APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :  29^th JANUARY 2018

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 27.05.2015, passed by the Rajasthan State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. 280/2014, “Rajasthan Housing Board versus Ratan Devi”, vide which, while allowing the said appeal by majority judgment, the order dated 2.01.2014, passed by the District Forum Jaipur-III, in consumer complaint No. 199/2012, Old No. 1040/2008, filed by the present petitioner/complainant Ratan Devi, allowing the said complaint, was set aside and the complaint was ordered to be dismissed.

2.       Briefly stated, the facts of the case are that the petitioner/complainant Ratan Devi filed an application with the opposite party (OP) Rajasthan Housing Board in 1987 for allotment of a Low Income Group (LIG) House in their Kalpatru Housing Scheme, 1987 and deposited a sum of ₹2,000/- alongwith the application form.  As per letter dated 28.06.1990, issued by the Housing Board, an LIG House was reserved for the complainant by the OP Housing Board and she was asked to deposit a sum of ₹2,000/- within one month and the second and third instalment within 7 months and 13 months respectively.  The complainant deposited all these instalments, following which an LIG House No. 124/53 was allotted to her on 29.02.1992 and then, an allotment-cum-possession letter was issued by the OP Housing Board vide letter dated 30.04.92.  As stated in the said letter, a sum of ₹47,674/- was payable to the OP Housing Board at the time of possession.  It is the case of the OP Housing Board that since the complainant never deposited the said amount of ₹47,674/- with them, the allotment of the house was cancelled.  However, the case of the complainant is that she was never intimated about the delivery of possession of the said house by the OP Housing Board and hence, she could not deposit the said amount with them.  The complainant also stated that even if the allotment had been cancelled, the OP Housing Board should have returned the amount deposited by her with them, but the same was never done.  As per the complainant, she requested the OP Housing Board to inform her about the balance amount in respect of the said house, but they never gave her any such intimation.  She sent a letter dated 04.05.2008 in this regard to the OP Housing Board, in reply to which, the OP Housing Board sent her a letter dated 02.06.2008, saying that the allotment of the said house had been cancelled and its restoration was not possible.  The complainant filed the consumer complaint in question, seeking directions to the OP Housing Board to reallot the cancelled house to her and also to provide her compensation of ₹50,000/- against mental torture etc. and ₹20,000/- as cost of litigation.

3.       The consumer complaint was resisted by the OP Housing Board by filing a written statement before the District Forum, in which they admitted the deposit of instalments for the house by the complainants with them, but they stated that the amount of ₹47,674/- in terms of the allotment letter dated 30.04.1992 was to be deposited within three months, but the complainant failed to deposit the said amount.  The OP Housing Board issued demand letters to them on 01.01.93 and 10.01.94, but despite that, she did not deposit the said amount, because of which, the allotment of the house was cancelled and an intimation was given to her vide letter dated 06.04.94.  She was also informed vide letter sent subsequently that she should produce 4^th copy of the original challan and advance receipt for the amount deposited by her, so that refund of the said amount could be provided to her.  There was, therefore, no deficiency in service on the part of the OP Housing Board and hence, the consumer complaint should be ordered to be dismissed.

4.       Vide impugned dated 02.01.2014, the District Forum allowed the consumer complaint and directed the OP Housing Board to restore the allotment of the house in question in favour of the complainant and to handover the possession of the same to her and execute the necessary documents.  It was also directed that the balance amount of ₹47,674/- as per the allotment letter dated 30.04.92 shall be deposited by the complainant alongwith interest @6% p.a. on the same with the OP Housing Board.  Further the OP Housing Board was directed to provide compensation of ₹70,000/- to the complainant for mental agony etc. and ₹11,000/- as cost of litigation.

5.       Being aggrieved against the order of the District Forum, the OP Housing Board challenged the same by way of an appeal before the State Commission, which was dismissed vide their order dated 05.05.2014.  The OP Housing Board filed revision petition No. 2469/2014, which was allowed by this Commission vide order dated 22.08.2014.  It was observed that the State Commission had not advanced any reasons for coming to their conclusion and hence, they were directed to decide the appeal afresh and pass a reasoned order.  Vide order dated 27.05.2015, a three-Member Bench of the State Commission allowed the appeal by majority judgment.  While two Members of the State Commission passed an order, setting aside the order of the District Forum, the third Member concurred with the order of the District Forum.  It was observed in the majority judgment that the cancellation of allotment for non-payment of the amount in question was justified.  The OP Housing Board had allotted the said house to another applicant.  Being aggrieved against the majority judgment of the State Commission, the complainant is before this Commission by way of the present revision petition.

6.       During arguments before us, the learned counsel for the petitioner/complainant has drawn attention to the allotment letter dated 30.04.92 issued by the OP Housing Board in favour of the complainant Ratan Devi, saying that it was explicitly clear in the said letter that payment of ₹47,674/- was to be made at the time of obtaining possession of the house.  The contention of the OP Housing Board therefore, that the said payment was to be made within three months of the allotment letter was not correct.  The OP Housing Board had not given any intimation to the complainant about the delivery of possession of the said house.  The learned counsel argued that in many other similar cases, the allotment of the house had been restored to the allottees.  The learned counsel stated that without making an offer of delivery of possession, the cancellation of the said house could not be made by the OP Housing Board.  Further, in case, the said house had already been allotted to somebody else, the complainant should be allotted another house in lieu of the one allotted earlier.

7.       The learned counsel for the respondent/OP Housing Board has also drawn attention to the allotment letter dated 30.04.1992, saying that the balance amount of ₹47,674/- should have been deposited within three months of the issue of the said letter as stated in Note-1 at the bottom of the said letter.  The learned counsel has further drawn attention to an letter dated 04.05.2008 sent by the complainant to the OP Housing Board, in which she admitted that she could not deposit the balance amount in time, as her financial condition had become very weak.  The learned counsel further stated that as per letter dated 06.04.94, a copy of which had been placed on record, the complainant had been duly intimated about the cancellation of the said house and was also asked to deposit the 4^th copy of the original challan with the OP Housing Board, so that the amount deposited by her could be refunded to her.  However, on her failure to produce the said challan, the amount could not be refunded to her.  In the meantime, the house in question, had already been allotted to someone else.  The learned counsel further stated that there was no deficiency in service on their part, vis-à-vis, the complainant.  However, they were ready to consider allotment of any other house to her, even at this stage.

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

9.       The basic issue that merits consideration in the present case is, whether the amount of ₹47,674/- as mentioned in the allotment letter dated 30.04.92 was to be deposited with the OP Housing Board at the time of delivery of possession of the house to the complainant, or within a period of three months from the date of issue of allotment letter.  A glance at the said allotment letter indicates that the amount payable at possession time has been stated to be ₹47,674/-, leading to the clear presumption that the said amount was to be deposited at the time of delivery of possession only.  A perusal of the entire material on record, including the reply filed by the OP Housing Board before the District Forum indicates that the OP Housing Board has not stated anywhere, whether the possession of the said house was offered to the complainant at  any stage.  During proceedings before the Consumer Fora including this Commission, the OP Housing Board has nowhere stated anything about the issue of delivery of possession at all.  The OP Housing Board has simply stated that since the said amount of ₹47,674/- was not deposited within a period of 3 months, the allotment in favour of the complainant was cancelled.  It is absolutely clear therefore, that in view of the wording of the allotment letter dated 30.04.1992 that the amount of ₹47,674/- was to be deposited at possession time only, the OP Housing Board had no justification to demand the said amount from the complainant, without making offer of possession to her.  The order passed by the District Forum and by the single Member of the State Commission, therefore, is based on a correct appreciation of the facts and circumstances of the case.  On the other hand, the majority judgment of the State Commission is based on an erroneous view that the cancellation of the house for non-payment of the amount, was justified.

10.     In so far as the contention of the OP Housing Board that they issued letter of cancellation dated 06.04.94 to the complainant, it is the case of the complainant that she was not aware about the said cancellation.  The OP Housing Board has also not proved anywhere whether the letters sent by them were served on the complainant or not.  Moreover, if the cancellation had been made by the OP Housing Board, it was their foremost duty to refund the amount deposited by the complainant to her, without insisting on procedural formalities etc.

11.       Based on the discussion above, this revision petition is allowed, the majority judgment passed vide impugned order is set aside and the order passed by the District Forum is ordered to be restored.  There shall be no order as to costs.