OFFICERS CO. OPERATIVE HOUSING SOCIETY LTD. vs K.V. RAMANI

THIS is an appeal against the order passed in Original Petition No. 223 of 1991 in the file of the State Commission of Tamil Nadu. The said complaint was disposed of by that Commission by this order on 7th August, 1992. The complainant before the State Commission was a member of the appellant-Co-operative Society. The Co-operative Society was a Housing Society under- taking construction of flats on the vacant land which it had purchased for its members. The respondent-complainant had approached the Society for the construction and delivery of a flat in one of the blocks on the first, second or third floor for a sum of Rs. 1,36,800/-. THIS amount was paid by the respondent-complainant in two instalments by 10th June, 1989. In the first draw of lots for allotment of flats conducted on the 21st of May, 1989 the name of the complainant was not included and he was allotted a left over flat on the ground floor. He also refused to take any other flat. The respondent-complainant did not accept this allotment and charged the Society with having committed irregularity in the draw of lots for allotment of flats viz. that the society had unilaterally revised the plan and allotted flats indiscriminately. By the time of the draw, he had paid only Rs. 30,000 (paid on 10.3.1989) and there was a balance of Rs. 1,06,800/- due from him which was paid on 10th June, 1989. The Appellant-Opposite Party eventually refunded the amount of Rs. 1,36,800/- on 28th September, 1991 by cheque but the respondent complainant did not encash the same. He filed a complaint before the Consumer Forum for allotment of a flat of the same area and floor level as per the original plan and claimed interest on the amount already deposited by him. In the alternative he claimed Rs. 6,00,000/- for having to find an alternative flat.

THE State Commission in its order noted that the complainant at the time of draw held on 21st May, 1989 had paid Rs. 30,000/- and the is balance was paid only on 10th June, 1989. This is evidenced by Exhibit 7 of the State Commission''s order. However, it went on to observe "But there was nothing to show that at the time of the draw of the lot, the members must have paid the full amount. So, it cannot, therefore, be said that there was any default on the part of the complainant and on account of that default, his name was not included in the draw held on 21.5.1989". THE alternative flat offered by the Society to the complainant was not accepted by him on one ground or the other and he continued to insist upon the allotment of flat on the first floor or third floor in Block ''F'' as originally agreed upon. THE State Commission concluded that the failure of the appellant ''Opposite Party to allot the said flat to the complainant amounted to deficiency in service and negligence. THE State Commission, thereafter, proceeded to grant the following reliefs: 1. THE Opposite Party shall pay interest at 24% p.a. to the complainant on the sum of Rs. 30,000/- from 10.3.89 and on the sum of Rs. 1,06,800/- from 10.6.89 till 20.8.91. 2. THE Opposite Party shall also pay to the complainant a sum of Rs. 50,000/- as compensation. 3. THE Opposite Party shall also pay to the complainant Rs. 1,000/- as costs.

The whole question of deficiency in service centres around the allegation that the name of the complainant was wrongly and unfairly excluded from the draw held on 21st May, 1989. It has been the contention of the respondent-complainant that he had the right to get his name included in the draw of lots and as his name was wrongly excluded, he had been deprived of an opportunity of allotment of flat of his choice.

At the hearing the appellant-Opposite Party was asked to produce the bye-laws of the Housing Society and the regulations they have made regarding procedure to be adopted for allotment of flats.

THE appellant has produced before us the "Rules Governing Drawal of Lots for Deciding Allotment of Hats to Individual Member Allotees of ''F'' Block Project". Clause 6 of these rules lays down as under: "6. Only those members who have paid such portion the cost representing the land cost are alone eligible to participate in the drawal of lots. Those who have not paid the above cost to the Society till the date of drawal of lots are not eligible for participating in the drawal of lots. Those who have paid only a part of the above amount will not be considered for the drawal of lots. However, the Society may consider allotment of flats to those members de- pending on the availability of the flats, when vacancy arises." The respondent-complainant cannot assail the action of the Society in excluding his name from draw of lots as the draw of lots was governed by these rules. On the date of the draw of lots the complainant had not paid in full the land cost. The appellant-Opposite party had also informed the complainant by a letter of 1st May, 1989 that "those members who have not paid the full land cost are not eligible to participate in the drawal of lots."

AGAIN, on the 7th May, 1991 the appellant Society informed the complainant that if the respondent or any other member did not pay the land cost, it would be considered that he was no longer interested to continue in the scheme. Despite this notice the respondent-complainant did not pay the amount. Hence, his name could not be included in the second draw also. Eventually, therefore, the appellant-Opposite Party refunded the amounts of deposit. In view of the above facts, we cannot uphold the finding of the State Commission that the name of the respondent-complainant was wrongfully and unfairly excluded from the draw of lots and that he was unfairly deprived of getting the allotment of a flat 6f his choice and that therefore, there was a deficiency in service. In view of the above finding, the appeal is al- lowed and the order of State Commission is set aside. There is no order as to costs. Appeal allowed.