Page 1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.         936              OF 2013 (Arising Out of SLP (C) No.19556 of 2012)

Lucknow Development Authority … Appellant

Versus

Shyam Kapoor … Respondents

O R D E R

Jagdish Singh Khehar, J.

1. Leave granted.

2. Shyam Kapoor,  the respondent herein,  preferred a complaint  before the  

District  Consumer Forum IInd, Lucknow (hereinafter referred to as the ‘District  

Forum’), asserting that he had deposited a sum of Rs.5,000/- with the Lucknow  

Development Authority, i.e., the appellant herein, on 1.12.1982.  The aforesaid  

deposit had been made for allotment of a 6,000 sq. ft. plot in the ‘A’ category  

under  the  Gomti  Nagar  Residential  Scheme  (hereinafter  referred  to  as  ‘the  

Scheme’).  It was alleged, that the Lucknow Development Authority had neither  

allotted any plot to the respondent-complainant, nor returned the deposit tendered  

by him.  The appellant herein, however, issued a press notice in 1991 requiring  

persons similarly situated as the respondent-complainant, to deposit an additional  

amount  by  January  1992,  so  as  to  be  eligible  for  consideration,  for  such  

allotment.  On account of the fact, that the deposit of the differential amount was  

imperative  for  future  consideration,  the  respondent-complainant  deposited  a

Page 2

2

further amount of  Rs.15,000/-  on 30.1.1992.  Still,  no plot  was allotted to the  

respondent-complainant.   On  30.10.1996,  Shyam  Kapoor,  addressed  a  

communication to the Lucknow Development Authority, requiring it to furnish him  

with details in the matter of allotment of plots.  Since the Lucknow Development  

Authority  did  not  respond  to  the  aforesaid  communication,  Shyam  Kapoor  

preferred the complaint referred to hereinabove.

3. In its  defence,  the appellant  herein,  while  admitting the factual  position  

expressed by Shyam Kapoor in his complaint, raised a number of legal/technical  

objections.   The  stand  of  the  appellant  so  as  to  defeat  the  claim  of  the  

respondent-complainant included a plea, that the complaint was barred by time.  

It was also contended that the complainant was not a consumer, and as such, the  

District  Forum had no jurisdiction in the matter.  Besides the aforesaid, it  was  

asserted  by  the  appellant  before  the  District  Forum,  that  the  respondent-

complainant had changed his registration from the Scheme under which he had  

originally applied, and as such, his claim could not be considered on the basis of  

the original deposit made by him.  The entitlement of the respondent complainant  

for allotment of a plot under the Scheme was also sought to be disputed on the  

ground that he was unsuccessful in obtaining a loan from a financial institution.

4. Despite the defences raised by the Lucknow Development Authority before  

the District  Forum, the prayers made by the complainant were allowed by an  

order dated 30.12.2005.  The operative part of the order passed by the District  

Forum is being extracted hereunder :

“Complaint is allowed.  The opposite party is directed to allot  any  developed plot admeasuring 6000 sq. ft. in any scheme Gomti Nagar  at the rate prevailing in January 1992 within two months from the  date of order and after adjusting the deposited amount in the total  amount of the plot and after depositing the remaining amount and  complying  another  formalities  hand  over  the  possession  after

Page 3

3

registration.  And opposite party pay Rs.1,000/- to the complainant  towards cost of case.  Other reliefs are rejected.”

5. Aggrieved with the order dated 30.12.2005 (passed by the District Forum),  

the  appellant  herein  preferred  an  appeal  before  the  Consumer  Disputes  

Redressal Commission, Uttar Pradesh, Lucknow (hereinafter referred to as the  

‘State  Commission’).   The  State  Commission  having  entertained  the  appeal  

preferred  by  the  appellant  herein,  issued  notice  to  the  respondent  herein  on  

1.11.2006.  While issuing notice, the State Commission stayed the order of the  

District  Forum dated 30.12.2005.  Even though notice had been issued, in the  

appeal preferred by the Lucknow Development Authority, the appellant failed to  

deposit process fee.  Therefore, when the matter was taken up for hearing on  

11.5.2007, the State Commission passed the following order:

“As requested learned counsel  for  the appellants  a  week  time  is  allowed  to  take  steps  failing  which  the  interim  order  shall  stand  vacated and the appeal dismissed.”

6. A perusal of the aforesaid order would reveal that one week’s further time  

was granted to the appellant to deposit process fee.  While granting the aforesaid  

liberty, the State Commission clearly expressed in its order dated 11.5.2007, that  

in case necessary steps were not taken (in depositing the process fee) within the  

time stipulated, the interim order passed by the State Commission on 1.11.2006  

would stand vacated,  and the appeal  preferred by the Lucknow Development  

Authority  would also  stand dismissed.   It  is  not  a  matter  of  dispute,  that  the  

process fee was not deposited on behalf of the Lucknow Development Authority  

(in the appeal preferred by it before the State Commission) even in the extended  

time allowed by the State Commission vide its order dated 11.5.2007.  In view of  

the order dated 11.5.2007 extracted hereinabove, the natural consequence for not  

having taken the steps required of  the appellant,  the interim order passed on

Page 4

4

1.11.2006 stood vacated, and the appeal preferred by the Lucknow Development  

Authority stood dismissed.

7. Dissatisfied  with the effect  of  the order  of  the State Commission dated  

11.5.2007,  which  had  resulted  in  dismissal  of  the  appeal  preferred  by  the  

Lucknow  Development  Authority  before  the  State  Commission,  the  appellant  

chose  to  file  a  Revision  Petition  before  the  National  Consumer  Disputes  

Redressal  Commission,  New  Delhi  (hereinafter  referred  to  as  the  ‘National  

Commission’).  According to the pleadings filed by the appellant, its choice for not  

filing an application for recall of the impugned order dated 11.5.2007 before the  

State Commission was, that the State Commission did not have the jurisdiction to  

set aside or recall, an order of the nature passed on 11.5.2007.   

8. It would also be relevant to mention, that the Revision Petition referred to  

hereinabove,  was  filed  by  the  Lucknow  Development  Authority  before  the  

National Commission on 5.12.2011, i.e., more than four and a half years after the  

impugned order dated 11.5.2007 was passed by the State Commission.  When  

the Revision Petition was listed before the National Commission for the first time  

on 02.02.2012,  the  counsel  representing  the  Lucknow Development  Authority  

sought an adjournment, to place on record of the Revision Petition, all the orders  

passed by the State Commission, during the period the appeal preferred by the  

Lucknow Development  Authority  had remained pending with  it.   The National  

Commission,  accordingly,  adjourned  the  Revision  Petition  for  hearing  to  

5.3.2012.   The same was again adjourned on 5.3.2012,  so as to  enable  the  

learned counsel  for the Lucknow Development Authority to obtain instructions.  

Finally,  the Revision Petition preferred by the Lucknow Development Authority  

was  heard  and  disposed  of  by  an  order  dated  30.3.2012.   The  National

Page 5

5

Commission dismissed the Revision Petition as frivolous, and imposed cost of  

Rs.10,000/- on the Lucknow Development Authority.  The Revision Petition was  

primarily dismissed, on account of its having been filed well after the prescribed  

period of limitation.  The observation recorded by the National Commission for  

not entertaining the Revision Petition belatedly, are being extracted hereunder :

“No reason has been set out to explain why the steps were not taken  even within the extended period.  If the petitioner thought that the  impugned order passed was illegal or without jurisdiction, it ought to  have  challenged  the  same  immediately  or  within  the  prescribed  period rather than waiting to challenge the same until  notice under  Section  27  of  the  Consumer  Protection  Act,  was  issued  to  the  petitioner in execution proceedings.  To say the least, the conduct of  the petitioner in not taking the requisite  steps despite  a clear  cut  stipulation that the appeal shall stand dismissed if the steps are not  taken and thereafter not approaching the State Commission either  for revival  of the appeal  or this Commission to set aside the said  order, speaks volumes about the defaulting conduct of the petitioner.  Petitioner being a statutory authority is ‘State’ within the meaning of  Article  12  of  the  Constitution  and was  expected  to  act  promptly,  prudently and diligently if it was really serious in challenging the said  order.  The order was passed by the State Commission in presence  of the learned counsel for the petitioner and, therefore, the petitioner  cannot  be  allowed  to  take  a  refuge  that  the  certified  copy  was  supplied in the year 2011, after four years and the present petition  has been filed  thereafter.   Having considered the matter,  we see  absolutely no good ground to condone such huge delay in filing the  present revision petition.”

9. Aggrieved  with  the  order  passed  on  30.3.2012  by  the  National  

Commission,  dismissing  the Revision  Petition  preferred  by  the appellant,  the  

appellant has now approached this Court by preferring the instant appeal.

10. The  first  question  which  concerns  us  is  the  conclusion  drawn  by  the  

National  Commission,  that  the  Revision  Petition  filed  by  the  appellant  was  

frivolous.   In  order  to  controvert  the  aforesaid  determination  of  the  National  

Commission, learned counsel for the appellant has invited our attention to the  

decision rendered by this  Court  in  Rajeev Hitendra  Pathak & Ors. v.  Achyut  

Kashinath  Karekar  &  Anr.,  (2011)  9  SCC  541,  wherein  this  Court  clearly

Page 6

6

concluded, that neither the District Forum nor the State Commission had power to  

review  its  “ex  parte” orders.   Orders  of  the  aforesaid  nature  were,  “per  se”  

assailable only before the National Commission.   

11. We have no difficulty in accepting the contention advanced on behalf of the  

appellant before us.  As we find no fault in the action of the appellant in having  

not chosen to move an application for recall of the order dated 11.5.2007 before  

the  State  Commission  itself.   The  observations  made  by  the  “National  

Commission” to the effect, that the appellant having not approached the “State  

Commission”  for  the  revival  of  the  appeal,  expressed  volumes  about  the  

defaulting conduct of the appellant, were clearly unjustified.  We are also satisfied  

that the appellants determination, to assail  the order of the State Commission  

dated 11.5.2007 by preferring a revision petition before the National Commission,  

was legally justified.  In so far as, our instant conclusion is concerned, the same  

clearly emerges from the following observations recorded by this Court in Rajeev  

Hitendra Pathak’s case (supra) wherein this Court held as under :

“34. 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.

35. 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 view of the above, the choice of the appellant, in approaching the “National  

Commission” rather than the “state Commission” could not have been described  

as frivolous.  We are, therefore, satisfied that the revision petition filed by the

Page 7

7

Lucknow  Development  Authority  before  the  National  Commission  was  

procedurally in order.  And as such, the choice of the appellant to file a revision  

petition to assail the order of the “state Commission” dated 11.5.2007, could not  

be faulted.

12. The real reason for the National Commission for dismissing the revision  

petition filed by the appellant was, that it was filed belatedly, well after the expiry  

of the period of limitation.  The observations made by the National Commission to  

the aforesaid effect, have already been extracted hereinabove.  We find nothing  

wrong  in  the  aforesaid  determination  of  the  National  Commission.   It  was  

imperative for the Lucknow Development Authority to seek  condonation of delay,  

for some justifiable reason as the National Commission was being approached  

after four and a half  years.  In the absence of valid justification for condoning  

delay, the National Commission had no other option, but to pass the order dated  

30.3.2012.   The  fact  that  the  Lucknow  Development  Authority  was  duly  

represented  before  the  State  Commission,  as  also,  when  the  order  dated  

11.5.2007 was passed by it, reveal that the appellant was aware of the said order  

right from the beginning.  Yet the appellant waited for over four and a half years,  

to approach the National Commission.  Even before this Court, the appellant has  

failed  to  express  any  valid  justification  for  having  approached  the  National  

Commission belatedly.  We, therefore, find no good ground to set aside the order  

passed by the National Commission on 30.7.2012.

13. Despite  our  aforesaid  determination  of  the  present  controversy,  we  

consider it just and appropriate to set aside the costs imposed upon the appellant  

herein, by the National Commission, in view of the conclusion drawn by us, that  

the choice of the appellant in approaching the National Commission against the

Page 8

8

order passed by the State Commission (dated 11.5.2007) could not be described  

as frivolous. As already noticed hereinabove, the said order could have only been  

assailed only before the National Commission, as the State Commission had no  

jurisdiction to recall or modify its own order (dated 11.5.2007).  Accordingly, the  

costs  imposed  on  the  appellant  in  the  impugned  order  is  hereby  set  aside.  

Besides  the  aforesaid,  the  order  of  the  National  Commission  calls  for  no  

interference.

14. The instant appeal is accordingly disposed of in the aforesaid terms.

…..…………………………….J. (Dr. B.S. Chauhan)

…..…………………………….J. (Jagdish Singh Khehar)

New Delhi; February 5, 2013