- (1.) THIS is a complaint under sec. 12 of the Consumer Protection Act, 1986 (Act No. 68 of 1986) ("the Act" herein) filed by Shri Kanhaiyalal Mathur against the Secretary, Rajasthan Housing Board,jaipur on 21-2-89. The complainant has alleged that he does not own any house in Jaipur or anywhere in Rajasthan. He is a salaried employee of the Rajasthan State. The Rajasthan Housing Board is an autonomous body which was constituted in 1970 for solving the problem of houses. For this, the Rajasthan Housing Board ("the Board" herein) after accepting amounts of the desired persons, registers their names and make available the houses to them. The complainant submitted an application for General Registration Scheme July-September, 1973. The Board deposited Rs. 2500/- on 29-9-73 and registered him in Low Income Group (LIG ). It has been stated that under this scheme, Middle Income Group (MIG) A (A) and (B) were not classified. It has been further stated that according to the registration under July-September, 1973 Scheme, he should have been allotted a house built on 30' ft. x 60 ft. = 1800 sq. ft. , i. e. 200 sq. yards. Such house was to be allotted to him within 1-1/2 to 3 years period as mentioned in clause 5 of the Scheme. It is said that under clause 6 (3), it is clearly mentioned that 40% houses are reserved for salaried employees, still the house was not allotted to the complainant. In the year 1977, the Board published Summer Allotment Scheme and asked for alternative from the registered persons. The complainant gave his option for M - 1 group (Low Income Group) in Lal Kothi Scheme for 30 ft. x 60 ft. vide application No. 4560 dated 30-8-77, but he was not allotted any house. Subsequently, the Board published in 1979-80 Reserved Scheme for Jaipur City. According to which,. Middle Income Group was divided into two parts A (A) and (B) and registration amount was re-determined for M. I. G. area of 11 x 18 metres=198 sq. metres was fixed for 'b' Group. The complainant was forced to deposit: Rs. 2100/- vide letter No. 7623 dated 30-5-89 and the complainant gave his option in the application under M. I. G. ('b' group ). The name of the complainant was included in the list of eligible persons but the house was not allotted to him. The Board published Letter No. 2 in 1980-81 and invited fresh applications for different schemes and options. The complainant gave his option vide letter No. 14072 dated 28-8-80 to Lalkothi Scheme. In this scheme, the name of the complainant was shown at serial No. 11 in the unreserved list, but the house was not allotted to him. In the year 1980-81, the Board published Lottery No. 3, Allotment Scheme, according to which, the complainant submitted an application No. 24841 dated 12-8-81 and gave his option. In this scheme, houses built on 198 sq. metres were to be allotted. In the list, which was published in regard to Lottery No. 3, the name of the complainant was not included and against his name, it was mentioned-amount less deposited and, therefore ineligible for allotment. The complainant contacted the officers of the Board several times, but still his name was not included and according to him, this was done deliberately for favouring officer's relations. It is said that on 25-1-85 the Board published seniority list in which the name of the complainant was shown in the eligible list in Batch No. 15-S. No. 163, priority No. 119, but the house was not allotted. The representation and requests made by the complainant to the President Shri Adarsh Kishore Saxena did not yield the desired result. For removing the housing problem, a meeting was arranged through the Housing Rehabilitation Committee. The then President Shri M. L. Mehta and other officers and officials of Housing Development Finance Corporation (HDFC) took part in it. At that meeting, an assurance was given that to 1973 registered applicants, special concession will be given and no interest will be charged for delayed deposit. A further assurance was given that for 1973 registered applicants, facility of loan from HDFC will be extended and possession would be delivered by March, 1988. The complainant has further stated that in accordance with the meeting, which was held at Adarsh Nagar, the complainant was forced to make an application for flat system and he submitted his option on 11-1-88. Thereafter, the complainant, received letter No. 205 dated 13-5-88 which was issued by the Board. According to which, the complainant was allotted in the First Floor Flat System House No. 13/32, which was not outright sale, but it was under M. I. S. The area of the house was 44. 15 Sq. Metres. It was incomplete and was in a dilapidated condition. Thereupon, the complainant requested on 23-5-88 to the Board to convert it into an outright sale. In reply to this letter, the complainant received letter No. 552 dated 13-7-88, which was an allotment letter and it related to an outright sale for Rs. 63,936/ -. Affidavit, undertaking, and acceptance letter were required to be deposited/sent within three months and the possession was to be obtained by 9-9-88, from the Senior Engineer. THIS allotment letter was issued in pursuance of letter No. 205 dated 13-5-88, according to which, Rs. 63,936/-were to be deposited by 12-8-88. The complainant is said to have applied for a loan of Rs. 40,000/- from HDFC and submitted an application to the Board for extending the date upto 12. 10. 88. The complainant has alleged that he submitted the papers, cheque, Bank Draft on 15-10-88. All this was late by 3 days as he received the cheque from HDFC on 14. 10. 88. The complainant received letter No. 552 on 13-7-88 that the allotted house is ready and complete. According to that letter in connection with his application No. 13239, he has been allotted House No. 13/32 FF in Malviya Nagar Scheme measuring 44. 15 Sq. metres under the Disposal of Property Regulations, 1970. The complainant has drawn our attention to para 10 of that letter in which it is stated that the house is complete and if there is any deficiency, then he should contact the Residential Engineer. THIS House was sought to be sold to the complainant for Rs. 84,050/- and the complainant was required to deposit Rs. 63,935. 18 (Rs. 69,936/- ). The amount was to be deposited within three months. It is said that the Board affixed a list on the Notice Board of the Board on 21. 11. 87 in which it was stated that the complainant has been allotted House No. 10/159 in Man Sarovar Scheme. In that connection, an allotment letter No. 155 dated 3-2-88 was issued to him. The area shown in that letter was 90 sq. metres. According to the complainant he has applied for the allotment of a house measuring 200 sq. metres whereas by this letter, he was allotted a house measuring 90 sq. metres. It may be mentioned here that the opposite-party has submitted a photostat, copy of the letter sent by the complainant, in which it is written - "i beg to submit that the allotment made on 21st December, 1987 may now kindly be changed into outright sale and may be allotted in Malviya Nagar. I am ready to take possession of the flat of three rooms set in Sector No. 10 and 13 (ground floor), If ground floor is not available, I am ready to take first floor. . . . . . . . . " The complainant stated that House No. 13/32, which was allotted to him, has not been allotted and it is incomplete. In this connection, he has produced the photographs. The complainant has further stated that in the letter No. 1327 dated 8-2-89, it was mentioned that as the amount was deposited three months late, he should deposit Rs. 3037/- as interest by 9-3-89 and obtain possession, whereas the house in fact was incomplete. In para 19 of the complaint, the grounds for filing the complaint have been mentioned. Some of them relate to the 'deficiency' in 'service' rendered by the opposite-party. The complainant has prayed for the following reliefs : - (1) that the opposite party may be directed to allot a house to the complainant measuring 200 sq. yds. in Jawahar Nagar, Lalkothi and Malviya Nagar Schemes; (2) that the present cost of construction of a bouse in Lalkothi/ Jawahar nagar and Malviya nagar for an area of 200 sq. yds. is about 2,50,000/- whereas the same house he would have got in Rs. 42,000/-and so he should be awarded Rs. 2,08,000/- from the opposite-party; (3) that a sum of Rs. 4,01,861/- may be ordered to be paid to him as compensation as detailed in para 2 (3) (5) and (6 ).
(2.) THE complainant has filed photostat copies of the receipt dated 29-9-73 and house Description Letter dated 8-2-73 and also photos of the allotted house; copies of letter for allotment of a house dated 30-8-77, receipt of option letter for allotment of a house in Lalkothi Scheme dated 30-8-77, receipts of options for allotment of house in Lalkothi Scheme and Malviya nagar Scheme dated 12-3-81 and 30. 5. 79 respectively. The opposite-party filed version of the case contesting the complaint on various grounds. A preliminary objection was raised that the complainant is not a 'consumer' and, therefore, the State Commission has no jurisdiction to hear and decide the complaint of the complainant. Another preliminary objection is that the complaint is in respect of sale and purchase of immovable property which cannot be taken cognizance of by the State Commission. It was submitted that no right accrued to the complainant for the allotment of a house by the Housing Board Scheme July-September, 1973. It was pleaded that the complainant of his own accord opted for a house in Lalkothi Scheme and the allotment was made by Lottery. The complainant did not succeed in the Lottery and, therefore, house was not allotted to him in the Summer Allotment Scheme in 1977. It was submitted that the complainant of his own accord, opted for M. I. G. 'b'. After including his name amongst the eligible persons, lottery was drawn but the complainant was not successful. Again, the name of the complainant of his own accord was included in the General Category of 80-81 Part II for which the lottery was drawn but he was not successful. So far as averments made in para 9 of the complaint are concerned, it was stated that before lottery could be drawn for 80-81 Part III, the list of the eligible and non-eligible persons was published on the Notice Board and objections were invited and after enquiring into the objections, final list was published and thereafter, lottery was drawn. As the name of the complainant was not there in the final list of the eligible persons, his name was not included for drawing the lottery. It was said that all those who got themselves registered in 1973, their priorities were determined through lottery and houses were made available according to that. It was stated that in accordance with the option and availability of the houses, the complainant was allotted Flat No. 13/32 in the First Floor in Malviya Nagar Scheme on cash payment. It was admitted that the amount was deposited late and so interest was charged in accordance with the Regulations. It was submitted that before taking possession of the house, the allottee has to contact the Residential Engineer and if there is any deficiency in it, that is removed and thereafter possession is delivered. The claim for compensation filed by the complainant was also denied. No documents were filed by the opposite-party with the reply. The complainant stated on 27-7-89 that he dees not want to produce any evidence in support of the complaint. So also, on 9. 8. 89, Mr. Arjunlal Tolani, Advocate, for the opposite-party stated that opposite-party does not want to produce any evidence. Learned counsel for the complainant submitted written arguments on that date. On 11. 8. 89, Mr. Arjunlal Tolani, learned counsel for the opposite-party filed a photostat copy of the letter, mentioned hereinabove, signed by the complainant, addressed to the Secretary Housing Board, Jaipur. Liberty was given to the complainant to file any other document, if he so likes. However, no documents were filed by the complainant. Oral arguments were heard. We have carefully considered the record and the written arguments filed by the learned counsel for the complainant. Learned counsel for the opposite-party has raised a preliminary objection that the complainant is not a 'consumer' as defined in section 2 (l) (d) and the opposite-party does not render any 'service' within the meaning of section 2 (1) (o) of the Act and the grievances made by the complainant do not constitute 'deficiency' as contemplated by sec. 2 (l) (g) of the Act. In this connection, it was also submitted the learned counsel for the opposite-party that the complaint is with respect to sale and purchase of immovable property and therefore, the State Commission has no jurisdiction under the Act and the complaint should be dismissed summarily. In these circumstances, the main question that arisees for consideration is whether this complaint is maintainable under the Act and the complainant can invoke the provisions of the Act for the reliefs which he has prayed for in the complaint. It may be stated that the Rajasthan Housing Board Act, 1970 (Rajasthan Act No. 4 of 1970) ("the Act of 1970" herein) was promulgated by the Rajasthan State Legislature to provide for measures to be taken to deal with and satisfy need of housing accommodation in the State of Rajasthan. By virtue of sec. 4 of the Act of 1970, the State Government has been authorised for the purpose of this Act of 1970, by notification in the Official Gazette to establish the Rajasthan Housing Board (the Board) which is a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property both movable and immovable and to enter in to contracts and may by its corporate name sue or be sued and do all things and acts necessary for the purpose of the Act. Sec. 26 of the Act of 1970 deals with powers and duties of the Board regarding Housing Schemes. Sec. 28 of the Act of 1970 relates to the matters to be provided for by the Housing Schemes. Sec. 35 thereof provides for transfer to the Board for the purpose of Housing Schemes land vested in a local authority. Other duties of the Board are mentioned in sec. 38. Sec. 53 authorises the Board with the previous sanction of the State Government to make Regulations consistent with the Act of 1970 and with any rules made under the Act from time to time. Sec. 53 confers power on the Board to make bye laws not inconsistent with the Act which may be necessary or expedient for the purpose of carrying out its duties and functions under the Act. The Rajasthan Housing Board has framed Regulations which are called Rajasthan Housing Board (Disposal of Property Regulations), 1970. These Regulations provide for : " (1) terms and conditions of disposal of property; (2) procedure for disposal of property; (3) Hire-purchase, tenancy and transfer of ownership. " Keeping these provisions in view, we have to consider (1) Whether the complainant is a 'consumer'; (2) Whether the Board renders any 'service'; and (3) Whether the allegatibns made by the complainant in the complaint show that the 'service' rendered by the Board suffered from 'deficiency' within the meaning of sec. 2 (g) of the Act. The controversy of 'consumer' and 'service' need not detain us long as the questions arose in U. P. Avas Evam Vikas Parishad (Housing & Development Board) vs. Garima Shukla and others (First Appeal No.-5/89 decided on July 27, 1989 by the National Commission) (l ). The preliminary objections challenging jurisdiction of the State Commission to entertain and hear the complaint, were raised before the National Commission. It was submitted on behalf of the appellant in that case : (1) that it was a statutory body which did not undertake activity of sale of 'goods' or rendering service for consideration; (2) that it was engaged in the transfer of immovable property either in the shape of plots or in the form of built up houses and these activities were not within the purview of the Act; (3) that the Act having been processed by the Ministry of Food and Civil Supplies did not extend to the appellant in as much as its activities were not within the purview of the Ministry of Food & Civil Supplies; and (4) that the service rendered by the appellant did not fall-under the definition of the 'service' given in sec. 2 (o) of the Act. The National Commission repelled all the points and observed as follows : - "the mere fact that the Housing and Development Board is a statutory body does not mean that it is outside the purview of the Consumer Protection Act. The Housing & Development Board is engaged in serving the public in the matter of providing housing by acquisition of land, development of sites, construction of houses thereon and allot-ment of plots houses to the public. The Board is clearly engaged in rendering services for consideration to the public and, therefore, those who are allotted plots/houses from the Board are clearly consumers falling within the definition in section 2 (d) (ii) of the Act. Again, in sec. 2 (o) of the Act, the definition of the term 'service' is very comprehensive. It means 'service' of any description including banking, financing, insurance, transport, processing, supply of electrical or other energy, entertainment etc. This leaves no room for doubt that the type of service which the Board renders to the public for consideration is clearly covered by sec. 2 (o ). It is also evident from section 2 (o) that even though the Act has been processed by the Ministry of Food & Civil Supplies of the Government on India, the Parliament has enacted it and there is no provision in the Act limiting it to the subjects under the control of the Civil Supplies Ministry. We, therefore, find no merit in the arguments advanced by the appellant's counsel on the point of jurisdiction of the State Commission and we confirm the finding of the Commission. " It is clear that the Board is a corporate body having perpetual succession with power to acquire, hold and dispose of property both movable and immovable, Sec. 28 provides for housing schemes. Sec. 35 provides for transfer to the Board for the purpose of Housing Scheme, land vested in the local authority. The Housing Board (Disposal of Property) Regulations, 1970 were framed, which apply generally to the schemes in which the properties created therein are to be disposed of by way of sale or hire purchase and in particular, to the following schemes : - (i) Janta Income Group Housing Scheme; (ii) Low Income Group Housing. Scheme ; (iii) Middle Income Group Housing Scheme; (iv) High Income Group Housing Scheme.
(3.) TERMS and conditions of disposal of property are contained in Chapter II of the Regulations, Chapter III thereof provides the procedure for disposal of property. Chapter IV of the Regulations is with respect to the hire purchase, tenancy and transfer of ownership. It is clear from the Act of 1970 and the Regulations that the Board is engaged in serving the public in the matter of providing housing by construction of houses on the land and allotment of plots houses to the public. In these circumstances, the Board is engaged in rendering 'services' for consideration to the public. It follows, therefore, that those, who are allotted plots/houses from the Board are clearly 'consumers' falling within the definition contained in sec. 2 (l) (d) (ii) of the Act. The definition of 'service' contained in sec. 2 (l) (o) of the Act abundantly makes it clear that the type of service which the Board renders to the public for consideration is clearly covered by sec. 2 (1) (o) of the Act. For all these reasons, the preliminary objection raised on behalf of the opposite party is not sustainable as, in our opinion, the complainant is a 'consumer' and the service rendered by the Board is 'service' as defined in sec. 2 (l) (o) of the Act. The State Commission has jurisdiction to hear and decide the complaint. The preliminary objection is, therefore, rejected. Before we proceed further, it may be mentioned that in Jyoti Pra-kash Vs. The Rajasthan Housing Board (1979 W. L. N. (UC), 101 ) (2), it has been held that the Regulation Schemes 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 Deep Chand Vs. 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 Scheme, July September, 1973. The complainant gave his option for the house in Lalkothi Scheme, in which the allotment was to be made by lottery. The complainant was not successful in the lot drawn and, therefore, the house was not allotted to him under the Summer Allotment Scheme in 1977. Thereafter, the complainant opted for M. I. G. (B ). The name of the complainant was included amongst the eligible persons. The complainant was unsuccessful when the lot was drawn. Subsequently the name of the complainant was included in the general category of 1980-81 Part II for which lottery was drawn, but he was not successful. From the events stated by the complainant and the opposite-party, it is clear that the persons who got themselves registered in 1973, their priorities were determined through lottery and houses were made available according to that. The complainant had exercised his option one after the other and in accordance with that, when the houses, were available, the complainant was allotted Flat No. 13/32 in the first floor in Malviya Nagar Scheme on cash payment. We may refer to the allotment letter No. 205 dated 13. 5. 88, issued to the applicant, in which it was written that the deposit of the amount was to be made by 12-8-88 in respect of House No. 13/32, first floor in Malviya Nagar Housing Scheme. Thereafter, letter No. 552 dated 13-7-88 (Anx. 2) was sent in pursuance of the letter dated 13. 5. 88, by which the complainant was asked to deposit the amount within three months from the date of the issuance of the letter and to submit the documents etc. According to the complainant, the house was not complete, though it is so mentioned in Anx. 2. Subsequently, letter No. 1327 dated 8. 2. 89 was issued to the complainant in which demand for interest for three months amounting to Rs. 3037/- was raised in which it was written that the possession by allotment will only be given after deposit of the amount. The date mentioned for taking possession was 9-3-89. The complainant is said to have sent a letter dated 20-3-89, by which he asked that the allotment made on 21-12-87, may be changed into outright sale and may be allotted in Malviya Nagar and that he is ready to take possession of flat of three rooms set in sector 10 and 13 on the ground floor and if the ground floor is not available, he is ready to take in first floor. In that letter, it was written that the complainant has applied for loan to HDFC for arranging necessary amount of loan directly to be deposited from the Corporation to the Housing Board. In these circumstances, the question that arises is whether there was deficiency in service rendered by the Board to the complainant or not. The terms of disposal of property are contained in Chapter II of the Regulations. Regulation 5 deals with the disposal of property. Regulation 6 is for fixation of price. Eligibility for allotment is dealt with by Regulation 7. Regulation 9 is with respect to manner of payment of disposal price. It will be useful to reproduce it : "9. Manner of payment of disposal price : (i) every applicant shall deposit at the time of registration of his name for allotment, a specified sum as registration deposit. The Board shall have the sole and exclusive right over the deposit till it is adjusted or refunded with or without deduction as provided in these regulations : (ii) when the property is disposed of by sale, the applicant to whom the property has been allotted, shall have to pay the balance amount of the disposal price (i. e. after adjusting registration deposit and interest) within four months of the date of allotment letter ; (iii) if the allottee fails to pay amount within the specified period of four months, he shall be charged interest @ 10% on the aforesaid amount for the first month of default and further interest @ 2% for the second month of default. In case of failure to pay the amount within the period of six months or to fulfil the requirements as specified in the allotment letter; the allotment shall be cancelled and the sum equal to 20 % of the registration deposit shall be forfeited and the balance refunded. " Chapter III of the Regulations lays down the procedure for disposal of property. Regulation 22 is in respect of the registration of applicants. Regulation 24 thereof is with respect to registration deposit. Regulation 26 is in respect of entry of applicant in a register. Regulation 27 of the Regulations is important. It is as follows : - - "27. Allotment of houses. (i) The Board shall reserve/allot a house to a registered applicant on the basis of availability of tenements/houses; (ii) Where the number of tenements/houses is more than the number of applicants, all persons will be reserved a house without any draw; (iii) Where the number of applicants is more and the number of tenements/houses is less, reservation will be made by draw of lots. For this the Board will reserve tenements/houses according to the year-wise priority. (iv) Allotment of tenement/house number to a successful registered applicant shall be given by draw of lots. (v) Mode of payment as indicated in the registration form shall be treated as final. " Regulation 29 is with respect to draw of lots. Regulation 30 deals with entry of final list of allottees/hirers in a register. Execution of allotment is dealt with in Regulation 35. Regulation 37 provides for handing over of possession of property (sale ). In U. P. Awas Evam Vikas Parishad's case, (supra) an argument was raised on behalf of the appellant that the State Commission had placed onerous and unfair obligation on the applicant requiring it to provide alternative plot in the original colony, i. e. Vikas Nagar itself within three months from 30-4-89 and that the plot should be of 330 sq. metres in area and it should be of the choice of the respondent-applicant and for the delay in giving the possession of the plot after having received the price of the plot, interest should be paid to him at the rate of 18% on the amount deposited and the damages of Rs. 1000/-per month as set out in the operative part of the judgment. The National Commission observed : - "the learned counsel could not explain as to why the Board had not given to the respondent the possession of the plot when the stay order of the High Court was only in respect of the construction of buildings therein nor as to why to get the stay order vacated. He also could not justify the Awas Parishad's receiving the full amount from the respondent after the receipt of the stay order of the High Court. . . . . . . . . We, therefore, uphold the judgment of the State Commission regarding the reliefs granted to the respondent except to the extent of making a slight modification by our directing that in case all the plots in the original area have been allotted to other persons, a plot in the adjoining area according to the choice of the respondent may be allotted to him in the result. . . . . . . . . . . " In the case on hand, the complainant had deposited the amount on 15-10-88, but still the possession of the house was not delivered to him. A demand of Rs. 3037/- raised by the opposite-party vide letter No. 1327 dated 8-2-89 was not justified and was in disregard of Regulation 9 (iii) of the Act (sic Regulations ). The complainant is liable to pay interest for the first month on default as he had dieposited the amount on 15. 10. 88 in accordance with Regulation 9 (iii) of the Regulations. The opposite-party did not deliver the possession of the house, though the amount was deposited on 15-10-88. It should have delivered the possession expeditiously after completing the allotted house, which it failed to do. In these circumstances, the opposite-party failed to hand-over the possession of House No. 13/32, first floor, in Malviya Nagar Scheme, Jaipur for which A. P. No. 205 dated 13. 5. 88 was issued and in the continuation of which allotment letter No. 552 dated 13. 7. 88 was sent to the complainant and for which the complainant has deposited the amount and submitted documents on 15-10-88. . It has failed to hand-over the possession of the allotted house after completing it soon after the full price was deposited. In these circumstances, it is clear that the service rendered by the opposite-party to the complainant suffered from 'deficiency' as defined in sec. 2 (l) (o) of the Act. The complainant has claimed compensation as detailed in para 21 of the complaint. Compensation can be awarded under s. 14 (l.) (d) of the Act. ;