U.P. AVAS EVAM VIKAS PARISHAD BASUNDHARA YOJNA vs JAG MOHAN SINGH OBERAI

THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the ''Act'') against judgment and order dated 23.3.1998 passed by District Consumer Forum, Ghaziabad in Complaint Case No. 430 of 1997.

A complaint was initially filed with the allegation that in the scheme floated by the appellant/opposite party a sum of Rs. 15,000/- was deposited by the complainant towards registration amount in the month of March, 1982 for being allotted a house, but still no house was allotted. Consequently a complaint was filed before the learned District Forum. In the written statement specified plea of the opposite was that only a sum of Rs. 15,000/- in two instalments were got deposited towards the registration amount which has now been enhanced to Rs. 50,000/-. In case the complainant wants to get allotment, a further sum of Rs. 35,000/- is to be deposited towards registration amount. Consequently, the complaint was not maintainable.

The learned District Forum after perusing the evidence on record and hearing the submissions of the Counsel for the parties, ordered that within a period of two months the complainant be allotted a house in the scheme in question and payment schedule be also issued so that the complainant can make the payments as per schedule. It was further ordered that interest at the rate of 18% per annum on deposited sum of Rs. 15,000/- be paid by the opposite party to the complainant from the date of deposit till the date of handing over possession. In addition a sum of Rs. 2,000/- as compensation was also awarded.

AGGRIEVED the opposite party has come in this appeal. We have heard Mrs. Manju Lata Misra, Counsel for appellant and Mr. S.K. Sharma, learned Counsel for the respondent/complainant. We have also perused the evidence available on record very carefully. The only point which survives for active consideration is as to whether the impugned order is liable to be maintained. On the mere look of the order it is clear that a sum of Rs. 16,000/- towards registration in two instalments was deposited by the complainant/respondent. Thereafter no needful steps were taken for depositing further sum of Rs. 35,000/- for purposes of complainant being entitled to be included in draw of lottery. In the instant case the applicant''s name was included in the draw of lottery but no house could be allotted. The grievance of the appellant is that merely on the strength of depositing of the registration money there could not be an order as has been passed by the learned District Forum, of allotment of house coupled with handing over the possession and further it was not open to the District Forum to have passed an order directing the appellant to pay interest at the rate of 18% from the date of deposit till the date of the possession of the newly allotted house. Learned Counsel for the respondent, however, supporting the argument further submitted placing reliance on condition No. 7 of the allotment as contained in the relevant brochure that even if the name was not successful in the first lottery of draw, the applicant''s name was entitled to be incorporated in the next draws of the lottery till the allotment of suitable accommodation. Thus there are two points to be considered, (i) whether the complainant was entitled to have his name in all the draws of lottery for allotment of the accommodation till the allotment on the strength of Clause 7, and (ii) as to whether the order of allotting a new accommodation and handing over the possession and the rate of interest of 18% from the date of deposit till the date of possession is justified.

AS regards the first contention of Mr. Sharma is concerned, in our opinion it is not acceptable as to in what manner the allotment is to be made and what are the procedures to be adopted from both sides are well contained in the brochure. Each condition contained in the brochure are inter-connected with each other. Here Clause 7 is to be read with Clause 12 Clause 7 reads as under: "Those who do not get property in the first draw of lots will continue to be considered in subsequent draws until the time they are allotted property or cancel their registration asking for refund of deposit" Clause 12 make it amply clear that for making the U.P. Housing and Development Board to merge the name of the applicant in the next draw, an obligation is caused on the applicant who has deposited the registration money to make a request for his name being incorporated in the draw of lot in which he is interested. That obviously has not been exercised by the complainant respondent by moving an application and on failure to do so no liability can be fastened on the appellant. As regards the second point is concerned, we are satisfied that merely on the basis of deposit of registration amount of Rs. 15,000/- it cannot be ordered to allot an accommodation and to hand over possession and further it cannot be ordered for paying interest at the rate of 18% from the date of deposit of the amount till the date of handing over the possession. Consequently the orders in this regard are liable to be set aside. Since in our view Rs. 15,000/- towards registration is still deposited with the appellant, the complainant is entitled to get back this amount along with interest at the rate of 16% from the date of deposit till the date of payment. Thus the appeal succeeds in part. ORDER The appeal is allowed in part. The order of allotment of new accommodation and issuing of schedule of payment is set aside. The complainant is entitled to get Rs. 15,000/- along with interest @ 6% per annum from the date of deposit till the date of payment. In case the payment is not refunded within two months from the date of this order, interest payable shall be at the rate of 9% per annum. In the circumstances of the case, there will be no order as to the costs. Let copy as per rules be made available to the parties. Appeal partly allowed.