PER MR SUBHASH CHANDRA

1.     This revision petition filed under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Dispute Redressal Commission, Rajasthan, Udaipur  (in short, ‘State Commission’) in Appeal No. 302 of 2012 dated 19.05.2015 (as corrected on 21.07.2015) and Appeal No. 62 of 2013. These orders emerge form appeals against orders in consumer complaint no. 169 of 2009 of the District Consumer Disputes Redressal Commission, Udaipur (in short, ‘District Forum’) dated 19.09.2012. This order will also dispose RP 2362 of 2015. For convenience, the facts of the case are taken from RP 2361 of 2015.

2.     The brief facts of the case as stated by the petitioner are that it had a scheme in 1981 for MIG ‘B’ houses under the General Registration Scheme with a registration fee of Rs.4,600/-. The respondent had registered for it and priority no. GI/HP/352 was allotted to him. The scheme required payment of Rs.1,05,000/- in three installments within the 1^st, 7^th and 13^th months from the date of the demand letter. By way of a publication in a local newspaper, Rajasthan Patrika, the petitioner informed applicants who had not received intimation of reservation or had not deposited the allotment amounts to contact the petitioner and deposit the same by 30.05.1995. The respondent failed to deposit the amount. A reminder was sent by registered post to the respondent who again failed to deposit the amount due. The petitioner then proceeded to cancel his reservation on 24.07.1995 as per Rule 9(3) of the Disposal of Property Regulation, 1970. The respondent sent a legal notice on 02.01.2009, i.e. 14 years after the cancellation, to the respondent seeking allotment of a plot to him. A consumer complaint no. 169 of 2009 was also filed before the District Forum in November, 2011. The District Forum, on contest, allowed the complaint without condoning the delay and awarded compensation of Rs.1,00,000/-, Rs.4,600/- with 9% interest from 30.03.1981 and Rs. 5,000/- as litigation costs. The petitioner filed Appeal No. 302 of 2014 before the State Commission against this order. Respondent also filed Appeal No. 62 of 2013. These appeals were disposed off by a common order dated 19.05.2015 by the State Commission. Appeal No. 302 of 2012 was dismissed and Appeal No. 62 of 2013 was allowed.

3.     This order has been challenged by way of the present Revision Petition before this Commission on the grounds that the lower fora failed to appreciate that the delay in filing the complaint was of 14 years whereas section 24A of the Act provides for complaints to be filed within 2 years of the cause of action. Reliance is placed on the judgment of the Hon’ble Supreme Court in State Bank of India Vs. BS Agricultural Industries, (2009) 5 SCC 121 which laid down that ”If the complaint is barred by time and yet the consumer forum  decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such an order set aside.” It is the petitioner’s case that the respondent is an advocate who, by his own admission, had pursued his case by visiting the office of the petitioner’s office several times and that the lower fora erred in considering the cause of action from 16.05.2009, the date of the legal notice, since the cancellation had been conveyed to the respondent by way of a registered letter after due reminders with postal receipts. The petitioner also states that the respondent was ineligible for the allotment under the scheme since he already owned a residential plot no. 49, Udaipur Adarsh Housing Society, Hiran Nagri, Sector 4, Udaipur. The petitioner has therefore, prayed for setting aside the order dated 19.05.2015 (as corrected on 21.07.2015) of the State Commission in Appeal No. 302 of 2012 and Appeal No. 62 of 2013.

4.      The respondent has contended by way of written synopsis that he booked an MIG House on 30.03.1981a with RHB Udaipur and depositing an initial amount of Rs.4600/-. After five years in 1986, the RHB informed the respondent that his seniority/ priority number was 352 as per the computerized draw conducted on 20.11.1986. RHB started the process for allotment of house in March 1995. Respondent further stated that the concerned officer of RHB informed him that his file is missing. The respondent has further stated that he visited the office of RHB on numerous times, but he was informed that the allotment letter would be issued once his file is traced. As there was no information about his house the respondent sent a notice to the petitioner on 02.01.2009. However, the petitioner did not give any response to his notice. Thereafter, the respondent lodged a complaint before the District Forum, Udaipur on 12.11.2009 praying for allotment of house along with compensation and damages to the tune of Rs.1,62,000/-. The District Forum allowed the complaint in favour of the respondent by directing the petitioner to pay Rs.1,00,000/- towards mental agony and other damages along with Rs.4600/- from 30.03.1981 at 9% interest and Rs.5000/- towards cost of proceedings to the respondent/ complainant within two months failing which interest @ 18% per annum on the whole amount in favour of respondent/ complainant.

5.      We have heard the learned counsels for both the parties and perused the material on record carefully.

6.     It is apparent from the record that the District Forum allowed the complaint on the finding that opposite party (petitioner herein) failed to produce evidence of having noticed the petitioner (respondent herein) as the relevant file was missing in their office. It was held that even if the reservation/allotment was cancelled, the registration amount should have been refunded which was not done, with the stipulated forfeiture of 20%. The State Commission dismissed Appeal No. 302 of 2012 and upheld the order of the District Forum in Appeal No. 62 of 2013 holding that:

8. It appears from the photocopy of a notification in a local newspaper that public notice was published on 26.01.1994, wherein all the registered applicants were informed that if they did not receive any reservation letter then they could contact the estate officer of the RHB in this regard. The learned council for the RHB contended that after such general notification in the newspaper, if the complainant did not contact the authorities of the RHB and did not deposit any seed money as demanded, then his registration stood cancelled automatically. This contention of the learned council does not sound good and we are in agreement with the conclusions arrived at and findings given by the learned DCF in this regard that it was the duty of the RHB to personally inform the complainant about demand of seed money . As no copy of such demand notice or dispatch number of the postal receipt of the same has been produced by the RHB then a strong presumption arises against it that no such demand notice was ever issued or sent to the complainant.

9.       It is an admitted fact the initial booking amount of Rs.4600 deposited by the complainant is still lying with the RHB and had the registration of the complainant been cancelled, then the booking amount should have been refunded to the complainant after deduction of 20% of the registration amount as per Rule 9 of Disposal of Property Regulations, 1970 of the RHB. As this amount has not been refunded to the complainant till date and hence the cause of action for the present complaint still survives and the contention of the learned council for the RHB that the present complaint is time barred as it has been filed 23 years after the cause of action arose, does not hold good. This view of ours gets support from the judgments of the Hon’ble National Commission in Revision Petition No. 838 of 2012 (HUDA and Ors. Vs Major KL Monga) decided on 09.12.2012, Revision Petition No. 668 of 2013 (Bhagya Lakshmi Construction Vs Shri Manoranjan Basak and Ors.) decided on 31.05.2013 and 2014 (4) CPR 21 Madan Lal Sunger Vs Rajasthan Housing Board. As per the law laid down by the Hon’ble National Commission in the aforesaid judgments the cause of action survives to the complainant till the possession is handed over to him.

Similarly the Hon’ble Supreme Court in 2001 (SCC) 586 III (1999) CPJ 46 (Lata Construction and Ors. Vs. Dr. Ramesh Chandra Ramniklal Shah) has held down that the cause of action survives to the allottee till the possession is handed over to him and a complaint cannot be dismissed on the ground of limitation.

…. There was no specific date fixed in the present matter either for allotment of the house or for giving possession to the complainant and when nothing was done by the RHB for allotment of the house till January 2009, then the complainant was compelled to give a notice to the RHB on 02/01/2009, which was not responded to by it. It is pertinent to mention here that the entire file of the complainant had been misplaced by the officers of the RHB and the same is not traceable till date and there is no evidence to show that any demand notice for depositing seed money was ever sent or communicated to the complainant then such an act and conduct of the RHB amounts to gross deficiency on their part and the findings given and the conclusions arrived at by the learned DCF in this regard are totally correct and justifiable.

12.     Though, the learned DCF held the RHB liable for deficiency in service on their part, but it did not grant any relief to the complainant with regard to the allotment to the house. There is no fault of the complainant for not depositing any seed money as he had never been communicated in this regard by the RHB. Therefore, we deem it proper to modify the impugned judgment, while allowing the appeal of the complainant and direct the RHB to  allot a MIG-B house to the complainant at the rates prevailing in 1995 when he was allegedly informed for depositing the seed money. The RHB shall be at liberty to demand from the complainant the cost/price of the house prevailing in 1995 and after deposit of said amount by the complainant, it shall allot a house to him. We do not want to interfere in the amount of compensation awarded by the learned DCF and RHB shall not be liable to refund Rs 4600/-, the initial booking amount as directed by the learned DCF.

7.     It is evident that both the fora below have arrived at concurrent findings and ordered in favour of the respondent. The State Commission has further directed the allotment of a house while disallowing the refund of the registration amount with interest as ordered by the District Forum. Reasoned and detailed orders have been pronounced by both the lower fora. This Commission has limited revisional powers under section 21 (b) of the Act. This power can be invoked only in cases of jurisdictional error or miscarriage of justice or illegality as laid down by the Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., (2011) 11 SCC 269 that:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

8.    In view of the above, the revision petition no. 2361 of 2015 is dismissed. Revision petition no. 2362 of 2015, which is also disposed off by way of this order, is allowed.