JUSTICE SUDIP AHLUWALIA, MEMBER

The present Revision Petition under Section 21(b) of Consumer Protection Act, 1986 (hereinafter referred to as “Act”) has been filed by Rajasthan Housing Board against the impugned Order dated 12.09.2017 passed by the State Consumer Disputes Redressal Commission, Rajasthan in First Appeal Nos. 822 & 864 of 2016 whereby the Appeal filed by Sudarshan Kumar Laddha in First Appeal No. 822 of 2016 was allowed and First Appeal No. 864 of 2016 filed by the Petitioner was dismissed.

2.      Brief facts of the case as per the Complaint are that the Petitioner launched a Multi-Storey Group Housing Scheme namely ‘Dwarikapuri Special Registration Scheme-2005’ for the Economically Weaker Sections of Jaipur city in Pratap Nagar, Sanganer, Jaipur, Rajasthan for allotment of flats for which application forms had to be submitted between 16.12.2005 to 07.01.2006 alongwith registration amount. The Complainant applied for a Flat/House in the above scheme on 06.01.2006 vide Application Form No. 10369 and accordingly deposited ₹10,000/- as per the Schedule.  After receiving application forms from all the applicants, the Petitioner selected the names of applicants through lottery system and the name of Complainant was included in the list of applicants selected through lottery having application no. 2005/10369, but the Complainant was not allotted house despite repeated communication by the Complainant with the Petitioner. Thereafter, through a letter dated 07.05.2007 the Complainant was informed that his income was found more than what was declared in the application form in the enquiry conducted by an independent agency and therefore the Complainant cannot be allotted house. The Complainant then approached the Petitioner’s office and intimated in writing that no person of Petitioner or any other agency came to the Complainant to enquire regarding his income and therefore the allotment was cancelled in an arbitrary manner without any verification and also returned the cheque dated 07.05.07 of the amount of ₹9,500/- that was issued by the Petitioner. The Complainant was asked to come again after one week but no satisfactory reply was given by Petitioner even on the second visit nor the house was allotted. It is the allegation of the Complainant hat the allotment letter was cancelled without any grounds and without conducting any enquiry on the ground that his income is higher than that described in application form, despite the fact that the name of the Complainant was among the selected applicants, whereas the Complainant and his spouse do not have any house in their names in Jaipur and are residing in a rented house. The Complainant filed his Complaint before District Consumer Disputes Redressal Commission, Second, Jaipur alleging grave mental and physical harassment due to non-allotment of the house, and prayed for compensation of ₹50,000/- along with allotment of the house.

3.      The District Commission vide its Order dated 13.05.2016 partly allowed the Complaint and directed the Petitioner to allot the Flat to the Complainant in the Housing Scheme in question. The relevant Order of the District Commission is set out below(excerpts from translated copy) -

“Therefore partly allowing the Complaint of Complainant, the Opponent is directed that the flat shall be allotted to the Complainant in the concerned Dwarkapuri housing scheme in question on the basis of registration of complainant. The current value of the house shall be determined and it may be recovered from the Complainant. The Opponent will be entitled to interest @9% per annum on this amount from Complainant from the date of fixing the cost till the date of delivery of possession of the house to Complainant. The Order of Opponent for cancelling the above registration of Complainant is set-aside. In relation to the litigation expenses the Complainant is entitled to get compensation of ₹10,000/- (Ten Thousand Only). One month time is given for compliance of the Order.”

4.      Aggrieved by the Order of the District Commission, the Petitioner and the Complainant filed two First Appeals before the State Commission. The Petitioner prayed for dismissal of the Complaint and setting aside the Order while the Complainant prayed for modification of Order to the extent that the direction for him to pay 9% interest to the Petitioner should be set-aside. The State Commission allowed the Appeal of the Complainant and dismissed that of the Petitioner. The relevant paragraph of the Order of the State Commission is reproduced (excerpt from translated copy) -

“It is also clear from the above facts that the allotment of consumer was cancelled in the year 2007 without any reasons and it was deficiency in services on the part of Housing Board, therefore the consumer has suffered mental agony, therefore entitled to the compensation of ₹30,000/- in this regard. Therefore, the appeal of housing board is liable to dismissed, which is hereby dismissed.

          The appeal filed by Consumer is partly allowed, by modifying the order of District Forum to the extent that the direction to the complainant to pay interest @9% per annum from the date of fixing the cost till the date of possession of house is set-aside and the Consumer is entitled to compensation of ₹30,000/- towards mental agony. The remaining order of the District Forum is upheld, accordingly both the appeals are disposed of.” 

5.      Ld. Counsel for Petitioner argued that the Petitioner Board issued work order no. 119 dated 27.05.2006 in favour of M/s C.M. Birla & Co. The investigating agency visited the residence of Respondent on 19.07.2006 and met the wife of Respondent there and found that the Respondent was earning ₹7,000/- to ₹8,000/- per month and the spouse of Respondent was also working and earning ₹1,500/- per month and the Respondent owned a two-wheeler and was living on rent of Pukka construction in a plot of 150 Sq. Yd. with car parking on monthly rent of ₹3,000/-, the child of Respondent is school going, and threfore concluded that the Respondent was not eligible under this scheme which is meant for EWS, and submitted the verification report with the Petitioner. The Petitioner cancelled the registration amount and priority number of Respondent and refunded the registration amount vide cheque dated 07.05.2007 after deducting ₹500/- being 5% of the registration amount as per the terms and conditions of the Scheme giving detailed reasons. The Orders of the District Commission and the State Commission are consequently liable to be set-aside, as they had failed to appreciate the fact that the Respondent was not entitled to the reliefs as being not eligible as EWS. Further, the Petitioner Board is working on a no-profit-no-loss basis for the welfare of general public and therefore huge compensation was not warranted. The State Commission erred by wrongly enhancing the compensation. By merely paying the registration amount, the Respondent does not become a consumer under the Section 2(d) of the Act. The Order of the State Commission is against a number of landmark judgments of the Hon’ble Supreme Court which have held that the costing of house cannot be challenged before Consumer Fora, also ignoring the Order of this Commission in Housing Board Haryana v. Kartar Singh & Ors. and awarded compensation on the basis of assumptions and presumptions, which is not sustainable in the eyes of law. The Consumer Fora cannot assume powers of Civil Court and it cannot direct delivery of possession which amounts to grant of specific performance under civil jurisdiction as held by the Hon’ble Supreme Court in Ghaziabad Development Authority v. Ved Prakash Agrawal (II 2008 CPJ 13 SC). Further, both the lower fora failed to appreciate the judgment of DDA v. Puspendra Singh Jain, Kishandas M. Inani v. Secretary Rajasthan Housing Board, Mukund Damodar Raghav v. CIDCO Ltd., Bareilly Development Authority v. Ajay Pal Singh wherein it is settled law that the Consumer Fora cannot go into the question of pricing of house/flat and mere registration does not entitle the applicant to get the house allotted at a price mentioned in the booklet. The State and District Commission thus acted erroneously by not appreciating the material facts proved on record that the entire action for independent enquiry was to protect the interest of genuine consumers and registered members of economically weaker section on the basis of State Govt. policy. Hence, the Orders of the State and District Commission are liable to be set-aside.

6.      Per Contra, Ld. Counsel for Respondent/Complainant has argued that the Order passed by the State Commission was valid and justified having no reason for interference. The State Commission modified and upheld the Order of the District Commission by appreciating the facts on record. The Petitioner filed the present Revision Petition before this Commission only on the basis of Annexure-3 but had failed to prove the Annexure-3 in both the Fora below. The Complainant/Respondent filed affidavit in support of his income while the Petitioner has not filed any affidavit or other evidence to prove Annexure-3. The said Annexure has been prepared by a private authority which has no value in the eyes of law.  Ld. Counsel for the Respondent further argued that the Respondent has been deprived of his right since 2006 and has not got possession of the house. It is a deficiency of service in part of Petitioner and the Respondent is entitled to compensation, as per the Order passed by the State Commission. The Order of the State Commission and District Commission is justified and needs no interference.

7.      We have heard the Learned Counsel of both parties and have gone through the material available on record.

8.      It may be observed at the very outset that in its Revisional Jurisdiction, the scope for this Commission to interfere with the concurrent decisions of the lower Fora is very limited. Clearly there has been no exercise of any jurisdiction not possessed by both the Ld. Fora below, nor any material irregularity in exercise of their respective jurisdictions.

9.      Contention of the Petitioner/Opposite Party is that both the Ld. Fora have failed to appreciate that the complainant was not entitled to allotment of the Flat as he being an Advocate, was having income which exceeded the benchmark to qualify for such allotment in the EWS category. It may be mentioned that the complainant had stated in his application that his income was to the tune of Rs. 56,000/– per annum. But, the Opposite Party claimed that being an Advocate, he had an income in the range of Rs.7,000 to Rs.8,000/- p.m., and in addition, his wife was doing private tuitions from which she was additionally earning around Rs.1500/- p.m.  No document in support of these contentions was however placed before the lower Fora. The Petitioner/Opposite Party merely relied on the report of its private Investigator- M/s C.M. Birla & Co., Jaipur, for verification of the contents of the various applications submitted to it.  The aforesaid information, was noted therein purportedly from the statements given by the Complainant’s wife, but not even her signature was obtained by the concerned Investigator, whose Affidavit in support of his report was also not filed.  Both the Ld. Fora below were therefore eminently justified, in not accepting such unsubstantiated report, as against the Complainant’s specific statement on oath regarding his income in the relevant year i.e., 2005. Furthermore, neither any Advertisement pertaining to the relevant Flat Allotment Scheme, nor even its Brochure was filed before either of the lower Fora, and not even before this Commission, to show exactly what was the prescribed income criteria according to the Scheme, for allotment of the Flats in the EWS category.

10.    For the aforesaid reasons, we find no grounds to interfere with the concurrent findings of both the Ld. Fora below, which had held that the rejection of the Complainant’s application for allotment on the ground of his income being excessive was not justified.

11.    We also hold that the compensation awarded to the Complainant towards mental harassment, which has been quantified at Rs. 30,000/-by the Ld. State Commission, is fair and adequate in the given facts and circumstances.

12.    Consequently, both these Revision Petitions are dismissed after holding the impugned Order of the Ld. State Commission.  Parties to bear their own costs.

13.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.