National Consumer Disputes Redressal
Sub Divisional Officer (Op) vs 1. Ram Saran & Anr. on 7 December, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1582 OF 2012 WITH (I.A. NO.1 & 2 OF 2012, FOR STAY & C/DELAY) (From the order dated 28.11.2011 in Appeal No. 1575/2011 of the State Commission, Haryana, Panchkula) SUB DIVISIONAL OFFICER (OP) SUB DIVISION, UHBVNL, SADHAURA . Petitioner Versus 1. RAM SARAN S/O SHRI CHAMELA RAM R/O VILLAGE KHANPURA, TEHSIL JAGADHRI, DISTRICT YAMUNA 2. JAI BHAGWAN, CONTRACTOR OF UHBVNL, SADHAURA, JAI BHAGWAN ELECTRICALS, WARD NO. 20, SADHAURA, YAMUNA NAGAR . Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioner(s) : Mr. Alok Sangwan, Advocate Pronounced on : 7th December, 2012 ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER In this revision petition, there is challenge to order dated 28.11.2011, passed by Haryana State Consumer Disputes Redressal Forum, Panchkula (short, State Commission). Along with it, an application seeking condonation of delay of 30 days has also been filed.
2. Brief facts are that respondent no.1/complainant got installed a transformer at his own expenses at the tubewell connection. The said transformer got burnt on 16.3.2011. Despite several requests made to the petitioner/opposite party same was not repaired. Rather respondent no.1 was informed that transformer in question was purchased by him at his own expenses with the warranty of six years, therefore, petitioner has no concern with it. On being approached, respondent no.2, (contractor)/ OP No.3 informed respondent no.1that warranty of the transformer was for two years. After lapse of the warranty, petitioner is liable to maintain the same. Thus, respondent no.1 filed a complaint for directing the petitioner to install new transformer at his tube well and to pay Rs.50,000/- as compensation for mental agony and harassment as well as Rs.5,000/- as cost of proceedings.
3. Petitioner/OP Nos.1 and 2, in their written statement admitted the fact that respondent had applied for tubewell connection under self-execution scheme and all the material which is necessary for releasing the electricity supply to the tubewell has to be purchased by the respondent as well as contractor. The department only has to release the electric supply to the tubewell. Hence, there is no liability of the petitioner.
4. Respondent No.2 in its written statement has alleged that it had installed the transformer on the tubewell more than two years ago. As per sale circular U-27/2008 of the petitioner, upkeep and maintenance of the system beyond the warranty period e.g. replacement of damaged DT after two years, shall be carried out by the petitioner. Thus, answering respondent has no concern with the damages etc.
5. District Consumer Disputes Redressal Forum, Yamuna Nagar (short, District Forum) vide order dated 18.10.2011, allowed the complaint and directed the petitioner to replace the transformer of the respondent no.1 within one month from the date of the order, failing which penal action under section 27 of the Consumer Protection Act, 1986, (for short, Act) shall be initiated against it.
6. Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission, which was dismissed in limini.
7. This is how the matter has reached before this Commission.
8. Taking up application for condonation of delay, averments made in this application does not lead us anywhere as apparent from the grounds on which condonation of delay has been sought and which read as under ;
3. That the petitioner respectfully submits that delay has occurred in filing the present revision petition within limitation, which has occasioned in process of taking the steps at various levels and in getting the matter approved for filing before this Honble Commission. The delay in filing the appeal unintentional on the part of petitioner since UHBVNL being a Govt. Department, the file to challenge order of any court needs comprehensive examination and the file moves from one place to another. In this process, the delay has occurred and the same may kindly be condoned.
4. That moreover the petitioner is having its main legal office at Chandigarh. Whenever a court case is decided throughout Haryana the same is sent to the head office for taking appropriate action. The head office needs some time to examine the merits of the case and then the matter is dealt by the Office of Legal Remembrance who nominates Standing counsel in Delhi for filing the revision petition, if required. The concerned District Officer is than directed to contact the appointed counsel in Delhi for sending him the necessary papers with regard to filing of revision petition. Thereafter, the file is examined by the counsel for the petitioner in Delhi and he drafts revision petition. The drafted petition is than sent to the District office for signing affidavits and sometimes the officers are called by the counsel at Delhi for further discussion and then the petition is filed before this Honble Commission. In this process enough time expires and delay occurs in filing the revision petition.
5. That the petitioner submits that the delay is neither deliberate nor intentional but has occurred in the circumstances stated hereinabove.
9. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, has held;
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.
10. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
11. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Apex Court has observed ;
We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
12. Apex Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) laid down that;
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.
13. Recently, Honble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.
The Court further observed ;
27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs.
14. In the application, petitioner has simply mentioned about its office procedure for the purpose of filing of appeal/revision.
In entire application, it is nowhere mentioned as to what was the sufficient cause for not filing the revision in time. Moreover, petitioner in its application have not mentioned as to before whom the matter seeking approval for filing revision was pending and what was the time taken at each level for getting approval. Application is absolutely vague and same has been filed without any justification. Thus, ex-facie, application for condonation of delay does not contain any sufficient cause and has no legal basis. Gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioners.
15. Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case. Hence, no sufficient cause is made out for condoning the delay.
16. Now coming to the merits of the case, it has been contended by learned counsel for the petitioner, that respondent had purchased a transformer from the contractor with warranty. Thus, it was the duty of the contractor to replace the transformer. Both the fora below had wrongly directed the petitioner to replace the same.
17. District Forum, in its order has categorically held that as per circular, petitioner is liable to replace the transformer of the respondent. Relevant findings of District Forum reads as under ;
From the perusal of the case file, the only point controversy between the parties is whether the complainant is entitled for the relief or not, whether the respondents no.1 and 2 are liable to replace the transformer or the respondent no.3 is liable to replace the transformer. From the perusal of the case file this fact is admitted that the connection of the complainant has been released then what circular was in existence. In the present case in hand when the connection of the complainant was released on 8.7.2009 the circular no.U-27/2008 was in existence in which it has clearly been mentioned that, upkeep and maintenance of the system beyond warranty period e.g. replacement of damaged DT after years shall be carried out by the Nigam but the Nigam in their reply alleged that the consumer or the contractor is liable for the period of 78 months from the date of supply and 72 months from the date of installation. In the present case in hand the respondents no.1 and 2 produced the documents signed by the complainant in which the warranty period has been described fro six years, whereas at the time of releasing the connection the circular of two years was in existence it shows that the respondents have obtained the sign of the complainant later on and mere signing by the complainant on the printed documents is having no value, and as per that circular the Nigam is liable to replace the transformer of the complainant, hence, the respondents no.1 and 2 are liable to replace the transformer of the complainant, which is not done so, it amounts efficiency in service on their part and the complainant is entitled for the relief.
18. State Commission while upholding the findings of District Forum has dismissed the appeal of the petitioner in limini observing as under ;
It is not disputed by learned counsel for the appellant that transformer in question was purchased by the complainant from the approved contractor of the Nigam, therefore, by not replacing the transformer in question by the appellants amounts to deficiency in service. In case, the transformer was well within the warranty period, even then it is integral matter of the Nigam and its approved contractor. In this view of the matter, we feel that there was no illegality or ambiguity in the impugned order passed by the District Forum.
No merit. Dismissed in limini.
19. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. After going through the orders passed by the fora below, it is manifestly clear that there is no illegality or material irregularity on the part of the Fora below in the present case.
20. It is also well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very limited.
21. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd ., 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
22. Even, after getting two adverse findings, petitioner has chosen not to settle the claim of respondent no.1 but has dragged him to the highest Fora under the Act.
23. It is not that every order passed by fora below is to be challenged by a litigant even when the same are based on sound reasoning.
24. It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.
25. Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.
26. The Apex Court in Bikaner Urban Improvement Trust Vs. Mohan Lal 2010 CTJ 121 (Supreme Court) (CP) has made significant observations which have material bearing, namely,
4. It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase.
Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment.
They are expected to show remorse or regret when their officers act negligently or in an overbearing manner.
When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected.
5. This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.
5.1 In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.):
The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the States interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak.
Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court. The lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.
5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:
2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens.
Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.
5.3 In a three-Judge Bench judgment of Bhag Singh & Ors.v.Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.
3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.
6. Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:
(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land.
(ii) If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigants.
7. In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/- . But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court. The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation.
27. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed:
Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.
28. Accordingly, present revision petition being barred by limitation, is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).
29. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account, within eight weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
30. Meanwhile, petitioner shall recover the cost amount from the salaries of the delinquent officers who have been pursuing this merit less and frivolous litigation, with the sole aim of wasting the public exchequer. The affidavit giving the details of the officers/officials from whose salaries the cost has been recovered be also filed within eight weeks.
31. Pending applications also stand dismissed.
32. List the matter for compliance on 22.2.2013.
J (V.B. GUPTA) PRESIDING MEMBER Sonia/