PRITPAL KAUR Vs RAJASTHAN HOUSING BOARD KOTA CIRCLE

The present revision petition has been filed against the judgment dated 29.05.2014 of the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Kota (''the State Commission'') in Appeal no. 114 of 2012.

The brief facts of the case as per the petitioner/ complainant are that the petitioner has registered for a house by depositing an amount of Rs.10,000/- but no house was allotted by the respondent for a period of 20 years. On 27.03.1999 a Dhancha (Frame) of a house was allotted to the petitioner for an amount of Rs.6,71,803/- on an instalment of Rs.3,500/- per month. The petitioner refused to take the said house and requested the respondent to give the deposited money back to her along with interest. The petitioner filed case no. 154/ 2002 before the District Forum and the District Forum decided the same on 10.02.2004 in which it was held that the respondent was guilty of unfair trade practice and deficiency in service and in case the petitioner was not interested for getting a residential house then the petitioner was entitled to take her money back along with interest from the respondent. The respondent can neither force the petitioner to accept allotment of a costly house which was beyond her capacity nor can it allot any Dhancha (Frame) of costly house in place of house of lower group income for which she applied forcibly without consent and permission of the allottee. The respondent filed an appeal no. 604/04 against the order of District Forum which was dismissed on 19.01.2007. The petitioner wrote various letters for allotting her a residential house for which she had applied. A final letter was sent on 04.05.2007 but no reply was given by the respondent. The petitioner had prayed to allot her house no. 5/216, Swami Vivekanand Nagar or any other house of same date and same category.

The respondent - Housing Board in their reply stated that after dismissal of the complaint by the State Commission, the deposited amount has been returned. The petitioner was thus thereafter not entitled to get any residential house. The petitioner has filed the complaint on the false facts by concealing material facts. The petitioner had filed an earlier complaint on the basis of false facts, which was dismissed by the Forum and on the basis of provisions of resjudicata no complaint can be filed again on the basis of same facts. The deposit had been returned along with interest as per the order of the District Forum which was confirmed by the State Commission. Further, there was, thereafter no privity of contract remained between both the parties. The respondent prayed that the complaint be dismissed with cost.

The District Consumer Disputes Redressal Forum, Kota (''the District Forum'') vide its order dated 15.05.2012 allowed the complaint and held that: " Conclusively this complaint of the complainant is admitted and order is passed that House no. 5/ 216, Swami Vivekanand Nagar, be allotted to the complainant under the residential scheme, in case it was not possible then allot to her a house any-where in any colony, i.e., Talwandi, Dadawadi etc., for the same. Keeping in view the fact and circumstances of the case both the parties shall bear their own expenses ".

The State Consumer Disputes Redressal Commission, Circuit Bench no. 2, Camp, Kota, Rajasthan vide its order dated 29.05.2014 while allowing the appeal held that: " In our opinion the arguments of the counsel for the complainant has no force that the option was given to the complainant to get allotment of residential house and deposited money back. Our mind has been attracted to which part of the judgment dated 10.02.2004, from which it has been hoped that because the complaint is not interested for getting allotment of a residential house, therefore, her deposited amount be returned along with interest. From which it has been pointed out that she has not given any option for getting residential house or deposited money along with interest. In case in the earlier case the complainant was granted option for getting residential house or deposited money along with interest, then she should comply with the said order. We are fully agreed with the arguments of the counsel for the residential Board that the complaint of the complainant was not maintainable and order passed by District Forum on 15.05.2012 is liable to set aside.

Resultantly, on the basis above all conversations the appeal of the residential board is liable to be accepted and is admitted. The impugned order dated 15.05.2012 passed by the District Forum is set aside".

Hence, the present revision petition.

We have heard the learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has contended that the impugned order passed by the State Commission is wrong, illegal, unjust, unfair, improper and against the fact, law and record. That the District Forum has categorically found that the petitioner was entitled to allotment of a complete house at the booked price as per the scheme. Hence, the reversal of the order of the District Forum by the State Commission is against the law and evidence brought out in this case. Further, the State Commission miserably failed to appreciate the findings of the District Forum that the respondent cannot force the complainant/ petitioner to take a house at a price which was beyond the capacity of the complainant/ petitioner nor the respondent cannot give a Dhancha (Frame) of a house in-spite assuring to provide a complete house without the consent and permission of the allottee. The State Commission also failed to consider that the District Forum in its order dated 10.02.2004 clearly stated that if the petitioner/ complainant is not interested in accepting the house allotted to her, then she was entitled to take her money back along with interest from the respondent. The petitioner, however, was always interested to take a residential house and had never asked the respondent to refund her deposit with interest. The petitioner in fact kept requesting the respondent to give a complete house instead of the allotted Dhancha (Frame) of the house. The respondent always threatened and forced the petitioner to take back the deposited amount, but refused to allot a complete house, as booked by the petitioner. The respondent was fully aware of the directions of the Fora below specifically stating that if the petitioner was not interested of allotting a complete house, only then was she entitled to take back her the money deposited by her back along with interest.

We have carefully gone through the records. The argument of the learned counsel for the petitioner is that the petitioner was always interested in getting a house and not a refund of the deposit with interest. This is contrary to the plea in paragraph 2 of their complaint wherein the petitioner has stated that "the complainant requested the respondent to allot house on the basis of old price when I booked......... that in case it is not possible then return my deposited amount along with interest." Petitioner has also admitted in her complaint that the petitioner had filed a consumer complaint no. 154 of 2002 before the District Forum and on 10.02.2004 the matter was decided by the Forum. From the order we see that the District Forum had observed as under: "The respondent follows the principal of ''no profit and no loss'' in allotment of houses and receive the cost of the houses as per cost which was at the time of registration. But the respondent cannot force any allottee to purchase costly house more than he registered nor the respondent allotted a costly house to any allottee without taking his/ her permission for the same. Before allotment neither the respondent has taken the permission from neither the allottee nor the allottee aware with the cost of the house nor it has been disclosed that the house Dhancha (Frame) will be allotted instead the house for which applied earlier. In case the complainant wants to take her deposited money, she can take it. Suddenly allotting a Dhancha (Frame) of the house more of Rs.5.00 lakh and deducting the amount from the cost of the same without paying to the complainant, this act is against the welfare of the public and registering the house to the consumer receiving amount assuring to provide the house at a minimum cost, then, not allotting house for a period of 20 years, is the breach of trust. Every man cannot make himself ready to purchase a house at a very high cost suddenly. Especially in this situation he will have to need more money making it for residential purposes. In our opinion the acts of the respondent falls under the definition of unfair trade practice and deficiency in service. In case the complainant is not interested to take residential house, then she is entitled to take her money back with interest.

The complaint is partly admitted and the respondent is directed to pay the deposited amount of Rs.1,60,000/- along with interest @ 9% per annum from the date of deposit till its realisation".

The State Commission vide its order dated 10.01.2007 had dismissed the appeal and upheld the order of the District Forum. Instead of filing an execution petition, the petitioner/complainant for reasons best known to her filed a fresh complaint which she could not have done. The District Forum vide order dated 15.05.2012 ordered allotment of house no. 5/ 216 at Swami Vivekanand Nagar and in case it was not possible to allot her a house, then a house should be allotted to her anywhere in any colony, i.e., Talwandi, Dadawadi for the same.

Aggrieved by this order, the respondent had filed an appeal before the State Commission. The State Commission in our view, vide order dated 29.05.2014 allowed the appeal of the respondents correctly holding that "we are fully agreed with the arguments of the counsel for the residential board that the complaint of the complainant was not maintainable and the order passed by the District Forum on 15.05.2012 is liable to be set aside ". We agree that the petitioner could not have filed a second complaint on the same cause of action after exhausting her available remedy by filing a complaint in 2002 and getting an order in her favour in 2004, and then again filing a fresh complaint no. 146 of 2008 by changing the prayer for allotment of a house instead of refund with interest.

The Hon''ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has observed: "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."

Thus, we find that no jurisdictional or legal error has been shown to us in the impugned order to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed.