Resident Engineer Rajasthan Housing Board vs NAND KISHORE

AGAINST the order dated 11.4.91 passed by the District Forum, Udaipur in Complaint Case No. 266/89, the opposite party -appellant has filed this appeal under Sec. 15 of the Consumer Protection Act, 1986 (''the Act'' herein). The District Forum directed the opposite party -appellant to refund the entire amount lying in deposit with it with interest @ 6% p.a. within three months from the date of the order failing which the complainant will be entitled to initiate proceedings under Sec.27 of the Act. Facts leading to this appeal are these:

THE complainant -respondent submitted an application for allotment of the house. In accordance with letter No.51660 SG/GRA/82 dated 28.12.82 which was under Regulation 24 of the Disposal of Property Regulations, 1970 (''the Regulations'') deposited Rs. 2,000/ - under LIG. The opposite party issued a notification dated 9.5.89 to the allottees who were outside Nathdrawa to whom the allotment -cum -possession letter dated 15.4.89 for taking possession had already been issued and asked them to take possession, failing which penalty will be recovered and allotment would be cancelled according to the Rules. The complainant is said to have gone to the site for seeing the house of LIG. There he found one room 9 x 10, kitchen 6 X 6 latrine and bathroom. The complainant has alleged that at the time of the registration the opposite party undertook to deliver two rooms, kitchen, bathroom, latrine, chowk and open land in the front and back which were not available in the allotted house. He addressed letters and met personally but the opposite party did not satisfy him. The complainant did not deposit the balance of the amount as asked in the allotment -cumpossession letter and informed the opposite party in writing that the allotted house is not in accordance with the conditions of the registration and that the cost has also been increased. No reply was given. It was requested that either a house in accordance with the specification may be allotted otherwise deposited amount together with interest may be refunded. According to the complainant the amount deposited was Rs. 5,724/ - (4900 + 824) may be returned together with interest and compensation. Costs were also claimed. This complaint was filed before the District Forum, Udaipur on 24.1.89. With the complaint allotment -cum -possession letter dated 14.4.89 was submitted. The complaint was filed through Mukhtyar Khas. The opposite party resisted the complaint by traversing the allegations made in the complaint. It was submitted that on having ensured that 100 registration have been done, land was acquired, Scheme was prepared and that Scheme was sent to HUDCO for financial assistance, as the Housing Board constructs the houses after taking loan from Housing Urban Development Corp., and according to specification by HUDCO. On receipt of the letter from the complainant reply was given on 24.6.89 informing him that if he does not want to take the allotted house, the deposited amount can be refunded to him after deducting 20% in accordance with the Regulations. No pre -receipt was received and so balance amount was not refunded to him. The complainant is not entitled to the amount and interest as claimed. It was submitted that the complainant has impleaded Residential Engineer, Housing Board as party whereas in fact RHB is a corporate body and it should have been impleaded. A plea was taken that the notice was not given to the Board. An objection was taken that the District Forum is not competent to hear the complaint under the Act. It was also submitted to what amount the complainant is entitled can only be determined by a Civil Court and as such Redressal Forum has no jurisdiction. In the alternative it was submitted that if the complainant does not want to take house F -23 in the residential colony Nathdwara he can take back the amount after deduction of 20%.

IN support of the complaint Mukhtyar Khas, younger brother of the complainant, submitted his affidavit. The opposite party submitted allotment - cum -possession letter dated 14.4.89 and photostat copy of the letter dated 25.5.89 stating that the complainant has failed to deposit Rs. 3,554/ - by 13.5.89 and did not obtain the possession. He was asked to deposit the amount with penalty within seven days failing which the allotment would be cancelled under the Regulations and the registration amount after deducting 20% from it, would be refunded to him. Another letter dated 20.7.89 was sent to the complainant informing him that his allotment is cancelled and he may submit an application for refund together with the receipt in the prescribed proforma so that the amount may be refunded after deduction. Parties did not produce any other oral or documentary evidence before the District Forum. It heard the arguments on 20.3.91 and passed the impugned order as stated above. Hence this appeal.

THE respondent had sent reply to the appeal which is dated 18.1.91. It was received on 24.1.91. It was stated that the appeal appears to be barred by time. An application for condonation of delay supported by affidavit if filed, the copies may be sent. Nobody appeared on behalf of the respondent on 22.1.92. We heard the learned Counsel for the appellant. The objections raised by the complainant - respondent were raised in several cases: ''In Kanhaiyalal Mathur v. Housing Board (RLT 90 Part III 31) and subsequent decisions. It was observed in Kanhaiyalals case (supra) as under: ''Before we proceed further, it may be mentioned that in Jyoti Prakash v. The Rajasthan Housing Board (1979 W. L.N. (UC) 101) it has been held that the Registration Scheme and the allotment schemes are distinguishable and no right of allotment of house is conferred on any applicants registered under the Registration Scheme and they cannot challenge the scheme. It was held in 1985 W.L.N. (UC) 266 by a Division Bench of the Rajasthan High Court that the Board is competent to increase the price beyond ceiling in certain circumstances and one is, increase in the cost of construction. In S.B. Civil Writ Petition No. 1625/86 Deepchand v. Rajasthan Housing Board, decided on 24.9.86 the Housing Board Registration Scheme, 1979 was considered. It was held that the reservation is after only allotment and registration and reservations cannot be equated. No right accrued to the complainant for the allotment of the house by Housing Board Schemes, July September 1973.'' It was affirmed in Kanhaiyalal Mathur v. R.H.B. (1991 CSMR CAS 118). The National Commission observed: ''As has been pointed out by the State Commission the allotment scheme has to be distinguished from the registration scheme and no right of allotment to a house is conferred on any applicant by mere registration under a registration scheme. Registration and reservation of allotment cannot be equated and reservation of accommodation follows allotment. Consequently the State Commission has rightly observed that no right accrued to the complainant for the allotment of a house by the Housing Board on registration of the appellant in 1973 et. sq. in the various draws made under the registration allotment schemes introduced from time to the name of the appellant did not figure in the draws made for allotment. There was no contractual obligation on the part of the Board to allot a house to the appellant.'' The Rajasthan High Court in D.B. Civil Writ Petition No. 457/1987 decided on 16.7.87 ruled as under: ''A number of petitions of a similar nature have came up before this Court, and this Court came to the conclusion that mere registration does not entitle the applicant to get the house allotted at a price mentioned in the booklet. The allotment of the house has to be at the price when the house is allotted. It is well known that there is escalation of the prices and the price of the house which would have been in the year 1981 when the registration was held out can not be the same in the year 1985 -86. The petitioner cannot be said to have been given any assurance that the house shall be allotted to him at a price of Rs. 1,11,900/ - which was mentioned in the booklet in the year 1981. The doctrine of promissory estopple is hardly attracted in the present case as no assurance can be said to have been given that the house shall be allotted to him at a price of Rs. 1,11,900/ -.''

IT was held in AIR 1980 SC 738 that the petitioners grievance that the authority was not entitled to give discriminatory treatment by collecting surcharge as component of price in sale of flats constructed under the MIG scheme. It was further held that the State had its agency entering into contractual field then the relations are not governed by the constitutional provision and no question arises of violation of the Constitutional provisions including Art. 14. Reference maybe made to S.B. Civil writ petition No. 1621/86 decided by the Rajasthan High Court on 24.9.86. It was observed: ''Mr. Sharma has submitted before me the Housing Board Registration Scheme, 1979. In that very clause it has been mentioned that as far as practicable the rates shall not be changed after reservation. The reservation is after only allotment; registration and reservation cannot be equated. This very rule provides that the rates can be revised looking to the increase in the costs. Mr. Sharma submits that it can be raised only upto 10 per cent. It is true that prices have not increased after reservation but after registration. In the registration estimated costs is given and the increasing cost cannot be overlooked. There is no case of hostile discrimination and the persons allotted have been treated equally and on the same amount. Even if there is a dispute about the increased rate, it can be agitated before the competent Court of Civil Jurisdiction where the disputed question of facts can be determined, such as, what is the increase has rightly been assessed or not and, if assessed, whether it has rightly been applied or not, can only be considered by the competent Court of civil jurisdiction as in such case the disputed questions of facts are involved.''

THERE was no justification for refusing the allotment on the ground of the increase in price. As regards the construction and apartments it may be mentioned that whatever is provided is merely indication. Construction of apartments depends on the availability of the land and also with regard to the funds that are available for construction to the Housing Board. Thus there was no justification for the complainant -respondent to refuse the allotment as has been stated by him in the complaint. The position comes to this that allotment was made and the allotment -cum -possession letter was issued but he failed to deposit the amount in pursuance of the allotment -cum -possession letter dated 14.4.89. In these circumstances the question arises whether the District Forum was right in giving a direction that the entire amount should be refunded together with interest @ 6% p.a. The District Forum considered clauses 1.153 and 1.15.4 of the General Registration Scheme, 1982. It took note of the contention raised on behalf of the opposite party that after the construction of the house and determining its price, the house was offered to the complainant and it was for the complainant to accept the offer or not to accept it. The District Forum held that the opposite party appellant had no right to deduct the amount from the deposited amount as the complainant respondent submitted an application for the allotment of the house without conditions and reservations. The house was not made available to him according to the area specification and cost and so the District Forum opined that the complainant -respondent is entitled to the entire amount together with 6% p.a. interest. The correctness of the order has been challenged before us. The District Forum misdirected itself as held by us above on account of increased price, or change in accommodation the opposite party -appellant was not entitled to deduct any amount.

ACCORDING to Clause No. 1.12 of the Booklet the opposite party -appellant was empowered to fix the price for the houses built by it, whether disposed of on outright sale or hire purchase basis and the decision of the Board in this regard is final. Mr. M.L. Vyas learned Counsel for the appellant invited our attention to condition No. 1.1 relating to the cost of houses mentioned in the booklet ''From Registration to the Allotment of houses Procedure'' published by the opposite party -appellant. According to him these are binding on the parties under agreement. They have not been taken into account by the District Forum. The matter whether clauses 1.15.3 and 1.15.4 are attracted in this case or not need not pursued further for the simple reason that learned Counsel for the opposite party -appellant has submitted a photostat copy of the office order No.............. 89/3364 dated 29.3.89. Clause A of that Order is as follows: **fnuk ¡d 1@11@88 ls vkcaVu ds ckn vkokl u ysus okys vkosndksa ls muds }kjk tek djkbZ xbZ iathdj.k jkf''k dk 10% e.My ds izkklfud O;; dks iwjk djus ds fy, dkV fy;k tkos rFkk ,sls ekeyks esa iathdj.k@lhMeuh jkfk ij fdlh izdkj dk C;kt ugha fn;k tk;sxkA

IT provides that if the allottees who have been allotted houses after 1.11.88 do not take the houses a deduction of 10% from the registration amount will be made as administrative expenses and that no amount of interest will be payable on the registration and seed money. The District Forum has categorically stated in the impugned order that the house was allotted to the complainant - respondent. He did not pay the cost of the house as mentioned in the allotment letter dated 14.4.89. According to the complainant he did not agree to pay the cost as stated in the allotment -cumpossession letter for the reason that the cost has been increased, the area has been reduced and the apartments are not as per specification. May be for any reason as we have held above on the basis of the authorities that the complainant respondent could not insist that the house should be allotted to him on the cost notified earlier which was merely tentative, area and specification were only indicative. There was no contractual obligation on the part of the opposite party to allot a house to the complainant -respondent. No binding contract came into existence merely on account of the registration of the name of the complainant -respondent. The complainant -respondent has deposited as stated in the impugned order and for which there is no controversy. Rs. 1800/ - as registration fee and Rs. 3,000/ - as seed money. According to the office order dated 29.3.89 referred to herein above which has been produced by the learned Counsel for the appellant as the allotment was made after 1.11.88, the complainant -respondent is only entitled to the registration fee after deducting 10% of the amount which in this case is Rs. 180/ - and no deduction can be made from the amount of the seed money. Interest is not payable on the registration amount and seed money as per the office order. It may be mentioned that this is more advantageous to the complainant -respondent in comparison to clauses 1.15.3 and 1.15.4. In these circumstances the order under appeal dated 11.4.91 needs to be modified. It is held that the complainant -respondent is entitled to the refund of the amount of Rs. 1620/ - (after deducting 10% of Rs. 1800/ -) as registration fee and Rs. 3,000/ - as seed money. No interest is payable on the aforesaid two amounts in pursuance of the order. The appeal is allowed and the order dated 11.4.91 passed by the District Forum, Udaipur in Complaint Case No. 266/89 is modified. The complainant -respondent shall be paid a sum of Rs. 4620/ - on account of the refund of the registration fee and the seed money within one month from the date of the receipt of the order failing which resort will be made to Sec. 27 of the Act.

THE appeal is partly allowed and the order is modified as indicated above. In the circumstances of the case the parties are left to bear their own costs. Order modified. ===========================================================================