APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON : 1^st SEPTEMBER 2017

O R D E R

PER DR. B.C. GUPTA, MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the order dated 02.09.2015, passed by the UP State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. 1147/2014, “UP Awas Evam Vikas Parishad versus Amit Banka”, vide which, while dismissing the appeal, the order dated 28.09.2013, passed by the District Forum Lucknow, partly allowing the consumer complaint No. 300/2010, filed by the present petitioner, was upheld.

2.       Briefly stated, the facts of the case are that the complainant/respondent Amit Banka made an application to the petitioner, Uttar Pradesh Avas Evam Vikas Parishad (UPAVP) for allotment of a semi-finished house in their Sway-Vitt Poshit Yojana 2009 on 13.02.2009 in their Vrindavan Scheme.  He deposited a sum of ₹65,000/- with the petitioner/opposite party (OP) as registration fees for a house with area 122 sq. mtr. and whose total price was ₹13,21,000/-.  As per the complainant, the OP informed him at the time of registration that the possession of the house shall be handed over to him within a period of 6 months and that the OP would issue call letter for payment on instalments, as and when the construction of houses would start.  The final demand notice would be issued when the construction of houses was complete.  On 11.08.2009, i.e., after about six months of the registration of the house, the complainant received a demand letter from the OP, seeking payment of different instalments.  The complainant asked the OP to send him the allotment letter, giving price of the property allotted.  However, despite meeting officials of the OP and writing letters to them, the OP failed to provide him the allotment letter.  According to the complainant, there was no construction activity on the site as well.  Alleging deficiency in service on the part of the OP, the complainant filed the consumer complaint in question, seeking directions to the OP to handover a fresh copy of the allotment letter with rescheduled dates of deposit of instalments and also to pay interest @18% p.a. on the amount deposited by the complainant.  A direction was also sought that the OP should demand the balance amount only, when they were in a position to deliver the physical possession of the house, or in the alternative, to demand the balance amount, as per the pace and extent of construction on the basis of the self-financing scheme.

3.       The complaint was resisted by the petitioner/OP by filing a written statement before the District Forum, in which they stated that the complainant had merely deposited the registration amount with them and hence, he did not qualify to be covered in the category of ‘Consumer’ as per section 2(d) of the Consumer Protection Act, 1986.  The OP stated that as per Rule 8(2) of the self-financing scheme, the registration stands rejected automatically, if any one fails to pay the instalments within three months of the date fixed for the purpose.  In the instant case, the results of the lottery draw held on 30.03.2010 were available on the website of the OP.  The complainant was supposed to deposit the amount as demanded vide demand letter dated 11.08.2009.  The final allotment could be possible only after the construction was completed.  It was also stated that the construction work on the site was in progress.  Physical possession shall be delivered after payment of the final and fourth instalment.

4.       The District Forum, after considering the averments of the parties, allowed the complaint and directed the OPs to issue a new allotment letter and a rectified demand letter to the complainant and to accept the remaining amount without any penal interest.  Being aggrieved against the order of the District Forum, the petitioner/OP filed an appeal before the State Commission.  The said appeal was dismissed by the State Commission on grounds of delay of 249 days in filing the same, as also on merits.  Being aggrieved against the order of the State Commission, the petitioner/OP is before this Commission by way of the present revision petition.

5.       On behalf of the complainant/respondent, caveat was filed in the case before filing of the present revision petition.  During hearing before this Commission, a counsel appeared for the complainant/respondent.  The Registry was directed to provide a copy of the paper-book to the said counsel and he was also asked to collect the same from the Registry.  However, despite filing of the vakalatnama, the counsel for the complainant/respondent did not appear on the date of filing arguments.  The arguments of the counsel for the petitioner were heard.

6.       It was stated by the learned counsel for the petitioner that the complainant failed to deposit the amounts in question, although they had sent demand letters to him.  The house had been duly allotted to the complainant and he should have deposited the amounts involved, with the petitioner.  The learned counsel has drawn attention, in support of his arguments to the orders passed by the Hon’ble Supreme Court in “Uttar Pradesh Avas Evam Vikas Parishad & Ors. vs. Om Prakash Sharma” [(2013) 5 SCC 182] and “United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal” [(2004) 8 SCC 644].  The learned counsel has also drawn attention to an order passed by the Allahabad High Court in “Uttar Pradesh Avas Evam Vikas parishad vs. Additional District Judge, Ghaziabad” [(2005) SCC OnLine All 130] and an order passed by this Commission in “Iqbal Hussain Quazi vs. New India Assurance Co. Ltd. & Ors.” [I (2005) CPJ 95 (NC)].  It was stated that the consumer complaint in question was not maintainable as statutory notice was not issued prior to the initiation of the complaint. 

7.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

8.       Vide impugned order, the State Commission dismissed the appeal of the petitioner on the ground of limitation as well as on merits.  There was a delay of 249 days in filing the appeal before the State Commission.  Even during hearing before this Commission, the petitioner has not been able to give any cogent and convincing explanation for the said delay.  In fact, in the body of the revision petition and also during arguments before us, no conscious attempt was made to explain the huge delay of 249 days in filing the appeal before the State Commission.  The finding of the State Commission, therefore, that the appeal before them was barred by limitation, is based on correct analysis of the facts and circumstances on record. 

9.       The State Commission also examined the issue on merits and brought out that a demand letter was issued to the complainant on 11.08.2009, but the specific number and location of the house was not given.  The complainant sent a letter of protest to the petitioner, saying that allotment letter had not been given to them.  The demand of payment was to be made only, after a proper allotment letter had been issued.  The District Forum in their order dated 28.09.2013 also directed the petitioner to issue a new allotment letter and accept the remaining amount without any penal interest.  The District Forum also directed that possession should be delivered to the complainant and a registered sale deed be executed in favour of the complainant.  We do not find any infirmity, illegality or jurisdictional error in the orders passed by the State Commission or the District Forum.

10.     The learned counsel for the petitioner has taken the main plea that the complaint was not maintainable unless a legal notice had been issued by the complainant to the opposite party.  We do not find any valid reason to agree with this view because proceedings under the Consumer Protection Act, 1986 are summary in nature and the complainant had every right to file complaint before the consumer fora.

11.     It is a settled legal preposition of law that the powers in the exercise of revisional jurisdiction are to be used only, if there is a patent error of jurisdiction or material defect in the orders passed by the Consumer Fora below.  This view has bene taken by the Hon’ble Supreme Court in “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269]”. Keeping in view the concurrent findings of the consumer fora below, we do not find any justification for modifying or reversing such orders in the exercise of revisional jurisdiction.

12.       Based on the discussion above, this revision petition is ordered to be dismissed, being devoid of merit and the orders passed by the Consumer Fora below are upheld.  There shall be no order as to costs.