Revision petition has been filed with a delay of 157 days. The only reason given for condonation of delay is that the petitioner was suffering from jaundice and asthma from 5.5.2011 to 25.10.2011 and was advised to take complete bed rest and not to take any strain until fully recovered and a medical certificate in support of that application has been filed. For the reasons stated in the application, the application for condonation of delay is allowed and the delay of 157 days in filing the revision petition is condoned. Petitioner applied for allotment of a flat with the respondent-Housing Board by paying Rs.10,000/-. As per the payment schedule, he was required to pay a sum of Rs.9,80,000/- by 31.12.2004. Petitioner could pay only Rs.2,07,500/- and the balance amount could not be paid by him. As the petitioner had not paid the full amount, no allotment was made in his favour. Respondent thereafter informed the applicants that they can make the payment of arrears by 31.3.2006, as a last change. This time also, petitioner could pay only Rs.4,43,000/-. Petitioner paid the balance amount on 20.12.2006, which was received by the respondent. No further allotment was made. Since no allotment was made, petitioner filed a writ petition in the High Court seeking allotment of a flat, which was dismissed by observing thus:- “Even according to the petitioner, he did not make the payments, within the stipulated time. The relationship, between the petitioner and the respondent, is governed by the terms of contract. Though the respondent is a State, within the meaning of Article 12 of the Constitution of India, the rights that accrued to it under a contract, cannot be brushed aside. Inasmuch as the petitioner did not avail the extended benefit also, the relief claimed by him in this writ petition, cannot be granted. However, if the payments made by the petitioner have given rise to any right in his favour, he can certain work out his remedies, by filing a suit. This, in turn, shall be decided by applying the relevant provisions of law, and the conditions of contract. Hence, the writ petition is dismissed, leaving it open to the petitioner, to work out his remedies in a civil court. There shall be no order as to costs.” Petitioner instead of filing the suit as directed by the High Court, filed the complaint after a lapse of one and a half year from the date of the order of the High Court. District Forum dismissed the complaint. Petitioner being aggrieved filed the appeal before the State Commission, which was dismissed by the impugned order with the following observations: “9)It is not in dispute that the amount that was paid by him was refunded by way of cheque, and the same has been enchased by him on 19.6.2007. In fact there is no reason why he encashed the amount when according to him refund of the amount was bad under law. It may be stated herein that the complainant sent the amounts after expiry of the period, and the housing board equally encashed it. The complainant alleges that on extension of the period, he sent the amounts, and the same were encashed by the housing board. On the other hand the housing board alleges that said extension has nothing to do in the case of complainant. The said notification extending certain benefits were meant for the houses purchased under hire purchase scheme not for the flats pertaining to the complainant. 10) Admittedly the complainant was sending these amounts by quoting incorrect allotment number and incorrect dates. Since the respondent is a housing board naturally whatever amounts that were credited would go into the account. However, after verifying these amounts and in view of the fact the complainant was not entitled for extension they refunded the amount which the complainant had encashed. Therefore he was estopped from contending that since the housing board had received the amount during the extension period it was not entitled to cancel the allotment. Evidently the complainant was a defaulter. Despite the fact that the High Court allowed him to file a suit to obtain relief he did not do so immediately. The complainant did not pay the amount as agreed upon. 11) At the cost of repetition we may state that the very cheque that was sent to him was encashed. The entire amount that was paid by him except 10% which was forfeited in view of the terms of the agreement had been received by him. The Dist. Forum has righty declined the relief when the housing board had categorically stated that all the flats stand sold and there were no flats that could be allotted to him. This statement was not disputed by the complainant stating that some of the flats are still unsold and he was entitled to one of those flats on receipt of amount. When there is no possibility of allotment of flat the housing board cannot be directed to allot a flat to him, and execute registered sale deed in his favour on receipt of amount. Therefore we do not see any merits in the appeal.”
We agree with the view taken by the fora below. Petitioner was sending the amounts by quoting incorrect allotment number and incorrect dates. Respondent-housing board accepted the cheques as whatever amounts had been received, were to be credited in the account. After verification of the facts, Board found that petitioner was not entitled for extension of time and refunded the amount. Plea taken by the petitioner that housing board having received the amount could not cancel the allotment, cannot be accepted as the petitioner had sent the amount by quoting incorrect allotment number and incorrect dates. Petitioner was a defaulter. The writ petition filed by the petitioner in the High Court was dismissed. He was allowed to file a suit to claim requisite relief but he did not do so and instead he filed the complaint before the District Forum. Since the petitioner was admittedly a defaulter as he did not make the payments in time, he was not entitled to the allotment of the house. Fora below have recorded a finding that housing board has already sold all the flats and no flat was available for being allotted to the petitioner. Since no flat is available, it is not possible for us to issue a direction to the respondent to allot the flat to the petitioner.
In the circumstances, the revision petition is dismissed. |
