1.      This Revision Petition No.960 of 2019 challenges the order of Rajasthan State Consumer Disputes Redressal Commission, Jaipur (‘State Commission’) of 11.12.2018 dismissing FA No. 685 of 2017 and affirming District Consumer Disputes Redressal Forum-IV, Jaipur (‘District Forum’) order of 09.05.2017, partly allowing the complaint.

2.      As per the Registry, there is 48 days delay in filing this Revision Petition. For reasons stated in IA/7659/2019, the delay is condoned.

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

4.      Brief facts of the case are that deceased Complainant No.1-Raghu Raj Behari Lal Mathur applied on 24.12.1979 for independent house in Middle Income Group (MIG) "B" category under the general registration scheme of 1979 by the Rajasthan Housing Board (Opposite Party). He deposited a registration amount of Rs.4600/- and estimated consideration was Rs.70,000/-. Originally registered under hire-purchase system, complainant's registration was changed to cash purchase system without consent. Despite repeated requests, his registration remained under cash purchase system. The OP organized a lottery for 108 flats in MIG "B" category on 07.10.2011.  The complainant was included in this lottery and allotted flat No.101-B/205(2F) in Mansarovar Scheme. He applied for an independent house on hire-purchase system and not a flat on a cash-purchase system. The OP ignored the same and allotted a flat. The OP actions of such change and ignoring the application for independent house were arbitrary, unfair trade practices, and deficiencies in service. Being aggrieved he filed a Complaint before District Forum.

5.      In its reply, filed before the District Forum, the OP contended that the forum does not have jurisdiction to hear the case related to the Housing Board. OP admitted that the complainants registered for an independent house under general scheme and deposited Rs.74,000/- in total. Their registration was changed to cash-purchase system, they were given seniority and a flat in Mansarovar Scheme was also allotted through lottery. There was no contract between them for an independent house. Allotment would be made based on the availability, and they were allotted flat No.101-B/205 (2F) in MIG "B" category. The OP denied any deficiency or unfair trade practice.

6.      The District Forum, vide order dated 09.05.2017 partly allowed the complaint with the following directions:

“          ORDER

   Thus dispute of complainants is admitted partially and in modified farm, that opposite parties shall allot to the complainant MIG 'B' category Independent house No.267/ 629 In Pratap Nagar Sanganer scheme Jaipur or other independent house equivalent to MIG 'B' category in his any other scheme on the basis of registration of 1979 in cash payment system at the prevalent on lottery date 07.10.2011 of flat allotment on cash payment system without charging any penalty/interest.

  In addition to the above, opposite parties shall pay Rs.10,000/- as compensation to complainant against financial, mental and physical torture to the complainant, and pay Rs.5000/- as cost of dispute within two months from today. If this amount is not paid within two months, then opposite parties have to pay 9 percent yearly interest on Rs.15,000/- from the date of this order.

  Remaining prayer of complainant is denied.”

                               (Extracted from translated copy)

7.      On Appeal, the learned State Commission, vide the order dated 11.12.2018 affirmed the District Forum order dated 09.05.2017 with reasons as below:

  “Heard the learned counsel for the parties and perused the impugned judgment as well as original record of the case. The respondent has submitted the written arguments.

There is no dispute about the fact that the respondent has applied in General Registration Scheme 1979. The contention of the appellant is that as per application form Ex. R1 the respondent has applied for house/flat. It is true that in Ex.R1 the registration was for house/flat but it is also not in dispute that registration was under scheme of 1979 wherein the description of the house is mentioned including two bedroom drawing room etc. and salient feature is land for constructing garage and three side open land which conclusively shows that registration was for independent house. As per Ex.2 money was paid for registration in Jaipur. Ex.3 receipt also acknowledged the allotment for house. Hence, the Forum below has rightly held that the respondent has applied for independent house and even the scheme was for independent house.

As per Ex. 19 the appellant informed the respondent for the allotment of flat in Mansarovar Scheme. The respondent has paid the amount under protest and he again asked for independent house. Inspite of this on 7.10.2011 his name was included in the lottery for flats constructed in Mansarovar. The respondent has rightly pointed out that he received the information of lottery since 2002 to 2011 for MIG-B house and in lottery list dated 25.3.2006 his name should have been included as his priority number was then 1115 and priority number 1112 and 1181 houses were allotted in this lottery. Hence his name should be included in the lottery prior to number 1181. Thereafter he changed his registration from hire purchase and on 27.8.2008 his name should be included in the lottery after the priority number 1171 and before priority number 1332 as his priority number was 1251.

The priority numbers have not been disputed by the appellant and no reason has been assigned that when priority number of year 1979 were allotted an independent house that time why the respondent has not been allotted the house. Reliance is placed on IV(2004)CPJ518 (Raj.) Vipul Mathur Vs Rajasthan Housing Board and III(2015)CPJ376 (NC) Army Welfare Housing Organisation Vs Rajkumar Dhingra.

The contention of the appellant that respondent has paid the amount is not fruitful as alongwith payment he raised the objection for allotment of independent house. Change of priority number is also of no consequence as stated earlier. The Housing Board has allotted the independent house to the allottees way back in 2006 to the priority number stands below the respondent.

The respondent has relied upon III (2012) CPJ 18 (SC) Nahalchand Laloochand Pvt.Ltd. Vs. Panchali Cooperative Housing Society wherein meaning of expression 'flat' is explained. There is no dispute about the meaning of 'flat'.

Further reliance has been placed on III (2008) CPJ 48 (SC) Faqir Chand Vs. Uppal Agencies, judgment passed by the apex court in Civil Appeal No. 5823/2002 Haryana Urban Development Authorioty Vs. Vijay Agarwal, III (2015) CPJ 629 (NC) Delhi Development Authority Vs. Sudershan Bhareja, II (2006) CPJ 343 (NC) Administrator, HUDA Vs. Banwarilal, I (2004) CPJ 107 (NC) Atul Vihar Kalian Samittee Vs. Dubey Constructions, I (2003)CPJ 234 (NC) Welfare and Service Organization Vs. Haryana Urban Development Authority, IV (2008) CPJ 176 (NC) Nagar Palika Mandal Vs. Sita Devi, II (2008) CPJ 169 (NC) A.P.Housing Board Vs. Srihari Reddy, I (2015) CPJ 573 (NC) Harpreet Singh Vs. Nelu Estate & Movers, II (2017) CPJ 14 (NC) K.C.Bhatia Vs. HUDA, IV (2015) CPJ 136 (NC) Dewan Ashwani Vs. Unitech Reliable Projects, I (2014) CPJ 402 (NC) Classic Kudumbam Vs. S.P.Sundaram, IV (2007) CPJ 20 (NC) Shiksha Vihar Sehakari Avass Samiti Vs. Ghaziabad Development Authority,II (2016) CPJ 623 (NC) Atul Maheshwari Vs. Yamuna Expressway Industrial Development Authority, III (2016) CPJ 655 (NC) Saraswati Builders Vs. Jagroop & ors., and II (2009) CPJ 23 (Karnataka) Geetha Bhat Vs. Adarsh Developers where on the facts of the case dispute has been decided.

  Further reliance has been placed on the judgment passed by this Commission in Complaint No. 25/2016 Gaurishankar Vs. Raj.Housing Board and First Appeal No. 892/2015 Raj. Housing Board Vs. Anil Singh where on the facts of the case deficiency was concluded.

  Further reliance has been placed on IV (2006) CPJ 207 (NC) Sonkar Builders Vs. Kusum Bhairavnath Joshi where area was short which is not the case here.

  Further reliance has been placed on II (2017) CPJ 197 (Raj) Yatish Chand Goyal Vs Bimal Chhajer Heart Centre and I(2015) CPJ 567 (NC) New Generation Real Estate Vs. Ramesh Chander Khurana where dispute was in regard to false representation in advertisement which is not the case here.

   Even reliance has been placed on 1 (2017) CPJ 304 (NC) Gurunanak Dev Para Medical Institute Vs. Salim Mohammad where dispute is in relation to admission in veterinary course and same is the facts of 11 (2011) CPJ 274 (NC) Indian Institute of Hotel Management Vs. Reshmi Dutta where dispute was in regarding to admission in a particular course.

  Further reliance has been placed on IV (2016) CPJ 493 (NC) Developers Township Property Vs Jaiprakash Associates where super built area was increased which is not the issue here.

   Further reliance has been placed on 11 (2004) CPJ 624 Raj. Housing Board Vs. Bhagwat Vallabh Sharma where seniority number was changed which is not the issue here.

   Further reliance has been placed on IV (2003) CPJ 486 DDA Vs.Maya Devi where complainant's name is not included in the lottery which is not the issue here.

  Further reliance has been placed on I(2004)CPJ12(SC) Kanpur Development Authy Vs Sheela Devi where issue was in relation to increase of cost which is not the dispute here.

   Further reliance has been placed on IV (2012) CPJ 12 (SC) Meerut Development Authority Vs. Mukesh Kumar Gupta where land was allotted inspite of the knowledge that it is under litigation which are not the facts here.

  Further reliance has been placed on III (2015) CPJ 440 (NC) Satish Kumar Vs. Unitech Ltd. where the issue was in relation to delay in construction of apartments which is not the case of the complainant.

  The contention of the respondent is that in 2006 he should have been allotted independent house. Be that may be the case no appeal has been filed by respondent. Hence, this contention cannot be entertained and name of respondent is included in the lottery dated 7.10.2011. The Forum below has rightly ordered that on prevailing rate of 7.10.2011 the independent house should be allotted to the respondent.

In view of the above, there is no merit in this appeal and stands dismissed.”

8.      The learned Counsel for Petitioner Board reiterated the grounds taken in the Revision Petition and Reply filed before the District Forum. He argued that the fora below made significant legal errors by overlooking the conditions of allotment stated in the brochure and the correspondence between the parties. He contended that the applications invited were for general registration for the allotment of a house/flat, not specifically for independent houses. The scheme is aimed to provide housing to the underprivileged at reasonable rates and on a no-profit basis, as opposed to houses developed by private builders. The scheme’s culmination depended on the availability of land, and there was no mandatory agreement to provide independent houses. The complainant had only deposited the registration amount of Rs 4600 and the first instalment of Rs 70,000 and an MIG flat (No. 101/B-205) was allotted to him vide allotment letter dated 28.12.2011. But he ignored these letters and failed to deposit the required amount on time. The complainant had requested a change from the hire-purchase system to the outright cash system vide letter dated 15.04.2006. The OP accepted this request vide letter dated 13.10.2006.  The complainant registered for general allotment of a house/flat and not specifically for independent houses. He is ineligible for an independent house at the 2011 rates since there were no independent house is available. The District Forum order to provide independent house No. 267/629 in the Pratap Nagar scheme was not feasible because the said house was a vacant land with no construction started and the complainant did not apply for this scheme. The District Forum misinterpreted the brochure's statement that houses with two bedrooms, a verandah, a kitchen, and open space on three sides would be provided. This description does not necessarily mean an independent house. MIG category flats constructed by the Board also have two bedrooms, a kitchen, a verandah, and open spaces, along with separate parking/garage space charged separately. He asserted that the OP Housing Board essentially functions on ‘no profit no loss’ basis. The fora below had exercised jurisdiction not vested in them by law. He sought to allow the present Revision Petition and set aside the orders of both the Fora below.

9.      On the other hand, the learned counsel for the complainant argued that under General Registration Scheme, 1979 the OP had issued a notification and the complainant had applied for the same seeking allotment of an independent house under MIG-B Category, under Hire Purchase Scheme in Jaipur City and submitted his Application Form. Thereafter, the petitioner had determined his priority serial No. as P-1015/G-1/M-2/HPS/1979 in Hire Purchase Mode of payment and P-1215/G-1/M-2/ORS/1979 in outright sale mode of payment. He specifically mentioned that he house was requested at Jaipur and nowhere he mentioned of any Flat and at all places he mentioned only House. He argued that it is clearly a contract between the OP and complainant to provide an independent house and the OP has no right to avoid, refuse and deny the same. He asserted that strangely, the OP on its own allotted one flat to the respondent at Mansarovar Jaipur and issued the Allotment Letter No 1849 dated 28.12.2011, with total area of only 66 Sq Mts. Whereas, in 1979 itself the complainant had submitted Application Form for an independent house to him in the MIG-B Category of size 189 Sq Mts. The complainant submitted copies of house allotment lottery dated 25.03.2006 and 27.08.2008 before the District Forum in which OP included him of higher priority number and seniority and allotted independent house. In the said house allotment lottery, the allotment was done by including the applicants registered for 2007-2008, while he is the registered in 1979. The applicants who were below in preference priority than him were included by the OP in the allotment lotteries to grant undue benefit to others. If he OP followed the rules, definitely his name would have been included for 2007 & 2008 and in the said House Allotment Lottery dated 25.03.2006 itself and one independent house in the MIG-B category would have allotted to him. The House Allotment Lottery held on dated 25.03.2006 & 27.08.2008 for the allotment of independent houses in MIG-B category under the General Registration Scheme at Pratap Nagar, Jaipur and many houses were allotted This is a self created mistake, negligence and deficiency in service of OP. If there are nо independent houses with the OP, it is the OP who is responsible. In place of an independent house of size of 189 Sq Mts he was allotted a flat only the size of 66 Sq Mts, without any written consent from him. He further argued that in revision petition only jurisdictional error or legal points are to be considered. In the present case no jurisdictional error or legal points are involved and the Revision Petition is not maintainable and is liable to be dismissed. He relied on Rajasthan Housing Board & Anr. v/s. Gauri Shankar Modi & Anr; and FA No. 1860/2017, order dated 17.05.2022. NCDRC and Rajasthan Housing Board v/s. Anil Singh, Revision Petition No. 2558/2016, order dated 18.04.2023.

10.    I have examined the pleadings and associated documents placed on record, including the orders of the both the learned fora, and rendered thoughtful consideration to the arguments advanced by the learned counsels for both the parties.

11.    The matter pertains to allotment of a housing unit by the OP Board wherein the complainant, after registering for a house under a housing scheme, experienced complications with the process and alleged deficiency on service and unfair trade practices against OP. It is an admitted position that the complainant had registered for a house with the OP Housing Board and deposited Rs.4600 towards registration and the first instalment of Rs.70,000. On 13.10.2006, he requested for a change from the hire-purchase system to outright cash system, which was accepted by the OP Board. Based his request, on 28.12.2011 an MIG Flat No. 101/B-205 was allotted to him. As against the same, the complainant alleged that he applied for an independent house. But, it is the contention of OP that in 2011 allotment no houses are provided for, as there were no independent houses for allotment.

12.    The District Forum vide order dated 19.05.2017 directed that an independent house be allotted to the complainant. However, this was based on an apparent mis-appreciation of the housing scheme brochure, which referred to houses with two bedrooms, a verandah, and open space. It is the contention of OP that this description also applies to MIG flats and does not guarantee an independent house. The District Forum's direction to provide House No. 267/629 in the Pratap Nagar scheme is rendered a difficult preposition as it is the specific contention of OP that it is a vacant land with no construction, and the complainant had not even applied under that scheme. Since the allotment of the independent house as directed by the District Forum is not feasible due to non-availability of units and non-eligibility of the complainant, the issue requires a different remedy.

13.    In this case, it is an uncontested that the OP, a Housing Board operating on a 'no profit, no loss' basis, had offered the complainant an alternative allotment after the original project did not progress due to administrative reasons. He had initially registered for a project but, he was offered a flat in the Manasarover Scheme via an allotment letter dated 28.12.2011. The allotment letter provided for the setting off of the complainant's previously paid Registration Money of ₹4,600 and Seed Money of ₹70,000, along with interest, toward the new flat. Despite this alternative arrangement, the complainant failed to make the necessary payments within the specified timelines. The OP issued notices regarding the non-payment and warned of the potential cancellation of the allotment.  The OP contends that since the complainant defaulted on the payment terms of the alternative allotment and did not apply for any other schemes, the OP cannot be held liable for deficiency in service or unfair trade practices. The situation arose due to the complainant's own failure to adhere to the payment schedule, and there was no negligence on the part of the OP in handling the alternative allotment and its terms. Hence, the OP maintains that the responsibility for the cancellation lies with the complainant due to his default and failure to comply with the timelines, rather than any deficiency in service.

14.    Mere registration for a housing unit by itself does not guarantee allotment. It is within the purview of the OP to allot units in any form uniformly, including by open auction to public, in which he also had equal opportunity to participate. Which either he did not or took part but was not allotted in the auction. Under these circumstances, grant of such specific relief with direction to now allot an independent house in a scheme, which has taken a different course of allotment by auction at the very inception, or any other scheme in which the complainant had not even applied, and further at the rates applicable in the year 2011 is untenable, as such action will result in other compliant home buyers paying more for the same unit. In any case, the Complainant had not brought out anything to indicate any illegality, violation of law, deficiency in service or unfair trade practice with respect to his registration of allotment of independent house. 

15.    In view of the foregoing, the complainant is entitled for refund of the amount deposited along with compensation in the form of interest. Undisputedly, the complainant had paid Rs.74,600 (Rs.4600 as Registration Money and Rs.70,000 as Seed Money).

16.    As regards compensation in such cases, the Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 dated 07.04.2022 has held:-

“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the Order impugned has granted interest from the date of last deposit.  We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.

 At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just.”

17.    In view of the foregoing, the Order dated 11.12.2018 passed by the learned State Commission in F.A. No. 685/2017 and order dated 09.05.2017 passed by the District Forum are modified as under:

ORDER

1. The Petitioner/Opposite party shall refund Rs.74,600/- to the complainant along with interest @ 9% p.a. from the respective dates of deposit till the date of final payment, within a period of one month from the date of this order. In the event of delay, the amount payable shall carry simple interest @ 12% per annum from the date of expiry of one month till realization of the entire amount.

2. The Petitioner/Opposite Party shall pay cost of litigation quantified as Rs.50,000/- to the Complainant/ Respondent, within one month from the date of this order.

18.    The Revision Petition No.960 of 2019 is disposed of accordingly.

19.    All pending Applications, if any, also stand disposed of accordingly.