1.      This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 08.05.2014 in Appeal No.  814 of 2012 of the State Consumer Disputes Redressal Commission, Circuit Bench-II, Jaipur, Rajasthan (in short, the ‘State Commission’) dismissing the appeal and upholding order dated 22.05.2012 of the District Consumer Disputes Redressal Forum, Jodhpur (in short, the ‘District Forum’) in Consumer Case no. 771 of 2010.

2.      The facts of the case according to the petitioner, in brief, are that it had registered the respondent under the Gharonda Scheme for the year 2004 as per his application dated 29.12.2004 on payment of Rs 2,500/-. Although seed money of Rs 3,000/- was not deposited by him before draw of lots, despite letter dated 21.05.2005, the petitioner allotted house no 5/124, NEB Extension, Alwar and issued allotment letter dated 27.05.2005. Respondent was required to deposit Rs 8533/- within one month before 17.07.2006 followed by first installment before 15.07.2006. The petitioner deposited Rs.3,000/- towards seed money on 23.06.2005. Respondent was asked by registered post to deposit Rs 8,533/- on 04.08.2006 within 10 days. However, only Rs 4,000/- was deposited on 25.08.2006. Another notice was given vide letter dated 26.08.2006 to pay the balance amount failing which allotment would be cancelled. As no deposit was made by the respondent despite three letters, the petitioner cancelled the allotment on 18.10.2006. Aggrieved, the respondent filed consumer complaint no. 771/2012 on 28.06.2011 which was contested as being barred by limitation by 5 years and on the grounds that the respondent failed to deposit the amount of Rs 8,533/- as per allotment letter despite opportunities. The District Forum dismissed the complaint on the ground that the respondent had failed to deposit the money in time. However, on appeal in Appeal no. 814/2012, the State Commission allowed the appeal which is impugned by way of this revision petition.

3.      The petitioner has contended that the impugned order has erred in not considering the documents on record and in not appreciating that the complaint is hopelessly barred by time, having been filed after almost 5 years. The State Commission has also not appreciated that the respondent has been a habitual defaulter in making payments, even though he had been considered for the allotment despite having defaulted in payment. As per the allotment letter dated 27.05.2006, Rs 8,533/- was required to be paid before 14.07.2006 after which the first installment was to be paid by 15.07.2005. The State Commission failed to appreciate that the cancellation was valid as the payments were not made in time by the respondent and that the full amount was not paid at any given point of time. Accordingly, it is prayed that the impugned order be set aside.

4.      The District Forum’s order held as under:

It is the case of complainant that he wrote letters dated 27.06.2011 and 09.12.2006 to the Respondent wherein it has been stated by him that his allotment of house has been cancelled as he has not deposited the amount in time. Complainant failed to deposit the requisite amount despite repeated notices served on him under registered post by the Respondent and hence his allotment was cancelled. On the basis of above facts, there seems no deficiency in service conducted by the Respondent and hence the complaint of the complainant is rejected.

ORDER

Therefore, on the basis of above analysis, the complaint of the complainant against the respondent Rajasthan Housing Board is rejected. Both the parties to bear their expenses.    

5.      The impugned order of the State Commission reads as below:

“Learned Advocate of the Appellant has said that he is neither in receipt of any registered letter issued by the Housing Board nor any cancellation notice was received by him nor any formal cancellation order was received him. On analysis of the above points, we have come to the conclusion that Housing Board has failed to produce any AD card in support of their claim that they have sent any registered letter nor any postal receipt nor any other evidence has been produced.  No copy of reminder letter dated 04.08.2006, 26.08.2006 is available on record. Officially it has been stated that the allotment was cancelled on 18.10.2006. No AD of registry or any other postal receipt has been filed by the respondent. Likewise, there is no proof of delivery that the amount which was refunded to the appellant or that the said amount has been received by the appellant.

On perusal of facts, it seems that the appellant has deposited Rs.2500/- at the time of registration, Rs.3000/- on 23.06.2006, Rs.4000/- on 25.08.2006 and Rs.3000/- on 26.10.2006 through challan. It is the case of Housing Board that the second reminder was sent to the appellant on 26.08.2006, the appellant had already deposited an amount of Rs.4000/- just one day prior to it. The seed money also was deposited by the appellant on 23.06.2005, although that was after the one month prescribed. The Housing Board has stated that the allotment was cancelled on 18.10.2006 and thereafter also the appellant deposited an amount of Rs.3000/- on 23.10.2006. No amount could have been deposited after the cancellation of allotment and acceptance of amount so deposited after the date of cancellation created doubts about the conduct of the Housing Board.

It has been averred by the learned Advocate for the Housing Board that the complaint was time barred. The allotment was cancelled in the year 2006 and the complaint was filed in the year 2011, but this fact cannot be accepted as on there is no proof delivery on record regarding cancellation order dated 18.10.2006 and also the Housing Board has accepted the amount deposited by the appellant after the order of cancellation of allotment and when the publication of auction notice was published, the appellant came to the notice of its auction. As the appellant is a poor person he has deposited the amount in instalments.

As far as the question deficiency in service is concerned, the learned counsel for the Housing Board has stated that there is no deficiency in service on the part of Housing Board and as such there is no cause of action regarding consumer dispute. On analysis of this question we have found that no information was provided to the appellant regarding cancellation of his allotment and the Housing Board has miserably failed to prove that any formal information was provided to the appellant. Apart from this it has also not been proved that any reminder letter was issued to the appellant, which fact has been stated hereinabove. Although the allotment was cancelled on 18.10.2006 but then also the Housing Board accepted the payment of Rs.3000/- deposited by the appellant. If this was a connivance of the officials of the Housing Board, then also the respondent is liable to be responsible for its employees act and it should not have accepted the amount after cancellation of allotment.

In view of the above facts and circumstances, we found that the appellant is liable to be accepted and the impugned order dated 22.05.2012 passed by the District Forum is hereby set aside and further it is hereby directed that appellant is a poor person and has applied for a house in Gharonda Scheme long back in the year 2006. It is also clear from the arguments that the house in question has not been allotted to any other person nor it has been auctioned till date and is in possession of the Housing Board, therefore, it is in the interest of justice to give the said house to the appellant on the basis of allotment. Appellant is hereby directed to deposit the balance amount along with penalty as per law and will be given a month to deposit the same. Housing Board shall initiate the proceedings to deposit, the balance amount along with the penalty within a month and after deposit of the same, the Housing Board shall intimate the appellant within 15 days through registered notice.”

6.      I have heard the learned counsel for both the parties and given careful consideration to the material on record.

7.      The petitioner essentially argued as per his petition that the respondent was a consistent defaulter who had never, at any given point of time, paid the required amount to the petitioner towards the house allotted under the scheme. It was argued that this was despite several opportunities by way of notices sent by registered post and even allotting the house without the required amount being deposited. The complaint before the District Forum had been filed after 5 years of the cancellation by the petitioner. The order of the State Commission was, therefore, erroneous and deserved to be set aside.

8.      On behalf of the respondent/appellant it has been contended that neither the notices stated to have been issued nor the letter of cancellation stated to have been sent were received by him. No evidence has been led in support of the assertions by the petitioner/respondent that these letters were sent to the respondent/appellant before the State Commission. As there is no proof of delivery of the letter of cancellation alleged to have been sent, and the fact that the petitioner Housing Board had accepted deposit of amount after the alleged order of cancellation, the ground of the complaint before the District Forum being barred by limitation is contested. It is the respondent’s case that the cancellation of the allotment came to his notice on the publication of a notice of auction. It is also argued that on account of the respondent being a poor person, payments were being done in instalments. 

9.      From the foregoing, it is apparent that the impugned order is based on the appreciation of the fact that there were no documents filed before it in support of the notices and the cancellation. The order notes that there were no postal records filed in support of the contention that the respondent was periodically noticed through proper service to pay the requisite instalments. Significantly, no proof of service of the letter of cancellation has been filed before the State Commission which has been highlighted by it in the impugned order. As regards the issue of limitation, in the absence of there being any proof of service of any letter of cancellation, the State Commission has rightly held that the cause of action stated by the petitioner to have occurred in 2006 cannot be accepted. The petitioner has accepted payment even after the date of cancellation of the allotment of the house. For this reason also it cannot now rely on the argument that the respondent’s allotment was cancelled by it. The State Commission has correctly set aside the order of the District Forum which had failed to appreciate these arguments. In view of these reasons, the revision petition is liable to fail.

10.    The revision petition is found to be without merits and is accordingly dismissed with no order as to costs.  All pending IAs are also disposed of.