Heard the learned counsel for the petitioner.

2.       Challenge in this revision petition is to the order dated 31^st of May, 2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (State Commission for short) passed in First Appeal No. 317 of 2005.  Vide the said order, the State Commission has set aside the order dated 11^th of January, 2005 passed by the District Consumer Disputes Redressal Forum, Faridabad (District Forum for short), resulting in the dismissal of the complaint of the petitioner.

3.       Facts leading to the order passed by the State Commission are as under :-

The petitioner was provisionally allotted an industrial plot in Sector-59, Faridabad by the respondent-Haryana Urban Development Authority (HUDA for short) vide their letter dated 23^rd of April, 1996.  The provisional letter of allotment, which is at pages 63 to 65 of the paper-book, contains a number of conditions, to be fulfilled before the issuance of a regular/final letter of allotment.  The provisional letter of allotment, inter alia, stated as under :-

“6.     It is also made clear that this letter will not give you a legal right for allotment unless the final letter of allotment is issued.

7.       That you will make adequate arrangements for Industrial vestage (wastage) and disposal of effluent.  The necessary certificates with respect of satisfactory arrangements after getting it checked from water/air pollution board be submitted.

8.       That the price of the plot in question is tentative and any enhancement in the cost of land awarded by the competent authority under land Acquisition Act shall be payable proportionately as determined by the Authority.  The additional price shall be paid within thirty days of the demand.

9.       You would submit the proof of the completion of above formalities within a period of 180 days from the date if issue of PLA.  In case you fail to complete the above formalities with the above mentioned period, the offer shall stand withdrawn/cancelled and the amount deposited by you, will be refunded after deducting 10% from it.”

4.       On failure on the part of the petitioner/complainant to comply with the conditions so stipulated within the prescribed period of 180 days, the provisional letter of allotment was cancelled as per HUDA policy on the 27^th of November, 1996.  The cancellation order was challenged by the petitioner/complainant in an appeal before the Administrator, HUDA, which, however, was dismissed by the Administrator on the 16^th of April, 1998.  Rather than challenging the order passed by the Administrator, HUDA before the competent authority i.e. the Financial Commissioner and Secretary to Government of Haryana, the petitioner/complainant appears to have kept quiet for a number of years and filed a consumer complaint before the District Forum on the 4^th of August, 2003.  After hearing the parties, the District Forum vide the order referred to above accepted the complaint and directed the respondent-HUDA to confirm the provisional letter of allotment regarding the industrial plot in favour of the complainant and deliver the possession thereof, besides awarding a compensation of Rs.20,000/- and costs of Rs.2000/-.  The order was required to be complied with within 30 days after its receipt.

5.       Aggrieved upon the said order of the District Forum, the opposite party/HUDA filed an appeal before the State Commission on the 23^rd of February, 2005.  It appears from the records that both the appellants (opposite parties) and the respondent (complainant) were duly represented before the State Commission over a number of hearings spread over a number of years since 2005.  In fact the petitioner/complainant had filed an application before this Commission (NCDRC) for the transfer of the appeal from the board of Haryana State Consumer Disputes Redressal Commission to some other Commission, which was dismissed with cost by the National Commission vide order dated 13^th of May, 2011.  In this background, there was no room for any doubt in the mind of the parties that the matter had to be heard and decided by the Haryana State Consumer Disputes Redressal Commission, Panchkula.  The matter was listed for hearing on the 31^st of May, 2011 but, it appears, no one appeared either for the appellants (HUDA) or for the respondent (complainant).   On this, the State Commission has this to say in its order:-

“Case called out several times since morning but none put in appearance on behalf of the parties though the case is fixed for argument.  It is already 12.45 p.m.  This appeal relates to the year 2005.  Heavy pendency of appeals/complaints as well as non-cooperative attitude of the parties/their counsel is the reason for heavy cause list.  Under these circumstances we do not think it appropriate to adjourn this appeal indefinitely and therefore, we proceed to decide the same after going through the case file.”

6.       The State Commission thereafter proceeded to decide the appeal on merit on the basis of the material before it, adduced by the respective parties and returned a finding that the order passed by the District Forum was not sustainable under law firstly because the complainant had applied for allotment of an industrial plot, obviously to run an industry meant for earning profit and, therefore, it was for commercial use, which is not covered within the definition of a ‘consumer’.  In this regard, the State Commission has relied upon the case of Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO) v. Diksha Enterprises [III (2010) CPJ 333 (NC)] and has held that the complaint was fully covered by the said order.  Secondly, the State Commission after going through the date of filing of the complaint and the complainant having approached the Administrator, HUDA in an appeal and finally approaching the District Forum during the year 2003 and relying upon the judgments of the Supreme Court in the case of State Bank of India v. B.S. Agriculture Industries [2009 CTJ 481 (SC)(CP)] and V.N. Shrikhande (Dr.) v. Anita Sena Fernandese [2011 CTJ 1 (SC) (CP)], held that the complaint was hopelessly barred by time.  Finally, it also held that the complaint before the District Forum was not maintainable as the complainant had earlier filed an appeal challenging the cancellation order before the competent appellate authority i.e. the Administrator, HUDA and, therefore, after having adopted a certain route of redressal, could not switch over the route to consumer fora.  The State Commission on this point relied upon the order passed by this Commission in the case of Surinder Mohan v. Municipal Corporation & Anr. [2010 (1) CPC 200 (NC)].  

7.       Thus, on all the three counts; of the complaint being hopelessly barred by time and the complainant having adopted a certain line of remedy could not change the forum and thirdly, that he was not even a ‘consumer’, the State Commission held the order of the District Forum to be legally unsustainable and set aside the same and accepted the appeal of the opposite party/HUDA.

8.       Aggrieved against this finding that this revision petition has been filed.

9.       Shri Puneet Bali, Advocate, assisted by Shri Akshat Goel, Advocate, appearing on behalf of the petitioner/complainant has drawn this Commission’s attention to the fact that the State Commission has gone ahead with deciding the appeal of the respondent/HUDA despite the fact that neither the appellant nor the petitioner/complainant were represented before it.  The main thrust of his argument is that in the absence of the appellant (HUDA), the State Commission at the most could have dismissed the appeal for default or non-prosecution but could not have gone ahead and decide the matter on merits.  In this regard, he has heavily relied upon Order XLI, Rule 17(1) of the Civil Procedure Code (CPC) and has also referred to the judgments of the Supreme Court in the cases of Secretary, Department of Horticulture, Chandigarh and Anr. v. Raghu Raj [(2008) 13 SCC 395] and Abdur Rahman and others v. Athifa Begum and others [(1996) 6 SCC 62]. 

10.     In this regard, it may be stated that the proceedings before the consumer fora being summary in nature, the provisions of the CPC except those specifically referred to in Sub-Sections (4), (5), (6) and (7) of Section 13 of the Consumer Protection Act, 1986 are not applicable.  The expeditious disposal of complaints/proceedings before the consumer fora being one of the main objectives, for which the Consumer Protection Act, 1986 in Section 13 (3A) specifically provides for maximum period of 90 days within which such type of cases are to be disposed of, the objection of the learned counsel cannot be sustained.  In any case, it cannot be said that principle of natural justice has not been followed as in the absence of both the parties, i.e. the appellant (HUDA) and the respondent (complainant), the State Commission has gone ahead and decided the matter on the basis of material available on record.

11.     Be that as it may, in the Raghu Raj’s case (supra) referred to by the learned counsel for the petitioner/complainant, the counsel for the respondent therein had appeared and made his submissions before the Hon’ble High Court but the counsel for the appellant therein was absent.  The appeal of the appellant had been dismissed in the absence of the counsel for the appellant but after hearing the counsel for the respondent.  It was in this backdrop that Hon’ble Supreme Court felt that the High Court ought not to have proceeded to decide the appeal on merit.  In the case in hand as already stated, no advocate or counsel has appeared either on behalf of the appellant (HUDA) or the respondent (complainant) and for the reasons recorded by the State Commission as to why it went ahead to decide the matter in their absence, it cannot be said that any of the parties had been prejudiced by the said order.  Similar appears to be the situation in the case of Abdur Rahman (supra), wherein the appeal had been dismissed by the High Court on merit in the absence of the appellant.  Obviously, the appellant was aggrieved, which is not the case here.  It may further be noted that the Rule relied upon by the learned counsel for the petitioner/complainant refers to dismissal of complaint of the appellant while in the present case the appellant has no grievance against the order passed by the State Commission.

12.     In the other limb of his argument, the learned counsel for the petitioner has laid much stress on the development not within the knowledge of the State Commission that the respondent/opposite party/HUDA had already complied with the order passed by the District Forum during the pendency of the appeal before the State Commission.  According to the learned counsel, the appeal had become infructuous and on this count also the order passed by the State Commission cannot be sustained.  In support of this contention, he has relied upon two judgments of the Supreme Court, one in the case of Parminder Kaur (Smt.) v. State of Uttar Pradesh and Anr. [(2007) 15 SCC 307] and the other titled as Union of India and Ors. v. Carpenter Workers Union and Ors. [(2006) 12 SCC 435].

13.     Insofar as the case of Parminder Kaur (supra) is concerned, the matter related to the grant of bail in a criminal proceeding, in which the court of Chief Judicial Magistrate (CJM) had got the passport of the petitioner deposited.  In a miscellaneous application filed by the petitioner before the High Court, the High Court was pleased to suspend the order of the CJM for a period of two months and directed the release of the passport to the petitioner.  This period was further extended by another three weeks, which period expired on 27^th of August, 2004 but the petitioner had not deposited the passport.  The High Court accordingly was apprised of the conduct of the petitioner through a criminal miscellaneous clarification application seeking direction to the petitioner to deposit the passport and to take necessary consequential action against the petitioner.  The High Court condoned the past conduct of the petitioner holding that under some misunderstanding she could not deposit the passport and declined to pass any adverse order against her.  The High Court further directed the petitioner to deposit the passport in the trial court within a week.  It was this order of the High Court that was challenged in the SLP (supra) but during the pendency of the SLP the petitioner had complied with the direction of the High Court and deposited her passport in the trial court within the stipulated period.  It was in this background that the Hon’ble Apex Court held that the SLP did not survive and was disposed of as having been rendered infructuous.  It may be seen that the judgment of the Supreme Court is based on the peculiar facts of the case pertaining to the deposit of a passport in a criminal proceeding and it cannot be said to have laid down the law on the subject. 

14.     Similarly, the case of Carpenter Workers Union (supra) relate to a service matter pertaining to the revision of pay scales of carpenters of All India Radio, where the SLP filed by the petitioner-Union of India against the order of the Calcutta High Court had earlier been dismissed and the order passed by the Central Administrative Tribunal (CAT) had attained finality and implemented.  When a similar SLP was filed against the order of the Delhi High Court, who had relied upon the order passed by the Calcutta High Court, the Hon’ble Apex Court directed the Union of India and Prasar Bharti to implement the same yardstick and grant the same benefits as granted to the East Zone carpenters to the employees of other zones as well.

15.     A careful reading of this judgment does not state that the SLP against the order of the Delhi High Court had become infructuous as has been erroneously stated in the headnote.  Besides, the Hon’ble Apex Court in the concluding para-4 has clearly stated that “The question of law is left open to be decided in an appropriate case”.  Thus, the much stress and vehemence with which the learned counsel for the petitioner has tried to argue his case does not convince this Commission that there is any merit in this revision petition.  Even otherwise, the facts of the case do not support the claim of the petitioner/complainant that the compliance, if any, of the order passed by the District Forum in the absence of any stay from the State Commission was unconditional.  The letter dated 24^th of June, 2009 from the Estate Officer heavily relied upon by the learned counsel in its concluding para-25 (page 143 of the paper-book) clearly states that the order was subject to the decision of the Apex Court (meaning perhaps subject to the decision/outcome of the appeal/further proceedings).  Clearly, it was so stated to make it clear that the dispute had not reached finality and the allotment was only on the risk of the allottee subject to the outcome of further pending proceedings before the State Commission.  This contention of the learned counsel on the ground of the appeal having become infructuous, therefore, has to be rejected.

16.     No other point has been raised/argued by the learned counsel. 

17.     However, on the point of limitation it cannot but be held that the State Commission was perfectly justified to record a finding that the complaint before the District Forum was hopelessly barred by time and should not have been entertained.  The Hon’ble Supreme Court in the case titled as State Bank of India v. B.S. Agricultural Industries (supra) has in para-8 clearly held that  “If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and therefore the aggrieved party would be entitled to have such order set aside”.  In the case in hand, admittedly, the letter of provisional allotment was cancelled on 27^th of November, 1996 by the Estate Officer, HUDA, when the cause of action arose and the complaint has been filed before the District Forum on 4^th of August, 2003, after a lapse of more than six years.  Further, the petitioner/complainant had filed an appeal against the cancellation order of the Estate Officer before the competent appellate authority i.e. the Administrator, HUDA, which was dismissed on 16^th of April, 1998.  Even if this date is taken into account as the date when the cause of action arose, even then filing of the complaint before the District Forum on 4^th of August, 2003 is clearly barred by time.  What is, however, to be noted is that the petitioner/complainant did not even bother to file an application for condonation of the delay.  As held by the Hon’ble Supreme Court in the case of State Bank of India v. B.S. Agricultural Industries (supra) that Section 24A of the Consumer Protection Act on the subject of limitation is peremptory in nature.  In the case of V.N. Shrikhande (Dr.) v. Anita Sena Fernandes (supra) the Hon’ble Apex Court has clearly held that Section 24A(1) contains a negative legislative mandate against the admission of a complaint, which has been filed after two years from the date of accrual of the cause of action and goes on to hold that “If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2) the Consumer Forums will have no option but to dismiss the same”.  Thus, the State Commission was fully justified in coming to the finding it has.  There is no illegality or irregularity therein. 

18.     Insofar as the finding of the State Commission that the complaint before the District Forum was not maintainable as the petitioner/complainant had earlier adopted the route/channel for the redressal of his grievances available to him under the HUDA Act and could not change the route mid way, the same cannot be faulted.  In a catena of orders this Commission has been taking the view that while Section 3 of the Consumer Protection Act no doubt provides additional remedy but the consumer fora cannot sit on judgment after a consumer has adopted some route on his own free will to get the relief from another competent forum.  In this regard, the State Commission has correctly relied upon the cases of Surindra Mohan (supra) and Leena Kalra v. Chief Administrator, HUDA & Ors. [2008 (4) CPR 54 (NC)].  The complainant having failed to follow the channel of Estate Officer      Administrator     Financial Commissioner-cum-Secretary to Government as provided under the HUDA Act cannot switch gear to approach the District Forum, who is neither the revisional authority nor the appellate authority against the order passed by the Administrator, HUDA.

19.     To sum up :-

(1)             The contention of the petitioner/complainant that in view of Order XLI, Rule 17(1) CPC the State Commission should not have decided the appeal on merit in the absence of the parties, cannot be said to be applicable to summary proceedings in the Consumer Protection Act.  In any case, since both the parties were absent it has caused no prejudice to either of them and the above Rule is applicable only in respect of the dismissal of the appeal in the absence of the appellant, which is not the case here.

(2)             Clearly, the complaint was hopelessly barred by time and was, therefore, not at all maintainable ab initio by the District Forum.

(3)             The complaint was also not maintainable by the District Forum as the petitioner/complainant had earlier approached the departmental appellate authority, a parallel statutory remedy which was available to him.

20.     Thus, in totality the revision petition has no merit and is dismissed with no order as to costs.