R.K. AGRAWAL, J., PRESIDENT 

1.       For the reasons stated in the application, the delay in filing the Revision Petition is condoned.

2.       Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”), by the Complainant, is to the order dated 28.04.2015, passed by the U.P. State Consumer Disputes Redressal Commission at Lucknow (for short “the State Commission”) in First Appeal No. 959/1995. By the impugned order, while confirming the order dated 05.04.1995 passed by the District Consumer Disputes Redressal Forum, Ghaziabad (for short “the District Forum”) in Complaint No.963/93, the State Commission has dismissed the appeal preferred by the Complainant. By the said order, the District Forum had allowed the Complaint with a direction that if the Petitioner is interested to take house, he would pay the current value to be determined by the Respondent, U.P. Housing and Development Board.

3.       Succinctly put, the facts giving rise to the present Revision Petition, as culled out from the Complaint, are that: in the year 1982, the Petitioner/Complainant applied for registration of allotment of an EWS house consisting of one room, W/C and bathing space under the EWS Housing Scheme, Ghaziabad floated by the Respondent Housing Board for economically weaker section/lower income group. Petitioner paid a sum of ₹500/- as registration amount on 20.04.1982. The total sale consideration of the house was ₹10,000/- to ₹14,000/- which was to be paid in 240 equal monthly instalments of ₹70/- to ₹115/- each. On demand being raised by the Respondent, the Petitioner paid a further amount of ₹500/- on 27.09.1985. According to the Petitioner, it was agreed that the house would be allotted within 3 to 5 years. Since, the Petitioner was not given any house even after waiting for 11 years, alleging deficiency in service on the part of the Respondent, the afore-noted Complaint came to be filed before the District Forum, wherein the Complainant prayed for a direction to the Respondent  to allot an EWS house on the terms and conditions published in the booklet or alternatively to pay a sum of ₹10,000/- per month along with a compensation of ₹25,000/- towards damages, mental agony, harassment, humiliation and financial losses.

4.       Upon notice, the Complaint was contested by the Respondent, by filing Written Version. Besides raising preliminary objections about the maintainability of the Complaint under the Act and that the Respondent was reserving the right to change the price of the house due to escalation in costs of construction; it was pleaded on merits that the costs given in the brochure was tentative and subject to change; the final costs of the house was to be decided at the time of allotment; if the Petitioner was still interested to have the house, he could  be allotted the same on giving the consent and payment of current price; the consent letter which was subject to inclusion of the name of the registered applicant in the draw of lots, was sent to the Petitioner but he did not choose to give his consent as a result of which his name could not be included in draw of lots; as per Rule 5 of the registration form, the Complainant was not entitled to claim any compensation and there was no deficiency in service on the part of the Respondent. 

5.       On appraisal of the evidence adduced before it, the District Forum came to the conclusion that it was not possible to direct the Respondent Housing Board to allot a house to the Petitioner on the price of 1982 when the scheme was launched and accordingly while allowing the complaint, the Petitioner was directed to pay the current price to be determined by the Respondent if he was still desired to take the house. No other relief was granted.

6.       Aggrieved, the Petitioner carried the matter further in Appeal to the State Commission. However, the order of the District Forum was accepted by the Respondent and they did not choose to challenge it. The State Commission, observing that it was an old matter and nobody was representing the Petitioner since 2010, dismissed the appeal and affirmed the order passed by the District Forum.

7.       Hence, the present Revision Petition.  

8.       We have heard the learned Amicus-Curiae, Ms. Anubha Agrawal for the Petitioner and Ms. Veera Kaul Singh, learned Counsel for the Respondent at length and also perused the written submissions filed by them.

9.       The crux of arguments of the Amicus-Curiae for the Petitioner/ Complainant is that the Complainant was registered with the Respondent way back in the year 1982 but he was not given an opportunity to participate in the draw of lots as he was not intimated about the lottery.  The publication in the newspaper was not a proper method of informing the Applicants for sending their consent for being included in draw of lots as there was high probability of not reading such a notification by the poor applicants. It is further pleaded that despite a direction from the District Forum, the Respondent has not allotted a house to the Petitioner even after elapse of a period of 23 years. The Petitioner is ready and willing to take the flat as mentioned in the affidavit filed by the Respondent in terms of the order dated 26.07.2018 passed by this Commission but not at the price mentioned therein since originally the flat was to be allotted for an amount of ₹10,000/- to ₹14,000/- only.

10.     Per contra, Learned Counsel appearing for the Respondent submitted that it would be extremely difficult for them to inform thousand of registered applicants to send their willingness/consent for the draw of lots and therefore, the communication was made by way of publication and general notice in the newspaper. The Petitioner had not given his consent for participation in the draw of lots and cannot now attempt to agitate the issue of non-participation. She further drew our attention to Rules 5 and 15 of the Registration Booklet with the application form which postulate that mere registration by a person does not confer any right or guarantee that the Housing Board is bound to allot a plot or house to the applicant.  Registration Rule 5 and 15 read as under:-

“B) REGISTRATION RULES :

GENERAL :

5.  The registration of a person does not in any way confer any right or guarantee that the Board is bound to allot a plot or house to him, nor will he be entitled to claim any compensation, if he is not allotted the property, as desired by him”.

15.  Board is not bound to allot the house/plots to every registration holders. Those who are not allotted the land/house by the Board are not entitled to claim the dues/amount spent.

11.     She further referred to Rule 30 of the aforesaid Rules. As per Rule 30, the consent of the registered person was necessary for him to be included in the scheme of fresh draws of lots even if he was registered for the said scheme. The Respondent, in accordance with the Rules, published an advertisement in the year 1992 specifying that all the registered applicants in the said scheme were required to give consent for the said allotment for their name to be included in the said draw of lots. But the Petitioner neither gave any application in terms of the aforesaid advertisement nor submitted his consent for his name to be included in the said draw of lots. Further, a second advertisement was published on 15.01.1995 articulating that in case of non-receipt of consent from registered applicants, the properties will be allotted to unregistered applicants through draw of lots. Thereafter, another advertisement or allotment notice was published on 25.09.1995 stating that registered/ unregistered applicants were required to submit their application against all vacant properties till 28.09.1995 and preference was to be given to registered applicants. However, the Petitioner did not take any step to submit his application for the said lottery or give his consent for his name to be included in the draw of lots.  The Petitioner has not been allotted any house or plot due to lapses and inaction on his part, and, therefore, his claim is totally unfounded and without any basis.

13.     At this juncture, it may be noticed that when the Revision Petition was listed for final hearing on 26.07.2018, the following order was passed by the Commission:-

          “   In pursuance of our order dated 12.07.2018, Mr. Pawan Kumar Upadhyay, EMO of the Respondent Board, is present. He states that he will have to find out as to whether any plot/flat is available in any of the scheme or not. He is directed to file an affidavit to that effect as also the price which the Respondent expects, within two weeks.”

14.     In deference to the said order, an affidavit was filed by Mr. Pawan Upadhyay, Estate Manager, U.P. Avas Evam Vikas Parishad on 09.08.2018 stating that there is chance of availability of flat admeasuring 33.59 sq. mtrs. in Mandola Vihar Yozna, Ghaziabad floated in the year 2011 since some of the allottes have defaulted in payment and these flats are subject to auction. The para 4 of the affidavit reads as under:-

“        It is relevant to submit before this Hon’ble Commission that the flats which are available today are subject to auction wherein the rates are fixed according to the size of the flat, the location of the flat i.e. ground floor, first floor, second floor and third floor.  A perusal of the auction booklet of the answering Respondent with regard to the aforesaid scheme of the Parishad would should the price at which the left over flats under different scheme are provided to General Public. The allotment is done by way of auction and a perusal of the auction rates for Mandola Vihar Yozna, Ghaziabad Residential Flat is ₹12.61 lakh for ground floor; ₹11.37 lakhs for first floor; ₹11.23 lakh for second floor and ₹11.09 lakh for third floor.”

15.     Having bestowed our anxious consideration to the facts of the case and the submissions made by the parties, we are of the opinion that it is an admitted case that the Petitioner was registered with the Respondent since 1982 for allotment of an EWS house/plot under EWS Housing Scheme but his name was not included in any of the draw of lots for the last 35 years. The stand of the Respondent is that the Complainant has not given his consent for his name to be included in the draw of lots despite publication of advertisements/general notice in the newspaper. But admittedly, the Complainant could not send his willingness because he could never learn about the lottery draw. Though, it is contended in the Written Version that a communication was sent to the Petitioner to send his consent but no evidence was adduced by the Respondent to prove that Petitioner was ever informed about the draw of lots. Petitioner has also never opted for cancellation of the registration and refund of the registration amount. The Respondent, on its own, sent, vide letter dated 07.01.2017, a cheque for ₹2102/- towards the refund of the registration amount to the Respondent which was not got encashed. In such a situation, Petitioner is certainly entitled for allotment of a house/flat. The Respondent has accepted the order passed by the District Forum and as such it had attained finality against them and they are bound to allot a house/flat, if the Complainant so desires. As per the affidavit filed by the Estate Manager of the Respondent on 09.08.2018, the Complainant can be allotted a flat in Mandola Vihar Yozna, Ghaziabad and the auction rates are ₹12.16 lakhs for ground floor, ₹11.37 lakhs for first floor, ₹11.23 lakh for second floor and ₹11.09 lakhs for third floor for a flat admeasuring 33.59 sq. mtr.   Along with the affidavit, a Booklet indicating the auction price of the flats under Mandola Vihar Yozna has been attached. As per the said Booklet, the price of an EWS flat admeasuring 28.41 sq. mtr. was ₹5.55 Lakhs in comparison to a flat of 33.59 sq. mts. for general category. The Complainant is a senior citizen of 82 years and has been running from pillar to post for the last 35 years to get his flat under the EWS Housing Scheme for weaker section of the Society. Regard being had to a long waiting period of more than 35 years of the Complainant and balancing the equities between the parties, we are of the opinion that the interests of justice would be served if the Respondent is directed to allot a flat at ground floor in Mandola Vihar Yozna, Ghaziabad to the Petitioner subject to his paying a sum of ₹ 2.5 lakhs, to the Respondent towards the consideration of the flat, within a period of six weeks from the date of passing this order. After the allotment and delivery of the flat, the Petitioner shall not transfer or alienate or create any third party right in the said flat for a period of five years. The Revision Petition is disposed of in the above terms with no order as to costs.

16.     Before parting with the case, we place on record our deep appreciation for the valuable assistance rendered by Learned Amicus-Curiae.