Petitioner was the opposite party before the District Forum.

Complainant/respondent after seeing an advertisement and information letter published by the petitioners (opposite parties) relating to opinion of registration of allotment of Dwelling Units for serving army personnel, applied for the allotment of Dwelling Units for serving army personnel applied for allotment of a Deluxe Apartment (DXA Type) DU in Sector 27, Panchkulka on 10.08.2005.  He

-2-

deposited registration charges of Rs.90,500/-.  He was allotted Deluxe Apartment vide allotment letter No.OFF/DXA/103007/AR/P27/2005 dated 17.09.2006.  After coming to know the total cost of the (DXA Type) DU, complainant requested the petitioners vide application dated 28.09.2006 to allot him a lower category DU as he was not in a position to pay the price of the (DXA Type) DU.  Complainant/respondent did not receive any response to the said application.  Meanwhile during his personal and telephonic interactions with the petitioners, respondent was informed that downgrading of DU was not possible.  By a letter dated 03.09.2007 petitioners sent payment schedule for (DXA Type) DU to the complainant.  Complainant/respondent made the payment to the petitioners as per the schedule set out in the letter dated 03.09.2007.

Petitioners informed the respondent by its letter dated 17.09.2009 that his DU has been downgraded from (DXA Type) DU to Modern Apartment (MDA) under the mutual exchange.  Respondent vide letter dated 10.01.2010 informed the petitioners that the decision of downgrading was not acceptable to him.  Petitioners informed the respondent vide its letter dated 10.02.2010 that DXA

-3-

Unit was not available.  Respondent, thereafter, visited the office of the petitioners several times and also sent various letters/reminders dated 24.08.2010 and 14.01.2011 (Ex.C-8) to restore his status to DXA but of no avail.  Even after accepting the payments/EMIs as per schedule of (DXA Type) DU petitioners did not change the status of his DU from MDA to DXA for three years.  Aggrieved by this, respondent filed the complaint before the District Forum.

Petitioners on being served appeared and filed their Written Statement taking some preliminary objections that no cause of action had accrued to the complainant.  In reply on merits, it was asserted that after considering the seniority & availability of Dwelling Units, the complainant vide their letter dated 17.08.2006 was given booking for Deluxe Apartment (DXA) at Sector 27 Panchkula; since the estimated cost of the DU was more than what had been advertised, all the allottees were given option vide aforesaid letter for up-gradation or down-gradation of their DU if they so desired wherein it was clearly stated that the same would be considered within their own seniority and availability of the desired DU.  In response to the above, complainant vide his letter (Ex. R-2) dated 28.09.2006 had expressed

-4-

his willingness to downgrade his type of Dwelling Unit from Deluxe to Modern Apartment.  It was further submitted that up-gradation or down-gradation of Dwelling Unit can be done only after receiving a matching request.  The case of the complainant was considered in the year 2007, but no matching request was found then.  However, the complainant did not cancel his option for downgrading the unit.  Therefore the case of the complainant for downgrading of the Dwelling Unit was again examined along with others during the year 2009 and after receiving a matching request, his DU was downgraded from Deluxe to Modern Apartment vide letter dated 17.09.2009.  That there is no deficiency in service.

Petitioners being aggrieved filed the appeal before the State Commission which has been dismissed by observing thus:

“We have gone through the impugned order and have taken into consideration the facts and circumstances of the case and are of the view that in the instant case, it is not disputed that complainant has applied for the change of his unit from Deluxe to Modern vide his request letter dated 17.09.2006 and until for a period of more than three year no steps had been taken by the appellants/opposite parties in this regard.  Rather

-5-

the opposite parties sent payment schedule for the payment of dwelling unit to Deluxe category.  Accordingly, complainant paid the EMI for Deluxe category unit.  Once the opposite parties had sent the payment schedule for Deluxe category, it amounted to declining the request of downgrading the category.  The opposite parties vide letter dated 17.09.2009, have straight way changed the Deluxe units of the complainant with Modern one but no consent was taken from the complainant in this regard.  The acceptance of the payment of Deluxe units from the complainant makes itself clear that opposite parties have not considered his request for the change of units.  Despite this fact, the action of the opposite parties in changing the original allotted unit of the complainant, amounts to deficiency in service on their part and it was under these circumstances, the District Forum has accepted the complaint and issued the directions as noticed above in the impugned order, which does not call for any interference in this appeal.”

We agree with the view taken by the fora below.  It is not disputed before us that the respondent had applied for allotment of (DXA Type) DU.  Respondent applied for change of his unit from (DXA Type) DU to Modern Apartment (MDA) by his request letter

dated 28.09.2006 on which no action was taken by the petitioners for a period of three years.  Rather, petitioners sent payment schedule for the payment of (DXA Type) DU.  Respondent paid the EMIs for (DXA Type) DU.  Suddenly after a period of three years on 17.09.2009 petitioners sought to change the unit of respondent with Modern Apartment without taking any consent from the respondent in this regard.  Acceptance of the payment for (DXA Type) DU from the respondent makes it clear that the petitioners did not consider his request for change of unit.  Petitioners did not convey to the respondent that his request for downgrading of unit from (DXA Type) DU had been accepted.  Action of the petitioners in changing the original unit of the respondent all of a sudden after three years amounts to deficiency in service and the fora below have rightly quashed the letter dated 17.09.2009 downgrading the allotment of the respondent from (DXA Type) DU to Modern Apartment.  No merits.  Dismissed.