1.      This Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (the “Act”) against State Consumer Disputes Redressal Commission, Rajasthan, (‘State Commission’) Order dated 05.12.2018 in FA No. 414 of 2015. In the impugned Order, the State Commission dismissed the Appeal of the OP while upholding the District Consumer Disputes Redressal Forum, Jaipur. (‘District Forum’) order dated 09.03.2015 in CC No. 1616 of 2012.

2.      For the convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3.      Brief facts of the case, as per the complainant, are that Janki Devi’s late husband, Hardeva Ram, deposited Rs. 3,000/- with OPs and applied for a house under General Registration Scheme in Sikar as was issued receipt No. 1370 dated 28.11.1984. Later, her husband was allotted House No. 1/81 in Sikar Residential Scheme. After adjustments, Rs. 57,550/- remained outstanding, to be paid in 156 instalments @ Rs. 341/- PM. It is the complainant’s case that despite additional payment of Rs. 6,813/-, OPs neither handed over the house’s nor refunded the deposit. Repeated requests by them were ignored, constituting deficiency in service. Following her husband’s demise, she made multiple requests to OPs for handing over possession of the house. Although the house was transferred to her name later, after completing the required formalities its physical possession had still not been given. On 17.01.2008, OPs forwarded a cheque for Rs.10,747/- which was returned by her son to Resident Engineer in Jhunjhunu, as the amount was calculated after a wrongful deduction of 20% from the deposit initially paid. Despite passing of 25 years, OPs failed to provide the house or refund the deposit timely, amounting to gross deficiency in service. She sought directions to OPs to deliver possession of house No. 1/81 or, if not available, a similar plot at original rate, along with compensation and costs.

4.    In reply before the District Forum, OPs contended that they had issued an Allotment/Possession Letter to her husband on 10.01.1989, based on his application under General Registration scheme in Sikar. Mr. Hardeva Ram was required to take possession by depositing the specified amount by 09.03.1989. However, although he deposited the amount in July 1989, he failed to pay interest and monthly dues. Consequently, OPs did not grant possession and after issuing notices on 20.03.1989 and 10.05.1989, canceled the allotment due to non-payment. The plot was later re-allotted to another applicant, who took possession on 14.02.1992. They refunded the deposit amount to her by cheque, which was received. There was no deficiency in service and the claim was false and time-barred warranting its dismissal.

5.    The learned District Forum vide Order dated 09.03.2015, allowed the complaint with the following order:

                                         “ORDER

Complaint of the Complainant is consensually accepted against the Opp. Parties as per below:

The Opp. Parties are directed to hand over other house, instead questioned plot bearing No. 1/81 under said Residential Scheme, of the same measurement in the said Scheme to the Complainant in place of her husband and to hand over its possession to her immediately and to execute necessary documents in favour of the Complainant. By fixing the cost of the house, to be allotted to the Complainant, at prevailing rate of that time and after adjusting the amount deposited by Complainant's husband, remaining amount shall be paid by the Complainant, it means, on the prevailing rate at the time of issuing of allotment letter and possession letter dated 10.01.1989 in the name of Complainant's husband, said house shall be allotted and possession shall also be handed over to her by the Opp. Parties. The balance amount, after adjusting the amount deposited by Complainant's husband, shall be received by the OPs from the Complainant by charging interest @12% p.a. Also the Complainant will be able to add interest amount @ 12% p.a. from the date of deposit in the adjusted amount.

  The Complainant is entitled to get Rs. 50,000 towards mental agony, inconvenience, financial loss and cost of litigation from the Opp. Parties.”

6.      Being aggrieved by the District Forum Order, OP filed Appeal No.414 of 2015 and the State Commission vide Order dated 5.12.2018 dismissed the appeal, while maintaining the Order passed by the District Forum, with the following observations: -

“Janki Devi's husband had got registration for house before Opp. Parties and house bearing No. 1/81 in Residential Scheme, Sikar was allotted, price of which was Rs. 57,500.00 and same was to be paid in 156 monthly instalments of Rs. 341.00. Prior to possession, Rs. 6,813.00 was paid, during this, Complainant's husband was died. Said registration was transferred in the name of the Complainant and possession letter was given to her. The Opp. Parties stated that Complainant gave application for return of amount, on the basis of which amount was returned and said cheque has encashed by the Complainant from the bank, later Complainant's son return the same by issuing cheque from his account. The registration amount, which was deposited by the Complainant's husband, thereafter, interest amount and remaining payable installments' amount was to be deposited and then at that time possession should be given to the Complainant's husband. The plot allotted to the Complainant was allotted to some other person and its possession was given, but money was not returned to the Complainant at that time. Even when Complainant's husband expired, registration was transferred in the name of the Complainant.

Ld. District Forum has directed the Opp. Parties to give house equivalent to 1/81 and to recover amount on the prevailing rate. As such, Ld. District Forum has not interfered in the matter of rate. Payment has been made to the Complainant on the basis of prevailing rate. Earlier deficiency in service was on the part of Opp. Parties.

There is no such type of error in the order passed by Ld. District Forum. Appeal is liable to be dismissed, is dismissed.”

7.      Dissatisfied by the Order of the State Commission, OP filed the present Revision Petition before this Commission praying:

“(a) ALLOW THE PRESENT Revision Petition and set-aside/quash the order dated 5.12.2018 passed by State Consumer Dispute Redressal Commission, Rajasthan, Bench no.2, at Jaipur in First Appeal No.414 of 2015 as well as set-aside the order dated 9.03.2015 passed by Ld. District Forum, Jaipur Third, Jaipur in CC no. 1616/2012 (Old No.232/2010) and dismiss the complaint, in the interest of justice.

 (b)  ANY OTHER RELIEF which this Hon'ble Commission may deem fit in the present circumstances of the case.”

8.    The learned counsel for OPs reiterated the arguments previously presented before both lower fora. He argued that the OP had refunded the entire amount of Rs.10,747/-, deposited by the original applicant to the complainant by cheque No. 313673 dated 31.12.2007 as per the board regulations and that there was no deficiency in service. He asserted that the board issued notices dated 29.03.1989 and 10.05.1989 prior to cancelling the allotment due to the original allottee's non-payment. The complainant accepted the refund without objection. Thus, complainant is no longer a consumer under the Act. Consequently, they were not entitled to any relief, rendering the impugned orders erroneous. Additionally, he averred that Sh. Dhuda Ram Chaudhary, the original allottee’s son, submitted a cheque demanding possession of House No. 1/81, which was returned unencashed by OPs, contradicting the basis of the impugned orders. He referred to the doctrines of lex non cogit ad impossibilia and impotentia excusat legem, and Narmada Bachao Andolan Vs. State of Madhya Pradesh [2011) 7 SCC ]. He further relied upon DDA v. Puspendra Singh Jain [JT 1994 SC 292); Kishandas M. Inani v. Secretary Rajasthan Housing Board [(1992) CPJ 923]; Mukund Damodar Raghav v. CIDCO Ltd. [I (2015) CPJ (NC)]; Bareilly Development Authority v. Ajay Pal Singh [(1989) 2 SCC 116], and argued that the Consumer Fora could not go into the question of pricing of house/flat and mere registration did not entitle the applicant to get the house allotted at a price mentioned in the booklet. He submitted that the State Commission passed a non-speaking order that upheld the District Forum’s decision based on misinterpretation of evidence. Thus, he prayed that the impugned orders be set aside, and the complaint be dismissed.

9.    The counsel for complainants reiterated the facts and arguments previously made before both lower and argued that the OP had cancelled the house allotment without issuing a cancellation notice to the complainant. Despite receiving Pre-Possession due of Rs.6,813/- on 01.07.1989, the OPs re-allotted House No. 1/81, Sikar to another applicant on 16.11.1991. The grounds presented in the Revision Petition were contrary to law. Additionally, the OPs have not complied with the order of the DCF-III, Jaipur, dated 09.03.2015, for the past 8 years. He prayed that the impugned order be set aside with costs.

10.    Heard the Learned Counsel for both the parties. Perused the entire material on record inter-alia Orders of both the fora.

11.    The primary issues to be determined are whether by not delivering physical possession of House No. 1/81 to Mr. Hardeva Ram, the complainant's late husband, or to the complainant, OPs committed a deficiency in service? And if so, what relief is warranted?

12.    It is undisputed that Mr. Hardeva Ram, applied for a house allotment under the General Registration Scheme in Sikar and deposited Rs. 3,000/- as registration fees on 30.08.1994. It is further undisputed that the OPs subsequently issued an allotment and possession letter on 10.01.1989 for House No. 1/81. The relevant terms of the said allotment letter are reproduced as under:

“3.   Please prepare demand draft of the amount mentioned above (C) in favour of RAJASTHAN HOUSING BOARD drawn on any bank situated in Sikar within one month from the date of issuance of letter along with affidavit and undertaking and send to Commercial Engineer to take possession of the plot prior to 09.03.1989.

Deposit your monthly instalment before 10.03.1989 and each monthly instalment deposit before 10th of each calendar month.

4.    NOTE: In case, in the aforesaid allotment, annual amount is not deposited within one month, following interest/penalty shall be payable, thereafter, allotment itself shall be cancelled and by deducting 20% as per Disposal of Property Regulations from the registration amount along with administrative cost, upon producing advance receipt remaining amount shall be refunded.”                                    

13.    As per the terms of the allotment letter Mr. Hardeva Ram was to deposit Rs. 6,813/- within one month from the date of issue of the allotment letter i.e. latest by 10.02.1989. However, he complied with the same in July 1989. Moreover, he was also to pay monthly instalments along with interest for delayed payment, which the OPs assert that it was never paid. Thus, the allotment was cancelled. Also, during his lifetime, vide his representation dated 13.11.1990, the original allottee Late Mr. Hardeva Ram himself refused to take possession of the unit in question. Thus, the question of the legal representatives of the original allottee making a claim does not arise. It is also to be noted that the fora below erred in holding that the OPs were deficient as they did not issue notice prior to the cancellation of the allotment. Perusal of the evidence on record shows that OPs issued notices dated 29.03.1989 and 10.05.1989 prior to cancelling the allotment due to the original allottee's non-payment. Consequently, in light of the above discussion, OPs were well within their right to cancel the allotment of  Mr. Hardeva Ram and reallot the said unit. As regards this, there is no deficiency of service on part of the OPs.

14.    Another contention of the complainants is that 20% deduction was made in the refund of Rs.10,747/-, sent to her vide cheque No. 313673 dated 31.12.2007. Clause 4 of the Allotment Letter clearly stipulates that, under the agreed terms and conditions, the OPs were entitled to deduct 20% of the total deposited amount prior to issuing a refund, should there be any non-compliance of terms and conditions in the allotment letter. Evidently, they failed to make payments within time stipulated. Thus, the deduction does not constitute deficiency in service. Further, the said cheque of Rs.10,747/- was encashed by Janki Devi on 11.02.2008 itself as is evident from the bank statement of the OP. Thus, she cannot assert both claims at the same time.

15.    The only deficiency of part of the OPs was issue of refund, without the interest payable. If the allotment was cancelled in 1989, the refund should have been issued with 20% deduction at that point only. Since the OPs retained the amount of Rs. 12,613/- till 2008, they ought to have paid interest on the same.

16.    Based on the above deliberations and after consideration of the entire facts, it is held that there was no deficiency in service on part of OPs other than paying interest on refund. Therefore, orders passed by the learned State Commission dated 05.12.2018 and the learned District Forum dated 09.03.2015 suffer material irregularity due to improper appreciation of facts and thus set aside. Consequently, the OPs are directed to pay the complainant interest @ 9% on Rs.10,747/- from the date of deposit till the date of payment on 17.01.2008 within a period of one month from the date of this order. In the event of delay beyond one month, the interest rate applicable for the entire period shall be @ 12%. The OPs are also directed to pay Rs.50,000/- as costs of litigation to the complainant.