PRABHU LAL KHANDELWAL vs RAJASTHAN HOUSING BOARD & ORS.

The challenge in this revision petition is to the order dated 4.6.2008, passed by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (hereinafter referred as ''State Commission'') in Appeal No.1550/2003 -Rajasthan Housing Board Vs. Prabhu Lal Khandelwal, vide which, the said appeal was allowed and the order passed by the District Consumer Disputes Redressal Forum, Bhilwara dated 5.7.2003, allowing the Consumer Compliant No.84 of 2002 was set aside.

The main issue involved in the present case is whether a public authority like Rajasthan Housing Board can cancel the allotment of a residential unit made in favour of an allottee on the pretext that the said allotee has failed to provide a copy of Challan vide which the amount was deposited by the allottee with the designated bank of that public authority.

Briefly stated, the facts of the case are that the petitioner/complainant Prabhulal Khandelwal made registration for a house, on 29.11.1998 in Kalptaru Scheme, Bhilwara launched by the respondent/opposite party in lower income group on the basis of Hire-Purchase system. The respondent/opposite party sent a letter to the complainant on 12.09.1995, asking him to deposit the seed money of Rs.3,500/- as first instalment and then to deposit further amount as given in the letter of reservation. As per the assertion made by the complainant, the house was not allotted to him despite having deposited the entire amount on 7.4.1997. The complainant submitted a complaint before the District Collector on 21.1.2002 whereupon the opposite party replied on 27.2.2002 that the complainant had not given them copy of the Challan of the amount, if deposited. Opposite Party also stated that they had sent a letter on 16.12.1998 to the complainant asking him to deposit the said amount, otherwise his registration will be cancelled. However, according to the complainant, he was informed by the opposite party through letter dated 27.2.2002 that he had not given reply to their registered letter dated 16.12.1998 and hence they cancelled his registration on 3.6.1999. He was also given option that he could apply separately if he wanted a house in open sale. The stand of the complainant is that he never received the letter dated 16.12.1998 because it was issued on wrong address. He was, therefore, entitled to get residential house under Kalptaru scheme and should be treated at par with other applicants of the year 1997 in lower income group. The complainant filed the consumer complaint in District Forum, Bhilwara seeking direction to the opposite party to allot the house on the same price and in the same colony, as given to other applicants in Kalptaru Scheme in the year 1997 and besides, he should be given compensation of Rs.50,000/- alongwith interest on the amount deposited by him.

The complaint was resisted by the respondent/opposite party stating that the complainant had failed to deposit the amount in question within time and had also not submitted copies of the Challan regarding deposit of the amount. The opposite party, therefore, sent a letter to him dated 16.12.1998 which was received by the complainant, but despite that, he did not take any action to deposit the amount. The letter dated 3.6.1999 regarding cancellation of the unit had already been sent to him. The opposite party also took, the stand that in accordance with the allotment letter dated 4.8.1993, the complainant was required to deposit the amount of seed money and also to submit 3 copy of the Challan in the office of the opposite party, but he failed to do so. The rd allotment had therefore, been cancelled by the respondent/opposite party.

At the time of hearing before me, learned counsel for the petitioner /complainant took the plea that there was no condition in the allotment letter dated 4.8.1993 that copy of the Challan for the amount deposited should be produced before the opposite party. Moreover, copy of the said Challan had been produced on record which proved that the amount in question had been deposited in the account of the opposite party from time to time. The learned counsel stated that the letter dated 16.12.1998 had never been received by them. The State Commission had wrongly observed that the said letter had been received by them. Learned counsel has drawn my attention to the order made by Rajasthan High Court in Hanuman Prasad Meena Vs. Rajasthan Housing Board , AIR 1994 RAJASTHAN 232, stating that the failure to allot house on the ground that the allottee did not submit copy of Challan of payment, was illegal. He has also drawn attention

to the order of the Hon''ble Supreme Court in the case V.N. Bharat Vs. DDA, AIR 2009 Supreme Court 1233, saying that the burden of proof was on the opposite party to prove the presumption of service of letter.

Learned counsel for the respondent/opposite party, however, stated that there was no deficiency on the part of opposite party because letter dated 16.12.1998 was duly served upon the respondent. He further stated that the 3 copy of the Challan had not been produced by the rd complainant as required and hence, the action taken by the opposite party was not in accordance with law. Learned counsel also stated the references regarding such allotments were quite bulky and hence, it was not possible for the opposite party to correlate the information regarding deposit of the amount in question, unless copies of the challan were produced by the allottees.

The main point that requires consideration in the present case is whether the action of the respondent/opposite party in cancelling the allotment, for failure of the allottee to produce the 3rd copy of the Challan before them was in order or not. A perusal of the order passed by the Rajasthan High Court in Hanuman Prasad Meena Vs. Rajasthan Housing Board (Supra) reveals as follows;

"It was expected from a public authority like the Board who is dealing with thousands of applicants to have a separate and upto date account of each individual applicant. In any case, if the information was not complete with the Board, it could have sought the same from the petitioner."

Learned Court also observed that the action of the Housing Board for the failure to allot house on the ground that the allottee did not submit copies of Challan of payment was illegal.

While agreeing with the proposition of law laid down in this judgement, it is submitted that it was the duty of the opposite party, and more so since it was a public authority, to maintain up-to date information about the deposit of money made by the allottee from time to time. Even if the allotee failed to produce 3 copy of challan and proof of deposit, it is incumbent upon a public rd authority to look at their record to find out the factum of payment made by the allottee. During the course of hearing before me, learned counsel for the opposite party could not challenge the contention of the complainant that he had made the payments in question, but was not able to produce the Challan before them. A copy of the said challan has been produced on record by the complainant. It has been brought out in the order of the District Forum as well that in compliance of OP''s letter dated 12.9.1995, the complainant deposited a sum of Rs.3,500/- as first instalment, Rs.1,000/- as additional registration amount on 12.1.1996 at Cash Collection Centre of the Housing Board and then a sum of Rs.6,500/- vide a demand draft dated 8.2.1997 at State Bank of Bikaner and Jaipur at Bhilwara Branch on 7.4.1997.

It is held therefore, that the opposite party could not have cancelled the allotment of a residential unit simply on the ground that the complainant was not able to produce copies of the Challan as proof of having made payment before the respondent/opposite party.

The next issue that requires consideration is whether he opposite party provided proper information to the complainant regarding non-deposit of the amount in question. The assertion of the opposite party that they sent a registered letter to him on 16.12.1998 does not seem to be correct because there is no proof that the said letter was delivered to the complainant at the correct address. As held by the Hon''ble Supreme Court in V.N. Bharat Vs. DDA (Supra) , the burden to prove that such letter was duly delivered to the complainant is upon the opposite party. In the present case, it is clear that opposite party have failed to provide such proof and hence, it can be presumed that the complainant did not receive the letter in question.

Based on the discussion above, I do not find any reason to agree with the conclusion arrived at by the State Commission that the action of the opposite party in cancelling the allotment, in question, was in order. The impugned order passed by the State Commission is therefore, set aside. This revision petition is allowed and the order passed by the District Forum dated 5.7.2005 is upheld.

There shall be no order as to cost.