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Judgment
This revision petition has been filed under section 21(b) of the Act 1986 in challenge to the Order dated 12.01.2011 of the State Commission in appeal no. 3901 of 2001 arising out of the Order dated 29.10.2001 of the District Commission in complaint no. 117 of 2000.
We have heard the learned counsel for the two sides and have perused the record including inter alia the Order dated 29.10.2001 of the District Commission, the impugned Order dated 12.01.2011 of the State Commission and the petition.
The dispute relates to an offer of allotment of a residential plot by a government development authority, made under a ‘discretionary quota’ of the state government concerned.
Salient facts are that the subject plot admeasuring 250 sq. yards. was originally allotted by the respondent development authority to a third person (Mr. Raj Kumar) on 28.08.1972. It was resumed from him on 28.10.1980. An offer of allotment of the said plot was made to the complainant under a discretionary quota of the state government on 17.09.1981. But due to an interim order of Hon’ble Supreme Court the letter of allotment could not be issued and further action could not be taken. In parallels the original allottee (Mr. Raj Kumar) made an appeal with the administrator of the development authority. His appeal was allowed on 16.03.1982 and the plot was restored back to him. The plot was then further transferred in favour of another third person (Smt. Kaushalya Devi). The deed of conveyance was executed in her favour on 28.06.1989 and possession of the plot was given to her on 22.05.1989. The complainant approached the District Commission on 22.08.2000. The District Commission adjudicated in his favour and ordered the development authority to give a formal letter of allotment and physical possession of the subject plot at the rate of Rs.125/- per sq. yard to the complainant and if the said plot was not available to provide an alternative plot of the same size and standard. The development authority appealed before the State Commission. The State Commission allowed the appeal and dismissed the complaint, holding that the complainant was not a ‘consumer’ under the Act 1986 and as such the complaint was not maintainable.
Learned counsel for the petitioner complainant argues that the District Commission rightly determined ‘deficiency’ on the part of the development authority and made an equitable award. But the State Commission erred in holding that the complainant was not a ‘consumer’ and thereby erroneously dismissed the complaint on maintainability. The submission is that the development authority, after having made an offer of allotment of the subject plot, pursuant to bonafide exercise of its discretion by the state government, cannot backtrack or do a volte-face , moreso when the complainant had also partly paid the consideration.
In rebuttal, learned counsel for the development authority submits that the subject plot was originally allotted to one Mr. Raj Kumar. It was resumed back by the authority. Thereafter merely an ‘offer of allotment’ was made to the complainant under the discretionary quota of the state government. No “regular” ‘letter of allotment’ was issued. Meanwhile statutory appeal filed by Mr. Raj Kumar with the administrator of the development authority was allowed and the plot was restored back to him. The submission is that an offer of allotment was made to the complainant in exercise of discretion but the further action for issuance of “regular” letter of allotment, execution of deed of conveyance and handing over physical possession, etc. could not take place, first because of an interim order of Hon’ble Supreme Court and then because the original allottee’s appeal succeeded and the plot was restored back to him. The plot was also thereafter transferred to one Smt. Kaushalya Devi in the normal wont. The subject plot, on which discretion was exercised in favour of the complainant by way of offer of allotment, at the time it stood resumed by the development authority, was subsequently restored back to the original allottee. As such it was no longer available to further the offer of allotment (i.e. to issue “regular” letter of allotment and take subsequent actions of conveyance, possession, etc.). The offer of allotment was only in respect of one particular plot i.e. the subject plot alone. It was not a case in which offer was made to allot “any” available plot or to allot any one plot out of a specified set of plots. Learned counsel argues that no ingredient of ‘deficiency’ as defined in section 2(1)(g) of the Act 1986 can be made out on the part of the development authority in the facts and circumstances of the present case.
We have given our thoughtful consideration to the submissions made at the bar and have perused the record in the light of the same.
We note that the subject plot was originally allotted to a third person. It was resumed from and then restored to the said third person. In the intervening period, between resumption and restoration, discretion was exercised to make an offer of allotment in favour of the complainant.
The offer could not be followed through with a letter of allotment and further actions, first due to an interim order of Hon’ble Supreme Court and then because the original allottee’s appeal succeeded and the plot stood restored back to him. That is to say, the subject plot was no longer available to carry further the discretion exercised initially. The offer of allotment was in respect of one particular plot i.e. the subject plot alone. It was not a generalised offer for “any” plot available or for one plot out of a specified set of plots. This was not a case in which offer of allotment was made through a process of advertising for applications and in case of oversubscription through draw of lots. The offer in this particular case was made under a ‘discretionary quota’ by way of exercising discretion in favour of the complainant and in respect of one particular plot alone, which could not be furthered or materialised due to the facts and circumstances enunciated afore.
The subject of the matter is one particular plot alone. The same was originally allotted to a third party. It was first resumed from him. Then, pursuant to his appeal succeeding, it was restored back to him. In the interregnum, offer of allotment of the same plot was made to the complainant in the exercise of discretion. This does not imply that in case the plot was subsequently not available at all due to valid and tenable reasons some other similar plot ought to be provided in the stead.
There is nothing on record to show that any arbitrary or unjustified decision was taken by the development authority qua the complainant or that the complainant was differently treated from any other similarly situate person.
In the peculiar and particular facts and circumstances of the present case we do not notice any ‘deficiency’ within the meaning of section 2(1)(g) of the Act 1986 on the part of the development authority. As such the complaint is without substance.
We find that the District Commission erred in not appreciating and weighing the facts and circumstances of the case holistically in the correct perspective, it erred in making an order to provide the subject plot (even when it already stood conveyed to and was in possession of a third party) or a similar alternative plot (even when the discretionary offer of allotment was made only in respect of the subject plot alone and the same could not be available for furthering the allotment due to valid and tenable reasons).
Nevertheless we deem it necessary to observe that we do not agree with the State Commission either, that the complainant was not a ‘consumer’ within the meaning of section 2(1)(d) of the Act 1986. A ‘consumer’ is a person who “hires or avails of any services which has been paid or promised or partly paid and partly promised .…”. Allotments can be made under different methods, under a scheme entailing advertisement for applications and draw of lots if oversubscribed, or under a ‘discretionary quota’, or under any other legally valid method. It goes without saying that the method of allotment should be legally valid i.e. a method as allowed under the law should have been adopted. An allotment under a legally valid ‘discretionary quota’ cannot ipso facto be treated as fatal to the allottee’s case, as has been the view of the State Commission, if the consideration has been paid or promised or partly paid and partly promised and a person satisfies the elements of ‘consumer’ under section 2(1)(g). Also, the question is not principally of distinction between ‘offer of allotment’ and ‘letter of allotment’ alone, as has been the focal aspect of discussion by the State Commission, but is of the consideration being paid or promised or partly paid and partly promised and of satisfying the elements of ‘consumer’ under section 2(1)(g). In respect of ‘offer of allotment’ and ‘letter of allotment’, too, the nomenclature alone i.e. whether it is called ‘offer of allotment’ or called ‘letter of allotment’ is not of sole critical importance, as has been the approach taken by the State Commission, but the contents and the terms and conditions contained therein, which are a true reflection of the nature of the document(s), and the extent to which the terms and conditions have been complied with by the allottee, as also whether on facts the elements constituting the definition of ‘consumer’ are being satisfied, are of actual material relevance. Going solely by the nomenclature of the document(s), without any reference to the contents and terms and conditions contained therein, and with opacity towards whether the elements constituting the definition of ‘consumer’ are being satisfied, is a manifest error in the State Commission’s examination. A complaint regarding allotment made under a ‘discretionary quota’, whether to the extent of ‘offer of allotment’ or to the extent of ‘letter of allotment’ or to any further extent, cannot be outright dismissed on the sole ground that just because he got the allotment under a ‘discretionary quota’ the person making the complaint is not a ‘consumer’. A ‘discretionary quota’ is one of the methods of making allotments, and, if the said method is legally valid, and if the allottee satisfies the elements which define ‘consumer’ as contained in section 2(1)(d), he cannot be summarily ousted on maintainability as has been erroneously done by the State Commission in the present case. Accordingly the State Commission’s examination contains material gaps. It has not comprehensively dealt with all the issues inherent, as it ought to have in the exercise of its appellate jurisdiction. However we do not find the need to make a further detailed discussion apropos ‘consumer’ in the present facts and context of this particular case since, as observed afore, we have already seen that the complaint per se is without substance and not worthy of any relief.
We deem it appropriate to set aside the Order dated 29.10.2001 of the District Commission as well as the Order dated 12.01.2011 of the State Commission, finding them both to suffer from jurisdictional error and material irregularity on respective counts. We further deem it appropriate to dismiss the complaint, finding it without substance and bereft of worth. Ordered accordingly.
The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.