1.      Heard Mr. Abhishek Chaudhary, Advocate, for the petitioner and Mr. Vijay Vikram Singh, Advocate, for respondent-1. Respondent-2 is a proforma party.

2.      Registry has reported that this revision petition has been filed beyond 15 days of the limitation.  In view of orders of the Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No.3 of 2020 in Re Cognizance for Extension of Limitation Vs. XXXX dated 23.03.2020, 8.03.2021 & 27.4.2021, the delay is liable to be condoned. 

3.      This revision has been filed against the order of State Consumer Dispute Redressal Commission, U.P. Lucknow dated 09.02.2021 passed in First Appeal No. 347 of 2020 (arising out of the order of District Consumer Disputes Redressal Forum, Kanpur Nagar dated 10.10.2019, passed in Consumer Complaint No. 227 of 2016), whereby District Forum, has partly allowed the complaint and directed Kanpur Development Authority to regularise the constructions made by the complainant institution, after receiving additional composition fee (in case composition fee deposited by the complainant was insufficient) and pay Rs.5000/- as cost of the litigation and the appeal filed by the petitioner has been dismissed with cost on the ground of limitation as well as on merit.

4.      Gyan Niketan School (respondent-1) filed Consumer Complaint No. 227 of 2016, to issue a direction and order thereby restraining the opposite parties from harassing the complainant institution under influence of third parties and their unwanted complaints in respect of property no. 122/689 and 122/690, situated in HSN Scheme No. 1, Harihar Nath Shastri Nagar, Kanpur Nagar as the entire construction on said plots is wholly regularised and established in accordance with law, to pay Rs.5,00,000/- to the complainant as compensation for mental harassment and financial loss, to pay litigation costs and any other relief which the Forum may deem fit and proper in favour of the complainant may be awarded. It has been stated in the complaint that Kanpur Development Board, constituted under Kanpur Urban Area Development Act, 1940, developed residential/commercial area under Yojana No.1, which was later on named as HSN Scheme No. 1, Harihar Nath Shastri Nagar, Kanpur Nagar. Plot No. 33 (area 243 Sq. yard) was originally leased out to Jagdish Singh son of Ganga Singh and Ganga Singh son of Ratan Singh on 17.12.1957, which was sold by them to Vishwanath Kapoor through sale deed dated on 28.12.1963. After death of Vishwanath Kapoor, it was inherited by his sons Sunil Kapoor, Anil Kapoor, Praveen Kapoor Nad Rajeev Kappor, who sold it to Smt. Narendra Kaur wife of Sardar Balwant Singh. Smt. Narendra Kaur obtained Free-hold Right over plot No. 33 on 09.02.2000. This plot was later on allotted plot No. 122/689, HSN Scheme No. 1, Harihar Nath Shastri Nagar, Kanpur Nagar. Plot No. 81 (area 718 Sq. mtr.) of HSN Scheme No. 1, Harihar Nath Shastri Nagar, Kanpur Nagar was originally leased out to Pussu son of Bhikhu on 08.01.1950, who sold it to his son Ram Saran on 17.08.1960. Krial Singh, Avtar Singh, Kuldeep Singh and Kulvir sons of Balwant Singh purchased an area of 350 Sq. yard of plot No. 81, from Ram Saran through sale deed dated 31.08.1999. They obtained Free-hold Right over plot No. 81 (area 350 Sq. yard) on 09.08.1999. This plot was later on numbered as Plot No. 122/690. The complainant is an educational charitable society, duly registered under Societies Registration Act, 1860 on 21.06.1969, although it started in functions in 1960. The complainant constructed a composite school building on plots 122/689 and 122/690, prior to 1958, i.e. before coming in to force of U.P. (Regulation of Building Operation) Act, 1958 and U.P. Urban Development and Planning Act, 1973. The complainant prepared a lay out plan of the building combining both the plots and got it sanctioned from Kanpur Development Authority after depositing composition fee. Some fake complaints were made by the persons, inimical to the complainant before Kanpur Development Authority, on which, Kanpur Development Authority issued show cause notices dated 14.12.2015, 15.12.2015, 18.12.2015 and 15.02.2016, which were replied by the complainant on 26.02.2016 and 18.03.2016 but its officers are continuously harassing and threatening the complainant.       

5.      Kanpur Development Authority contested the case and filed its written statement. It has been stated that the complainant’s lay out plan was sanctioned for plot No. 33 (new No. 122/689) for total four stories building, as against it, he has constructed total five story building. No lay out plan was sanctioned for plot No. 81 (new No. 122/690) but the complainant has raised a five stories building over this plot also. When illegal construction of the complainant was noticed then notices dated 21.05.2012, 26.05.2012, 29.07.2015, 03.08.2015 were issued to him under the provisions of U.P. Urban Planning and Development Act, 1973, but he neither stopped constructions nor submitted any reply. Kanpur Development Authority, through letter dated 05.12.2015 apprised Joint Director of Education about the illegal construction of the complainant. On 18.01.2016, as show cause notice was issued as to why illegal constructions of the complainant be not demolished and construction was stopped on the spot. Then he filed the present complaint, in which District Consumer Forum granted interim order. Kanpur Development Authority challenged the interim order in Revision No. 97 of 2016 before State Consumer Dispute Redressal Commission, which was dismissed with the observation to file written statement before District Forum, raising all the points, who was directed to decide the complaint expeditiously preferably within three months. It has been submitted that the complainant was not a consumer.     

6.      District Forum by the judgment dated 10.10.2019 found that the complainant has deposited Rs.7,00,000/- as composition fee for regularisation of his construction but Kanpur Development Authority was not regularising its construction. The complainant was a consumer. On these findings the complaint was allowed. The petitioner filed First Appeal No. 347 of 2020 from the aforesaid order, on 07.10.2020. The appeal was beyond the period of limitation. The petitioner filed an application for condonation of delay. In the affidavit filed in support of delay condonation application, it has been stated that copy of the judgement dated 10.10.2019 was received on 17.10.2019. Thereafter, it was sent to legal department for grant of permission for filing the appeal on 23.10.2019. The permission was granted on 18.11.2019. Then entire records were handed over to In-charge of Zone for filing the appeal. However, the concerned officer did not proceed for filing the appeal and nor handed over the papers to the Advocate in Lucknow, for filing the appeal. He illegally retained the record of the case with him. When the authorities were asked to comply the order of District Consumer Forum, then they made inquiry from the Advocate at Lucknow, in respect of the appeal, who informed that he did not receive any paper for filing the appeal. Thereafter, the papers were collected from the concerned officer and handed over to the Advocate at Lucknow, who drafted the appeal and filed it on 07.10.2020. The Authorities have initiated disciplinary proceeding against the erring officer and issued a show cause notice dated 05.10.2020 to him. On issue of notice in the delay condonation application, the complainant appeared and filed his objection.

7.      The delay condonation application was heard by State Consumer Disputes Redressal Commission, U.P. Lucknow, who by judgment dated 09.02.2021, held that permission for filing the appeal was granted on 18.11.2019 but it was filed on 07.10.2020. The appellant has not disclosed the fact that who was erring officer and what action was taken against him. As such relying upon the judgment of Supreme Court in State of Madhya Pradesh  & Ors. Vs. Bheru Lal, (2020) 10 SCC 654, held that delay in filing the appeal was not liable to be condoned. It has been further held that the complaint was an education institution, having its grade in education. The building was constructed, satisfying all the norms. The complainant has deposited Rs.5,00,000/- through Bank Draft on 07.09.2018 for composition of the construction. Chief Fire Officer and Assistant Engineer Ganga Canal have issued ‘no objection certificates’, which shows that school building was fully safe and earthquake resistant and its class rooms were of standard size. Relying upon the judgment of Supreme Court in Punjab University Vs. Unit Trust of India, (2015) 2 SCC 669, it has been held that the complainant was a consumer. On these findings, the appeal was dismissed with cost of Rs.25,000/- on the point of delay and direction was issued to realise the cost from guilty officer and Rs.10,000/- be paid to the appellant from it. Hence, this revision petition has been filed.

8.      We have considered the arguments of the parties and examined the record. District Consumer Dispute Redressal Forum passed its judgment on 10.10.2019, which was received to the petitioner on 17.10.2019. Under Section 15 of the Consumer Protection Act, 1986, 30 days limitation has been provided for filing the appeal as such the appeal could have been filed till 16.11.2019 but it was filed on 07.10.2020. Supreme Court in SMWP (C) No. 3 of 2020, by orders dated 23.03.2020, 08.03.2021 and 27.04.2021 has directed all the Courts and Authority to add and extend the limitation from 15.03.2020, in the limitation as originally provided under the Statute, due to pandemic Covid-19 and consequent imposition of lockdown in the country. Thus there was total delay of 118 days in filing the appeal. 

9.      The petitioner has stated that permission for filing the appeal was granted on 15.11.2019 by the law department, which was communicated to the petitioner through letter dated 18.11.2019. Thereafter, the entire record of the case was handed over to the concerned Zone Officer for filing the appeal but the concerned Zone Officer had committed the negligence and did not approach the Advocate in Lucknow for filing the appeal. Kanpur Development Authority issued a show cause notice to the concern Zone Officer to show cause as to why the appeal was not filed by him immediately after receiving the papers. It has been submitted that for the negligence of the officer, delay in filing the appeal was liable to be condoned as ultimately the Kanpur Development Authority will suffer irreparable loss. He submitted that liberal view ought to have been taken in condoning the delay as held by Supreme Court in Collector, Land Acquisition, Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. (1987) 2 SCC 107, N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC 123 and Bhivchandra Shankar More Vs. Balu Gangaram More & Ors., (2019) 6 SCC 387.  

10.    State Commission has relied upon the judgment of Supreme Court in  State of Madhya Pradesh  & Ors. Vs. Bheru Lal, (2020) 10 SCC 654 in which there was delay of 663 days in filing the Special Leave Petition, which was not condoned. Explanation for delay was given that the department did not have requisite papers, time was in arranging the papers and processing the file. Supreme Court found that unavailability of the documents and the process of arranging the documents for a long period was no ground for condoning the delay. Supreme Court further found that if a case is good on merit and likely to succeed, then in appropriate cases delay can be condoned.

11.    In the present case, the papers for filing the appeal was handed over to officer concerned on 18.11.2019, who slept over it. The petitioner was vigilant and willing to file the appeal but negligence or deliberate mistake has been committed by the officer concerned, for which departmental proceeding has been initiated against him. This was a sufficient ground to condone the delay of 118 days in filing the appeal. State Commission has wrongly presumed that there was delay of 365 days and did not take notice of the order of Supreme Court, in which delay after 15.03.2020 was exempted to be counted. There was sufficient cause for condoning the delay. State Commission has illegally held that delay was not liable to be condoned. The delay in filing the First Appeal No. 347 of 2020, is hereby condoned.

12.    It has been consistently held by Supreme Court that an issue of limitation is an issue of jurisdiction. If delay in filing the appeal was not condoned then, State Commission had jurisdiction to examine the merit of the case. State Commission has illegally examined the merit of the case. Findings of State Commission on merit are without jurisdiction.

13.    The complainant took a case that its building was constructed in 1958 and it was a composite building on plot 33 and 81, i.e. prior to coming into force of U.P. (Regulation of Building Operation) Act, 1958 and U.P. Urban Development and Planning Act, 1973, and their construction was regularised later on which is contrary to its own case that its office bearers purchased open land of plot No. 33 (area 243 Sq. Yard) on 31.03.1993 and plot No.81 (area 350 Sq. yard) on 31.08.1999. When they found themselves in difficulty, then they deposited Rs. 5,00,000/- as compounding fee, on 07.09.2018, for compounding their illegal construction. Even at time also they did not submit lay out plan of the construction, which was sought to be compounded. Under U.P. Urban Development and Planning Act, 1973 and the Bye-laws of Kanpur Development Authority, only those constructions can be compounded which satisfy the norms prescribed in it. Neither District Consumer Forum nor State Commission has recorded any finding that the construction of the complainant was falling within the norms of the Bye-laws of Kanpur Development Authority and without examining the map of the complainant and provisions of the bye-laws directed for compounding the building, although it has been specifically pleaded by the petitioner that five story construction cannot be compounded under the Act and the bye-laws.

14.    There was a serious issue relating to maintainability of the complaint as it has been specifically stated that the complainant was not a consumer inasmuch as (i) They have illegally raised the construction without sanction of a lay out building plan which was mandatory under U.P. Urban Development and Planning Act, 1973 as such there was no relation between it and the petitioner as a service provider and (ii) The complainant was running education institution for commercial purpose.

15.    These were serious issues which ought to have been decided after examining the entire record. But State Commission, while hearing on delay condonation application as well as rejecting it, has entered into merit of the case, which is without jurisdiction.  

O R D ER

          In view of the aforesaid discussions, the revision succeeds and is allowed. The order of State Consumer Dispute Redressal Commission, U.P. at Lucknow dated 09.02.2021, passed in First Appeal No. 347 of 2020 is set aside. The delay in filing First Appeal No. 347 of 2020 is condoned. The matter is remanded to State Consumer Dispute Redressal Commission, U.P. at Lucknow, who shall readmit the appeal and decide on merits after giving opportunity of hearing to the parties. The President, State Consumer Dispute Redressal Commission, U.P. at Lucknow is requested to list this appeal before the Members other than who had decided it.