State Consumer Disputes Redressal Commission
Nirbhai Singh vs Punjab State Power Corporation Limited on 30 August, 2013
FIRST ADDITONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Misc. Appl. No.49 of 2012
In/and
Consumer Complaint No.67 of 2011.
Date of Institution of Complaint: 29.08.2011.
Date of Decision: 30.08.2013.
Nirbhai Singh S/o Sh. Dalip Singh, R/o Village Bholewal Quadeem,
Post Office Phillaur, Tehsil and District Ludhiana.
.....Complainant/Applicant.
Versus
1. Punjab State Power Corporation Limited, The Mall Road,
Patiala, through its Chairman-cum-Managing Director.
2. The Chief Engineer/Commercial, Punjab State Power
Corporation Limited, The Mall, Patiala.
3. The Sub Divisional Officer, Punjab State Power Corporation
Limited, Phillaur, District Jalandhar.
...Opposite parties/ Respondents.
Application for condonation of delay
In Re:-
Consumer Compliant U/s 17 of the
Consumer Protection Act.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:- Sh. Ashok Bhardwaj, Advocate for the complainant/applicant.
Sh. B.S. Taunque, Advocate for the opposite parties/respondents.
INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Sh. Nirbhai Singh, complainant/applicant (hereinafter called "the complainant") has filed the present application for condonation of delay in filing the complaint.Misc. Appl. No.49 of 2012 2
In/and Consumer Complaint No.67 of 2011
2. It was submitted that the Ombudsman disposed of the case with certain directions, but the complainant was not satisfied with the order passed by the Ombudsman and approached the Hon'ble High Court, by filing Civil Writ Petition i.e. CWP No.19362/2010 titled as "Nirbhai Singh Vs Ombudsman & Ors." The said petition is pending and fixed for hearing on 16.02.2012. The complainant has limited his relief before the Hon'ble High Court, to change his SP category connection to AP category, as it was earlier and for the purpose of claiming compensation, the complainant has approached this Commission. When the case came up for hearing before this Commission, it was observed that the complainant should move an application u/s 5 of the Limitation Act. Ombudsman passed the order on 04.03.2010 which is partly under challenge before the Hon'ble High Court. Technically, there is no delay in filing the complaint. The jurisdiction to grant appropriate compensation is with this Commission and the complainant has instituted the complaint. There are sufficient grounds to condone the delay in filing the complaint. There is no delay in institution of the complaint from the date of passing of the order by the Ombudsman. However, if this Commission is of the opinion that there is delay in filing the complaint, the same may be condoned in the interest of justice.
3. In the reply filed on behalf of the opposite parties, preliminary objections were taken that the cause of action to file the complaint accrued to the complainant on 29.10.2008 when the applicant submitted his representation to Chairman, PSEB or soon thereafter. The complaint filed by the complainant is hopelessly time barred. The complainant has stated that he has filed the complaint within the period Misc. Appl. No.49 of 2012 3 In/and Consumer Complaint No.67 of 2011 of two years from the order of dismissal of the petition by the Ombudsman vide order dated 04.03.2010.
4. It was further submitted that before availing any remedy against non-release of temporary electricity connection, the applicant has to take a conscious decision regarding the line of remedy, he wishes to pursue. The applicant initially approached the Ombudsman, Electricity, Punjab vide complaint dated 05.03.2009 which was returned to him on 09.03.2009 by the Ombudsman and thereafter, the applicant filed the petition before the Forum for Redressal for Grievances of Consumers, constituted by the PSPCL in compliance with the provisions of Section-42 of the Electricity Act,2003. The said complaint was contested before the Grievances Forum by filing written statement and the Grievances Forum was pleased to dispose of the petition vide order dated 25.08.2009. The complainant again filed an appeal before the Ombudsman vide memo dated 15.09.2009 and the same was returned and the complainant approached the Hon'ble High Court, by filing CWP No.20303 of 2009 and the Hon'ble High Court vide order dated 07.01.2010 directed the Ombudsman to decide the appeal and Ombudsman vide its order dated 04.03.2010 dismissed the appeal. The applicant again filed writ petition i.e. CWP No.19362 of 2010 titled as "Nirbhai Singh Vs Ombudsman & Ors." which is pending. It is clear that the complainant is pursuing the remedy before the Hon'ble High Court, by challenging the orders of the Ombudsman, Electricity, Punjab and the complaint is not maintainable.
5. There is no order for condoning the delay and the complaint is hopelessly time barred. U/s 24-A of the Act, the complaint has to be filed within two years from the date of cause of action. The Misc. Appl. No.49 of 2012 4 In/and Consumer Complaint No.67 of 2011 applicant has not come to the Commission, with clean hands. In the above writ petition, the applicant has prayed that compensation of Rs.76.50 lacs and the complaint is liable to be dismissed with special costs.
6. On merits, it was reiterated that the cause of action arose on 19.10.2008 and the complaint was filed after the expiry of two years on 29.08.2011. Similar other pleas as taken in preliminary objections were repeated and denying averments of the application, it was prayed that the application may be dismissed.
7. We have heard the learned counsel for the parties as well as perused the written arguments submitted on behalf of the opposite parties and have gone through the record.
8. Learned counsel for the complainant has argued that the complainant has been pursuing the remedies and against the order of the Ombudsman, writ petition has been filed for limited purpose of changing his SP category connection to AP category and for claiming compensation, he has come before this Commission. The Ombudsman dismissed the appeal on 04.03.2010 and the present complaint was filed on 29.08.2011 and is well within limitation and there is no delay and the delay, if any, may be condoned.
9. In the written arguments filed on behalf of the opposite parties, it was submitted that there is specific provision under the Act. U/s 24-A which deals with the limitation aspect and the provisions of Limitation Act are not applicable. The cause of action to file the complaint accrued on 29.10.2008 when he submitted a representation to the Chairman, but the present complaint was filed after the lapse of two years and is hopelessly time barred U/s 24-A of the Act. In order to Misc. Appl. No.49 of 2012 5 In/and Consumer Complaint No.67 of 2011 avail the benefit of waiver for the time spent, for having approached the Electricity Grievances Forum, Ombudsman Electricity and thereafter, Hon'ble High Court, the complainant is required to obtain an order from the Hon'ble High Court for excluding the time spent in pursuing the remedies before the other Forums. The law is well settled that the delay cannot be condoned if there is no sufficient cause shown and the complainant has already adopted to avail the remedy under the Electricity Act and has also approached the Hon'ble High Court and the complaint is not maintainable, being time barred.
10. We have considered the respective oral/written submissions of the parties and have thoroughly scanned the entire record and other material placed on the file.
11. The complainant filed the application on 07.07.2008 Annexure P-6 for sanction of Temporary Two SP connections each HP for fisheries and thereafter, has moved the representation to the Chairman of the opposite parties on 29.10.2008. The complainant has filed this complaint for claiming compensation to the tune of Rs.86.00 lacs on account of losses suffered on account of production of loss of fisheries, misc. expenses Rs.2.00 lacs, mental harassment Rs.2.00 lacs and total compensation claimed is Rs.90.00 lacs. As per the pleadings, the complainant has a total area, measuring 32-1/2 acres which has been devoted by the complainant to Fish Farming. The complainant, to carry out the renovation of the Fishery Farm, submitted application dated 16.05.2008 to opposite party no.2 for release of two temporary connections. 25 KVA transformer was already existing at the Fish Farm of the complainant and new 63 KVA transformer was required for releasing two temporary SP tubewell connections for Fish Farming, as Misc. Appl. No.49 of 2012 6 In/and Consumer Complaint No.67 of 2011 per the application of the complainant. Ultimately, the Chief Engineer, Commercial, Patiala informed vide memo dated 16.01.2009 that two temporary tubewell connections for fisheries cannot be granted. The complainant filed a complaint in the office of Chief Engineer-cum- Chairman, Forum for Redressal of Grievances vide complaint No.CG- 48 of 2009 and the same was decided on 25.08.2009. After re- consideration of the case, Chief Engineer, Commercial, PSEB, Patiala again intimated the complainant vide memo dated 09.12.2009 that there is no regulation of the PSEB to release the temporary connection for Fish Farming under SP category and there are no provisions in the PSEB rules to release the connection, by installing transformer on rent basis.
12. The complainant has also moved the Hon'ble High Court for claiming compensation. As per the version of the complainant, the complaint is within the period of limitation and the same is to be calculated from 04.03.2010, when the order was passed by the Ombudsman, but the version of the complainant is not correct. The cause of action arose to the complainant on 16.01.2009 when the complainant was informed that two temporary tubewell connections for fisheries cannot be granted. The complainant ought to have filed the complaint within two years from 16.01.2009 onwards, whereas the present complaint was filed on 29.08.2011. The complainant has failed to show any sufficient cause as to why the complaint was not filed within two years as provided u/s 24-A of the Act. There is no reason, much less the sufficient reason, given by the complainant, to satisfy this Commission to condone the delay. The only reason that the limitation has to be counted from the date of passing of the order by the Misc. Appl. No.49 of 2012 7 In/and Consumer Complaint No.67 of 2011 Ombudsman, is not tenable. Hon'ble Supreme Court in "State Bank of India Vs B.S. Agricultural Industries (I)", II (2009) CPJ-29 (SC) held that no sufficient cause was shown for delay and there was no question of condonation of delay.
13. Hon'ble National Commission in case "M.I. Plywood Industries Vs Canara Bank", I (2013) CPJ-17 (NC) observed in Para- 11 as follows:-
"It is well settled that 'sufficient cause' with regard to condonation of delay in each case, is a question of fact."
12. In a recent case "DLF Home Developers Limited & Ors. Vs Pradeep Kumar & Ors.", 2013 (3) CLT-404 (NC), the Hon'ble National Commission relying upon so many authorities, reproduced the judgment of the Hon'ble Apex Court in Para-17 and of the Hon'ble National Commission in Para-18 as follows:-
17. Apex Court in Anshul Aggarwal Vs New Okhla Industrial Development Authority", IV (2011) CPJ-63 (NC) has observed:
"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 the 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."
18. This Commission in Mahindra Holidays & Resorts India Ltd. Vs Vasankumar H. Khandelwal and Anr., Revision Petition ANo.1848 of 2012 decided on 21.05.2012 has held:
"that under the Consumer Protection Act, 1986, the District Forum is supposed to decide the complaint within a period of 90 Misc. Appl. No.49 of 2012 8 In/and Consumer Complaint No.67 of 2011 days from the date of filing and in case of some expert evidence is required to be led, then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days."
14. The complainant has already availed the remedies by approaching the Ombudsman and the Grievances Committee under the Electricity Act and has also approached the Hon'ble High Court. The complainant ought to have filed the complaint within two years, but the same was not done and there is no ground to condone the delay. It is pertinent to mention here that the complainant is seeking compensation for not providing two temporary connections for his fisheries farm, of SP category and that also itself is a commercial purpose and the complaint is also not maintainable.
15. Accordingly, the application filed by the complainant for condonation of the delay is dismissed and the complaint is also dismissed, being not maintainable.
16. Arguments in the application were heard on 23.08.2013 and the order was reserved. Now the same be communicated to the parties.
(Inderjit Kaushik)
Presiding Judicial Member
August 30, 2013. (Vinod Kumar Gupta)
(Gurmeet S) Member