HRUSHIKESH SWAIN vs Orissa State Housing Board

APPELLANT was the complainant before the State Commission, where he had filed a complaint alleging deficiency in service on the part of the respondent, Orissa State Housing Board.

VERY briefly the facts of the case are that the respondent floated a scheme for building low category flats at Chandershakerpur in Orissa for which Rs. 1,200 were deposited by the appellant in the year 1985-86. A provisional letter of allotment was issued on 7.8.1987 which stated that the appellant has been allotted a flat No. NC-II-111/9 for which the appellant deposited a sum of Rs. 4,000 on 1.5.1992. Later on the appellant was communicated that he has been allotted LIG Flat No. LC-II 140/24 at Chandershakerpur in lieu of the flat No. 111/9 allotted to him earlier, final cost of which was fixed at Rs. 30,000 and the appellant was directed to deposit the remaining amount of money, over and above deposited by him an also asked to provide non-judicial stamp paper. The appellant wrote to the respondent on 11.6.1992 stating that since he has been allotted 111/9, change of allotment is not in order. Respondent did not relent but instead issued a reminder to the appellant to comply with the requirements mentioned earlier by 24.11.1992 failing which the allotment shall stand automatically cancelled. Since the matter could not be resolved, a complaint was filed before the State Commission, who after hearing the parties dismissed the complaint on two grounds namely, that the flat No. 111/9 is not available for allotment as it has been allotted/in the possession of someone else and secondly the appellant has accepted the cheque for the deposited amount issued by the respondents, hence nothing survives. Aggrieved by this order, this appeal has been filed before us. We heard the learned Counsel for the parties and perused the material on record. Basic facts are not disputed hence are not being reproduced. There is no dispute that originally flat No. 111/9 was allotted and subsequently modified to Flat No. 140/24 under the same scheme. As per material brought on record by the concerned Executive Engineer, this particular flat is not available for allotment as it has been given to some one else, through General Admn. Dept. of the State to someone else. The State Commission passed the order based on material which was before them and after the record was produced by the concerned Executive Engineer. It is also not denied that the appellant was not inclined to accept the flat No. 140/24 in view of which the Housing Board had no other choice but to refund the amount, which was done.

Two points have been made by the learned Counsel for the appellant-one that way back in 1991 flat No. 111/9 was available but it was allotted to somone else and he has tried to file some documents before us in support of such contention. There is neither an application to bring additional evidence on record, as admittedly this material was not before the State Commission. This is the case relating to 1998 and this additional document has been attempted to be brought on record; without seeking the permission of this Commission on 10.3.2006, when the case was already fixed for hearing on 14.3.2006. Since no prayer has been made to lead additional evidence, we refrain from entertaining this document at this stage. Second plea advanced by the appellant is that he received Rs. 7,400 was under protest, but there is no evidence and not such plea is taken even in the Memo of Appeal that this amount was received under protest.

AFTER hearing the learned Counsel, we are of the view that no applicant has a right to a particular flat and it is not in question that appellant was allotted a flat by the respondent; number of this plot was changed but this flat was not acceptable to the appellant, reasons for which are not on record. What one is entitled to is a flat under a scheme and not a particular flat. No one can claim a particular flat, especially when as per material before the State Commission, it is not available for allotment. Secondly, having accepted the refund of amount without demur throws him out of the ambit of being a consumer looking for any allotment of a flat or any habitation. Before us, like before the State Commission, appellant has failed to show us as to why the flat No. L.C. II-140/24 was not acceptable? Was it the area? Location? Or quality of construction? Nothing has been stated, much less any evidence has been laid stating that there was any difference between these two flats. What remains is that the flats were of the same category and under the same scheme. Appellant has completely failed to satisfy us the grounds for non-acceptance of the flat No. 140/24. In the aforementioned circumstances, we see no ground to interfere with the well-reasoned order passed by the State Commission except to the extent that the appellant shall be entitled to interest @ 18% on Rs. 7,400 from the date of deposit till the time this amount was paid to the complainant.

THE appeal stands disposed of in above terms. Appeal disposed of.