RAJASTHAN HOUSING BOARD, JAIPUR vs KANWARJI MAL

THIS Revision Petition has been filed against the order passed by the State Consumer Disputes Redressal Commission, Rajasthan at Jaipur in Appeal No. 40 of 1993 by which the appeal was partly allowed and the order of the District Forum was modified.

THE facts leading to this Revision Petition are that the present respondent Kanwarji Mai had submitted his application to the present Petitioner, Rajasthan Housing Board (for short the Board) on 30th December, 1982 for allotment of a house in M.I.G. B. category in Kamla Nehru Nagar, Pali. It was registered as Serial No. 4600. Registration amount was deposited through challan. The applicant (i.e., the complainant) was informed on 25th March, 1987 that a house has been reserved for him. He was asked to deposit the reservation amount in two instalments. The first instalment of Rs. 6,000/- was to be paid within a month and second instalment of Rs. 6,000/- within seven months. It was also provided in the said reservation letter that after expiry of these periods penalty at the rate of Rs. 200/- per month shall be payable. However, that letter (Annexure-I, page 15 of the paperbook) further contained Clause (2) which reads as follows: "The applicant who is successful in the reservation lottery (when the reservation lottery is held nine months before the allotment lottery) his name will be included in the allotment lottery only after the balance of seed money has been deposited within seven days of the publication in the newspapers".

The Complainant had deposited the first instalment of seed money on 24th April, 1987 and the second instalment on 26th October, 1987. Thus the complainant had complied with the terms of letter regarding deposit of reservation amount (i.e., seed money). However, the Board decided to hold the draw of lottery for the purpose of allotment of the houses before the expiry of 9th months of the reservation lottery. The draw was held on 9th September, 1987. The complainant''s name was not included in that draw and thus no house was allotted to him in the draw. In the reservation letter it was further provided that in any event, it shall be essential to deposit the two instalments of seed money within the prescribed period. As the complainant had deposited the seed money in accordance with the reservation letter, his name was included in the subsequent draw held on 23rd December, 1989 and a house was allotted to him but at a higher price. The complainant was informed about that allotment on 31st March, 1990. He paid the instalment amount according to the allotment letter and the possession of house was delivered to him on 3rd May, 1990.

IN the light of the above facts, the complainant filed the complaint before the District Forum alleging that there is difference in the price of the house allotted to him and the houses which were allotted in 1988 to those allottees who had applied to the Board with him. His contention is that he was not given any notice nor informed by any other means about the draw held on 9th September, 1987. He, therefore, prayed that the excess amount that has been charged from him should be refunded to him by the Board.

THE case of the Board was that for the purpose of lottery for allotment, one can get his name included in the lottery by depositing the entire balance amount of reservation price within seven days from the publication of notice in the newspapers and as the complainant has not done so, therefore, his name was not included in the earlier draw held on 9th September, 1987. It was further pleaded that by the time the subsequent draw was held, there was escalation in the cost of construction of the houses and thus, the complainant who was successful in the subsequent draw was allotted the house at a higher price. The District Forum dismissed the contention of the Board that intimation for depositing the seed money in respect of the earlier draw was given to the various reservationists by publication of notice in various newspapers and intimation was also sent individually under postal certificate to them as no copy of the notice said to have been published in the newspapers was put on the file nor the postal certificate was produced. The District Forum accordingly held that the Board should have informed the complainant to comply with the formalities and the complainant cannot be made liable for the fault of the Board. The District Forum gave the direction to the Board to determine the cost of the house allotted to the complainant at the same rate of the cost of land (plus) construction on which the homes have been allotted to Jawari Lal Jain and Ram Prasad Gupta and to determine the monthly instalments proportionately. It may be mentioned here that those two allottees were allotted houses in the draw held earlier i.e. on 9th September, 1987.

FEELING aggrieved against the Order the Board filed appeal before the State Commission. The State Commission held that as the complainant was successful in the reservation lottery and if the Board held the allotment lottery before the expiry of nine months of the reservation lottery,, it was necessary to include the name of the complainant in the lottery and thus, there was deficiency in service on the part of the Board. However, it further held that the relief granted by the District Forum could not be granted in view of the provisions of Section 14(1) of the Consumer Protection Act, 1986 as it stood prior to the Amendment of the At in the year 1993 and, therefore, the District Forum was not competent to issue the direction that the allotment of the house to the complainant be made at the same price at which allotment was made to Jawarilal and Ram Prasad Gupta. In the view of the State Commission, the District Forum could only grant compensation to the complainant. As the Board was held negligent in not including the name of the complainant in the lottery draw held on 9.9.87, the complainant was allowed Rs. 30,000/- as compensation by the State Commission in modification of the order of the District Forum.

BEING not satisfied with the order of the State Commission, the Board has filed this Revision Petition. Learned Counsel, for the petitioner argued that the complainant had, of course, deposited the seed money in accordance with the reservation lottery and he was bound to do so in view of Clause (3) of the Reservation letter and as he has deposited the seed money, his name was included in the subsequent draw. According to him the complainant was not entitled to have his name included in the draw held on 9th September, 1987 because he did not comply with the terms of notice which were published in newspapers. The argument was that the Board was entitled to hold the allotment lottery before the expirty of nine months from the reservation lottery in view of Clause (2) of the reservation letter (reproduced above). The only requirement was that a notice was to be published in the newspapers asking the reservationists to deposit the balance seed money within seven days of the publication of the notice in the newspapers. When this Revision Petition came up for hearing on 15th May, 1995, the Board was directed to file copies of the notices which were said to have been published in the newspapers. In compliance with that direction, the Board has filed copies of notices. The first notice was published in Raj Patrika, Jodhpur, on 25th August, 1987 by which the reservationists were asked to deposit the balance seed money by 31st August, 1987 as that their names could be included in the draw to be held on 9th September, 1987. The second notice was published in the same newspaper on 4th September, 1987, again informing the reservationists to deposit the balance of seed money by 7th September, 1987 for gatting their names included in the draw which was to be held on 9th September, 1987. Another notice was published in Dainik Pratinidhi, Jodhpur dated 5th September, 1987. The allottees were again informed that for getting their names included in the draw to be held on the September, 1987 the instalment of seed money be deposited by 7th September, 1987.

AFTER hearing the learned Counsel for the appellant and perusing the records of the case we are satisfied that the sufficient intimation was given to the reservationists to deposit the seed money before 7th September, 1987, for getting their names included in the draw which was to be held on 9th September, 1987. It was not necessary for the Board to send individual intimation to the reservationists to deposit the seed money by a particular date. As mentioned in Clause (2) of the reservation letter the Board was only required to publish the notices in the newspapers and it has done so.

WE are constrained to say that the District Forum and the State Commission acted with great irregularity. If any evidence was required then those Fora should have asked the parties to lead the evidence in support of their respective pleas. Had they done so, the Board could have produced the copies of notices which have been produced before this Forum. There was no basis before those Fora to give preference to the plea of the complainant that he was not intimated about depositing the remaining seed money by a particular date for his name being included in the draw held on 9th September, 1987 over the plea of the Board that such intimation was given. Other reservationists deposited the balance of seed money as required by those notices published in the newspapers and their names were included in the draw held on 9th September, 1987. Hence in the light of the above observations, we have no option but to allow the present Revision Petition and set aside the orders passed by the District Forum and the State Commission and dismiss the complaint filed by the present respondent. We make no orders as to costs.