Date of Judgment: 29.07.2015

                                                                                                 JUDGMENT

          In terms of the previous order the record is taken up for disposal of the application filed on behalf of the opposite parties dated 13.1.2015 challengng the maintainability of the case.  We have gone through the application and its objection threto supported by affidavits.  We have scrutinized the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.

          The complainant Shri Amarjit Singh has initiated a proceeding under section 12 of the Consumer Protection Act, 1986 before the State Consumer Disputes Redressal Commission, West Bengal which has been registered as consumer complaint case No.184 of 2013 wherein he has prayed for – (a) direction to opposite parties to allow a flat at Rail Vihar, Kolkata, Phase –D, Cluster-III, 3B, New Town, Kolkata Residential Scheme AF Block under Action Area-I (P.O. & P.S. New Town, Dist. North 24-Parganas) in favour of him and to deliver possession thereof to him; (b) to direct the opposite party to execute and register the Deed of Conveyance in respect of the said flat to the complainant; and (c) costs, etc.  After entering appearance in the case the opposite parties have filed an application challenging the maintainability of the case which has been registered as Miscellaneous Application 23 of 2015 is taken up for consideration and disposal.

          One Raja Singh was the paternal uncle of the complainant who passed away on 19^th April, 2009. The said Raja Singh was an employee of Indian Railway and retired as Assistant Commercial Officer, North Eastern Railway, Gorakhpur.  On 24^th day of November, 2006 the complainant and his deceased uncle jointly applied to Indian Railway Welfare Organisation (opposite party No.1) for a dwelling unit at Rail Vihar, New Town at Kolkata. On 3^rd April, 2007 the O.P. No.2 being the Managing Director of O.P. No.1, allotted the flat in question to Raja Singh on the basis of application dated 24^th November, 2006.  On 31^st July, 2007 deceased Raja Singh relinquished his right, title and interest in the said flat in favour of the complainant.  On 9th August 2012 an agreement was executed by and between Smt. Harbants kaur, widow of Late Raja Singh and the complainant wherein it was agreed that the entire cost of the flat in question would be paid by the complainant and the said flat would be allotted to the complainant and all the sons and daughters of deceased Raja Singh consented to the said agreement by putting signatures threon.  The complainant has made payment time to time and in the process he paid a sum of Rs.8,10,000/- for the purpose of the said flat.  In spite of all, the opposite party No.1 is not willing to allot and/or deliver possession of the flat in favour of him for which the complainant has approached this Commission.

          Ld. Advocate appearing for the opposite parties have seriously challenged the maintainability of the case on the ground that according to the Rule 29.2 of the General Rules, Indian Railway Welfare Organisation (IRWO), on demise of an allottee, the dwelling unit may be transferred in the name of spouse or jointly in the name of spouse and the legal heir without any limitation of time.  In case there is no surviving spouse, the dwelling unit may be transferred in the name the legal heir.  Rule 28.3 of the said General Rules makes it abundantly clear that IRWO reserves the right to refuse permission for sale/transfer or exchange of a dwelling unit without assigning any reason.  Again, if we have a look to Rule 28.1 of the General Rules, it would be clear that subject to the local rules and regulations sale/transfer of the dwelling unit may be permitted with specific approval of IRWO.  Therefore, the execution of documents by the spouse or legal heirs of deceased Raja Singh would not help the complainant to get the flat transferred in his name.  Ld. Advocate for the opposite parties has also submitted that complainant cannot be considered as a consumer and as such the instant case should be dismissed in limini.

          Ld. Advocate appearing on behalf of the complainant has urged that the complainant is a consumer within the meaning of section 2(d)(i) of the Act in as much as the complainant has paid part consideration amount and the same has been accepted by O.P. and further when the term ‘consumer’ includes any beneficiary the case is very well maintainable.  The Ld. Advocate for the complainant has, however, submitted that there is no such provision under the Act which provides settling the consumer disputes on the ground of maintainability.

          Having heard the Ld. Advocates for the respective parties, it has  to come to surface that the opposite party No.1 allotted one flat to the complainant’s uncle Raja Singh, since deceased, on the basis of joint application with the complainant on 24^th November, 2006.  It means and indicates that there was a joint application, O.P No. 1 allotted the flat in question to Raja Singh who was an employee of North Eastern Railway.  It also emerges that the widow of the deceased Raja Singh was alive and there are legal heirs of the said Raja Singh.  The Rules contained in General Rules of Indian Railway Welfare Organisation as mentioned above clearly indicates that the dwelling unit can be transferred in the name of spouse and legal heir of an allotee.  The complainant is/was not a Railway employee or an ex-employee nor he can claim himself to a family member of deceased Raja Singh.  In any case, without specific approval of O.P. No.1 there is hardly any scope to transfer the dwelling unit by an allottee. Therefore, the deed of agreement executed by Smt. Harbans Kaur, widow of Raja Singh in which consent was given by the legal heirs of deceased Raja Singh has become infractuous. There is no document whatsoever to show that the O.P. No.1 has ever granted permission for transfer of the dwelling unit in favour of the complainant.

          In that perspective, we are unable to accept or share the view of the Ld. Advocate for the complainant that he is a beneficiary within the meaning of section 2(d)(ii) of the Act.

So far as maintainability of the case is concerned, though there is no specific provision in the Act to decide the question as preliminary point yet if it is found that law does not permit any person to file such an application claiming himself to be a consumer it can very will be decided and disposed of, otherwise it would be a sheer wastage of valuable public time.

          At the same time, we cannot overlook the fact that the complainant has made payment of Rs.8,10,000/- as part consideration amount of the dwelling unit and O.P. No.1 has accepted the same.  Since O.P.No.1 did not return the same they are under obligation to return the same to the complainant with interest @ 9% p.a. from the date of deposit of consideration amount.

          For the reasons aforesaid, application filed on behalf of the opposite parties challenging the maintainability of the case is allowed on contest but without costs.

          Accordingly, M.A. No.23 of 2015 arising out of consumer complaint case No.184 of 2013 stands disposed of.

          In consequence thereof, the consumer complaint case No.184 of 2013 is dismissed in limini.  However, the O.Ps are directed to refund Rs.8,10,000/- along with interest thereon @ 7.5% p.a. from the date of its deposit to the complainant within 30 days from date otherwise the complainant shall have liberty to get it executed through this Commission.