VARISHTHA PUNARVAS ADHIKARI THDC vs A.K. GAUTAM

THESE two appeals arise out of order dated 6.10.1998 passed by the District Forum, Tehri, Garhwal whereby the complaint of the complainant against the cancellation of the allotment order of house Nos. 1, 39, 41, 43 and 44 were allowed the allotment order was restored by the Majority Bench of the Forum.

THE complainant filed the complaint with the above prayer before the District Forum, Tehri. By a separate order, the President of the Forum Mr. M.L. Sharma allowed the complaint and restored the allotment order and directed the appellant to deliver possession and also to pay compensation and cost of litigation. By a separate order dated 13.10.1998 Smt. Sushma Uniyal, Member rejected the complaint on the ground of insufficiency of evidence and restored the cancellation order and also cancelled the allotment order of plot Nos. 1, 39, 41, 43 and 44. THEre being difference of opinion between the President and the member and the office of third Member being vacant, the State Commission, Lucknow vide order dated 29.10.1998 referred the case to District Forum, Meerut for its decision and the President of the District Forum, Meerut Sh. Dinesh Chandra vide order dated 1.1.1999 allowed the complaint and he agreed with the finding of the President of the District Forum, Tehri dated 6.10.1998. Thdc has filed two separate appeals against the said order. Appeal No. 760/2003, Thdc v. Dr. A.K. Guatam, has been filed against the order dated 6.9.1998 passed by the President District Forum, Tehri while Appeal No. 761/2003, Thdc v. Dr. A.K. Gautam has been filed against the order dated 1.1.1999 passed by the District Forum, Meerut. Both the orders are the same order, as though passed on different dates arising out of the same complaint. The dispute involved in both these appeals being same, both the appeals are being disposed of by a common judgment, copy of which shall be placed in the records of the both the appeals.

The question is very brief. The facts of the case are very brief. The complainant used to run a nursing home in Tehri. In the rehabilitation policy, he was allotted 6 houses, although he has prayed for allotment of 8 houses. He was allotted house No. HIG 29 and HIG 1, 39, 41, 43 and 44, 5 allotment orders were separately issued. The complainant applied for allotment of house Nos. 31 and 32 in place of 39 and 41 but it was not heard. On 31.7.1996, he got a letter from the opposite party that the allotment of his house Nos. 1, 39, 41, 43 and 44 is temporarily cancelled and the matter is being referred to the Inquiry Committee. The allotment was done in 1993, there was no occasion to cancel the allotment order in 1996. There was no Inquiry Committee at that time. The complainant has obtained possession on deposit of 30% of the sale consideration.

THE opposite party contested the complaint on the ground that there was no nursing home and the allotment order has been obtained by fraud. THE complainant filed the complaint for quasing the cancellation order of the allotment, which was allowed. THE learned Forum held that there was no ground for cancellation and that is deficiency in service. As said above after these orders, the present appeals have been filed. Here in these appeals, the question of dispute was rather minimized by the learned Counsel for the appellant by stating that the complainant is already in possession of 4 house Nos. 39, 41, 43 and 44, there is dispute of only 1 house. It was said that this house has been given to someone else and the order of the learned Forum cannot be executed. We have read the cancellation order. No order like this can be passed. There has been allotment order. The complainant has paid the consideration. The allotment could have been cancelled after investigation but there is no law to cancel the allotment first and then to enquire. This is to put the cart before the horse. It shall be in the same way, in which the judgment is pronounced earlier and the parties are said to argue later on. There is absolutely no provision for temporary cancellation. The allotment order may be put into abeyance but there is no provision of temporary cancellation. Therefore, on the basis of it, the cancellation order is totally absurd, illegal and is against records.

IT is conceded fact that the complainant is already in possession of the 4 houses, therefore, it is admitted fact that the cancellation order was not carried upon. When there is no withdrawal of the cancellation order in respect of the 4 houses, on the same strength of order, it cannot be said that the cancellation order should be said to be ineffective in respect of 4 houses and should remain operative for 1 house. We have already said above that the learned Counsel for the appellant informed that the appellant has got no objection in retaining 4 houses by the complainant and the cancellation order in respect of those 4 houses shall be deemed to be ineffective. There was also no merit for the cancellation of 1 house. Definitely the complainant is a consumer. He has paid consideration. He has been allotted house. He has taken possession of payment on consideration. The cancellation order is, therefore, illegal and the learned Forum was perfectly justified in setting aside the cancellation order. It was argued that the 5th house has been given to a different person. What consequences shall follow is a different matter. The complainant may be given another house, if he so wishes. The house given to another person may be got vacated, if the complainant prays for that. But since the cancellation order was itself illegal, the complaint has rightly been allowed and we have got no option but to dismiss both the appeals. ORDER Appeal No. 760/2003, Varishtha Punarvas Adhikari, THDC and Another v. Dr. A.K. Gautam and Appeal No. 761/2003, Varishtha Punarvas Adhikari, THDC and Another v. Dr. A.K. Guatam are hererby dismissed. Cost of both the appeals shall be easy. Appeals dismissed.