1.     This revision petition has been filed under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) against the impugned order dated 08.05.2011 passed by the State Consumer Dispute Redressal Commission, Bhopal (in short, the ‘State Commission’) in Appeal No. 246 of 2009. The State Commission partly allowed the appeal of the Petitioner and upheld the order dated 07.01.2009 passed by District Consumer Dispute Redressal Forum, Indore (in short, ‘District Forum’) in Consumer Complaint No. 970 of 2007 subject to the  condition that plot size will be 750 sq. ft.

2.     The brief facts of the case are that as per an agreement between the petitioner (Indore Development Authority) and the respondent no. 2 (Cooperative Housing Society) it was argued that distribution of plots would be done by respondent no.2 to its members out of the area admeasuring 30,890 sq. mtrs., allotted to it at a premium rate of Rs. 818/- per sq. mtr. This agreement was modified in the year 2000 according to which the plots were be allotted to members of the society at the premium of Rs. 1145/-per sq mtr on being certified by the Joint Registrar of Cooperative Societies comprising development expenses, lease rent and interest on delayed payment. Respondent no. 1 was a member of the Society who had paid Rs. 4100/- on 24.07.1998 towards the cost of the plot and other charges. Thereafter, another sum of Rs. 26,000/- was paid on 24.07.1998 to the Society. Plots were allotted to 393 members and lease deeds were executed in their favor by respondent no. 2 upon payment of premium, development charges lease rent, interest @ 12% per annum on delayed payments amounting to Rs. 9,40,000/-. However, the said amount was not paid by the Society to the petitioner; therefore, the society was not entitled to any other plot of land.

3.      Respondent no. 1, Smt. Prabha, filed a complaint before the District Forum on 20.09.2009 stating that she had paid Rs. 4100/- as the cost of the plot to the Society towards development charges. On 05.03.2007 an allotment letter was sent to the respondent no. 1 allotting plot no. 84 in scheme no. 97/4 by the Development Authority. However, she alleged that because of the collusion between the Society and the Development Authority, the plot no.84 was not allotted to her and instead was allotted to someone else.

4.      Petitioner/Development Authority contended that there was no privity of contract between it and Respondent no.1. Respondent no. 1 was neither a consumer qua the petitioner nor was the petitioner a service provider to respondent no. 1. On the basis of the certified list of members by the Joint Registrar of Cooperative Societies, plots were allotted to 393 members and lease deeds were executed in their favor. The Society did not pay the premium development charges as per clause 9 of the condition and lease rent totaling to Rs.9,40,000/- and interest on the delayed payment to the petitioner/development authority. Therefore, it is contended by the petitioner that the Society was not entitled to any plot from the petitioner/development authority and it had no right to allot the plot to respondent no. 1 in scheme no. 97/4. It is also contended that even if the plot was allotted by the Society, the same was not binding on the petitioner/development authority. Lastly, it was submitted that if there is any dispute between the Society and the Development Authority as well as members of the Society then this Hon’ble Commission does not have jurisdiction to adjudicate the same.

5.      The order dated 07.01.2009 of the District Forum held that respondent no. 2/Society and the petitioner/development authority jointly or severely allot plot no. 84 out of the scheme no. 97/4 to respondent no.1 and the sale deed be registered and if there is any difficulty in allotting the said plot then allot any other plot of the same area. It also imposed cost of Rs. 1,000/- on the petitioner/development authority and respondent no. 2/Society. The order of the District Forum reads as under:

“Issue No.4:- Resultantly, the complaint is allowed and it is ordered that:-

1. The Respondents jointly and severally accept from the complainant the balance development charges and other charges as per rules in respect of plot no. 84 (1500 sq. ft.) in Satyadev Nagar Colony in scheme no. 97/4 of the respondent no. 1 society and by allotting the said plot to the complainant, get the deed of the same registered.
2. And in case of any legal impediment in getting the said plot no. 84 allotted and leese deed the registered, then lease deed of the other plot of the same size be got registered by making allotment of the same.
3. The respondents also to pay Rs. 1000/- to the complainant as cost of this complaint. 

6.      Aggrieved by this order, petitioner/development authority filed an appeal before State Commission wherein it was contended that the petitioner/ development authority did not receive the amount of Rs. 9,40,000/- in respect of the development charges of the plot allotted from the Society. It was stated that the present dispute was between a member and its Society and therefore it should be adjudicated by the court of the Joint Registrar of Cooperative Societies. It was averred that respondent no.1 was not entitled to a plot from the petitioner/development authority and that there was no deficiency in service on the part of petitioner. The State Commission partly allowed the appeal and directed the petitioner/development authority to transfer the plot to respondent no. 1 without handing over possession stating that she will manage to obtain possession by herself. The order of the State Commission reads as under:-

Accordingly, the appeal is partly allowed. The direction of the District Forum is maintained subject to the condition that [plot size will be 750 sq. ft. it is made explicit that the respondent no. 1 shall thereafter not claim possession from the Indore Development Authority. With this modification, the appeal is disposed of.”

7.      Heard the learned counsels for petitioner as well as respondents and perused the records carefully. Respondent no. 2 was proceeded ex-parte on 01.03.2023, the date of final hearing as no one was present on his behalf since 16.01.2012.

8.      The issue urged before this Commission by the petitioner is that there is no contract between the petitioner and respondent no. 1. Therefore, respondent no. 1 does not fall within the definition of a ‘consumer’ under the Act. It is argued that there was no agreement between the petitioner and respondent no. 1. Respondent no. 1 also did not pay any money to the petitioner/development authority but to respondent no. 2/Society of which he was member. Accordingly, the plot was to be allotted to respondent no. 1 upon all payments by respondent no. 2/ Society. Thereafter, on being certified by the Society and the Registrar of Cooperative Societies for his membership, the petitioner/development authority was required to allot the plot to respondent no. 1 as a member of the Society. There was no certification by the Joint Registrar of Cooperative Societies recommending allotment of a plot to respondent no. 1. Hence, no plot was not allotted to her. It is argued by the petitioner that State Commission has committed an error by not appreciating the admitted fact that respondent no. 1 had not paid the balance amount of the plot to the society in time leading to loss of her seniority for allotment.

9.      Respondent no. 1 argued that an agreement was executed between the petitioner/development authority and respondent no. 2/Society regarding the development of the colony under which the petitioner was to carry out development work and register the plots and handover possession of same to the members. After repeatedly contacting the petitioner, it was informed that the list of members had not been received from respondent no. 2/Society. According to respondent no. 1, the petitioner received the list of members and the name of respondent no. 1 was at S. No. 146 in the old list and at S. No. 198 in the new list. 

10.    From the facts on record, it is manifest that there exists no agreement or contract between the petitioner and respondent no. 1. The only agreement that was executed was between respondent no. 2/Society and the petitioner/development authority, the purpose of which was that the development authority would provide a developed plot of land measuring 30,890 sq mtrs as per agreed terms of payment. The Society and the Registrar of Cooperative Societies was required to certify the bonafides of the member, and thereafter the petitioner/development authority was required to allot a plot to the respective members of the society. Admittedly, there was no payment made in the name of the petitioner/development authority by respondent no. 1. Therefore, respondent no. 1 is not a ‘consumer’ under the Act to the petitioner/development society. Accordingly, the petitioner is not liable for any deficiency in service on part of the society. Neither the petitioner nor respondent no. 1 have relied on any judgment or case law in support of their arguments.

11.    The State Commission as the first Court of appeal is also the last Court of fact. Its order must be sustainable on the ground of facts. Revisional jurisdiction of this Commission under section 21 is limited, especially when there are concurrent findings of the lower fora on facts, as held by the Hon’ble Supreme Court in Ruby (Chandra) Dutta vs. United India Insurance Company (2011) 11 SCC 269 and Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd. and Ors (2016) 8 SCC 286 dated 02.08.2016. However, the Apex Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs. N Madhava Rao and Ors, Civil Appeal No. 3408, decided on 05.04.2019 also held that:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

(Emphasis added)

In view of the fact that there is no privity of contract between the petitioner and respondent no. 1, the order of the lower fora are not based on material facts and are therefore perverse. The fora below have clearly erred in entertaining the complaint and the appeal without appreciating the fact that there was neither any privity of contract between the petitioner/development authority and respondent no. 1 nor had any consideration been paid by the respondent no. 1 to the petitioner/development authority resulting in any obligation of service. It is settled law that in a complaint under the Act, deficiency in service must be proved. There can be no deficiency without an obligation of service. In view of the foregoing, the Revision Petition is liable to succeed.

12.    The revision petition is accordingly allowed. Order of the State Commission is set aside. No order as to costs.