This revision petition under section 21 (b) of the Consumer Protection Act, 1986 (in short, ‘the Act’) assails the order of the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in FA no. 1718 of 2008 dated 15.02.2012 arising out of the order of the District Consumer Disputes Redressal Forum, Karnal (in short, ‘the District Forum’) in complaint no. 679 of 2007 dated 16.07.2008.

2.     The facts of the case as culled out from the records are that the petitioner’s mother Vidyawati was allotted a plot no.132 P, Sector 6, Urban Estate, Karnal in the year 1982. After her death, the plot was transferred by the respondent in the name of the petitioner as per the decree dated 12.10.1990 of the District Judge under Probate Case no.6 of 1983. The complainant thus moved an application dated 12.04.1993 seeking permission of the respondent to construct a residential house under Regulation 6 of the Haryana Urban Development Authority (Erection of Buildings) Regulation 1979. The respondent accorded approval for the construction as per the standard design vide memo dated 13.02.2007, i.e., after a delay of 14 years. However, in 2001, the respondent had obtained an application from the petitioner for building plan approval under Regulation 3 of the Haryana Regulations on the grounds that the standard type design did not apply to the plot in question in view of its size. The petitioner applied on 06.02.2007 for demarcation of the plot in question and submitted the required documents on 04.04.2007. However, it is alleged by the petitioner that same was arbitrarily delayed which constituted deficiency in service and unfair trade practice on part of the respondent. The petitioner approached the District Forum, Karnal and sought directions for treating the period from 12.04.1993 to 13.02.2007 and from 31.12.2006 to 30.09.2007 as ‘zero period’, on account of the delay caused by the respondent and to pay compensation for the cost escalation as per the indexed cost of assets for taxation to execute the conveyance deed. The petitioner has also claimed Rs.2,50,000/- as compensation on account of harassment and Rs.25,000/- for wastage on plans and Rs.20,000/- as costs.

3.     The complaint was decided by the District Forum on contest. The respondent argued on the maintainability of the complaint stating that a civil suit had been filed by the petitioner in the year 2002 which was dismissed on 16.05.2005 and the appeal was also dismissed on 24.01.2006 by the Additional District and Sessions Judge, Karnal. It was stated that the petitioner had challenged this order in the Hon’ble High Court which was pending. As per the order dated 24.01.2006 of the Additional District and Sessions Judge, Karnal, the complainant was required to obtain the standard design approval from the respondent on payment of prescribed fees which had not been done. The respondent prayed for the dismissal of the complaint as not maintainable.

4.     The District Forum vide its order dated 16.07.2008 held as under:

4.       The objection of the opposite party that the complaint in hand is not maintainable and the relief claimed therein is barred by the principle of resjudicata. From the whole set of circumstances explained by the complainant, we are unable to find any justification in this objection of OP. The question before us is whether OP can take benefit of its own wrong by taking the plea of resjudicata in the present case. The civil rights of the parties are adjudicated in the civil court but the Consumer Protection Act, attempts to remove the helplessness of a consumer which he faces against the might of public bodies and this forum is concerned with the consumer rights and deficiency in services caused to him. Section 3 of the Consumer Protection Act envisages that the provisions of the Act are in addition to and not in derogation of any law in force and nowhere it is barred when deficiency in service is alleged by a consumer. The other objection of OP is that the complainant is not entitled to the condonation of delay in the construction of the building on the ground that he had simply moved an application for the permission to construct the plot in question as per standard design, which was not accompanied by any standard design or prescribed fee for obtaining the standard design from the Estate Office as per Rule 6 of the Regulations and the application was moved by the complainant just to avoid his liability to the pay the extension fee. It is strange that OP is demanding the compliance of those formalities, which were never informed or explained to him for the approval of the standard design as alleged. So far the terms of ‘standard design’ is concerned, it is understood that design is already approved by the HUDA under Regulation 6 of the Haryana Urban development Authority (Erection of Buildings) Regulations 1979 and no site plan is required but only a formal permission of the Estate Officer is required and this fact is supported by the order dated 24.01.2006 passed by the learned Additional District and Sessions Judge, Karnal as mentioned by OP in paragraph no. B of its application. There is no denial to the fact that OP took 8 years to transfer the plot in question in the name of the complainant after the death of his mother and that the complainant had applied on 12.04.1993 for the approval of the standard design but despite several requests and reminders, the matter remained pending for several years and OP did not even think or took any initiative to inform the complainant fulfil the requisite formalities. It is also observed that it is the general tendency with the public authority like OP to impose time restraint on consumer but no time limit is observed by themselves to complete or expedite the matter in time and they took their own time as per their whims and convenience. Public authorities are expected to be service oriented but they have turned into harassing authorities. It is unfortunate that the matter which requires immediate attention lingers on years together without any information and the consumer is made to run from one end to the other with no result. Unwarranted agony and harassment to the complainant can be well imagined under such circumstances. We do not find any justified reason for which OP took 8 years to transfer the plot in question in the name of the complainant from the name of his mother and 14 years to approve standard design and 7-8 years to approve the formal building plan. Most irritating aspect of the present case is that instead of admitting its own fault for not permitting the complainant to construct the building as per standard design plan for 14 years and as per the formal site plan for nearly 6-7 years, OP is blaming the complainant for not completing the construction over the plot within the prescribed period. It is strange how a person can be asked to complete the construction within the specified period until and unless he is permitted to do so. This is one of such cases, which illustrates how and in what manner public authority can harass a common man and such behavior on the part of public authority could degenerate into the storehouse of inaction leading to breading corruption. The documents placed on record goes to prove that the OP has been guilty of deficiency in service by not rendering and performing duties within the requisite time and causing unnecessary harassment and delay to grant permission to the complainant to raise construction over the plot in question as per standard design thereby compelling him to undergo unnecessary mental and physical harassment. The complainant has not been found guilty for such delay rather it is OP who has been found guilty for causing unnecessary delay on account of which the complainant is likely to bear extra financial burden due to escalation in the cost of construction throughout all these years.

5.       In view of the above discussion, the complaint is very much maintainable against the deficiency in service on the part of OP and as such the complainant is entitled to the condonation of delay demanded by him. Accordingly, the application of OP is hereby dismissed and the main complaint is disposed off with the direction to OP to treat the period of delay in giving approval under Regulation 6 of the Haryana Urban Development Authority (Erection of Buildings) Regulations 1979 from 12.04.1993 to 13.02.2007 and 31.12.2006 to 30.09.2007 as zero period. OP is further directed to compensate the complainant for direct cost escalation due to delay caused by it on the basis of cost indices published by Government of India for calculating indexed cost of asset for taxation purposes. OP is also burdened with Rs.20,000/- for causing mental agony and harassment to the complainant on account of its omission and commission. The order shall be complied with within a period of 30 days on the receipt of copy of this order. As OP has stated that it has executed the conveyance deed in respect of the plot in question and the complainant has not denied this fact so there is no need to issue any direction in this regard”.

(Emphasis added)

5.     Respondent filed FA no.1718 of 2008 before the State Commission against the order of the District Forum. The State Commission vide its order dated 15.02.2012 concluded that the District Forum had erred in not appreciating that the matter was pending before the Civil Court and observed as under:

“Complainant has filed complaint before the same cause of action. Civil Suit filed on 18.05.1996. It was dismissed on merits vide detailed order dated 16.05.2005. Complainant preferred appeal before District Judge and vide judgment dated 24.01.2006, the appeal was dismissed by the Court of Shri Darshan Singh the then Additional District Judge, Karnal on merits. Complainant has preferred regular second appeal before Hon’ble High Court, which is stated to be pending. Thereafter, complainant choose to file a complaint no. 531 of 2006 which later got dismissed as withdrawn on 21.05.2007, alleging deficiency in service, admittedly the civil suit filed by the complainant on the same cause of action stood dismissed. Regular second appeal is stated to be pending. The filing of complaint after the filing of the regular second appeal by the complainant was an act trying to overstep the judicial proceedings. The matter does not end here. Complainant preferred an complaint before complaint no. 531 of 2006 which he go dismissed as withdrawn on 21.03.2007, the copy of said order is also on the file and thereafter filed the present complaint bearing no. 679 of 2007. Complainant did not seek permission to file fresh complaint after withdrawal for his earlier complaint. The District Forum ignoring all these facts and neither taking into consideration the fact of Civil Court having already settled the matter and the earlier complaint being dismissed as withdrawn, still allowed the complaint. The Consumer Fora have limited jurisdiction and cannot sit as court of appeal over the judgment of civil court, which has much wider jurisdiction and still entertaining the complaint and negating the decisions of civil courts was not understandable.

Thus, we feel that learned District Forum committed error while allowing the complaint. Therefore, order cannot sustain and is set aside. The appeal is allowed, complaint stands dismissed.”

6.     This order has been impugned before us by the petitioner. The respondent despite notice dated 15.12.2021 which was delivered on 24.12.2021, did not appear in the matter and was proceeded ex parte on 14.02.2023. The petitioner has prayed as under:

“The petitioner prays that order of the State Commission dated 15.02.2012 kindly may be considered in the light of true and complete facts and this revision petition be allowed on the grounds mentioned hereinabove. And that the order dated 16.07.2008 rendered by District Forum be upheld, reinstated and enforced, setting aside the order dated 15.02.2012 of State Commission in First Appeal no. 1718 of 2008.

7.     I have heard the arguments of the petitioner who was appearing in person and the respondent was proceeded ex parte on 14.02.2023 and perused the material on record carefully.

8.     Briefly stated, the contention of the petitioner is that the order of the District Forum in his favour be upheld and that the State Commission’s order be set aside.  The arguments of the respondent pertain to the issue of maintainability in view of the matter being agitated before a Civil Court and that the District Forum erred in entertaining the complaint under the Consumer Protection Act, 1986. It is the case of the revision petitioner that he had approached the Civil Court against the respondent praying to be allowed to undertake construction on a plot allotted to his mother and inherited by him by virtue of the probate of a will. He has argued that his prayer before the District Forum was with regard to deficiency in service on the part of the respondent in sanctioning of building permission on a plot that had been allotted to him on payment of consideration by the respondent.

9.     The moot issue is whether this revision petition against the order of the State Commission under the CP Act, 1986 is maintainable. Section 2 (1) (d) of the Act reads as under:

(d) "consumer" means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person [but does not include a person who avails of such services for any commercial purpose];

[Explanation : For the purposes of clause, "commercial purpose" does not include use by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;]

10.   Complainant under section 2 (1) (b) of the CP Act, 1986 is also defined as under:

 "complainant" means-

1. a consumer; or

2. any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force; or

3. the Central Government or any State Government,

4. one or more consumers, where there are numerous consumers having the same interest;]

5. [in case of death of a consumer, his legal heir or representative; ]who or which makes a complaint;

11.   The Consumer Protection Act, 1986 is a special enactment for the better protection of the interests of consumers and for the settlement of consumer disputes and matters connected therewith. The Act seeks to promote and protect the rights of consumers and to seek redressal against unfair trade practices to prevent unscrupulous exploitation of consumers, through speedy and simple redressal of consumer disputes through a quasi-judicial machinery of designated consumer fora. In other words, the remedies available under CP Act 1986 are in addition to the other remedies available to a consumer in view of the intent of the legislature to provide better protection of their rights and interests. The Hon’ble Supreme in M/s Emaar MGF Land Ltd., vs Aftab Singh I (2019) CPJ 5 (SC) has held that even when there is an arbitration clause in an agreement between a builder and an allottee, it does not bar the jurisdiction of the Consumer fora to entertain a complaint.  Therefore, the contention of the respondent that in view of the present matter pending before the Civil Court the petition is not maintainable before this Forum, cannot be sustained.

13.   It is evident that the petitioner is a consumer having been allotted a plot no. 132 P, Sector 6, Urban Estate, Karnal by the respondent against payment of the prescribed consideration. This issue also is not disputed by the respondent. It is manifest from the record that though the petition has been filed after an inordinate delay of over decade seeking permission to construct a residential house, it is the respondent who has delayed the permission due to various issues of a procedural nature. The District Forum has rightly observed that the claim is not barred by limitation and the matter is maintainable.

14.   The order of the District Forum in allowing the appeal and awarding relief is therefore justified. The order of the State Commission on the contrary has failed to appreciate the purpose of the Consumer Protection Act, 1986 and the consumer complaint filed there under before the District Forum.

15.   In view of the fact that the petitioner has claimed relief against deficiency in service and unfair trade practice on the part of the respondent has been completely over-looked by the State Commission. It has also failed to appreciate that it is open to the petitioner to argue the matter and seek remedy under the Consumer Protection Act, 1986 for deficiency in service and unfair trade practice. For these reasons, the order of the State Commission is liable to set aside.

16.   In view of the foregoing the revision petition is allowed and the order of the State Commission in FA No. 1718 of 2008 dated 15.02.2012 is set aside. Accordingly, the order of the District Forum, Karnal in Complaint no. 679 of 2007 dated 16.07.2008 is affirmed.