PER MR SUBHASH CHANDRA

1.     This revision petition filed under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 16.10.2019 of the U.P. State Consumer Dispute Redressal Commission, Lucknow (in short, ‘State Commission’) dismissing First Appeal No. 704 of 2012 filed against order dated 17.03.2012 in complaint no. 438 of 2009 before the District Consumer Disputes Redressal Commission, Allahabad (in short, ‘District Forum’).

2.     The facts, in brief, are that the petitioner had been allotted house no MIG 24, Kasari Masari, Phase 2, Allahabad on 21.08.2007. Her contention is that on 15.07.2006 the respondent had brought out an advertisement offering the houses at a cost of Rs 6,00,000/- requiring applicants to register for the same after depositing 10% of the cost. The petitioner had registered on 13.08.2007 by depositing Rs 60,000/-. Accordingly, she contends that she was eligible for the allotment of the said house for Rs 6,00,000/-. However, the respondent has charged her a price of Rs.7,67,000/-. She contends that two other allottees have been allotted houses in MIG – 6 and MIG 4 at a lower rate of Rs.6,39,000/-. She submits that the District Forum and the State Commission have erred in rejecting her complaint and appeal respectively. It is also her contention that while the District Forum allowed the complaints of the other two allottees and directed the respondent to re-fix the price, her complaint was wrongly disallowed. She has therefore filed this petition seeking setting aside of the State Commission’s order.

3.     The respondent has contended the Allahabad Development Authority (now Prayagraj Development Authority) had issued two advertisements for the allotment of houses built by it on 15.07.2006 and 21.07.2008. It is admitted that while it is true that the petitioner applied for the MIG house by depositing Rs 60,000/-, the allotment was made to her not as per the advertisement dated 15.07.2006 but rather as per advertisement dated 21.07.2008. As the registration dated 13.08.2007 fell within the purview of the second advertisement for which the rates were different, the house was priced at Rs.7,67,000/-, the allotment being of the financial year 2007-2008 necessitating a different (higher) rate.  It is submitted that the petitioner’s contention that there were two other cases which were remanded by the District Forum to the respondent to re-fix the price of the houses allotted is not valid since these also related to their applications under the second advertisement. Therefore, there is no deficiency in service or unfair trade practice as alleged.

4.     We have heard the submissions of both the learned counsels for the parties and perused the records carefully.      

5.     The petitioner has argued as per the revision petition and stressed upon the fact that as the deposit of Rs 60,000/- was accepted by the respondent on 13.08.2007 and the scheme required the deposit of 10% of the price of the house, the price of the house should have been reckoned as Rs 6,00,000/- and not Rs.7,67,000/- as done by the respondent. She relies upon the fact that in two other cases pertaining to CC/101/2009 and CC/437/2009, the District Forum ordered that the respondent re-fix the price on this ground. Per contra, the respondent contends that the petition is misplaced since the revisionist has confused the registration as per the second advertisement dated 15.07.2006 with the previous advertisement dated 21.07.2008.  

6.     From the orders of the fora below it is apparent that the petitioner had filed the complaint before the District Forum and the appeal before the State Forum and urged the very same grounds in support of her case as has been done in the present revision petition. She has averred that she deposited Rs. 60,000/- on 13.08.2007 with the respondent as 10% of the cost of the house MIG 24 in the Kasari Masari, Phase II MIG scheme. It is her case that the advertisement dated 15.07.2006 stated that the cost of the house was Rs 6,00,000/-. According to the petitioner, the amounts deposited towards the house were Rs.60,000/- on 13.08.2007, Rs.19,200/- on 21.07.2008  on 14.08.2009, the total amount of the flat of Rs.6.09,200/- was paid. The second advertisement was published on 21.07.2008. The issue whether the registration of the house was done under the advertisement dated 15.07.2006 or 21.07.2008 has been considered by both the lower fora. The State Commission in the impugned order has held that:

“It has been argued by the learned counsel for the appellant that the point that the scheme was implement on 15.07.2006 has not been noticed by the District Forum. Under which 10% amount was deposited by the complainant for registration on 13.08.2007, on whose deposit receipt the building no. MIG 24 was mentioned and on 21.07.2008 Rs.19,200/- was deposited, the building no. MIG 24 was also mentioned on the deposit receipt. It was also submitted by the appellant that in the allotment letter dated 18.08.2008, the respondent had written the estimated cost of the building as Rs.7,67,000/- which was unfair trade practice followed by the respondent. According to the advertisement, it was announced to give a special discount in the price of the building, but by not giving any discount by the respondent wrongly in the allotment letter, the estimated price was increased to Rs.7,67,000/- and was informed. It was also submitted by the appellant that in the advertisement, the minimum price should have been fixed by giving a discount of Rs.6.00 lakh on the price of the building, because the buildings were built many years ago, and were unfinished. In the decision impugned by the District Forum, the opinion was expressed that according to the statement of the complainant, he was allotted building no. MIG 24 on 18.08.2008 after registering him on 21.07.2008 on the basis of advertisement dated 15.07.2006. According to the report, the allotment of the complainant was done from 21.07.2008 to 31.03.2009 under the advertisement opened for registration in the daily newspaper and not under the advertisement dated 15.07.2006. The complainant did not put any facts in this statement clause, whereas the respondent filed an affidavit in support of this statement. The allotment order of the complainant is dated 18.08.2008. The buildings of which the complainant has sought to determine the value of his allotted building, the allotment of building numbers MIG 7 and MIG 4 is dated 12.03.2007 and 21.06.2007 respectively. The price is determined by the respondent. The allotment of  building no. MIG 8 and 4 is for the previous financial year, whereas the allotment of the building of the complainant is dated 18.08.2008 and the allotment of the complainant is on the basis of second registration advertisement. Therefore, the appraisal of the complainant’s building cannot be done on the basis of building no. MIG 7 and 4. Against this finding of the District Forum, no allegation has been made in the grounds of appeal. It is also noteworthy that the District Forum does not have the right to fix the price. There is no force in the appeal, hence, the appeal deserves to be dismissed.

        The present appeal is dismissed.”

7.     As the registration was admittedly done on 13.08.2007, the lower fora have rightly concluded that the booking/ application was as per the second advertisement dated 21.07.2008 even though a booking amount of Rs.60,000/- was accepted by the respondent. These facts are not in dispute.

8.     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. Interference with concurrent findings of the fora below is justified only on grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Perversity can be concluded in findings when they are based on either evidence that has not been produced or on conjectures/ 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 therefore limited to cases where some error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

9.     The Hon’ble Supreme Court in Rubi (Chandra) Dutta - (2011) 11 SCC 269 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.”

10.   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 Supreme Court Case 286 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.”

11.   Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, 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.”

12.   From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess and re-appreciate the evidence which cannot be done in revisional jurisdiction.

13.    Foras below have pronounced orders which are detailed dealing with all contentions of the petitioner and arriving at findings 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. We therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.