1.         The present Revision Petition (RP) has been filed by the Petitioners against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 08.02.2022 of the State Consumer Disputes Redressal Commission, Madhya Pradesh (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 14 of 2014 in which order dated 25.09.2013 of District Consumer Disputes Redressal Forum, Indore (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 1255 of 2012 was challenged, inter alia praying for setting aside the order dated 08.02.2022 of the State Commission.

2.         While the Revision Petitioner was Appellant before the State Commission and Respondent No. 2 before the District Forum, Respondent No. 1 was Respondent No. 1 before the State Commission and Complainant before the District Forum and Respondent No. 2 was Respondent No. 2 before the State Commission and Respondent No. 1 before the District Forum.  

3.         Notice was issued to the Respondent(s) on 06.06.2022.  Respondent No. 1 filed Written Arguments on 02.08.2024. 

4.         Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that: -

            (i)        The Respondent No. 2 society entered into an agreement with the Petitioner Development Authority to allocate residential plots to its members on being certified by the joint Registrar of the cooperative Societies upon certain conditions, including payment of premium, development expenses, lease rent and interest on delayed payments. On 27.02.2004, Respondent No. 1 paid some amount to the Respondent No. 2 society. Plots were allotted to 146 members based on certified recommendations by Joint Registrar, but Respondent No. 1 was not included in this list.

            (ii)       On 01.12.2012, Complainant (Rachna Mantri) filed a complaint with the District Forum under section 12 of the Consumer Protection Act, alleging that she paid for a plot but was not allocated. The petitioner stated that the agreement required plots to be allotted only to those listed in the certified recommendations, and Complainant was not on that list. The Petitioner stated outstanding payments from the society, asserting that without these dues settled, further allotments were not permissible.

            (iii)     On 25.09.2013, the District Forum ruled in favor of Complainant, directing the Petitioner to allot and execute the lease deed of plot No. 216 within one month. The petitioner appealed, asserting that there was no direct contract between the Complainant and Petitioner and that all plot allotments were made as per the certified recommendations and outstanding dues. On 18.02.2022, the State Commission dismissed the appeal, claiming Complainant had deposited the necessary amount and was listed in the seniority list.

            (iv)      The petitioner contends there was no contractual obligation towards Complainant as her name was not included in the certified allotment list. The society’s failure to pay outstanding dues impacts the entitlement of its members. The allotment and execution of lease deeds depend on certification from the Joint Registrar and payment of required amounts.

5.         Vide Order dated 25.09.2013, in the CC no. 1255 of 2012 the District Commission has allowed the complaint and with the following directions:

“a) Directed the respondent no. 2 to complete all the formalities of allotment, registration of lease deed of the plot no. 216 of scheme no. 114 part 2 within one month.

b) The Complainant is entitled to get physical and mental agony damages of Rs.5,000/-. Both the respondents will bear half of the said amount.

c) The Complainant is also entitled to get cost of the complaint from the respondents jointly or severally. The valuation of the complaint is Rs.1,000/-.”

6.         Aggrieved by the said Order dated 25.09.2013 of District Commission, Petitioner(s) appealed in State Commission and the State Commission vide order dated 08.02.2022 in FA No. 14 of 2014 has dispose of the appeal and passed the following order:

“9.       Having regard to the controversy which has now been narrowed down and taking note of the fact that the first respondent/complainant had deposited the amount which was required to be deposited by her at the relevant point of time and also the fact that undisputedly her name finds place in the seniority list, we dispose of this appeal by directing the appellant to execute the sale deed of plot No. 216 in favour of the first respondent/complainant. The second respondent shall fully cooperate in getting the registry done by the appellant in favour of the first respondent/complainant.

10.       Needless to say that if any development charges is found to be payable by the first respondent/complainant or the second respondent, it will be open for the appellant – IDA to recover the same in accordance with law.

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12.       With the aforesaid directions, the appeal is disposed of.”

7.         Petitioner(s) have challenged the said Order dated 08.02.2022 of the State Commission mainly on following grounds:

1. The State Commission failed to appreciate that on the basis of the list of the members of the Society duly certified by joint Registrar, plots were allotted to 146 members. The State Commission further failed to appreciate that society did not pay outstanding dues with respect to remaining plots under resolution 9. Therefore the development authority was not liable to allot any other land or plot to the society or its member.

2. The State Commission committed an error in holding that it will be open for the petitioner to recover the same in accordance with law. It is submitted that the said finding of the State Commission is perverse and without any basis.

3. It is further submitted that the allotment and execution of lease deed will be done to those eligible senior members of the society, whose name has been recommended for allotment and certified by the joint registrar Cooperative society upon the payment of premium, development charges, lease rent and delayed interest subject to availability of the plot.

4. The State Commission acted illegally and/or with material irregularity in exercise of its jurisdiction.  

8.         Heard learned counsels of both sides.  Contentions/pleas of the parties, on various issues are summed up below.

            8.1       In addition to the averments made under the grounds (para 7), the petitioner contended that there is no direct privity of contract between the Petitioner and the Complainant. It was admitted that the Complainant deposited the total amount of Rs.3,37,800/- to the Respondent No. 2 Society but the registration of the plot was not done because Respondent No. 2 failed to settle the dues that affects the allotment of the members.

            8.2       On the other hand Complainant contended that she had reserved a plot admeasuring 1000 sq. ft. in Scheme No. 114, Part-II of the Petitioner. She paid total amount towards cost and development charges to the tune of Rs.3,37,800/-. Further, Complainant contended that the Petitioner has mislead this Commission and deliberately suppressed some documents. The statutory authority is amenable to the jurisdiction of forums for directions to it for performing the duty obligated to it and injustice being caused to a consumer. It is settled law that this Commission while exercising its revisional jurisdiction, cannot exercise jurisdiction by re-examining the question of fact and the same is beyond the scope of revisional jurisdiction vested in it. In support of her contentions, Complainant relied on the following judgements:

(a)       Punjab Urban Planning & Development Authority Vs. Vidya Chetal (2019) 9 SCC 83

(b)       M/s Narendran Sons Vs. National Insurance Co. Ltd. 3 Middleton Street & Anr. vide order dated 07.03.2022 in SLP (C) No. 19666-19667 of 2016

8.3       Respondent No. 1/Complainant in her written synopsis/notes of arguments, have responded to the main contentions of the Petitioner Authority, which are extracted below:

“3. The Petitioner has based the present Petition on 3 grounds which are answered against the same heading by the Respondent No. 1 as under:

a) Name Of The Respondent No.1 Not In The Approved List Of Members Of Respondent No.2 Society-

(The same is complete Misstatement and concealment of fact- Complete Document purposefully suppressed by Petitioner-Produced by Respondent No.1)

The Petitioner has Mislead this Hon'ble Commission by misstatement and concealment of facts, as the Complete Certified list by Registrar Co-operative Societies, has not been filed by the Petitioner and an incomplete document as letter of recommendation by Registrar Co-operative societies has been filed and marked as Annexure-P3 (@pg 25 of the Revision Petition). The same is done perhaps for obvious reason to mislead this Hon'ble tribunal and aver that Respondent No.2's name does not exist in the approved list of name for allotment of the plot as recommended by the Registrar of Co-operative societies for grant of relief as granted by the 2 forums below.

In view of the same the Respondent No.1 has vide I.A. NO. 72 of 2023 produced the complete approved lists and said IA was allowed by this Hon'ble Commission vide order dated 24.04.2023 and the same has not been fairly objected to by Petitioner.

Further the complete document letter dated 18.06.2004 along with the enclosure as mentioned in the same along with its translation as Annexure-A1 to IA (@pgs 5-12-name of petitioner @pg 6 item 19 & pg 10 item 19). The Respondent No.1 has also produced the lists as produced by the before the High Court in the proceedings as mentioned in the Impugned order and are approved and recommended by the Ld. Registrar Co-operative societies as Annexure-A2@pgs 13-20 of IA, Anneuxure-A3 pgs 21-30

Further the approved list and recommendation of names of entitled members of R2/Society was also sent to Petitioner by office of Joint commissioner Co-operative (Annexure-A4 31 to 36 name of Respondent No.1 @ pg 35 item no. 7)

All the above were part of records before the District and the State commission and have been deliberately suppressed by the Petitioner. Rather, it was falsely submitted with a view to mislead this Hon'ble Tribunal, at ground "G" of the of the instant Revision Petition by the petitioner that the name of respondent was not there in the list. Thus obtaining the interim order by way of playing fraud on this Hon'ble Tribunal. The present petition this deserves to be dismissed on the ground of suppression of material facts itself.

b) The Petitioner Statutory Authority Is Not Amenable To The Jurisdiction Of Consumer Court And Hence No Order Can Be Passed Against The Petitioner-

(Contrary to law settled as regards amenability of Statutory Authority being amenable to jurisdiction of consumer fora's)

The petitioner has taken the 2^nd ground in the instant Revision Petition that Statutory authority is not amenable to the jurisdiction of consumer court. The said ground had been wrongly agitated by the petitioner in the present case. The Hon'ble Supreme Court PUNJAB URBAN PLANNING & DEVELOPMENT AUTHORITY V. VIDYA CHETAL (2019) 9 SCC 83 as under:-

16."We do understand that the confusion, which arose from the aforesaid situation, is that the authority does have the power to levy certain statutory fee. However, that itself does not prohibit the Consumer forums from evaluating the legality of such exactions or fulfilment of conditions by the authority before such exaction. In broad terms, nonfulfillment of conditions or standards required, amounts to 'deficiency in services' under the Act. Having said that, out of abundant caution, we note that the legality does not extend to the challenge of vires of a rule prescribing such fee. Such contentions are best agitated before the Constitutional Courts"

17. On a different note, if the statutory authority, other than the core sovereign duties, is providing service, which is encompassed under the Act, then, unless any Statute exempts, or provides for immunity, for deficiency in service, or specifically provides for an alternative forum, the Consumer Forums would continue to have the jurisdiction to deal with the same.3 We need to caution against over inclusivity and the tribunals need to satisfy the ingredients under Consumer Protection Laws before exercising the jurisdiction.

22. “We may also refer to the case of Ghaziabad Development Authority (supra) wherein this Court, relying upon Lucknow Development Authority case (supra), held that the power of the Consumer forum extends to redressing any injustice rendered upon a consumer as well as over any mala fide, capricious or any oppressive act done by a statutory body. The relevant para of the judgment reads as under:

Thus, the law is that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen.

...Where there has been capricious or arbitrary or negligent exercise or nonexercised of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and then also direct recovery from those found responsible for such unpardonable behaviour."

In view of the above referenced cases laws the statutory authority is amenable to the jurisdiction of forums for directions to it for performing the duty obligated to it and injustice being caused to a consumer. In the present case it is the petitioner which is the appropriate body for execution of sale deed of plots in approved colonies to members of co-operative societies being entitled for the same. Hence, the instant revision petition deserves to be dismissed with exemplary costs

c) Re-Appreciation Of Facts As Pleaded By Petitioner

(The is beyond the scope of Jurisdiction while exercising powers in revision petition)

The Petitioner though misleading and suppressing the facts of the case and documents of the forums below has ex-facie pleaded, at best has raised grounds amounting to nothing but reappreciation of the facts based on such misrepresentation i.e qua entitlement of membership of Respondent no. 1, name of Respondent being there in approved lists or not etc.

The same have been concurrently held in favour of the Respondent No.1 and same also has attained finality as the Society/ Respondent No.2 has given no objection and has also not challenged order passed by the District forum.

It is settled law that the NCDRC while exercising its revisional jurisdiction, cannot exercise jurisdiction by re-examining the question of fact and the same is beyond the scope of revisional jurisdiction vested in it. The same has been re-affirmed by the Hon'ble Supreme Court in the case of M/S NARENDRAN SONS vs. NATIONAL INSURANCE CO.LTD 3 MIDDLETON STREET & ANR. Vide order dated 07.03.2022 in SLP(C) No. 19666-19667)

"The NCDRC could interfere with the order of the State Commission if it finds that the State Commission has exercised jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity. However, the order of NCDRC does not show that any of the parameters contemplated under Section 21 of the Act were satisfied by NCDRC to exercise its revisional jurisdiction to set aside the order passed by the State Commission. The NCDRC has exercised a jurisdiction examining the question of fact again as a court of appeal, which was not the jurisdiction vested in it.

Consequently, we allow the present appeals and set aside the order passed by the NCDRC and restore the order passed by the State Commission but with interest @ 9% from the date of filing of complaint till realisation.''

Therefore, as the Ld. District Forum in exercise of its original jurisdiction and the Ld. State Commission in exercise of its appellate jurisdiction have lead to concurrent finding of facts as regards the entitlement of the Respondent No.1 and therefore reappreciation of facts as tried by the Petitioner is beyond the scope of this Hon'ble Commission in revision petition, thus the instant revision petition is liable to be dismissed in said ground alone.”

9.         In this case, there are concurrent findings of both the fora below against the Petitioner Authority. During the hearing, Respondent No. 2 Society supported the case of Complainant/Respondent No. 1 and expressed its no objection for allotting the plot to the Complainant as per orders of the State Commission. In this regard, extract of relevant paras of orders of State Commission is reproduced below:

“5. Along with the complaint, the first respondent/complainant had filed documents indicating that the entire amount was duly paid. She had also filed a letter sent by the Society to the appellant on 22.10.2011 that plot No. 216 be allotted to the complainant and for such allotment the Society has no objection. A letter was also written by the second respondent/Society to the Deputy Registrar, Co-operative Societies stating therein that in the year 2004 they had recommended the allotment of plot No. 216 to the first respondent/complainant and that she had deposited the entire development charges.

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8. On the other hand learned counsel appearing for the first respondent/ complainant submits that in the seniority list prepared by second respondent/ Society right from the year 2004 the complainant’s name was there. He submits that in the last seniority list which was prepared by the Joint Registrar, Co-operative Societies on 28.02.2015 in terms of the directions issued by the Hon’ble High Court in Writ Petition No. 9978/2013 (O) (Laxmikant Patel Versus Government of M.P. & Ors.) vide order dated 23.08.2013, the name of the first respondent/ complainant was in the seniority list at serial no. 10. Her membership number is 802. He submits that the said seniority list was challenged by the few Members whose names were not included in the said list before the M.P. State Co-operative Tribunal, Bhopal (for short the “Tribunal”) in Revision Petition No. 123/2015 (124/15-153/15). The Tribunal vide its order dated 25.09.2019 after considering the matter in entirely maintained the seniority list dated 28.02.2015 prepared by the Joint Registrar. In the circumstances, according to him the question about the entitlement to get the plot is no longer res-integra. He also pointed out that in view of the correspondence made by the Society with the appellant and the Joint Registrar, Co-operative Societies informing its no objection for allotment of plot no. 216 to the first respondent/ complainant now it is not open for the Society to take a different stand. He therefore, submits that now since in the seniority list the name of the first respondent/ complainant is at serial no. 10 and the fact that she had paid Rs.3,37,800/- in all towards the price of the plot and the development charges, the challenge to the impugned order that too at the instance of the appellant is meaning less and had no merits.

9. Having regard to the controversy which has now been narrowed down and taking note of the fact that the first respondent/ complainant had deposited the amount which was required to be deposited by her at the relevant point of time and also the fact that undisputedly her name finds place in the seniority list., we dispose of this appeal by directing the appellant to execute the sale deed of plot no. 216 in favour of the first respondent/ complainant. The second respondent shall fully cooperate in getting the registry done by the appellant in favour of the first respondent/complainant.

10. Needless to say that if any development charges is found to be payable by the first respondent/ complainant or the second respondent, it will be open for the appellant- IDA to recover the same in accordance with law.”

10.       As regards maintainability, the Petitioner has contended that Respondent No. 1/ Complainant is not a consumer of Petitioner Authority as there is no direct privity of contract between the Petitioner and Complainant. The Petitioner has drawn our attention to single member decision of this Commission in RP/2742/2011 Indore Development Authority Vs. Prabha and Anr. decided on 18.04.2023, extract of relevant paras of which is reproduced below:

“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.”

11.       This issue was also raised by the Petitioner Authority before the District Forum, who considered the same as per following observation/decisions:

“8. ISSUE NO. 2: It is not disputed in the present case that the respondents had entered in a agreement to develop the land of the society and further allot the plots to the members of the society. In these circumstances land was given and developed. The complainant paid the money to the respondent no. 1 towards the consideration of plot. Although the respondent no. 2 acquired the said land under an agreement. Therefore there is indirect relation of consumer and service provider between the complainant and respondent no. 2.

9. In the present case the complainant has deposited development charges of Rs.1,15,000/- through a cheque dated 27.2.2004 to the respondent no. 2 and an amount of Rs.2,00,000/- is paid through a cheque dated 28.7.2007 to respondent no. 2. In support of said contention the complainant has given affidavit and filed the copies of the cheques.

10. The respondent no. 2 filed the affidavit of Prakash Chand Jain, in which this fact has not been denied that the complainant has deposited the amount of Rs.3,15,000/- towards the development charges of the plot. In these circumstances the complainant has become the consumer of the respondent no. 2. Therefore the objection of the respondent no. 2 is not acceptable that the complainant is not consumer of respondent no. 2.

12.       After a careful consideration of all the facts and circumstances of the case and nature of the scheme under which plots were to be allotted by the Petitioner Authority on receipt of payments from the applicants through the Society, we are not in agreement with the contentions of Petitioner Authority that Complainant/Respondent No. 1 is not a consumer of Petitioner Authority on the grounds of no privity of contract. The land out of which plots are/were to be allotted by Petitioner Authority belongs to Petitioner Authority, the scheme as per which plots are/were to be allotted have been formulated by the Petitioner Authority, the allotment of plot is on a consideration and subject to fulfilment of eligibility criteria/ terms and conditions of the scheme. The payment is to be made by applicants to Petitioner Authority through the Society. The contention of the Petitioner based on a single member decision in RP No. 2742 of 2011 decided on 18.04.2023 is not tenable as the decision in that case turned on its own facts with hardly any appreciation of such facts as involved herein. The ratio therefore of the said order would be of no avail in the present controversy and is distinguishable. The acts and omissions of the Authority fall within the definition of services as per Section 2 (o) of the 1986 Act which include any services available to potential users including the Complainants in the present case for a housing construction facility. The judgements of the Apex Court cited by the learned Counsel for the Respondent-Complainant as quoted above hold Development Authorities to be amenable to the jurisdiction of the consumer fora for such disputes as presently under consideration. Hence, we reject the contentions of Petitioner Authority in this regard. We are in agreement with the observations and findings of District Forum in this regard and hold that Complainant/Respondent No. 1 is a consumer of Petitioner Authority and the complaint is maintainable. On merits, after careful consideration of the orders of State Commission, District Forum and other relevant records, including the documents filed by Respondent No. 1 vide IA No. 72 of 2023, we are in agreement with the findings of State Commission. Both the foras below have given well-reasoned orders and we find no reasons to interfere with their findings. Vide letter dated 18.06.2004, Joint Registrar, Cooperative Society India has sent a certified membership list of Housing Cooperative Society in the scheme no. 114/2 of the Petitioner Authority and name of Complainant/Respondent No. 1 appeared at serial no. 19 of the list attached with this letter. In the list of eligible members prepared by Respondent No. 2 Society, name of Respondent No. 1/Complainant appeared at serial no. 10 under the heading “(A) Firstly for 21 Plots”. Name of Respondent No. 1/Complainant also appeared in the list of members sent by Respondent No. 2 to Petitioner Authority which is seen received by the Authority during June, 2004. The payment towards plot by Respondent No. 1/Complainant to Respondent No. 2 Society is not in dispute. As has been held by Hon’ble Supreme Court in catena of judgments^[1] that revisional jurisdiction of the National Commission is extremely limited, it should be exercised only in case as contemplated within the parameters specified in the provision i.e. when State Commission had exercised a jurisdiction not vested in it by law or had failed to exercise jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity.  It is only when such findings are found to be against any provisions of law or against the pleadings or evidence or are found to be wholly perverse, a case for interference may call for at the second appellate (revisional) jurisdiction. In exercising of revisional jurisdiction, the National Commission has no jurisdiction to interfere with concurrent findings recorded by the District Forum and the State Commission, which are on appreciation of evidence on record. We find no illegality or material irregularity or jurisdictional error in the orders of the State Commission, hence the same is upheld. Accordingly, the RP is dismissed.  

13.       The pending IAs in the case, if any, also stand disposed off.