JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The complainant/respondent booked a residential flat with the petitioner depositing a registration amount of Rs.5,000/- in the year 1985.  The case of the petitioner is that vide letter dated 03.09.1993, a residential flat was reserved for the complainant and he was required to deposit three installments, two of Rs.15,000/- each and the third of Rs.10,000/-.  The case of the complainant is that the aforesaid letter dated 03.09.1993 was never received by him.  According to the petitioner, they also sent another letter dated 15.04.1999 to the complainant, requiring him to furnish the proof of the deposit of the aforesaid three installments.  According to the complainant, even the letter dated 15.04.1999 was never received by him. 

2.      The complainant visited the office of the petitioner on 03.05.1999 and submitted a written letter stating therein that on visiting the office of the petitioner, he had come to know about the aforesaid demand.  He sought one and a half months’ time to deposit the said amount.  No specific letter was sent to the complainant acceding to the aforesaid request but a letter dated 26.07.1999 is alleged to have been sent to him, requiring him to furnish proof of deposit of the above referred three installments which were payable on 02.10.1993, 02.04.1994 and 02.10.1994 respectively.  Since the complainant had, while submitting his hand written letter dated 03.05.1999, given a fresh address to the petitioner, the said notice dated 26.07.1999 was issued at the new address of the complainant.  The case of the complainant is that even the notice dated 26.07.1999 was never received by him.  The allotment made to the complainant was later cancelled vide Order dated 29.05.2000 but the cancellation letter bears the old address of the complainant and not the new address which he had submitted to the petitioner on 03.05.1999.  Thereafter, an Office Order dated 06.08.2009 came to be issued by the petitioner Board on the basis of a decision taken on 16.07.2009.  It was clearly stated in the said Office Order that whether the registration/allotments were cancelled due to administrative mistake of the Board, if the applications were filed within one year of the date of cancellation of the allotment/registration, the registration/allotment will be restored on approval from the Board but where there is no administrative fault on the part of the Board, cancellation of the allotment will not be restored.  Though the petitioner had already applied for the restoration of the allotment vide his letter dated 17.12.2008, his allotment was not restored.  Being aggrieved, he approached the concerned District Forum by way of a consumer complaint. 

3.      The complaint was resisted by the petitioner which inter-alia claimed that the complainant having failed to deposit the installments despite reminder and the notice, the allotment had rightly been cancelled. 

4.      The District Forum ruled in favour of the complainant and directed the petitioner to restore the allotment and make allotment to the complainant at the rate applicable in case of allottees having priority immediately after the priority of the complainant. 

5.      Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal.  Since the complaint was also dissatisfied with the order, he also preferred an appeal before the State Commission.  Vide impugned order dated 28.11.2016, the State Commission dismissed the appeal filed by the petitioner but allowed the appeal filed by the complainant by directing payment of compensation quantified at Rs.50,000/-.  Being aggrieved from the order passed by the State Commission, the petitioner is before this Commission. 

6.      The case of the petitioner is that the first demand letter was sent to the complainant on 03.09.1993.  However, no proof of the actual dispatch of the said letter was produced by the petitioner before the District Forum though the said letter is alleged to have been sent by Registered Post at the address given by the complainant at the time of registration.  In his affidavit before the District Forum, the complainant denied having received the aforesaid letter.  Therefore, it was obligatory for the petitioner to prove the services of the aforesaid letter dated 03.09.1993 or at least its dispatch to the complainant by Registered Post.  The learned counsel for the petitioner submits that they are not maintaining the postal receipts and they are only maintaining the Dispatch Register which has been filed before this Commission but not filed before the District Forum.  The Dispatch Register maintained in the office and does not prove the actual delivery of the letter to the Post Office, which could be proved only by filing the postal receipts issued by the Post Office.  No such receipt having been filed, even the dispatch of the aforesaid letter dated 03.09.1993 by Registered Post was not proved.

7.      This is also the case of the petitioner that the second demand letter was sent under Certificate of Post Office dated 15.04.1999.  Again, no Postal Certificate issued by the Post Office was produced by the petitioner to prove the actual dispatch of the aforesaid letter dated 15.04.1999.  The complainant, on the other hand, has denied on oath having received any demand letter from the petitioner.

8.      What is more important is that after receiving the new address of the complainant on 03.05.1999, the petitioner sent the notice dated 26.07.1999 to him requiring him to furnish proof of the deposit of the aforesaid amount.  In the event of he having not deposited the said amount, he could have deposited the said amount with interest and furnish the proof within 15 days.  No postal receipt was produced before the District Forum to prove the actual delivery of the said notice dated 26.07.1999 to the Post Office.  No A.D. Card evidencing proof of the delivery, was filed.  Even the office dispatch register showing dispatch of the aforesaid Registered letter dated 26.07.1999 was neither produced before the District Forum nor has it been filed with the revision petition.  Therefore, the service of the notice dated 26.07.1999 does not stand proved.  If the aforesaid notice dated 26.07.1999 was not actual served upon the complainant, the cancellation of the allotment would be unjustified and shall be deemed to be on account of administrative mistake of the petitioner.  Therefore, the registration/allotment of the complainant ought to have been restored in terms of the Office Order dated 06.08.2009.  The petitioner however, did not restore the registration/allotment made to the complainant thereby giving rise to a fresh cause of action to file a consumer complaint on account of the petitioner having not restored the allotment despite the same having been cancelled on account of its administrative mistake.  The consumer complaint having been filed on 11.02.2011, within two years from the issuance of the Office Order, therefore, was well within the limitation prescribed in Section 24A of the Consumer Protection Act.  That seems to be the reason why no plea of the complainant being barred by limitation was taken in the written version filed before the District Forum. 

9.      For the reasons stated hereinabove, I have no hesitation in confirming the finding of the fora below that the allotment made to the complainant ought not to have been cancelled since the demand notice was not served upon him.  In any case, it ought to have been restored in terms of the Office Order dated 06.08.2009.  Therefore, the direction given by the District Forum and maintained by the State Commission for restoration of the allotment cannot be faulted with. 

10.    As far as the price of the flat is concerned, the learned counsel for the complainant states on instructions that the complainant is ready to pay the price prevailing on the date the complaint was allowed by the District Forum.  It is not in dispute that the allottes who were lower to the complainant in priority have already been allotted a house by the petitioner.  Therefore, the allotment to the complainant in terms of the order passed by the fora below shall be made at the price prevailing on the date of the order of the District Forum, in respect of the flat which the petitioner shall now allot to him in compliance of the order of the said Forum.  The allotment shall be made within 12 weeks from today.  In the facts and circumstances of the case, no compensation in terms of the order of the State Commission needs to be paid by the petitioner to the complainant.  The revision petition stands disposed of.