U P AVAS EVAM VIKAS PARISHAD vs Suryanath Kar Pathak

THIS appeal arises out of the judgment and order dated 24.8.2006 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow in Complaint Case No. 59/2000. By the impugned judgment, the State Commission partly allowed the complaint and directed the appellant to give 50% remission in the demanded amount.

THE appellant was opposite party and the respondent was the complainant before the State Commission. There is no dispute about the fact that the respondent had deposited the amount of Rs. 10,000 for allotment of semi-furnished house in Indira Nagar, by way of advance money, towards registration. The Scheme for allotment of houses was commissioned by the UP. Housing and Development Board i.e. the Appellant. The instalments were required to be paid as per the schedule. The respondent failed to deposit the first instalment before the first draw was scheduled on 26.9.1993. Obviously, his name was not included in the list of tentative allottees when the first draw was held. There is no dispute about the fact that on account of non-payment of first instalment of Rs. 43,000, the respondent was not eligible for the allotment, when the first draw was held. The respondent, however, submitted an application to allow the payment of first instalment and continued his claim for allotment of house in the Scheme. His application was considered by the competent authority and he was allowed to deposit the first instalment along with penal interest @ 18%. Thus, the first instalment of Rs. 44,290 was deposited by him as per the approval of the competent authority. The said amount was accepted by the appellant. The second draw was, thereafter, held on 26.2.1994. Though the respondent had paid the amount of first instalment along with penal interest prior to holding of the second draw on 26.2.1994, yet, his name was not included in the list of eligible allottees. So also, his name was not included in the list of allottees at the time of third draw, which was held on 2.7.1994. The initial registration of the respondent was cancelled by the appellant due to the failure of the respondent to deposit further instalments. The cancellation order dated 6.10.1994 (Annexure P-3) was issued and due intimation was given to the respondent about the action taken by the appellant.

IT is further an admitted fact that the respondent moved the Board, which considered his application and directed that House No. 21/1113 may be allotted to him at the existing cost. This order was passed on 21.5.1998. The Estate Officer was accordingly directed to give possession of that house to the respondent, on accepting the relevant amount. The appellant, thereafter, issued letter dated 6.6.1998 and allotted the said house to the respondent. The total cost of the house was determined at Rs. 7,19,447 on the basis of the rates which prevailed on the date of decision, dated 21.5.1998 of the Board cognate. It is an admitted fact that the respondent paid certain amounts and was given possession of the said house on 15.6.1998. Thus, the re-allotment was worked out as per the terms of the schedule for the payment as shown in the allotment letter dated 6.6.1998 (Annexure P-5).

THE respondent and his wife filed complaint No. 59/2000 before the State Commission alleging that after payment of the first instalment along with penal interest, their names were required to be included while preparing the second draw or at least the third draw but that was not done. They further submitted that they had submitted applications dated 27.7.1993, 28.10.1993, 10.1.1994, 1.2.1994, 16.2.1994, 24.2.1994 and 28.2.1994 for inclusion of their names in the lottery for the allotment of house No. 8/309 which was the only vacant house but their names were not included. They alleged further that the house No. 8/309 was allotted to one Lakshman Prasad who was an employee of the same Department and got registration directly with the Housing Commissioner without adopting due procedure. They further alleged that the House No. 8/309 of Sector-8 is situated adjacent to Faridabad Road and is very convenient. According to them, the said house was allotted to the officer of the Department by keeping aside their lawful claim. They further submitted that the allotment of some other houses were made to the persons who had deposited only one instalment. Therefore, they submitted that the amount of Rs. 4,48,447 as demanded from them was in excess of the cost of the registered house, as per the price prevailing in the year 1993, and they should be granted waiver of such amount. They also claimed Rs. 1,00,000 towards compensation on account of mental pain and financial losses. The appellant denied the truth into the material averments made by the respondent. The appellant''s case before the State Commission was that the name of the respondent was not included in the list when the first draw was prepared because he had not deposited the amount of first instalment and had become defaulter. It was alleged that when the first instalment was made, along with penalty, the second draw was already scheduled and, therefore, the respondent was required to pay the second instalment so as to make himself eligible for the allotment. They contended that the respondent committed default and, as such, could not have sought continuity of the claim. They further submitted that at the request of the respondent, the allotment of house No. 21/1113 was made in accordance with existing rate as per the juxtaposition which was prevailing on 6.6.1998. They contended that the respondent could not have filed the complaint after accepting the allotment order and taking over of the possession. Hence, they sought dismissal of the complaint.

THE State Commission came to the conclusion that since cancellation of the registration was done by the appellant, the respondent was entitled to 50% of the remission and claim for deduction of Rs. 2,24,255 was, therefore, allowed.

WE have heard learned Counsel for the parties in extenso. The short question involved in the appeal is whether grant of 50% of remission by the State Commission is justified, legal and proper.

THE main contention of the Counsel for the appellant is that when the respondent accepted the allotment of the house No. 21/1113 at the prevailing rate, it was not open for him to file the complaint. It is argued that the respondent committed default in payment of the instalments and, therefore, cancellation of the earlier registration was justified. It was also contended that the allotment letter dated 6.6.1998 does not amount to continuation of the previous contract. The learned Counsel therefore submits that the impugned judgment and order is required to be interfered with.

WE have perused the record. Though the appellant has filed the copy of the letter issued by the Assistant Housing Commissioner on 24.6.1994 (Annexure P-2) which shows that those who wanted to be included in the lottery draw to be held on 2.7.1994, ought to have deposited the amount in excess of two instalments prior to 28.6.1994, yet, there is nothing to show that such communication was served on the respondent. Thus, it is difficult to say that the respondent was wilful defaulter as on the date of second draw which was scheduled to be conducted on 2.7.1994. It is brought on record that the respondent had submitted an application for allotment of the house vide application No. 702. The record further shows that one of the remaining houses was allotted to Laxman Prasad. Affidavit of said Laxman Prasad shows that he was serving as Deputy Housing Commissioner with the appellant - Board. It does not appear from the record that he had applied for allotment of the house. The affidavit only shows that the respondent committed defaults. His affidavit further shows that house No. 21/1113 was allotted to the respondent on the basis of his consent, and as per the prevailing cost. The appellant did not explain whether the allotment made to deponent Laxman Prasad was in accordance with the terms of the Scheme and if he too had applied for allotment of the house in the year 1993. The appellant did not specifically deny the allegation that the allotment made to the deponent Laxman Prasad was not in accordance with the terms of the Scheme. The respondent further alleged that some of the allotments were made to the persons who had deposited only the first instalment. This allegation was also not denied. What appears from the record is that though the respondent had deposited the first instalment along with the penal interest, yet he was kept away from the allotment during the course of 2nd and 3rd draws. It is obvious therefore that appellant had committed error while excluding the name of the respondent in the 2nd and 3rd draws. There was deficiency in service because the registration was revived and the respondent had already paid the first instalment along with penal interest. With the result, he had become eligible for the purpose of allotment of the house in the year 1993 itself.

IT is no doubt true that the respondent accepted the allotment of another house No. 21/1113 in the year 1998. The respondent accepted such allotment under compulsion because he was in need of the house. There is no legal estoppel created by his acceptance because he, later on, applied for waiver in respect of the extra amount.

WE may notice the fact that the registration of the respondent was revived on payment of the first instalment and the penal interest. It is clear therefore that the initial registration to seek allotment of the house sought by the respondent in the year 1993 was continuing. The State Commission considered the relevant aspects and instead of granting the total remission of the demanded amount, found that the respondent could be granted 50% of the waiver in view of the earlier defaults made by the respondent. The intention of the Consumer Protection Act, 1986 is to secure protection to the consumers as well as welfare of the class of the consumers. In this view of the matter, the grant of 50% of the remission by the State Commission was within the discretionary powers of the State Commission. The discretion appears to have been duly exercised. We do not find any substantial reason to interfere with the impugned judgment and order.

IN the result, the appeal fails and is dismissed, with no order as to cost. Appeal dismissed.