1.       This revision has been filed under Section 21(b) of The Consumer Protection Act, 1986 in challenge to the Order dated 07.02.2011 of the State Commission in appeal no. 1193 of 2007 arising out of the Order dated 09.11.2004 of the District Commission in complaint no. 138 of 1999.

2.       Heard the learned counsel for the petitioner complainant and the learned counsel for the respondent development authority.

Perused the material on record, including inter alia the Order dated 09.11.2004 of the District Commission, the impugned Order dated 07.02.2011 of the State Commission and the petition.  

3.       Brief chronology leading to the revision is that a plot admeasuring 813 sq. m. was originally allotted by the development authority to one Mr. Girdhari Lal vide allotment letter dated 07.02.1986 and a conveyance deed was executed. The said Mr. Girdhari Lal, the original allottee, sold the plot to one Mrs. Anila Goel, a subsequent purchaser, who is the complainant herein. Prior permission of the development authority was not taken. The complainant took possession of the subject plot and a sale-deed was executed on 25.06.1991. The complainant made a request to the development authority on 12.04.1995 to transfer the plot in her name. The development authority resumed the subject plot (as allotted to Mr. Girdhari Lal, the original allottee) on ground of non-construction vide letter dated 08.06.1998. Appeal preferred to the Administrator of the development authority by Mrs. Anila Goel, the subsequent purchaser, was dismissed vide order dated 20.04.1999. Aggrieved, the complainant filed a complaint before the District Commission on 05.05.1999. The District Commission vide its Order dated 09.11.2004 quashed the resumption order passed by the development authority and directed it to transfer the subject plot in the name of the complainant after receiving the necessary transfer fee. The State Commission vide its impugned Order dated 07.02.2011 accepted the appeal of the development authority and set aside the Order of the District Commission and dismissed the complaint. 

4.       We note that in the concluding portion of its Order the State Commission has dismissed the complaint on ground that having earlier invoked the jurisdiction of the Administrator of the development authority by way of an appeal the complainant was “debarred from invoking the jurisdiction of the State Commission by filing the present case”.

The said extract from the State Commission’s Order is reproduced below:

“- - - There is another aspect that property was resumed vide order dated 8.6.1998 after issuing the show cause notice and affording opportunity of hearing the allotee. Appeal preferred was dismissed vide order dated 20.4.1999 by administrator. Entertaining the complaint would certainly amount to sitting as a court of appeal over the statutory Appellate-Authority. 

Having invoked the jurisdiction of the Administrator, HUDA, Gurgaon by way of appeal, the complainant is debarred from invoking the jurisdiction of the State Commission by filing the present complaint.  The question in this regard has been settled in case SURINDER MOHAN VS. MUNICIPAL CORPORATION AND ANR. III (2006) CPJ 136(NC). The relevant observations made in para No. 6 of the above mentioned case are as under:-

There is no doubt that Section 3 of the Consumer Protection Act, 1986 provides additional remedy for redressal of grievance of a consumer.  But it does not envisage and this Commission has not been supporting ‘forum-hopping’ by a consumer.  If a certain route has been adopted, of their own volition, by a consumer, then he has to pursue his remedy to the end from of amenities was agitated before the Chief Administrator, U.T. Chandigarh who dismissed the appeal.  Revision Petition was filed against that order which also contained ‘relief’ with regard to lack of amenities, which has also been dismissed.  This commission is not a revisional or appellate authority against the order passed by the Advisor to the chief Administrator, U.T. Chandigarh.

In this case as well as the complainant had preferred the appeal before the Administrator, Haryana Urban Development Authority, Gurgaon, it had to pursue the same to the logical end because it is not its case that before filing the complaint the appeal had been withdrawn, rather, in the affidavit dated 12.7.2006 filed by Shri G.S. Singal copy of the appeal has been annexed as Ex.A-3.  Therefore, the complaint deserves to be dismissed on this account.

In view of the observations made by the counsel for the appellants and facts and circumstances of the case, learned District Forum committed error while allowing the complaint.

Accordingly this appeal is accepted, impugned order is set aside and complaint is dismissed. - - -”

5.       The development authority is established under The Haryana Urban Development Authority Act, 1977. Section 17 of the said Act provides for ‘resumption and forfeiture for breach of conditions of transfer’. Sub-section (5) of Section 17 provides for appeal to the Chief Administrator. Sub-section (7) provides for revisional powers of the Chief Administrator. Sub-section (8) provides for revision with the Secretary to the Government.

Section 17 of the Act 1977 is reproduced below:

17. Resumption and forfeiture for breach of conditions of transfer.- Where any transferee makes default in the payment of any consideration money, or any installment, on account of the sale of any land or building, or both, under section 15, the Estate Officer may, by notice in writing, call upon the transferee to show cause within a period of thirty days, why a penalty which shall [be equal] ten percent of the amount due from the transferee, be not imposed upon him.

(2)       After considering the cause, if any, shown by the transferee and after giving him, a reasonable opportunity of being heard in the matter, the Estate Officer may, for reasons to be recorded in writing, make an order imposing the penalty and direct that the amount of money due along with the penalty shall be paid by the transferee within such period as may be specified in the order.

(3)       If the transferee fails to pay the amount due together with the penalty in accordance with the order made under sub-section(2), or commits a breach of any other condition of sale, the Estate Officer may, by notice in writing, call upon the transferee to show cause within a period of thirty days, why an order of resumption of the land or building, or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed ten per cent of the total amount of the consideration money, interest and other dues payable in respect of the sale of the land or building, or both, should not be made.

(4)       After considering the cause, if any, shown by the transferee in pursuance of a notice under sub-section (3) and any evidence that he may produce in support of the same and after giving him a reasonable opportunity of being heard in the matter, the Estate Officer, may for reasons to be recorded in writing, make an order resuming the land or building or both, as the case may be, and directing the forfeiture as provided in sub-section(3) of the whole or any part of the money paid in respect of such sale. 

(5)       Any person aggrieved by an order of the Estate Officer under section 16 or under this section may, within a period of thirty days of the date of the communication to him of such order, prefer an appeal to the Chief Administrator in such form and manner, as may be prescribed:

Provided that the Chief Administrator may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(6)       The Chief Administrator may, after hearing the appeal, confirm vary or reverse the order appealed from and may pass such order as he deems fit. 

(7)       The Chief Administrator may, either on his own motion or on an application received in this behalf, at any time within a period of six months from the date of the order, call for the record for any proceedings in which the Estate Officer has passed an order for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order in relation thereto as he thinks fit:

Provided that the Chief Administrator shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.

[(8)      Any person aggrieved by an order of Chief Administrator under sub-section (6) may within a period of ninety days of the date of the communication to him of such order, prefer a revision petition to the Secretary to Government, Haryana, Town and Country Planning Department, in such form and manner as may be prescribed:

Provided that the Secretary to Government, Haryana, Town and Country Planning Department, may entertain the revision petition after the expiry of the said period of ninety days, if he is satisfied that the petitioner was prevented by sufficient cause from filing the revision petition in time.

(9)       The Secretary to Government, Haryana, Town and Country Planning Department, may, after hearing the revision, confirm, vary or reverse the order appealed from and may pass such order as he deems fit:

Provided that the Secretary to Government, Haryana, Town and Country Planning Department, shall not pass an order under this section without hearing the parties.]  

6.       Section 50 of the Act 1977 aims to circumscribe the jurisdiction of civil courts.

Section 50 is reproduced below:

50.       Finality of orders and bar of jurisdiction of civil courts:- (1) Save as otherwise expressly provided in the Act, every order passed or direction issued by the State Government or order passed or notice issued by the Authority or its officer under this Act shall be final and shall not be questioned in any suit or other legal proceedings.

(2)       No civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter the cognizance of which can be taken and disposed of by any authority empowered by this Act or the rules or regulation made thereunder.

7.       The question germane is that if a complainant is aggrieved by an alleged wrong or deficiency or unfairness or deceptiveness on the part of the development authority whether he can seek remedy in a consumer protection forum under the Act 1986 even if he has availed of departmental avenues of appeal / revision provided for in Section 17 of the Act 1977 and even if the jurisdiction of civil courts is barred by Section 50 of the Act 1977.

8.         Learned counsel for the complainant submits that it has been settled by Hon’ble Supreme Court in Dhanbir Singh v. Haryana Urban Development Authority, Civil Appeal No. 8639 of 2011 (Arising out of SLP(C) No. 7344 of 2011) dated 14.10.2011 that even after availing of departmental appeal / revision there is no bar for availing remedy under the Act 1986.

Relevant extracts from the judgment are being reproduced below:

“- - - Para 8. The Consumer Protection Act was enacted to provide for better protection of the interests of consumers and for establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith.  Section 3 declares that the provisions contained in the Act are in addition to and not in derogation of the provisions of any other law for the time being enforce.  There is no provision in the Act which bars filing of a complaint by a consumer after availing other statutory remedies.  In matters like allotment of plot/land by HUDA and other similar agencies/instrumentalities of the State, whose functioning is governed by the law enacted by State Legislature, departmental remedies are usually available to an aggrieved person.  If such person falls within the definition of consumer under Section 2(d) of the Act then he can directly file complaint under Sections 12, 17 and 21, as the case may be.  He can also avail departmental remedy by filing on appeal. Once the appeal is decided and the consumer is aggrieved by the decision of the appellant authority then he can challenge the action/decision of the initial authority as well as the appellate authority by filing a complaint. If the complaint is time barred, the consumer can seek condonation of delay by filing an application under Section 24(A)(2). 

Para 10. In the result the appeal is allowed, the impugned order as also the order passed by the State Commission are set aside and the matter is remitted to the State Commission for disposal of the appeal preferred by the respondent against the order of the District Forum on merits. - - -”

Learned counsel further submits that it has also been settled by Hon’ble High Court in Haryana Urban Development Authority & Anr. Vs. Sat Pal & Anr. RSA No. 2879 of 2009 (O&M) decided on 05.02.2018 that jurisdiction of civil courts is not barred against appellate orders of the appellate statutory authorities by Section 50 of the Act 1977.

Without quoting in extenso, only relevant extracts from the judgment are being reproduced below:

“ - - - Before proceedings further it is apposite to note that while admitting the present appeal this Court has culled out the substantial question of law as follows:-

“Whether the jurisdiction of the Civil Court is barred in terms of Section 50 of the Haryana Urban Development Authority Act, 1977?”

- - - - - - - - - - - - - - - - -

            In view of the above, the substantial question of law as framed and reproduced above is answered in favour of the plaintiffs/respondents and against the appellants/defendants; by holding that jurisdiction of the Civil Court is not barred against the appellate orders of the appellate statutory authorities under Section 50 of the HUDA Act.  Civil Court has rightly entertained the suit and as per the evidence led before it has rightly decreed the suit filed by the plaintiff.- - -” 

Learned counsel submits that in the light of the position of law as referred to hereinabove the State Commission has erred in dismissing the complaint on ground that jurisdiction of the Administrator of the development authority was earlier invoked by the complainant by way of an appeal.

9.       Learned counsel for the development authority submits that even if it may be held in the light of the above quoted judgments that the State Commission has erred on a point of law regarding maintainability of the complaint before the consumer protection fora but the decision of the development authority cannot be faulted on merits as the authority has acted as per its rules and regulations.

10.     In answer to the question inherent, it is manifestly clear in view of authorities cited above that if a complainant is aggrieved by an alleged wrong or deficiency or unfairness or deceptiveness on the part of the development authority he can seek remedy in a consumer protection forum under the Act 1986 even if he has availed of departmental avenues of appeal / revision as provided for in Section 17 of the Act 1977 and notwithstanding the provisions of Section 50 of the Act 1977.

It can always be seen by the consumer protection fora whether the development authority has indulged in ‘deficiency in service’ or ‘unfair trade practice’, whether its functionaries have acted in conformity of fundamental principles of prescribed administrative or quasi-judicial procedure, whether the prescribed statutory provisions under its own Act (the Act 1977) have themselves been complied with, whether the order passed by the development authority is lawful, whether there exists material to support the decision arrived at, whether the decision smacks of malafide, whether the decision is such which suffers from the vice of arbitrariness or discrimination. 

11.     As such it is not difficult to see that the principal and concluding ground taken by the State Commission for dismissing the complaint was based on erroneous appreciation and flawed application of the law. 

12.     In respect of the merits per se of the case, we note that the State Commission has remained content with making only a cursory examination of facts and has not made a meaningful speaking appraisal of evidence as per the normal wont in appellate jurisdiction, but which it ought to have done.

We therefore feel it appropriate and necessary to remit the case back to the State Commission with direction to re-adjudicate the appeal on merit as per the law.

We may add here that we have consciously refrained from critiquing the perfunctory examination of merits made by the State Commission as we do not want to color the vision of the State Commission in adjudicating the appeal afresh.

13.     Sequel to the above discussion, the impugned Order dated 07.02.2011 of the State Commission is set aside and the matter is remitted to the State Commission to decide the appeal afresh on merit as per the law.

The parties are directed to appear before the State Commission on 19.01.2022.

14.     The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel and to the State Commission within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.