NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 936 OF 2013
(Arising Out of SLP (C) No.19556 of 2012)
Lucknow Development Authority … Appellant
Versus
Shyam Kapoor … Respondents
O R D E R
Jagdish Singh Khehar, J.
1. Leave granted.
2. Shyam Kapoor, the respondent herein, preferred a complaint before the
District Consumer Forum IInd, Lucknow (hereinafter referred to as the
‘District Forum’), asserting that he had deposited a sum of Rs.5,000/- with
the Lucknow Development Authority, i.e., the appellant herein, on
1.12.1982.
The aforesaid deposit had been made for allotment of a 6,000
sq. ft. plot in the ‘A’ category under the Gomti Nagar Residential Scheme
(hereinafter referred to as ‘the Scheme’).
It was alleged, that the
Lucknow Development Authority had neither allotted any plot to the
respondent-complainant, nor returned the deposit tendered by him.
The
appellant herein, however, issued a press notice in 1991 requiring persons
similarly situated as the respondent-complainant, to deposit an additional
amount by January 1992, so as to be eligible for consideration, for such
allotment.
On account of the fact, that the deposit of the differential
amount was imperative for future consideration, the respondent-complainant
deposited a further amount of Rs.15,000/- on 30.1.1992.
Still, no plot was
allotted to the respondent-complainant. On 30.10.1996, Shyam Kapoor,
addressed a communication to the Lucknow Development Authority, requiring
it to furnish him with details in the matter of allotment of plots.
Since
the Lucknow Development Authority did not respond to the aforesaid
communication, Shyam Kapoor preferred the complaint referred to
hereinabove.
3. In its defence, the appellant herein, while admitting the factual
position expressed by Shyam Kapoor in his complaint, raised a number of
legal/technical objections.
The stand of the appellant so as to defeat the
claim of the respondent-complainant included a plea, that the complaint was
barred by time.
It was also contended that the complainant was not a
consumer, and as such, the District Forum had no jurisdiction in the
matter.
Besides the aforesaid, it was asserted by the appellant before the
District Forum, that the respondent-complainant had changed his
registration from the Scheme under which he had originally applied, and as
such, his claim could not be considered on the basis of the original
deposit made by him.
The entitlement of the respondent complainant for
allotment of a plot under the Scheme was also sought to be disputed on the
ground that he was unsuccessful in obtaining a loan from a financial
institution.
4. Despite the defences raised by the Lucknow Development Authority
before the District Forum, the prayers made by the complainant were allowed
by an order dated 30.12.2005. The operative part of the order passed by
the District Forum is being extracted hereunder :
“Complaint is allowed. The opposite party is directed to allot
any developed plot admeasuring 6000 sq. ft. in any scheme Gomti
Nagar at the rate prevailing in January 1992 within two months
from the date of order and after adjusting the deposited amount
in the total amount of the plot and after depositing the
remaining amount and complying another formalities hand over the
possession after registration. And opposite party pay Rs.1,000/-
to the complainant towards cost of case. Other reliefs are
rejected.”
5. Aggrieved with the order dated 30.12.2005 (passed by the District
Forum), the appellant herein preferred an appeal before the Consumer
Disputes Redressal Commission, Uttar Pradesh, Lucknow (hereinafter referred
to as the ‘State Commission’). The State Commission having entertained the
appeal preferred by the appellant herein, issued notice to the respondent
herein on 1.11.2006. While issuing notice, the State Commission stayed the
order of the District Forum dated 30.12.2005. Even though notice had been
issued, in the appeal preferred by the Lucknow Development Authority, the
appellant failed to deposit process fee. Therefore, when the matter was
taken up for hearing on 11.5.2007, the State Commission passed the
following order:
“As requested learned counsel for the appellants a week time is
allowed to take steps failing which the interim order shall
stand vacated and the appeal dismissed.”
6. A perusal of the aforesaid order would reveal that one week’s further
time was granted to the appellant to deposit process fee. While granting
the aforesaid liberty, the State Commission clearly expressed in its order
dated 11.5.2007, that in case necessary steps were not taken (in depositing
the process fee) within the time stipulated, the interim order passed by
the State Commission on 1.11.2006 would stand vacated, and the appeal
preferred by the Lucknow Development Authority would also stand dismissed.
It is not a matter of dispute, that the process fee was not deposited on
behalf of the Lucknow Development Authority (in the appeal preferred by it
before the State Commission) even in the extended time allowed by the State
Commission vide its order dated 11.5.2007. In view of the order dated
11.5.2007 extracted hereinabove, the natural consequence for not having
taken the steps required of the appellant, the interim order passed on
1.11.2006 stood vacated, and the appeal preferred by the Lucknow
Development Authority stood dismissed.
7. Dissatisfied with the effect of the order of the State Commission
dated 11.5.2007, which had resulted in dismissal of the appeal preferred by
the Lucknow Development Authority before the State Commission, the
appellant chose to file a Revision Petition before the National Consumer
Disputes Redressal Commission, New Delhi (hereinafter referred to as the
‘National Commission’). According to the pleadings filed by the appellant,
its choice for not filing an application for recall of the impugned order
dated 11.5.2007 before the State Commission was, that the State Commission
did not have the jurisdiction to set aside or recall, an order of the
nature passed on 11.5.2007.
8. It would also be relevant to mention, that the Revision Petition
referred to hereinabove, was filed by the Lucknow Development Authority
before the National Commission on 5.12.2011, i.e., more than four and a
half years after the impugned order dated 11.5.2007 was passed by the State
Commission. When the Revision Petition was listed before the National
Commission for the first time on 02.02.2012, the counsel representing the
Lucknow Development Authority sought an adjournment, to place on record of
the Revision Petition, all the orders passed by the State Commission,
during the period the appeal preferred by the Lucknow Development Authority
had remained pending with it. The National Commission, accordingly,
adjourned the Revision Petition for hearing to 5.3.2012. The same was
again adjourned on 5.3.2012, so as to enable the learned counsel for the
Lucknow Development Authority to obtain instructions. Finally, the
Revision Petition preferred by the Lucknow Development Authority was heard
and disposed of by an order dated 30.3.2012. The National Commission
dismissed the Revision Petition as frivolous, and imposed cost of
Rs.10,000/- on the Lucknow Development Authority. The Revision Petition
was primarily dismissed, on account of its having been filed well after the
prescribed period of limitation. The observation recorded by the National
Commission for not entertaining the Revision Petition belatedly, are being
extracted hereunder :
“No reason has been set out to explain why the steps were not
taken even within the extended period. If the petitioner
thought that the impugned order passed was illegal or without
jurisdiction, it ought to have challenged the same immediately
or within the prescribed period rather than waiting to challenge
the same until notice under Section 27 of the Consumer
Protection Act, was issued to the petitioner in execution
proceedings. To say the least, the conduct of the petitioner in
not taking the requisite steps despite a clear cut stipulation
that the appeal shall stand dismissed if the steps are not taken
and thereafter not approaching the State Commission either for
revival of the appeal or this Commission to set aside the said
order, speaks volumes about the defaulting conduct of the
petitioner. Petitioner being a statutory authority is ‘State’
within the meaning of Article 12 of the Constitution and was
expected to act promptly, prudently and diligently if it was
really serious in challenging the said order. The order was
passed by the State Commission in presence of the learned
counsel for the petitioner and, therefore, the petitioner cannot
be allowed to take a refuge that the certified copy was supplied
in the year 2011, after four years and the present petition has
been filed thereafter. Having considered the matter, we see
absolutely no good ground to condone such huge delay in filing
the present revision petition.”
9. Aggrieved with the order passed on 30.3.2012 by the National
Commission, dismissing the Revision Petition preferred by the appellant,
the appellant has now approached this Court by preferring the instant
appeal.
10. The first question which concerns us is the conclusion drawn by the
National Commission, that the Revision Petition filed by the appellant was
frivolous. In order to controvert the aforesaid determination of the
National Commission, learned counsel for the appellant has invited our
attention to the decision rendered by this Court in Rajeev Hitendra Pathak
& Ors. v. Achyut Kashinath Karekar & Anr., (2011) 9 SCC 541, wherein this
Court clearly concluded, that neither the District Forum nor the State
Commission had power to review its “ex parte” orders. Orders of the
aforesaid nature were, “per se” assailable only before the National
Commission.
11. We have no difficulty in accepting the contention advanced on behalf
of the appellant before us. As we find no fault in the action of the
appellant in having not chosen to move an application for recall of the
order dated 11.5.2007 before the State Commission itself. The observations
made by the “National Commission” to the effect, that the appellant having
not approached the “State Commission” for the revival of the appeal,
expressed volumes about the defaulting conduct of the appellant, were
clearly unjustified. We are also satisfied that the appellants
determination, to assail the order of the State Commission dated 11.5.2007
by preferring a revision petition before the National Commission, was
legally justified. In so far as, our instant conclusion is concerned, the
same clearly emerges from the following observations recorded by this Court
in Rajeev Hitendra Pathak’s case (supra) wherein this Court held as under :
“34. On careful analysis of the provisions of the Act, it is
abundantly clear that the Tribunals are creatures of the Statute
and derive their power from the express provisions of the
Statute. The District Forums and the State Commissions have not
been given any power to set aside ex prate orders and power of
review and the powers which have not been expressly given by the
Statute cannot be exercised.
35. The legislature chose to give the National Commission power
to review its ex prate orders. Before amendment, against
dismissal of any case by the Commission, the consumer had to
rush to this Court. The amendment in Section 22 and introduction
of Section 22A were done for the convenience of the consumers.
We have carefully ascertained the legislative intention and
interpreted the law accordingly.”
In view of the above, the choice of the appellant, in approaching the
“National Commission” rather than the “state Commission” could not have
been described as frivolous. We are, therefore, satisfied that the
revision petition filed by the Lucknow Development Authority before the
National Commission was procedurally in order. And as such, the choice of
the appellant to file a revision petition to assail the order of the “state
Commission” dated 11.5.2007, could not be faulted.
12. The real reason for the National Commission for dismissing the
revision petition filed by the appellant was, that it was filed belatedly,
well after the expiry of the period of limitation. The observations made
by the National Commission to the aforesaid effect, have already been
extracted herein above. We find nothing wrong in the aforesaid
determination of the National Commission. It was imperative for the
Lucknow Development Authority to seek condonation of delay, for some
justifiable reason as the National Commission was being approached after
four and a half years. In the absence of valid justification for condoning
delay, the National Commission had no other option, but to pass the order
dated 30.3.2012. The fact that the Lucknow Development Authority was duly
represented before the State Commission, as also, when the order dated
11.5.2007 was passed by it, reveal that the appellant was aware of the said
order right from the beginning. Yet the appellant waited for over four and
a half years, to approach the National Commission. Even before this Court,
the appellant has failed to express any valid justification for having
approached the National Commission belatedly. We, therefore, find no good
ground to set aside the order passed by the National Commission on
30.7.2012.
13. Despite our aforesaid determination of the present controversy, we
consider it just and appropriate to set aside the costs imposed upon the
appellant herein, by the National Commission, in view of the conclusion
drawn by us, that the choice of the appellant in approaching the National
Commission against the order passed by the State Commission (dated
11.5.2007) could not be described as frivolous.
As already noticed
herein above, the said order could have only been assailed only before the
National Commission, as the State Commission had no jurisdiction to recall
or modify its own order (dated 11.5.2007).
Accordingly, the costs imposed
on the appellant in the impugned order is hereby set aside. Besides the
aforesaid, the order of the National Commission calls for no interference.
14. The instant appeal is accordingly disposed of in the aforesaid terms.
…..…………………………….J.
(Dr. B.S. Chauhan)
…..…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
February 5, 2013
