UP HOUSING AND DEVELOPMENT BOARD versus RAMESH CHANDRA AGARWAL on 1 May 2019

Conclusion

1. Leave granted.

2. In 1982 the appellant floated a scheme for Economically WeakerESections. The respondent deposited an amount of Rs 500, initially in1982, for registration. Later, in 1985, an additional amount of Rs 500was deposited when the registration fee was enhanced to Rs 1000. Clause5 of the Registration Booklet provided as follows:

“ The registration of a person does not in any way confer anyFright or guarantee that the Board is bound to allot a plot or houseto him, nor will he be entitled to claim any compensation if he isnot allotted the property as desired by him.”

3. The appellant is governed by the UP Awas Evam Vikas Parishad-Registration and Allotment of Plots and Houses Rules, 1979[1]. Rule 15Gprovides as follows:

“Board is not bound to allot the houses/plots to every registrationholder. Those who are not allotted the land/house by the Boardare not entitled to claim the dues/amount spent.”

4. Rule 30 contains the following stipulations:

“Sending Application Form, Written Consent is necessary:

(1) In the event of availability of property in any Scheme, intimationto effect shall be published in newspapers through advertisementor written intimation shall be sent to the registered persons throughregistered post or both means of communication. Apart fromdescription of available proper, date of allotment draw, place andtime shall also be mentioned in the said written intimation.

(2) Application form in prescribed format shall be available at theplace mentioned in the aforesaid intimation as well as in the officeof Estate Management officer of the city. Merely getting his/hername registered with the parishad, the name of a registered personshall not automatically be included in the lottery draw. It wouldbe compulsory for the registered person to submit written consentletter (in prescribed format) for each and every scheme beforethe date of lottery draw so that his/her name could be included inthe draw.

(3) Application form can also be sent through registered post soas to reach in the concerned office before the last date. TheParishad shall not responsible for postal delay.

(4) The willing buyer must ensure that he is providing true andcorrect information in the application form. In complete andconditional form shall not be entertained. At any point of time, ifit is found that the applicant has concealed any vital/relevant factor has provided incorrect information, his application form shallbe subject to rejection and if a plot or house has already beenallotted to him/her, the Housing Commissioner shall have the powerto cancel his allotment and to make deduction and to impose fineas provided in Rule 45.

(5) Priority will be given to the willing buyers, whose registrationwas done in first phase over those who were registered in thesecond phase. Similarly, persons registered in the second phaseshall get priority over the buyers registered in the third phase, etc.

Provided that the Parishad shall reserve the right to inviteapplication for allotment from registered persons of only one phaseor more than one phases of any scheme. The Parishad further A

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Areserves the right to grant liberty to a particular class to participatein the registration phase. The particular class, so granted liberty,shall take benefit of priority in the registration phase, e.g. willingbuyers of reserved class, who were registered in the first phaseshall get priority over those reserved class buyers who wereregistered in the second phase.”B

5. The first advertisement was published by the appellant in 1992.In terms of the above Rules, registered applicants were required to furnishtheir written consent for being included in the draw of lots. None wasprovided by the respondent.

C6. The respondent filed a consumer complaint on 30 August 1993,nearly eleven years after the date of registration. In the meantime, asecond advertisement was published by the appellant on 15 January1995. By an order dated 5 April 1995, the District Consumer DisputesRedressal Forum, Ghaziabad[2] disposed of the complaint by directingthat the respondent, at the highest, may secure an allotment, if he soDdesires at the current value fixed by the appellant.

7. Against this order of the District Forum, the respondent filed afirst appeal before the State Consumer Disputes Redressal Commission[3].

8. On 25 September 1995, the appellant published an allotmentnotice indicating the proposed allotment of vacant properties. On 28EAugust 1996, the appellant enhanced the registration amount and allexisting registered applicants were required to pay the difference in orderto keep their registration alive for future schemes. On 1 November2002, the appellant issued an office order providing that those applicantswho failed to get an allotment in the draw of lots could be entitled toFrefund of the registration monies. However, it was made clear thatunsuccessful applicants would have to apply afresh for any new scheme.

9. Between 27 October 1998 and 28 April 2015, the appeal filedby the respondent was listed before the SCDRC at Lucknow on eightdates of hearing. Neither the respondent nor his counsel appeared.Eventually, by an order dated 28 April 2015, the appeal was dismissedGby the SCDRC in the absence of any representation by the respondent.The respondent then filed a revision before the National ConsumerDisputes Redressal Commission[4] on 18 August 2016. During the course 2 District Forum3 SCDRCH4 NCDRC

of the hearing, the appellant filed an application to place on record relevantdocuments including the Registration Booklet, the office order dated 1November 2002 and the Rules of 1979. The appellant also sought toproduce copies of the advertisements which were published from timeto time.

10. On 26 July 2018 the NCDRC directed the appellant to explorewhether any plots/flats were available in any scheme of the appellantand to place relevant data including the particulars for allotment onaffidavit.

11. In pursuance of the above direction, the appellant filed anaffidavit on 8 August 2018 indicating the following position.

“That … the flats which are available today are subject to auctionwherein the rates are fixed according to the size of the flat, thelocation of the flat i.e. Ground floor, first floor, second floor andthird floor. A perusal of the auction booklet of the answeringrespondent with regard to the aforesaid scheme of the Parishadwould show the price at which the left over flats under differentschemes are provided to general public. The allotment is done byway of auction and a perusal of the auction rates for MandolaVihar Yojna, Ghaziabad residential flats is Rs.12.61 lakhs forground floor; Rs.11.37 lakhs for first floor; Rs.11.23 lakhs forsecond floor and Rs.11.09 lakhs for third floor.”

12. The NCDRC decided the revision by its order dated 11December, 2018 which is impugned in the present appeal. A directionhas been issued to the appellant to allot a flat on the ground floor in theMandola Vihar Yojana, Ghaziabad to the respondent subject to his payinga sum of Rs 2,50,000 towards consideration for the flat within a periodof six weeks from the date of the passing of the order.

13. Assailing the judgment of the NCDRC, it has been urged byMr Vishwajit Singh, learned counsel for the appellant that in the presentcase the respondent merely got himself registered for allotment. Therewas no allotment to the respondent. Moreover, it was submitted that theRules for allotment which have been adverted to earlier, more specificallyRules 15 & 30, indicate that mere registration does not confer anentitlement to the allotment of a flat and every registered applicant isrequired to furnish written consent for participating in the draw of lots.In the present case, it was submitted that the appellant did nothing of the A

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Akind and eventually filed a consumer complaint only after eleven yearsafter the date of registration. Learned counsel submitted that even beforethe SCDRC, the respondent consistently remained absent. Before theNCDRC, the appellant filed a statement indicating the current prices forthe allotment of residential flats in the Mandola Vihar Yojana. It hasbeen urged that the NCDRC by compelling the appellant to allot a flat toBthe respondent for a sum of Rs 2,50,000 has acted in a manner contraryto law. There was no contract between the appellant and the respondent.

14. On the other hand, the respondent, who appeared in person,has submitted before the Court that after he registered himself with theappellant in 1982, he had from time to time made queries with the appellantCin regard to the likelihood of his being allotted a flat in any of the schemesof the U.P. Awas Evam Vikas Parishad. The respondent submitted thathe was never informed of any scheme or of any allotment in his favour.The respondent urged that the order which has been passed by theNCDRC is just and equitable. Having waited since 1982 for an allotment,Dhe cannot be now compelled to get an allotment at the current marketvalue.

15. The appellant is governed by the terms and conditionsadvertised in its Registration Booklet and by the Rules of 1979. Clause5 of the Registration Booklet indicates that mere registration does notEconfer a right for allotment. Rule 15 makes a provision to the effect thatthe Board is not bound to allot a house or plot to every registered holder.Rule 30 indicates that after the Board advertises the availability of ascheme in the newspaper, every registered applicant is at liberty to submita consent letter for participation in the draw of lots. Mere registrationdoes not oblige the authority to include every registered applicant in theFdraw of lots. The applicant must show readiness and willingness toparticipate in a draw of lots in respect of a specified scheme. This isevident from Rule 30(2 ). A set of priorities is provided in Rule 30 (5).In view of the clear position in the brochure and the Rules of 1979, therespondent had no vested right to seek an allotment. As a registeredGapplicant, the respondent was at liberty to seek to participate in the drawof lots by indicating his consent to the appellant. After paying an initialsum of Rs 500 in 1982 and a further sum of Rs 500 in 1985, the respondentdid not pursue any remedies until 1993 when he moved the District Forum.The order of the District Forum gave liberty to the respondent to seekallotment at the current market value under any of the schemes of theH

appellant. The NCDRC was manifestly in error in issuing a direction tothe appellant to make an allotment to the respondent for a total sum ofRs 2,50,000 in any of the flats available in the Mandola Vihar Yojna,Ghaziabad. There is no rationale basis or justification for the amount ofRs 2,50,000 which has been fixed by the NCDRC. This directionproceeds purely on the basis of the Ipse dixit of the forum. The appellant,as a public authority, could not have been compelled to enter into acontract with the respondent. There was no contractual entitlement ofthe respondent to the allotment of a flat much less for an allotment at aspecified price. In its effort to render justice, the NCDRC has adopteda view which is contrary to the basic principles of contract governingthe law on the subject.

16. In the circumstances, we allow the appeal. The impugnedorder of the NCDRC shall stand set aside. There shall be no order as tocosts.

Ankit Gyan

Appeal allowed.

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