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Judgment
Subhash Chandra, Presiding Member
This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 01.05.2012 in Appeal No. 773 of 2005 of the State Consumer Disputes Redressal Commission, Lucknow (in short, the ‘State Commission’) upholding order dated 23.09.2015 of the District Consumer Disputes Redressal Forum, Meerut in Consumer Case no. 518 of 2002 (in short, the ‘District Forum’).
The facts of the case, in brief, as stated by the petitioner, which is an Urban Development Authority, are that on 12.07.1988 it had allotted plot no. 4/22 ad measuring 300 sq meters to the respondent under the Rakhshapuram Housing Scheme through draw of lottery. On 11.01.1991, after adjustment of registration and allotment charges, the respondent was asked to pay the balance amount in 8 half yearly installments for the plot allotted to her @ Rs 400/- per sq. m. After completion of the work, petitioner informed respondent vide letters dated 25.06.1993, 08.09.1994, 18.01.1995 and on 25.08.1993 to take possession of the plot which the respondent failed to do. Therefore, on 16.12.1996 the petitioner cancelled the allotment by way of a registered letter. The respondent applied for refund along with affidavit and other original papers on 09.08.2002. Thereafter, the respondent approached the District Forum seeking a direction to allot a plot or in lieu any other plot in another scheme on the same terms & conditions along with compensation. The petitioner sent a cheque for Rs 52,258/- on 28.08.2002 which was not accepted by the respondent. The District Forum allowed the consumer complaint vide its order dated 11.04.2005 and ordered refund with compensation and cost since it was reported that no plots were available against which the petitioner filed an appeal (No. 773/2005) before the State Commission. The respondent filed a cross appeal (No. 232/2006). Both appeals were disposed of by a common order dated 01.05.2012 whereby the petitioner was ordered to allot a plot of 350 sq m either in the original scheme or any other scheme within 2 months on the then prevailing rates after accounting for the amount already deposited by the respondent. The instant revision petition has impugned this order.
The District Forum in its order had held that:
“Opposite Party have committed deficiency in services prima facie by adopting biased policy with the complainant, cancelling her allotment without issuing notice and on raising demand for refund of her deposited amount, instead of refunding the same with interest, deduction was made from the deposited amount.
It is also pertinent to mention that the original relief which have been prayed by complainant about restoration of allotment or in the alternative, allotment of plot on the previous terms & conditions of the same category, the same is not probable in the light of the above stated facts because the above said portion of land, as per the version of the Opposite Party, has been allotted to some other person. In addition to this, Opposite Party are not ready to allot any other plot of land of the same category to complainant on the previous terms & conditions, therefore, under the above stated circumstances in the opinion of the District Forum, the prayer of the complainant made in the alternative to refund the amount deposited by her with interest and cost & compensation seem to be justifiable, in the interest of justice”
The District Forum therefore ordered as below:
Complaint of the complainant is allowed and Opposite Party is ordered that they refund the amount deposited by the complainant i.e. Rs 61,400/- with interest at the rate of 15% per annum from the dates of deposits and to pay a sum of Rs Five thousand as cost of complaint and Rs Ten thousand be paid as compensation. If this order is not complied with on it becoming absolute, proceedings under section 25/27 would be initiated.
In appeal, the State Commission while upholding the contentions of the respondent, ordered as under:
On perusal of the contentions put forth by learned counsels for both parties and on record it comes to know that the price of the above said plot of land having area 350 sq meter has been determined at Rs 1,05,000/-. The complainant has deposited a sum of Rs 61,480/- relative to the price of plot and Meerut Development Authority have not undertaken any development work in Rakshapuram Scheme. Aggrieved by the same, complainant had stopped satiating payment of the amount of the remaining installments and even after making several requests in the Meerut Development Authority both orally as well as in writing, Authority did not allot her plot of land area 350 sq meters either in the above said scheme or in any other scheme. If any plot of land is available with the Authority or is available in any other scheme, then they should have allotted the same at old rates, which was not allotted by the Meerut Development Authority which signifies deficiency in their services.
In the light of above said trial, contentions, facts and judicial citations we have arrived at the conclusion that it seems to be justifiable and just to order appellant Meerut Development Authority to allot plot of land in question in favour of complainant/respondent at the then prevailing rates while adjusting the amount deposited by complainant/respondent previously for the plot of land in question. Accordingly, appeal no. 773 of 2005 made by Meerut Development Authority is liable to be rejected and appeal no. 232 of 2006 made by complainant is entitled to be allowed partially.
The State Commission, while amending the order of the District Commission dated 11.04.2005 ordered that the Meerut Development Authority
…allot plot of land having area 350 square metre either in the above said scheme or in any other scheme in favour of complainant within the period of 2 months on the then prevailing rates inter alia adjusting the amount deposited by the complainant previously.
Both parties would bear their respective cost of appeal.
I have heard the learned counsel for the respondent and carefully considered the material on record. Despite giving final opportunity on 28.02.2023, none appeared on behalf of the petitioner on 14th March 2023 when the matter was reserved. However, the petitioner has filed his short synopsis of arguments and the same has been considered as his final arguments.
The case of the petitioner is that the respondent did not come forward to take possession of the plot in question despite several notices and therefore the same was proceeded to be cancelled by the petitioner and the deposit accepted was refunded which was not accepted by the respondent as it had already moved the District Forum. However, his short synopsis is a narration of factual events in the National Commission. He states that being aggrieved, the petitioner filed an appeal no. 773 of 2006 and the complainant/ respondent also filed appeal no. 232 of 2006 before the State Commission, Lucknow. The State Commission rejected appeal no. 773 of 2005 and partly allowed the appeal no. 232 of 2006 by amending the order dated 11.04.2005 and directed the MDA/ petitioner to allot the plot of land having area of 350 sq m either in the above said scheme or in any other scheme in favour of the complainant within a period of two months on the then prevailing rates inter alia adjusting the amount deposited by the complainant previously. The respondent filed a review petition no. 118 of 204 before this Commission. The said review petition was dismissed by this Commission on 29.05.2014. Thereafter, respondent filed an SLP (C) no.17557 of 2014 before the Hon’ble Supreme Court against an interim order dated 09.05.2014 of this Commission in revision petition no. 2779 of 2012 and the same was dismissed on 25.07.2014. The petitioner submits that the respondent again filed a review petition no. 693 of 2015 in (C) no.17557 of 2014 before the Hon’ble Supreme Court which was also dismissed on 29.04.2015. On 27.07.2017, the respondent filed an application IA no. 162 of 2017 under section 151 of CPC for recall the order dated 09.05.2014 passed by this Hon’ble Commission in revision petition no. 2779 of 2012.
Thereafter it was decided that in the matter the Registry obtain a report from the District Forum as to whether the Meerut Development Authority, pursuant to the order of the State Commission in First Appeal no. 773 of 2005 had deposited the amount of Rs.52,258/- by DD no. 667470 with the District Forum, Meerut and also confirm whether the amount was still lying in an FDR with the Bank of India. The petitioner contends that RA no. 162 of 2017 filed by the respondent was allowed on 09.01.2018 without hearing the petitioner and the order stated that the learned counsel for the petitioner had fairly considered that he has no objection if the review application was allowed and the revision petition is heard afresh and the listed the revision petition on 18.05.2018 for final hearing. Further, it has been stated that the respondent had filed the application for recall of the order dated 09.05.2014 after three years and seven months without an application for condonation of delay.
Per contra, the respondent has stated that the petitioner was guilty of deficiency in services and both the lower fora had ordered in her favour. She argued that the order of the State Commission directing allotment of a plot in either Rakshapuram Scheme or any other scheme be complied with after accounting for the money already deposited by her as per the then prevailing rates.
The State Commission has relied upon several citations in arriving at its decision, including the judgment of the Hon’ble Supreme Court in Haryana Urban Development Authority Vs. Vijay Aggarwal, IV (2004) SLT 874 which held that “wherever a body like the appellants is not in a position to deliver possession of the allotted plot, they must offer an alternate plot immediately at the same price. The alternate plot must be in the same Sector at near thereto.” Reliance is also placed on this Commission’s orders in Shanti Devi & Anr. Vs. Kanpur Development Authority, RP No. 2815/2005 dated 15.05.2007 which held similarly and Surila Kundu Vs. HUDA & Anr., RP No. 245/1998 dated 27.07.2007 which laid down the allottee’s entitlement of interest @ 12% on the money deposited with the Authority.
From the record it is manifest that the lower fora have arrived at concurrent findings on facts. While the District Forum ordered refund of the money deposited with interest, compensation and litigation costs, the State Commission has held, based on various judicial pronouncements, that the petitioner should have allotted another plot in either the same scheme or any other scheme, in case there was no plot available.
This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is limited to cases where some prima facie error appears in the impugned order. Petitioner has not been able to demonstrate any error in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.
The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269 dated 18.03.2011 has held that:
“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”
Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 SCC 286 dated 02.08.2016 held:
“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 dated 05.04.2019 held as under:
“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”
The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner which have been raised before me in this revision petition. It is also seen that the orders of these fora are based on evidence on record. In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.
In view of the foregoing, I find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.