Rajasthan Housing Board vs L.R. Lotan

PRESENT revision petition has been filed by the petitioner/respondent (in District Forum) against order dated 16-06-2006, passed by State Consumer Disputes Redressal Commission, Jaipur (for short as ?State Commission?).

BRIEF facts of this case are that House No. 4/174 of MIG category situated in Jawaharnagar, Jaipur had been allotted to the respondent (complainant in District Forum) on 21.03.85 which was on the second floor and garage of the said flat is on the ground floor at the corner. Respondent obtained possession of this house on 7.06.85. Near the garage of the respondent there is open land belonging to the petitioner and in front of that land there is a by-pass road and undeveloped colony. Respondent submitted an application for being allotted this open land in the form of ?strip of land? . On this the Chairman of Petitioner?s Board took a decision that land might be allotted at market rate. Then respondent submitted an application on 13.08.02 to the petitioner that other persons had been allotted a strip of land at the rate of allotment of residential houses and therefore he too should be allotted the land at the same rate. On this Chairman of Petitioner?s Board passed order that money be received after increasing the residential rate by 25%. Respondent deposited with petitioner a sum of Rs. 2,93,415/- at the rate of increase of 25% over the rate for residential allotment on 03.09.2004. Respondent, thereafter filed a complaint under Section 12 of the Consumer Protection Act, 1986 before the District Forum and prayed that inspite of deposit of the amount, the strip of land was not allotted to him, whereas others had been issued pattas of strips of land and in this manner petitioner had been deficient in rendering service.

Petitioner in reply to the complaint has stated that respondent had never accepted the proposal given by it. The respondent had deposited the amount of Rs. 2,93,415/- even though there was neither an allotment in his favour nor any demand had been made by the Petitioner?s Board and the said amount had been refunded to him. In this situation, respondent was not entitled to be allotted the land in dispute.

DISTRICT Forum, vide its order dated 9.3.205 allowed the complaint in part and directed that the petitioner should give the disputed land situated near the garage of the respondent, at market rate Rs. 4,450/- per sq. m. on an amount calculated @ 25% of the said rate being deposited by the respondent. Aggrieved by the order of District Forum, both parties filed appeals before the State Commission.

STATE Commission vide impugned order, dismissed both the appeals and affirmed the order of District Forum. Now petitioner has challenged the impugned order by way of the present revision petition. Reply to the revision petition has been filed on behalf of respondent.

BOTH parties have also filed written submissions in support of their case and have advanced oral arguments.

IT is contended by learned counsel for the petitioner that no allotment whatsoever has been made by the petitioner in favour of the respondent with regard to the land in dispute nor any agreement has been arrived at between the parties. 12.IT is further contended that dispute raised by the respondent cannot be said to be a consumer dispute nor respondent can be said to be a consumer, qua the petitioner. 13. IT is also contended that Allotment Committee of the Petitioner?s Board, vide decision dated 29.7.2004 has decided not to allot the land in question to the respondent and respondent had been intimated of the said decision by letter dated 12.10.2004. 14. Further, it is contended that english translation submitted by respondent of Annexure-R2 is wrong and correct translation has been furnished by the petitioner. 15. On the other hand, it is contended by learned counsel for the respondent that this plea of the petitioner that land in question has not been allotted by the petitioner to the respondent, is falsified by petitioner?s letter dated 4.6.2002 addressed to the respondent, which is Annexure-1 and same has been placed at page 34 of the paper book. 16. IT is further argued by learned counsel for the respondent that no legal issue is involved in this case. There are concurrent finding of facts given by two fora below and there is no merit in this revision petition and as such the same is liable to be dismissed. 17. District Forum, while allowing the complaint of respondent in its order dated 09.03.2005, has held; "11. IT is an admitted fact that the complainant is in possession of the vacant land of the respondent situated near the garage of complainant?s house No. 4/174, Jawaharnagar, Jaipur since the year 1985 and he has grown plants and trees over the same. The complainant has not taken the plea of adverse possession for claiming allotment of strip of land. On the contrary he wants the strip of land to be allotted to him at market rate. Consent of the complainant had been sought with respect to the allotment of 178.71 sq. m. strip of land to the complainant at Rs. 4500/- per sq.m. a proposal was put forward by the respondent for rate at 25% increase over the rate for residential house whereas it is an admitted fact that the complainant without there being any demand, of his own accord, deposited a sum of Rs. 2,93,415/- vide demand draft No. 964083 of SBBJ, Jaipur and the said amount was admittedly returned by the respondent during the pendency of the complaint which had been filed on 10.9.2004 by registered letter dated 15.01.05 by Cheque No. 023225 for Rs. 2,93,415/-. The complainant agreed to pay the amount of the disputed strip of land in case the same was to be allotted to him and on that basis he is consumer qua the respondent. In this manner the argument of the learned counsel for the respondent that the complainant is not consumer of the respondent; and that the present issue is not a consumer dispute is without any force.

The complainant is continuously making efforts that the respondent should allot the strip of land near the garage of complainant situated at Flat No. 4/174, Jawaharnagar, Jaipur, that the rate which was to be charged from his should be the rate at which the house was allotted to him and on that it was noted by the Chairman of the Respondent Board that whatever is the residential rate after increase of 225 amount may be received". Thereafter no information was given from the respondent to the complainant.

ACCORDING to Exhibit-6 dated 09.04.2001 the respondent had sought the consent of the complainant regarding land being given at market rate and on that the complainant himself vide Exhibit-7 dated 11.04.2001 wanted to know from the respondent as to what was the market rate in Jawaharnagar in the concerned sector. This information was sought by the complainant so that he could take some decision regarding giving his consent. The respondent vide Exhibit-8 dated 12.02.2002 disclosed that the rate of land in Jawaharnagar, Jaipur was Rs. 4550/- per sq.m. The complainant is entitled to be allotted the land near his garage which forms part of his house situated at 4/174 Jawaharnagar, Jaipur, the strip of land being 178.71 sq. m. at the rate of 4550/- per sq. m. increased by 25%. The respondent has been deficient in rendering service to the complainant by not allotting the strip of land measuring 178.71 sq. m. situated near the residential house of complainant being H. No. 4/174, Jawaharnagar, at Rs. 4550/- per sq. m. plus 25% increase over that amount. The complainant is entitled to be allotted on depositing the amount calculated at the rate of Rs. 4550/- per sq. m. increased by 25% for the additional land, that is, additional strip of land situated near the garage of the house allotted to the complainant namely H. No. 4/174, Jawaharnagar, Jaipur.

HAVING regard to the facts and the circumstances of this case we do not want to award any amount by way of compensation for mental agony, harassment, etc. or by way of cost to the respondent for the present litigation. The complainant had also not cooperated, rather delayed the matter abetted by not giving his consent for the amount for allotment of strip of land situated near the garage of H. No. 4/174, Jawaharnagar to the proposal of amount being paid at the rate of 4550/- per sq. m. increased by 25% for the said strip of land. As a result, the complaint of the complainant is allowed in part. The complaint of the complainant is allowed and the respondent is directed that from the date of the judgment within a period of three months on demand being made by the complainant from the respondent and on deposit by him of the amount of land at the rate of 4550/- per sq. m. increased by 25%, the said land measuring 178.71 sq. m. be allotted to him". 18. State Commission while affirming the order of District Forum, observed; "Inthis case there is no dispute that the appellant had taken a decision on 27.01.2001 on the matter of allotment of the said strip of land to the respondent (complainant), that the Chairman of the Appellant Board was to inspect the site and that he was being authorized to take decision thereafter. In this case it is also not in dispute that thereafter, the Chairman of the appellant had issued order that strip of land might be allotted at market rates and intimation to this effect was given by the Deputy Housing Commission, Rajasthan Housing Board, Jawaharnagar, Jaipur vide his letter dated 09.04.2001 to the complainant. In this case it is also not in dispute that the complainant again requested that the strip of land might be given to him at a lower rate. In this case it is also not in dispute that thereafter the Chairman of the Appellant Board took a decision on 13.08.2002 that the complainant should be asked to pay the amount at 25% above the rate of residential houses. The appellant has not put forward the argument that the aforesaid order of the Chairman had been set aside. In this manner, in this case now there is no dispute that the Chairman of the Appellant Board had passed an order regarding disputed land being given to the respondent at a specified rate, and that the complainant accepted that order by depositing the amount with the Appellant Board. The respondent(complainant) has in accordance with the said order deposited the entire amount of Rs. 10,16,413/- on 10.05.2006 in the office of the appellant by Chairman and a copy of the said challan has been produced by the learned counsel for the respondent at the time of the hearing. In this manner the amount at the market rate increased by 25% has been paid by the complainant and therefore the complainant is entitled to get the disputed piece of land. As far as the question as to whether the disputed land in "strip of land" goes, the appellant itself admits that ordinarily land measuring 100 sq. m. is called a strip of land and that in special circumstances if a larger piece of land is adjacent to residential house such land can be allotted at the rate of allotment of residential house. It was on this admitted position of the appellant that the Chairman of the Appellant Board had taken a decision that the amount be recovered from the complainant with respect to the disputed land at the rate of residential house increased by 25%. As has been stated above Land Allotment Committee had authorized the Chairman of the appellant Board to take a decision in this case of the complainant. Therefore, the appellant Board is bound by the decision taken by its Chairman. Therefore in this situation the objection taken by the learned Advocate for the appellant that the land in dispute is not a strip of land has no basis. It is clear from the analysis made above, that the piece of land adjacent to the garage of the appellant is strip of land regarding the allotment of which the Board had authorized the Chairman to take a decision and that the Chairman of the appellant Board had taken a decision in favour of the respondent and had directed that amount be got deposited at the rate of residential house increased by 25% and in accordance with that order the complainant had deposited the amount in the office of the appellant. In this manner all the formalities have been complied with by the complainant and he is entitled to get the disputed piece of land as strip of land from the appellant. As far as the submission of the learned Advocate for the respondent that he should be given the piece of land at the rate prevalent at the time of the allotment, the same is not acceptable because by the complainant himself no application had been made for allotment of the disputed land in the year in which the flat was allotted to him and that some strip of land can be taken by him only if there are terms and conditions accepted by both the parties and under those conditions only strip of land can be given. As for as the contention of the learned Advocate for the respondent regarding the argument that others had also been given land by the appellant on the rate at residential houses had been given to them, this contention is not supported by the material available on the record, therefore in this situation there is no basis whatsoever for holding that the appellant had allotted strips of land to others at the old rate. In this situation as discussed above, the order passed by the learned District Forum cannot be said to be arbitrary, faulty or of a wavering mind and there is no basis whatsoever before us to interfere with the said order and the appeal filed by the appellant is liable to be dismissed. "

SHORT question which arises for consideration is as to whether petitioner has allotted any strip of land to the respondent or not.

IT is an admitted fact that when the matter was first placed before the Property Allotment Committee on 27.1.2001, with regard to the allotment of the strip of land in question to the respondent, the Chairman of the Petitioner?s Board was authorized to inspect the site and take decision thereon. Thereafter, Chairman of Petitioner?s Board issued order that the strip of land may be allotted at the market rates. Intimation to this effect was given to the respondent vide letter dated 9.4.2001 of the Deputy Housing Commission of the Petitioner. Thereafter, respondent requested that strip of land be given to him at lower rate. On this request of the respondent, Chairman of the Petitioner?s Board took the decision on 13.08.2002 that respondent may be asked to pay the amount of 25% above the rate of residential house.

It is not the case of petitioner that above order dated 13.08.2002 of its Chairman was ever challenged or the same was set aside.

IN fact respondent in pursuance of the above order, deposited the respective amount with the petitioner. Thus, under these circumstances respondent is entitled to get the disputed piece of land. Under Section 21 of the Act, this Commission can interfere with the Order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. There is no illegality or material irregularity on the part of the State Commission in this case.

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".

In view of the concurrent findings of the facts given by foras below, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act. Moreover, the foras below have given cogent reasons in their orders which do not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

IT is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.

UNDER these circumstances, present petition is without any legal basis and is merit-less. Accordingly, the same is hereby dismissed with costs of Rs. 10,000/-( Rupees Ten Thousand only). Petitioner is directed to deposit the costs of Rs. 10,000/- (Rupees Ten Thousand Only) by way of a cross cheque in the name of "Consumer Legal Aid Account" within four weeks from today.

In case, costs are not deposited within the prescribed period, then petitioner shall be liable to pay interest @ 9% p.a., till realization.

LIST on 27th February, 2012, for compliance.