R. Bhagyalakshi vs MYSORE URBAN DEVELOPMENT AUTHORITY

IN this revision petition, there is challenge to order dated 13.1.2011, passed by Karnataka State Consumer Disputes Redressal Commission, Banglore (for short as ''State Commission '').

VIDE impugned order, appeal of the petitioner was dismissed at the admission stage by the State Commission. Brief facts are that petitioner/complainant had applied for allotment of residential site in the year 1986 with the respondent/O.P. It is alleged that on 25.2.2001, respondent allotted site bearing No. 715 measuring 40 x 40 feet in Hanchya-Sathagally Layout, Mysore but did not intimate the same to the petitioner. Thereafter, without intimation or without issuing any notice to the petitioner, respondent cancelled the allotment order on the ground of non-payment of the site value. The said fact came to the knowledge of the petitioner only when she applied for documents under the RTI Act. After knowing the said fact, petitioner got issued legal notice demanding to issue allotment letter. But respondent has not complied with the said notice. Therefore, for the said act of deficiency, petitioner filed a complaint before District Consumer Disputes Redressal Forum, Mysore (for short as ''District Forum '').

RESPONDENT in its written objections denied the averments made in complaint. However, it has admitted the fact regarding allotment of site and the cancellation of the same for non-payment of site value, etc. Respondent denied about the allegations of non-intimation of the allotment order and cancellation of the said allotment order, behind the back of the petitioner without giving any notice. Respondent has stated in its objections that it gave the intimation of allotment of site to the petitioner and has also issued the endorsement dated 13.8.2002 to the petitioner for payment of site value. In spite thereof, petitioner has failed to deposit the balance amount of the site within the stipulated period. Therefore, with no other alternative order of allotment was cancelled on 2.12.2002 and the same was intimated to the petitioner. Thus respondent has prayed for dismissal of the complaint.

DISTRICT Forum dismissed the complaint of the petitioner,vide its order dated 22.11.2010. It is contended by learned Counsel for petitioner that petitioner has applied for the site about 25 years back by paying the requisite fee and hence her seniority ought to have been considered.

OTHER contention is that petitioner was not intimated about the allotment as well as subsequent revocation of the allotment of the site in question. Otherwise, she would have deposited the site value within the prescribed period. Respondent has not filed any document on record to show that they have sent allotment letter to the petitioner. Under these circumstances, impugned order is liable to be set aside.

ON the other hand, it is contended by learned Counsel for respondent that as per affidavit filed on behalf of respondent, allotment letter was issued on 25.2.2001 and balance amount was to be paid within a period of ninety days. Petitioner has paid only Rs. 1,500 and balance amount has not been paid till date. Further,vide letter dated 18.8.2002, she was intimated that if the balance amount is not paid, then the allotment would be cancelled. Short question which arise for consideration is as to whether petitioner was intimated about the allotment of the site in question and whether she has paid the amount due after the allotment?

THERE are concurrent finding of facts by two Fora below on this point. District Forum in this regard has held: "It is the specific case of the complainant that the opponent has allotted the site behind her back and deliberately not given any intimation of allotment of the site to her and subsequently opponent has cancelled the same without giving any notice to her and thus contended that the said act of the opponent amounts to deficiency in service. Thus, the only contention taken by the complainant is that the opponent has not intimated the allotment of the site to her and therefore she could not pay the amount of the site within time. But the material placed on record by the opponent clearly disclose that the opponent has sent the letter of allotment dated 25.2.2001 to the complainant on 24.5.2021, as the same is clear from the endorsement made thereon. The other letter of endorsement dated 13.8.2002 produced by the opponent and endorsement made thereon clearly disclose that the opponent has sent the said letter of endorsement to the on 14.8.2002 demanding her to pay the site value within 30 days. The opponent has also duly sworn on oath in his affidavit filed in lieu of evidence to the effect that in spite of sending the intimation of allotment of site and also sending the endorsement dated 13.8.2002 to the complainant on 14.8.2002, the complainant has not paid the site value and therefore the allotment of site was cancelled as per the order dated 2.12.2002 and the intimation of the same was also sent to the complainant on 11.12.2002. Thus oral and documentary evidence placed on record by the opponent clearly support his defence that the intimation of allotment of the site was given to the complainant for payment of site value. The complainant has neither made out any case nor placed any material on record to disbelieve the said evidence of the opponent and his defence. Apart from the same, to corroborate the self-service oral evidence of the complainant, there is absolutely no other oral or documentary evidence on record. Hence, solely on the basis of self serving oral evidence of the complainant, it is not possible to reach the conclusion that the opponent has deliberately not given any intimation of allotment of site and subsequently cancelled the same behind her back as alleged in the complaint - (9) Apart from the above, the material on record clearly discloses the opponent has allotted the site in the month of February, 2001 and cancelled the same in the month of December, 2002 on the ground of nonpayment of balance amount in spite sending the allotment letter and the endorsement dated 13.8.2002. Thus from the material on record clearly discloses that the opponent has waited for a period of about 2 years from the date of allotment and finally issued the endorsement dated 13.8.2002 by way of second notice for the payment of balance amount and in spite of the same, the complainant has not paid the balance amount and therefore, ultimately without any other alternative, the opponent has cancelled the allotment of site as per the order dated 2.12.2002. Apart from the same, admittedly the complainant is the permanent resident of Mysore and in spite of the same, the complainant has not made any prompt and bona fide attempt to personally approach the opponent ''s office and to know the matter of allotment of site and to deposit the balance amount before the cancellation of the allotment in the month of December, 2002. Admittedly, the opponent has also applied to the opponent under RTI Act and obtained the copies of the documents of allotment of site and cancellation, etc. Therefore, there is no substance in the contention taken by the complainant that she is an innocent lady not knowing the procedure of obtaining the information of allotment of site, etc., from the opponent. Thus, the conduct of the complainant is herself is lacking of bona fides and taking the necessary precaution in the matter of collecting the information regarding the allotment of site and in the matter of depositing the balance amount. Such being the conduct of the complainant, throwing the blame on the opponent for the cancellation of the site is improper and unwarranted. Under these circumstances and the material discussed above, it is not possible to say that the opponent has deliberately failed to send any intimation of allotment of site to the complainant and subsequently cancelled the same behind her back and thereby committed deficiency in service as alleged in the complaint. On the other hand, as discussed above, the material on record supports the defence of the opponent rather than the case of the complainant. Thus, the material discussed above, probabilises the defence of the opponent rather than the case of the complainant. (10) In view of all the aforesaid reasons and the material on record, we have no other alternative except to hold that the complainant has failed to prove any deficiency in service on the part of the opponent and therefore, she is not entitled for any of the reliefs sought for in the complaint. "

WHILE affirming the above findings of the District Forum, State Commission observed: "At the out set it is not in dispute, that the complainant has applied for allotment of site with the OP. It is also not in dispute that complainant was regular in renewing the said allotment upto 3.3.1992 by paying necessary fees. It is also not in dispute that OP has allotted the site bearing No. 715 measuring 40 x 60 feet of Hanchya-Sathagally Layout, Mysore. The question that arises for our consideration is whether the OP has cancelled the allotment of site only after issuance of the notice to the complainant or not. Before the DF at page 5 of the impugned order, recorded its finding that OP after allotment of site has sent intimation of allotment of site on 24.5.2001 to the complainant with a request to pay the site value within a period of 90 days. In spite of the same, the complainant has not deposited the amount and therefore the OP has again sent the endorsement dated 13.8.2002 to the complainant. Again OP has sent a request to the complainant to deposit the balance site amount within 30 days. In spite of the same, complainant failed to pay the balance amount of the site and therefore without any other alternative, the OP has cancelled the order of allotment of site as per the intimation letter dated 2.2.2002 and the same was intimated to the complainant on 11.12.2002. When the OP has sent an intimation letter informing that the above mentioned site is allotted to the complainant and she is required to pay the balance of site value within 90 days, what made her to apply for the documents under RTI Act with the OP. Such being the conduct of the complainant, she cannot throw the blame on the OP for the cancellation of the site cannot be believed. Therefore, the DF has rightly dismissed the complaint of the complainant. The order under challenge does not call for our interference. In the result, we pass the following. "

Present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (for short as ''Act ''). It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.

HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., II (2011) CPJ 19 (SC)=IV (2011) SLT 303=2011 (3) Scale 654, has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora. "

THUS , no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under Section 21(b) of the Act, since, two Fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction. It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.

UNDER these circumstances, the present petition is without any legal basis and the same is hereby dismissed.

NO order as to costs. Revision Petition dismissed.