Rajasthan Housing Board vs S.S. JAIN

-THESE are two connected appeals arising out of the order dated 20.8.91 passed by the District Forum, Jaipur in Complaint Case No. 243/91. They were heard together and it will be convenient to dispose them of by a common order. Facts leading to these appeals may briefly be noticed :

FLAT No. 11/569, Jawahar Nagar, Jaipur was originally allotted to Shri Fateh Singh Charan by the Rajasthan Housing Board ("the Board" hereinafter). The complainant is said to have purchased the above flat by a deed of exchange and according to the conditions of the Board, the complainant initiated proceedings and got his name registered under the S.F.S. Scheme. After taking necessary proceedings, the complainant submitted an application for transfer. But the Board declined to transfer and the complainant filed the complaint before the District Forum. The complainant prayed for the following reliefs : - (1) that a direction may be issued to the Board to transfer the flat in favour of the complainant before 31.3.91 within 7 days so that the registration may be effected on the original cost and he may not be required unnecessarily to pay after 31.3.91 registration fee on the market value. (2) that a sum of Rs. 16,000/- at the rate of Rs. 2000/- p.m. for 8 months may be awarded for the loss of rent suffered by the complainant. (3) that a sum of Rs. 4,800/-at the rate of Rs. 600/- p.m. for 8 months for looking after the flat may be awarded. (4) that a sum of Rs.50,000/- may be awarded as compensation. (5) that a sum of Rs. 376/- may be allowed on account of the payment of water and electricity charges. (6) that a sum of Rs. 2,200/- may also be awarded on account of damages and costs for engaging a lawyer etc.

Thus in all the complainant claimed Rs. 73,376/- from the Board. The opposite parties filed the version of the case traversing the allegations made in the complaint. Four preliminary objections were raised in the version of the case on behalf of the opposite parties which are as under : - (1) that there is no consumer dispute is involved between the complainant and the opposite parties as envisaged by the Consumer Protection Act, 1986 ("the Act" herein). (2) that the reliefs which the complainant has sought in the complaint are not covered by Sec. 14(1)(a), (b), (c) & (d) and as such cannot be granted. (3) that by resolution No. 154/18 which was passed in a meeting of the Financial Commissioner and Secretary to the Government and Managing Committee of the Board, the transfer of the allotted house was discontinued before registering it in the name of the applicant. In other words that the registration will be effected of the allotted house in favour of the original allottee and he can thereafter transfer it. (4) that the original allottee, Shri Fateh Singh Charan has not been impleaded as a party and in his absence the complaint is not maintainable.

Regarding merits of the complaint it was submitted that Shri Fateh Singh Charan got himself registered under the General Registration Scheme 1979 for allotment of a house in Jawahar Nagar Scheme, Jaipur under S.F. Scheme and flat No. 2/259 situate was allotted. Allotment letter No. JPR/DHC-1/734 dated 19.12.85 was issued. The possession was taken by Shri Fateh Singh on 10.6.86. It was denied that it was incumbent on the Board to register under the Kalpataru Scheme. It was submitted that for registration, it is necessary that there should be a registered application even for Kalpataru Scheme. It was submitted that registration will be first effected in the name of original allottee, Shri Fateh Singh Charan. It was pleaded that the complainant is not entitled to any of the reliefs asked for by the complainant. In support of the version of the case affidavit of Shri Babu Lai Kumawat, Office Supdt., Registration Department, Rajasthan Housing Board, Jaipur was submitted. The complainant submitted with the complaint an unsworn affidavit. The contents of the affidavit were not sworn before a competent person to administer oath. It is unverified. It cannot be called an affidavit. Photostat copies of the documents were submitted by the complainant with the complaint which have been marked as Ex.1 to Ex.14. The parties did not produce any other evidence before the District Forum. It heard the arguments and thereafter passed the impugned order. The reliefs granted to the complainant are contained in para 12 of the impugned order which is as follows : - " ATEH MUNCH DWARA VIPAKSH AAYATAN MANDAL KO ADESH DIYA JATA HAI KI VEH EK MAHA KE BHEETAR PARTIWADI SHRI JAIN DWARA JAMA KARAI GAI RASHI 10,000/- RUPEY AVEM IS RASHI PAR DINANK 19.7.90 SE BHUGTAN KA ROZ TAK 18 PRATISAT WARSHIK DAR SE BYAJ SAHIT BHUGTAN KARAI. AAYATAN MANDAL KO YEH BHI ADESH HOTA HAI KI VEH PARTWADI KO PARTIWAD VAE KE ROOP MAI 500/- RUPEY KI BHI UKTH AVDHI MAI ADAYEGI KARAI. YADI AAYATAN MANDAL DWARA IS ADESH KE UPRANTH BHI NIKAT BHAWISHAYA MAI AISA AYAH KO PARTWADI KA PAKSH NA AVANTIT KAR PANJIKARAN KI KARYAWAHI KARAI JATI HO TO US AVASTHA MAI UKTH RAKAM KI ADAYEGI AVEM PARIWAD VAYA SAHIT KA ADESH KI PALANA AVESHYAK NAHI HOGI. ANYA KOYI PARITOSH PRADAN KEYA JANA UKTH PRAKAR SAMBHAV NAHI HONE SE IS SAMBANDH MAI SASH PARIWAD KHARIJ KIYA JATA HAI. AVESHAN MANDAL SE YEH BHI APEKSHIT HAI KI WHA SHRI CHARAN KO PARIWAD PRASTUT KARNE KA AVSAR NAHI DEKER 500/- RUPEYA KI RASHI 18 PRATISHAD WARSHIK DAR SE BYAJ KI RASHI SAHIT TURANT BHUGTAN KAR DEN TAKI ANAVESHYAK ROOP SE AESE VIVAD MAI UUHNA NAHI PADA. ADESH KI PALANA NAHI HONE PAR SHRI CHARAN KA LIYA EK MATR VEKALP APNI AUR SE PRATHAK VAD PRASTUT KARNA KA MATR HI HO SAKTA HAI."

BOTH the parties did not remain satisfied with the order appealed against. The opposite party "the Board" has filed Appeal No. 371/91 assailing the order praying that the complainant is not entitled to any relief and therefore the complaint should be dismissed. Appeal No. 8/92 has been filed by the complainant with a prayer that the amount of Rs. 73,376/- claimed by the complainant in the complaint should be awarded. The complainant submitted a sworn affidavit with the memo of appeal. We heard Mr. R.K. Sharma, Advocate for the Board (opposite party) and Mr. D.M. Mathur, Advocate for the complainant in both the appeals. Having carefully examined the record and the order under appeal in the light of the submissions made by the learned Counsel for the parties, we have come to the conclusion that the order dated 20.8.91 deserves to be set aside and the complaint has to be dismissed. Three points crop up for consideration in these appeals. They are as under : - (1) Is the complainant a consumer within the meaning of Sec. 2(1)(d) of the Act vis-a-vis the Board and if so is a consumer dispute involved as envisaged by Sec. 2(10)(e) of the Act? (2) Could be reliefs claimed by the complainant in the complaint be granted under Sec. 14(1) of the Act? (3) If the answers to the two questions referred to hereinabove are in affirmative whether the complainant is entitled to compensation from the Board (opposite party) and if so how much? We propose to deal with the above 3 questions ad seriatim :

RE. Question No. 1. The ''complainant'', ''complaint'', ''consumer'',. ''Consumer dispute'', ''deficiency'' and ''service'' have been defined in Sec. 2(1)(b), (c), (d), (e), (g) & (o) of the Act. Complaint has been defined in Sec. 2(1)(c). It is as under : - "(c) complaint means any allegation in writing made by a complainant that - (i) as a result of any unfair trade practice adopted by any trader, the complainant has suffered loss or damage; (ii) the goods mentioned in the complaint suffer from one or more defects; (iii) the services mentioned in the complaint suffer from deficiency in any respect; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods. With a view to obtaining any relief provided by of under this Act''".

According to the definition of the complainant given in Sec. 2(1)(b) a consumer can be a complainant. The definitions of "deficiency" and "service" read as under : - "(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"

"(c) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service".

The matter is with respect to immovable property and therefore there is no question of purchaser of goods as contemplated by Sec. 2(1)(d)(i) of the Act. In these circumstances the only controversy is whether the complainant is a consumer who can be said to have hired the services of the Board (opposite party) and the services rendered suffered from deficiency within the meaning of Sec. 2(1)(g) of the Act. Shri Fateh Singh is the original allottee who got himself registered as an applicant for the allotment of the house. Allotment letter was issued in his name and Flat was allotted to him. If there is any deficiency in service with respect to the allotment of flat, it is Shri Fateh Singh who can raise the grievance and not the complainant. Learned Counsel for the complainant could not succeed in satisfying us that he has hired the services regarding allotment of the flat made in favour of Shri Fateh Singh for consideration. The case of the complainant is that he has purchased the allotted house by means of an exchange deed and so his name should be transferred in place of Shri Fateh Singh, the original allottee. It has come on record that transfer is not permissible in view of the resolution passed by the Committee. It is necessary that the original allottee should get the deed registered in his favour and there after transfer it in accordance with law. The complainant could not insist that the Board should transfer flat No. 11/569 which was originally allotted to Shri Fateh Singh in his favour. In these circumstances we find it difficult to hold that the service rendered by the opposite party (Board) vis-a-vis suffered from deficiency. Our answer to first question formulated hereinabove is in favour of the Board and against the complainant. It is answered in the negative. Re. Question No. 2 : The other question is whether the relief sought by the complainant in the complaint can be granted by a Redressal Forum constituted under the Act. Sec. 14(1) of the Act reads as follows : "Sec. 14(1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to take one or more of the following things, namely : - (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect; (c) to return to the complainant the price, or as the case may be the charge paid by the complainant; (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party".

We have already produced the reliefs which the complainant has sought in the complaint. It is well settled by the National Commission that the Redressal Forum can grant only those reliefs which are enumerated in Sec. 14(1) of the Act and not beyond that. Reference may be made to I (1992) CPJ 228, I (1992) CPJ 148, 1991 (1) CPR 614 and 1991 (1) CPR 361. In I (1992) CPJ 84 (NC) it has been laid down that in exercise of the inherent power reliefs mentioned in Sec. 14 cannot be granted. The reliefs which the District Forum has granted are beyond Sec. 14(1) of the Act which it cannot grant. Our answer to question No. 2 is in favour of the Board (opposite party) and against the complainant. It is also answered in the negative.

RE. Question No. 3 : In view of the answers given to questions No. 1 & 2 it is clear that the complainant is not entitled to any compensation as claimed by him in the complaint. Question No. 3 is also decided against the complainant and in favour of the opposite party. It is also answered in the negative.

NO other point survives for our consideration in the appeal. The result is that Appeal No. 371/91 filed by the opposite party ("the Board") is allowed and the order dated 20.8.91 passed by the District Forum, Jaipur in Complaint Case No. 243/91 is set aside. The complaint shall stand dismissed. It follows that Appeal No. 8/92 filed by the complainant has no substance and it is, therefore, dismissed.

Appeal No. 371/91 is allowed and Appeal No. 8/92 is dismissed. In the circumstances of the case the parties are left to bear their own costs. Appeal 371/91 allowed, 8/92 dismissed.