Petitioner/complainant was allotted plot No. 917, Sector – 38, Gurgaon, by the respondents. Petitioner/complainant deposited 55% of the amount. However, when he visited the site, he noticed that there was no development on the site and high tension wires were running over the entire sector, due to which possession of the plot in question could not be given. Petitioner wrote several letters to the respondents to deliver the possession of plot, but nothing was done. Being aggrieved, petitioner filed a complaint before the District forum.

The District Forum, vide order dated 15.10.2003, partly allowed the complaint and directed the respondents to refund the entire deposited amount along with interest @ 10% from the date of deposit till realisation along with costs of Rs.1,000/-.

Petitioner accepted the order and did not file appeal before the State Commission. Respondents, being aggrieved, filed the appeal before the State Commission. On the a statement made by the counsel for the petitioner (who was respondent before the State Commission) that the appeal be allowed as he had already taken possession of the plot, the State Commission allowed the appeal and set aside the order of the District Forum vide its order dated 16.9.2008 and dismissed the complaint.

Respondent/opp.party thereafter filed the application before the State Commission to recall the order dated 16.9.2008. The State Commission, without issuing notice, by an ex-parte order dated 8.10.2008, recalled the order dated 16.9.2008. According to the respondents, the possession had never been handed over to the petitioner and the appeal was got allowed by playing fraud.

Petitioner has filed this revision petition challenging the order of recall passed by the State Commission on 8.10.2008 on the ground that the State Commission did not have the jurisdiction to recall/review its earlier order and the order in view of the law laid down by the Supreme Court in Jyotsana Arvindkumar Shah & Ors. Vs. Bombay Hospital Trust – (1999)4 SCC 325 and Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr. – (2011)9 SCC 541.

During the pendency of this revision petition, respondents got the appeal dismissed as withdrawn on 20.3.2009. Petitioner, being aggrieved, filed Writ Petition No. 13387 of 2009 before the High Court, in which notice was issued, but, later on, the Writ Petition was dismissed as withdrawn reserving liberty with the petitioner to challenge the order of the State Commission by filing a revision petition before this Commission. This revision petition was filed with a delay of 974 days. Since the delay had occurred because of the pendency of Writ Petition in the High Court, the same is condoned.

Counsel for the petitioner contends that the order of recall was bad in law on twin grounds – (i) it has been passed without hearing the petitioner in violation of the principles of natural justice; that though the notice was issued by the State Commission for 20.10.2008, but the State Commission preponed the date of the hearing to 16.9.2008 and disposed of the recall application without notice of preponed date to the petitioner and (ii) that the State Commission did not have the jurisdiction to recall/review its earlier order. She further contends that if the order dated 8.10.2008 is set aside, then the order dated 20.3.2009 automatically falls as the appeal would no longer be deemed to be pending before the State Commission on that date.

After hearing the counsel for the parties, we find substance in both the submissions made by the counsel for the petitioner.

On the application for recall of the order, notice had been issued for 20.10.2008.  State Commission, without issuing notice to the petitioner about preponement of the date of hearing, disposed of the appeal on the preponed date, i.e., 8.10.2008 without hearing the petitioner in violation of the principles of natural justice.  Since the order of recall dated 8.10.2008 was passed without hearing the petitioner, the same is liable to be set aside.

We find substance in the second submission made by the counsel for the petitioner that the State Commission did not have the jurisdiction to recall/review its earlier order. 

Hon’ble Supreme Court in Jyotsana Arvindkumar Shah case (supra) has held as under :

“We heard learned Counsel on both sides for quite some time. When we asked the learned Counsel appearing for the respondent to point out the provision in the Act which enables the State Commission to set aside the reasoned order passed, though ex parte, he could not lay his hands on any of the provisions in the Act. As a matter of fact, before the State Commission the appellants brought to its notice the two orders, one passed by the Bihar State Commission in Chief Manager, UCO Bank v. Ram Govind Agarwal 1996 (1) CPR 351 and the other passed by the National Commission in Forest Research Institute v. Sunshine Enterprises 1997 (1) CPR 42 holding that the redressal agencies have no power to recall or review their ex parte order.. The State Commission had distinguished the above said orders on the ground that in those two cases the opponents had not only not appeared but also failed to put in their written statements. In other words, in the case on hand, according to the State Commission, the opponent (respondent having filed the written statements, the failure to consider the same by the State Commission before passing the order would be a valid ground for setting aside the ex parte order. The State Commission, however, fell into an error in not bearing in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order. It is also seen from the order of the State Commission that it was influenced by the concluding portion of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority or make an appropriate application before the State Commission for setting aside the ex parte order, if permissible under the law. Here again, the State Commission failed to appreciate that the observation of the High Court would help the respondent, if permissible under the law. If the law does not permit the respondent to move the application for setting aside the ex parte order, which appears to be the position, the order of the State Commission setting aside the ex parte order cannot be sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set aside an ex parte order.”

        Supreme Court in Rajeev Hitendra Pathak case (supra) held as under :

“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.

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 our considered opinion, the decision in Jyotsana’s case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Company Ltd. is untenable and cannot be sustained.”

        In the aforesaid judgements Supreme Court has held that the District Forum or the State Commission under the Consumer Protection Act, 1986 does not have the power to recall/review its own order.  The order dated 8.10.2008 is liable to be set aside on this count as well.  Since we have set aside the order dated 8.10.2008, consequential order passed by the State Commission dated 20.3.2009 permitting the respondent to withdraw the appeal is also liable to be set aside and is accordingly set aside.

        To be fair to the respondents, respondents did not have the opportunity to file the revision petition against the order dated 16.9.2008.  As on application filed by the respondent, said order has been recalled, liberty is reserved with the respondent to challenge the said order within 90 days from today.  If the respondent challenges the said order within the prescribed time, the same would be entertained without any objection to limitation.

        Revision petition stands disposed of in above terms.

        Observation made in this order are confined to point in issue only.  All other contentions are left open.