1.      This Revision Petition No.3900 of 2017 has been filed against the impugned order of Rajasthan State Consumer Disputes Redressal Commission, Jaipur (‘State Commission’) dated 07.09.2017. Vide this order, the State Commission dismissed First Appeal No.651/2016 and affirmed the District Consumer Disputes Redressal Forum, Jaipur-IV (‘District Commission’) order dated 30.03.2016 wherein the complaint was allowed.

2.      As per report of the Registry, there is a delay of 2 days in filing the present Revision Petition. In view of the facts and circumstances of the case, the delay is condoned.

3.      For Convenience, the parties in the matter are being referred to as mentioned in the Complaint before District Forum.

4.      Brief facts of the case, as per the complainant, are that a complaint has been filed by Indra Kumar, the power of attorney holder on behalf of Smt. Sarla Indra Jain, against the Rajasthan Housing Board before the District Forum. In a meeting held on 10.10.1988, the Property Allotment Committee of the Board allotted a HIG category house to the complainant, as per Agenda No. 35, vide letter dated 01.11.1988. The letter demanded the registration amount and seed money amounting to Rs. 60,000, which she duly deposited. The OP Board acknowledged the payment on 17.11.1988 and House No. 4 ट 24 of the HIG category in the Jawahar Nagar Scheme, Jaipur, was reserved for allotment to her. Subsequently, the OP Board sent a letter on 20.03.1989, changing the reserved House for allotment from House No. 4 ट  24 to House No. 4 स 24.  When the complainant requested for possession, the Board informed her via letter dated 07.12.2006 that House No. 4 स 24 was reserved for the residence of the Housing Commissioner of Rajasthan Housing Board and proposed that if the complainant was interested, she could provide her consent for an allotment in the Pratap Nagar Scheme (Sanganer), Jaipur. She pointed out that there was no mention of this house being reserved in the earlier letters dated 17.11.1988 and 20.03.1989. She issued a legal notice demanding the possession of the allotted house but received no response. She alleged arbitrariness and deficiency in service by the OP Board and sought physical possession of House No. 4 ट 24 or 4 स 24 in the Jawahar Nagar Scheme. She also claimed compensation for mental agony and litigation expenses.

5.      In reply, the OPs contended that the case was placed before the Property Allotment Committee on 10.10.1988 in accordance with the State Government's direction dated 30.09.1988 for the allotment of houses measuring 50 x 90 Sq Mts. Following this, she was notified vide letter dated 01.11.1988 to deposit Rs.60,000 as registration and seed money. There was no decision to allot House No. 4 ट 24 or 4 स 24 in Jawahar Nagar Scheme to the complainant, and the letter dated 01.11.1988 did not mention any specific house number. They informed the complainant on 03.11.1993 that houses were not available in Jawahar Nagar Scheme, and hence, allotment in this scheme was not possible. She was asked to opt for allotment in the Sanganer or Mansarovar Scheme. She, however, did not respond to these letters. They sent another letter on 17.05.1996, reiterating that House No. 4 स 24 was reserved for the Housing Commissioner under a rental scheme and could not be allotted to her. She was again asked to consent to an alternative allotment in the Mansarovar Scheme, but she did not reply. The letters dated 17.11.1988 and 20.03.1989 were not intended to confirm allotment or reservation of House No. 4 ट 24 or 4 स 24 to the complainant.

6.      The learned District Forum vide order dated 30.03.2019, allowed the complaint with the following directions:

“ORDER

  Therefore allowing the complaint of complainant it is directed to the opponents to deliver physical possession of allotted House number 4 स 24 Jawahar Nagar Jaipur scheme after receiving the balance amount from the complainant in respect of above allotted house.

  If the office of opponents is running in the above allotted house then the opponents shall take the above action by immediately vacating it.

  In addition to this the opponents are directed to pay Rs.40,000/- (Rupees forty thousand) towards mental agony and Rs.5,000/- (Rupees five thousand) towards litigation expenses to the complainant.

            The opponents shall comply with the direction within 2 months from today otherwise they will be liable to pay interest @ 9% p.a. on the above entire amount from the date of this order till the payment.”

(Extracted from translated copy)

7.      Being aggrieved by the impugned order, the OPs filed an Appeal and the learned State Commission, vide order dated 07.09.2017 dismissed the Appeal and affirmed the District Commission’s order with the following observations:

  “Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

 The appellant has submitted some additional documents with the appeal without seeking permission of the Commission but there seems to be no controversy as regard to documents hence, they are admitted on record.

 As per the contention of the parties there is no dispute about the fact that on 10.10.1988 in the meeting of Allotment Committee of the Housing Board house was allotted to the respondent and necessary amount was deposited by the complainant respondent. Vide Anx. 5 the complainant respondent was informed that instead of 4 ट 24 she has been allotted house no. 4 स 24. Thereafter vide Anx. 22 she was asked to give consent about the allotment of plot no. 3 SP 2 Jawahar Nagar which has not been consented by the complainant.

 The contention of the appellant is that the State Government is a necessary party as under rule 8 the Disposal of property Regulations 1970 only State Government could made the allotment but this contention is not sustainable as this objection has never been raised before the Forum below.

 Per contra it has been admitted on behalf of the appellant that Housing Board has allotted the property to the consumer.

 The other contention of the appellant is that quota was for 15 HIG houses whereas 16 houses were allotted but this contention has also not been raised before the Forum below and no evidence has been submitted to this effect that the complainant respondent was the last allottee out of 16 allotments. Per contra the minutes of the allotment committee dated 10.10.1988 clearly reveals that to four persons allotment was made in Higher Income Group and present respondent was the second in number. Hence, the contention of the appellant as regard to allotment in excess to the quota is not available to the appellant.

 The counsel for the appellant has vehemently argued that the respondent never consented for the allotment of plot no. 3 SP 2 Jawahar Nagar but this argument has no force as the appellants were not entitled to seek consent of the respondent for a plot instead of house in 2007 when the allotment was made to the complainant respondent way back in the year 1988 and no reason were assigned that why the impugned houses i.e. 4 ट 24 and 4 स 24 were not available for the complainant respondent. Hence, when the allotment was made to the complainant respondent it was the duty of the appellants to give possession of the same to the complainant respondent and the reasons best known to the appellants physical possession has not been handed over to the complainant and the Forum below has rightly observed that it is deficiency on the part of the appellant

 The other contention of the appellants is that now both the houses 4 ट 24 and 4 स 24 are not available with the Housing Board and hence the claim seems to be impossible and reliance has been placed on the judgment passed the Allahabad High Court in the case of Shah Alam Wasiullah Khan Vs. Central Administrative Tribunal (2005 O Supreme (All) 2402) where the supreme court has held that no one could be bound for impossibility. There cannot be dispute about this preposition but here in the present case it is admitted fact between the parties that in the meeting of the Allotment Committee dated 10.10.1988 the house was allotted to the complainant respondent and vide Anx. 5 dated 20.3.1989 it was informed to her that instead of 4 ट 24 she has been allotted House No. 4 स 24 meaning thereby that prior to this communication she was allotted the House No. 4 ट 24 and till that date both these houses were available with the Housing Board.

 To utter surprise of this Commission vide Anx. A 22 dated 3.10.2007 it was informed that House No. 4 स 24 is reserved for Housing Commissioner but the same house was allotted to Rajasthan Aavas Vikas and Infrastructure Ltd. vide Anx. A 28 on 21.6.2013 whereas the present complaint was pending before the Forum below since 14.12.2010 and it was in the knowledge of the appellants that impugned houses are in dispute and as regard House No. 4 ट 24 it was allotted to Salima Mateem on 14.6.2000. Hence, it cannot be said that it was not in the control of the Housing Board to give possession of House No. 4 स 24 as it was in the possession of the Housing Board till 2013 when it was allotted to Rajasthan Aavas Vikas and Infrastructure Ltd. and it shows that with malafide intentions just to frustrate the cause of the complainant this allotment has been made. Earlier vide Anx. A22 it was stated that it is reserved for Housing Commissioner and thereafter it was allotted to Rajasthan Aavas Vikas and Infrastructure Ltd. which shows the intention of the Housing Board.

The appellant has relied upon 1994 O AIR (Raj.) 77 Bhagwan Dhan Vs. Rajasthan Housing Board where disputed properties were not available with the Housing Board hence, appropriate order has been passed but here in the present case this is not the case between the parties that the houses were not available with the appellants but just to frustrate the cause the appellant deliberately has allotted the house to others.

Further reliance has been placed on the judgment passed by the National Commission in Revision Petition No.3592/ 2007 Bimlesh Sukhuja Vs. Ansal Housing Construction wherein after disposal of the complaint the impugned house was allotted to some other person which is not the case here.

Per contra here in the present case the house has been allotted to other person just to frustrate the claim of the complainant. Hence, the Forum below has rightly held that the appellant is the mischievous businessmen, and claim has rightly been allowed.

The contention of the appellant is that the complaint is time barred as in 2007 the complainant was asked to furnish consent for other plot and reliance has been placed on 2013 4 CPR (SC) 427 State Bank of India Vs.- B.S. Agricultural Industries and 2015 I CPR (NC) 558 Smt. Harbhajan Sharma Vs. Haryana Urban Development Authority where on the facts of the case the complaint is found to be time barred but here in the present case inspite of the allotment possession of the property was not handed over to the complainant respondent and she was having continuous cause of the action. Hence, contention as regard to limitation is not sustainable.

In view of the above there is no merit in this appeal and liable to be dismissed.”

8.      Being dissatisfied the impugned order dated 07.09.2017 of the State Commission, the Petitioner/OP filed this Revision Petition.

9.      In his arguments, the learned Counsel for the Petitioner/OP reiterated the grounds stated in the Revision Petition and emphasized that the Fora below misunderstood the facts. There was no actual allotment of House No. 4-Sa-24 in Jawahar Nagar to the respondent. The Urban Development and Housing (UDH) Dept’s letter dated 20.03.1989 was a mere recommendation for changing the house number, not an actual allotment by the Housing Board, and therefore, it was not binding on the Board. The petitioner emphasized that several attempts were made to seek her consent for alternate allotments in other schemes, such as the Sanganer or Mansarovar Scheme, as per the recommendation of the State Govt on 1.10.1993. However, neither the respondent nor the State Government responded or amended their original recommendation. The petitioner argued that the complaint, filed in 2010, was time-barred. The Fora below failed to consider the precedent set in State Bank of India vs. B.S. Agricultural Industries and Smt. Harbhajan Sharma vs. HUDA & Anr., (2015) 1 CPJ 672, which would make the complaint inadmissible due to the lapse of time. The petitioner invokes legal doctrines like "lex non cogit ad impossibilia" (the law does not compel a man to do what he cannot perform) and "impossibilium nulla obligatio est" (no obligation to do the impossible), arguing that it was impossible for the Housing Board to comply with the order as House No. 4-Sa-24 was reserved for the Housing Commissioner. They cited Narmada Bachao Andolan vs. State of Madhya Pradesh and other cases to assert that the law excuses actions rendered impossible due to uncontrollable circumstances. The petitioner asserted that the Fora below erred by relying blindly on the respondent's version without proper evidence. They misinterpreted the recommendation from the UDH Department as an actual allotment by the Housing Board. The petitioner clarified that the board meeting on 10.10.1988 only mentioned the respondent's name on a list recommended by the State Government for 1% quota houses under Rule 8(A) of the Disposal of Property Regulations, 1970. The final allotment was subject to house availability, and no binding decision to allot House No. 4-Sa-24 was made.  The petitioner emphasizes that House No. 4-Sa-24 was not available for allotment. It was reserved for the Housing Commissioner, and thus the Housing Board cannot comply with the impugned orders to allot the house. The petitioner contends that the respondent merely recommended the applicant for future allotment under a government quota and not a "consumer" under the Consumer Protection Act. Since there was no direct relationship or agreement for a specific house, the respondent is not entitled to relief under consumer law. The order for punitive compensation of Rs. 40,000 and litigation expenses of Rs. 5,000 is alleged to be illegal, arbitrary, and biased. The petitioner argues that there was no deficiency in service or unfair trade practice on their part, so such compensation should not have been awarded. The petitioner cited cases like Kanpur Development Authority vs. Sheela Devi & Ors. (2004) AIR (SC) 400, to support their argument that the order to allot House No. 4-Sa-24 at old rates is legally unsustainable because no such allotment was ever made. The petitioner requested the dismissal of the respondent's complaint and sought to set aside or modify the orders of the State Commission (dated 7.09.2017) and District Forum (dated 30.03.2016) and Dismissal of the complaint filed by the respondent.

10.    On the other hand, the learned Counsel for the Respondent/ Complainant argued in favour of the concurrent finding of the Fora below and contended that after allotment, the possession was not given constituted continuous cause of action. The Respondent sought the dismissal of the Revision Petition with costs, arguing that the Petitioner’s contentions were not legally tenable.

11.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsel for the Parties.

12.    The sole issue revolves in the present case is whether the complaint filed before the District Forum was time barred.

13.    Admittedly, the complainant was allotted reserved House No. 4 ट 24 and thereafter changed to House No. 4 स 24 in 2007 and the complainant had filed the complaint before the District Forum in 2010 as the possession of the House Reserved for the Complainant was not handed over. The learned State Commission expressed surprise when the OP informed the State Commission that vide Annexure P-13 dated 03.10.2007 that House No. 4 स 24 is reserved for Housing Commissioner. However, the same house was allotted to Rajasthan Aavas Vikas and Infrastructure Ltd. vide letter dated 21.6.2013, while the complaint of the complainant was pending before the District Forum since 14.12.2010. Further, it was also revealed that while the allotment both the said houses are sub-judice, the OP had allotted House No. 4 ट 24 to Salima Mateem on 14.06.2000. Therefore, after taking wanton actions, the claim of impossibility of allotment of the house to the complainant is untenable as House No. 4 स 24 was in the possession of the OP Housing Board till 2013, when it was allotted to Rajasthan Aavas Vikas and Infrastructure Ltd.

14.    The Hon’ble Supreme Court in the case of M/s.Samruddhi Cooperative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd., 2022 LiveLaw (SC) 36 held as under:

13       In CWT v. Suresh Seth (1981) 2 SCC 790, a two-judge Bench of this Court dealt with the question of whether a default in filing a return under the Wealth Tax Act amounted to a continuing wrong. Justice ES Venkataramia (as the learned Chief Justice then was) observed that:

“11. […] The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause of file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of delayed return the penalty may be correlated to the time-lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression “a continuing cause of action” Lord Lindley in Hole v. Chard Union [(1894) 1 Ch D 293 : 63 LJ Ch 469 : 70 LT 52] observed:

“What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.”

(emphasis supplied)

The Court further provided illustrations of continuous wrongs:

“17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well-being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability, as the case may be, de die in diem.”

14  In M. Siddiq v. Suresh Das (2020) 1 SCC, a Constitution Bench of this Court (of which one of us (Justice DY Chandrachud) was a part) examined the precedents with regards to a continuing wrong. The Court observed that:

“343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission, a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, whether positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. […]

Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may ensue in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation.”

(emphasis supplied)

15  A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land, encumbrances on the land, fixtures, fittings and amenities to be provided, and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under the agreement to sell between the members of the appellant and the respondent on the latter.

15.    In the case in question, admittedly, the Petitioner/OP allotted the reserved house to the Complainant but the possession was not handed over. Considering the facts and circumstances of the case and the observations of Hon’ble Supreme Court in M/s. Samruddhi Cooperative Housing Society Ltd. (supra), I am of the considered view that the failure of the Petitioner/OP to handover the allotted reserved house to the complainant constitutes a continuing wrong.

16.    The learned District Forum went into details and passed a detailed and well-reasoned order based on evidence. The learned State Commission, after due consideration of the pleadings and arguments, determined that no intervention is warranted. Also in the present case, the petitioner made out no ground by producing any evidence to substantiate the claim for interference in the concurrent orders passed by both the said fora. Under these circumstances, I find no reason to interfere with the detailed and well-reasoned orders of learned District Forum and State Commission.

17.    It is a well settled position in law that the scope for Revision under Section 21(b) of the Consumer Protection Act, 1986 and now under Section 58(1)(b) of the Act, 2019 confers very limited scope and jurisdiction on this Commission. In the present case, there are concurrent reasoned findings of the facts and the revisional jurisdiction of this Commission is limited. After due consideration of the entire material, I do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by the learned State Commission warranting our interference in revisional jurisdiction under the Act. I place reliance on the decision of Hon’ble Supreme Court in the case of ‘Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269.

18.    In addition, Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. SBI & Anr  CA No. 432 of 2022 Order dated 21.01.2022 observed:

“9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

19.    Similarly, the Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31 has held:- 

As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.

20.    Based on the deliberations above, I do not find any merit in the present Revision Petition No. 3900 of 2017 is, therefore, Dismissed.

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