NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the Order dated 29.06.2000 in Appeal No. 573 of 1998 of State Consumer Disputes Redressal Commission, Punjab, Chandigarh)

HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

PRONOUNCED ON         :   02.03.2009

Petitioner, who was the Opposite Party before the District Consumer Disputes Redressal Forum, Ropar (hereinafter referred to as ‘the District Forum’ for short), has filed the present Revision Petition.

Shortly stated, the facts of the case are: -

Respondent/complainant filed the complaint with the allegation that the petitioner had floated a scheme in the year 1989 for allotment of built-up HIG (single storey) houses at Phase IX, SAS Nagar, Mohali having a covered area of 1010 sq.ft. at a tentative cost of Rs.2,60,000/-. Applications were invited on the prescribed form with earnest money of Rs.4,000/- by 10.03.1989. As per advertisement, the allotment was to be made by draw of lots and a waiting list of the remaining unsuccessful applicants was to be drawn to the extent deemed fit. Pursuant to the advertisement, the complainant sent his application for allotment of a built-up HIG (single storey) house along with requisite affidavit and earnest money of Rs.4,000/-. The name of the complainant was registered on 09.03.1989 and was assigned No. 721/89. As the house was not allotted, the complainant filed the complaint with the District Forum with the aforesaid averments made in the complaint.

Petitioner, in its reply, submitted that the complainant could not be treated as a ‘consumer’ as defined under Section 2(d) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for short). It was asserted that the amount of Rs.4,000/- was got deposited as a ‘Demand Survey’ conducted by the petitioner. That the complainant was not registered for allotment. That the sum of Rs.4,000/- had been refunded to the complainant in the year 1997 and after the refund of the amount, the petitioner seized to be a ‘consumer’. It was asserted that along with the other applicants, the name of the complainant was included in the draw of lots held in the year 1989 and 1996 but he remained unsuccessful because of which, the said deposit was refunded to the respondent/complainant under the general policy of the petitioner. Respondent filed rejoinder to the same asserting that he was a ‘consumer’.

District Forum allowed the complaint and directed the petitioner to process the case of the complainant deeming him to be successful applicant as on 10.11.1989 and allot him a suitable HIG type house (single storeyed or a flat) for a total sale price out any available scheme prevalent in the year 1989. A compensation of Rs.50,000/- along with cost of Rs.4,000/- as litigation expenses was also awarded.

Aggrieved against the Order passed by the District Forum, the petitioner filed an Appeal before the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (hereinafter referred to as ‘the State Commission’ for short). The State Commission dismissed the Appeal and held that there was nothing on record to show that the petitioners had withdrawn/amended /cancelled the scheme at any stage and informed the complainant regarding the cancellation or withdrawal of the scheme. There was nothing on record to show that the petitioner had refunded the earnest money of the complainant.

Aggrieved against the Order passed by the State Commission, the present Revision Petition has been filed.

The impugned Order of the State Commission is dated 29.06.2000. Certified copy of the impugned Order was received by the petitioner on 25.07.2000 and the present Revision Petition was filed in the year 2001. Counsel for the respondent took the preliminary objection that the Appeal was barred by time and the same deserves to be dismissed. In the year 2001, the limitation for filing the Revision Petition was not provided under the Act. With the amendment of the Act in the year 2005, limitation of 90 days has been provided for filing the Revision Petition. Counsel for the respondent contends that earlier also, if the Revision Petitions, if were filed beyond 100 days, were dismissed and as in the present case, the delay was more than 100 days, the Revision Petition deserved to be dismissed. This Revision Petition was admitted in the year 2004. On the admission of the Revision Petition, delay, if any, would have to be condoned. Otherwise also, after the pendency of the Revision Petition for 5 years after admission, we are not inclined to dismiss the same on the ground of limitation. Delay, if any, in filing the Revision Petition is condoned.

On 12.09.2006, this Commission passed an Interim Order, which reads as under: -

“It is not in dispute that respondent deposited an amount of Rs.4,000/- sometime in March, 1989 towards registration fee of a house in HIG Scheme. It is also not in dispute that this amount was refunded without any interest to the respondent in May, 1997. It is further not in dispute that first draw of lot was held on 10.11.1989 while second on 20.9.96 and in these draws the respondent was unsuccessful.”

It would be seen that the respondent on that day did not disputed that the sum of Rs.4,000/- deposited by it had been refunded to the complainant in the year 1997. It was also not disputed that the name of the petitioner have been considered in the draw of lots held on 10.11.1989 as well as on 20.09.1996 and in these draws, the respondent was unsuccessful.

Counsel for the petitioner relying upon the Judgment of the High Court of Punjab and Haryana in Civil Writ Petition No. 17801 of 1996 “Kabul Singh and Others v. Punjab Urban Planning and Development Authority”, contends that the Revision Petition deserves to be allowed and, consequently the complaint filed by the complainant be dismissed. We have gone through the issue in Kabul Singh’s case (supra). The High Court in Kabul Singh’s case (supra) held as under: -

“A conjoint reading of the various provisions of ‘the Act of 1972’ shows that the Punjab Housing Development Board was authorized to frame various kind of schemes including the housing schemes. In terms of Section 32(g), the housing scheme could provide for sale, lease or exchange of any property comprised in the scheme. Section 42 to 45 contain provisions for preparation and publication of the draft scheme, consideration of the objections filed by individuals as well as the local authority. Sanction of the scheme by the State Government and execution thereof by the Board. Similarly, Section 91 of ‘the Act of 1995’ empowers the Authority to frame different types of schemes including housing schemes for various categories of persons. Provisions contained in Chapter-XII of the Act which lays down the mode of publication of the draft scheme, consideration of the objections and sanction of the Government are pari material with Section 42 to 45 of ‘the Act of 1972’.

It is, therefore, clear that before the Punjab Housing Development Board could undertake construction of houses it had to prepare scheme in accordance with the provisions of ‘the Act of 1972’. The scheme floated by the Board in the year 1989 must be deemed to have been prepared after following the provisions of ‘the Act of 1972’. The petitioners, who had applied for allotment of HIG (single storey) houses pursuant to the notice Annexure-P.1 or any of the provisions of ‘the Act of 1972’indicating that the petitioners and others, who had applied pursuant to Annexure-P.1, acquired a perennial right of consideration for allotment of HIG house for all times to come. In the absence of such a provision either in the statute or in the notice issued by the Board inviting applications for allotment of HIG houses, it is not possible to accept the argument of Shri Sarjit Singh that the petitioners acquired a right to be allotted HIG (single storey) houses. In our opinion, the right acquired by the petitioners to be considered for allotment of HIG (single storey) houses in Phase-IX, S.A.S. Nagar did not subsist after the Board had undertaken an exercise for allotment of the houses constructed by it. Rather that right stood extinguished the day the process of allotment was completed. The announcement made by the Housing Commissioner vide Annexure-P.4 to the effect that the unsuccessful applicants will be given priority in allotment in any of the HIG Scheme which the Board may take up in the S.A.S. Nagar in which future can at the best be treated as an extraordinary concession given to the unsuccessful applicants that they may be considered in future. The Board could not have, in the absence of any notified scheme, conferred a right upon the unsuccessful applicants to be allotted a house in future or a right to be considered in preference to other who may apply in response to the advertisement of fresh scheme. As and when the Board was to notify a fresh scheme and invite applications from eligible persons, all the applicants had to be considered at par and no preference could be given to the petitioners merely because they had applied in response to notification issued for allotment of house under earlier scheme. In our considered opinion, the announcement contained in Annexure.P.4 cannot be equated with a promise made by a competent authority under the statute. Rather the Board, had no authority to hold out such promise to the unsuccessful applications who had applied for allotment of HIG (single storey) houses in Phase-IX, S.A.S. Nagar. The power of the Board to dispose of the land, building or other property vested in it could be exercised by it consistent with the doctrine of equality embodied in the Constitution. It is one of the settled principle of law that a public authority discharging public duty must act in public interest and its action should not be arbitrary or unfair. The wiser meaning given to the concept of equality required that every State action must be reasonable and must not be arbitrary or opposed to public interest. Therefore, it was not open to the Board to make any promise to the petitioners and other unsuccessful applicants for allotment of houses in disregard the provisions of the statute and the doctrine of equality.”

A perusal of the above quoted observation of the High Court, clearly shows that the point in Judgment in the present case stands concluded against respondent/complainant. Scheme under consideration before the High Court was the same as in the present case. The petitioner before the High court was situated in the same position as the respondent herein. It has been held that the right acquired by the petitioners to be considered for allotment of HIG (single storey) houses in Phase IX, SAS Nagar did not subsist after the Board had undertaken an exercise for allotment of houses constructed by it. Rather that right stood extinguished on the day the process of allotment was completed. The right of the petitioner could not continue indefinitely/inperpetuity.

Following the view taken by the High Court of Punjab and Haryana, we accept the Revision Petition, set aside the Order passed by the District Forum as well as State Commission and dismiss the complaint. No costs.

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                                                                (ASHOK BHAN J.)

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