We do not have any material on record to know as to what was the final result of the said suit. In the meanwhile, having regard to the direction given by the Hon''ble High Court in the writ petition, a Screening Committee was constituted by the opposite party and the said Committee rejected the claim of the writ petitioners. As a matter of fact, this aspect is succinctly referred to by the District Forum in para 11 of its judgment.

The District Forum, after having considered the aspects touched upon by us here in above, has in para-12 of its order observed as under : "12. Now there is no impediment for opposite party to remove the obstruction and encroachment on the road. It is said that opposite party has a task force and demolition squad to remove encroachment and to demolish illegal and unauthorised constructions. Now that the green signal has been given by the Screening Committee opposite party can have no more excuse for dithering and can deploy task force to remove the obstruction on the road. We do, not agree with the contention of opposite party that the relief sought for by the complainant for providing 4th ''A'' Main Road connecting Magadi Road is in the nature of mandatory injunction and such a direction cannot be issued under Section 14 of the Consumer Protection Act. Under Section 14(1)(e) this Forum can give direction to opposite party to remove deficiency in service. We also do not agree with the contention of opposite party that there is no consumer dispute and that the complainant is not a consumer, as the grievance of the complainant relates to housing construction it is included in the definition of ''service'' under Section 2(1)(o) of Consumer Protection Act."

AFTER having held so, the District Forum directed the opposite party to remove all the obstructions and encroachment on the road as described in detail in the operative portion of the order. Hence, the instant appeal by the opposite party. Mr. Kulkarni, the learned Counsel appearing for the appellant, vehemently contended that once when the site is allotted to the complainant and once when the complainant constructs the building there, it is the responsibility of the complainant himself to get rid of the obstruction caused to him either with reference to the road to be made use of by him or otherwise. Mr. Kulkarni contended that the complainant does not become a ''Consumer'' in the context of the totality of the facts touched upon by us earlier. He has also invited our attention to the decision reported in 1995 (1) CPR 630 at para-5. Summing up his submissions on these lines, the learned Counsel for the appellant contended that the appeal deserves to be allowed..

ON the other hand, Mr. Billappa, the learned Counsel for the respondent invited our attention to Section 28(A) of the Bangalore Development Authority (Amendment) Act, 1993. The learned Counsel also invited our attention to certain provisions of the Karnataka Regularisation of Unauthorised Constructions in Urban Areas Act, 1991. We have given our anxious consideration to the submissions made on either side. After having given our consideration to the submissions made by both the lawyers, we find that it is difficult to agree with the arguments of Mr. Kulkarni, the learned Counsel for the appellant. It is needless to say that the maintenance of the road in a layout is that of B.D.A. which was responsible for forming the layout. The provisions of Section 28(A) of the B.D.A. (Amendment) Act, 1993 would make the position abundantly clear. In that view of the matter, the services of B.D.A. which were hired initially by the complainant would not end with the allotment of the site. The submission made by Mr. Kulkarni, the learned Counsel for the appellant, so vehemently before us to the contrary, is not acceptable to us. Further, the decision pressed into service by the learned Counsel for the appellant is not applicable to the facts of the instant case. We say so because, in the case dealt with by the Hon''ble National Commission, it was concerned with the encroachment of the flat which was already allotted to the complainant. Such is, however, not the situation here. In the instant case, the obstruction caused is on the road, the maintenance of which is squarely lies on the opposite party- B.D. A. In that view of the matter, the facts of the case dealt with by the Hon''ble National Commission are clearly distinguishable. Hence, the said decision is not of any assistance to the learned Counsel for the appellant, in this case. Further, it is necessary for this Commission to assimilate the spirit of the observation reflected by the Hon''ble Supreme Court in para-4 of its decision in Lucknow Development Authority v. M.K. Guptha, reported in III (1993) CPJ 7 (SC)=AIR 1994 SC 787. Under these circumstances, we are of the view that the view taken by the District Forum is quite correct. We should say that the District Forum has written a pains-taking judgment, and on a perusal of the said judgment, We do not find any good ground to interfere with the same. Mr. Kulkarni, the learned Counsel for the appellant, however, submitted that the direction given by the District Forum with reference to the payment of amount of Rs. 50/-per day for failure to carry out the direction after the expiry of four months next after the order was passed, is not tenable. In our view, the direction given by the District Forum in this behalf is liable to be modified to certain extent as indicated by us herein below in the operation portion of this judgment. Such a modification is necessary because if the opposite party is prevented by Court orders from carrying out the direction. Naturally, it cannot be mulcted with the liability of payment. In that view of the matter, the modification appears to be necessary.

FOR the reasons stated hereinabove, we pass the following order, in substitution of the order passed by the District FORum. ORDER The opposite party-B.D.A. (instant appellant) is directed to remove all the obstructions and encroachment on the road-4th ''A'' Main situated on the western side of the complainant''s site No. 15, Agrahara Dasarahalli, 4th Block, 4th Stage, West of Chord Road Layout, Bangalore, so as to enable the complainant to have free access to the road, within four months from today; failing which, the opposite party is liable to pay compensation of Rs. 50/- per day to the complainant after the expiry of four months as fixed above, and till the obstruction and encroachment are removed, unless the opposite party is prevented from doing so, by an order of the Court. The appeal stands disposed of accordingly. Appeal disposed of.