B.S.E.S. YAMUNA POWER LTD. vs TIKAM SINGH

THE present appeal, filed by the appellant under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against order dated 22nd April, 2003, passed by District Forum East), Saini Enclave, Delhi, in Complaint Case No. 586/01 entitled Shriram Singh v. Delhi Vidyut Board and Another.

THE facts, relevant for the disposal of the present appeal, briefly stated, are that the respondent, Shri Tikam Singh, had filed a complaint before the District forum, under Section 12 of the Act, averring therein that the respondent was a consumer in respect of electricity connection, bearing L.N. 602-1202155, installed at 143, West Guru Angad Nagar, Laxmi Nagar, Delhi. It was stated in the complaint, filed by the respondent, that the appellant, in violation of condition No. 21 of the ''Conditions of Supply'', had levied misuse charges without issuing any notice. It was prayed by the respondent in the complaint filed by him that the appellant be directed to remove the levy of misuse charges and to issue a revised bill. THE respondent also claimed compensation and cost of litigation. The claim of the respondent in the District Forum was resisted by the appellant and in the reply/written version, filed on behalf of the appellant, it was stated that on 23rd September, 1996, the meter reader of the appellant company had visited the premises of the respondent and during the inspection noticed misuse of electricity. It was stated that on the basis of the report of the meter reader, misuse charges had been levied by the appellant and there was no deficiency in service on the part of the appellant.

The learned District Forum, vide impugned order, has held that before the levy of misuse charges, no show-cause notice as required under the rules was issued to the respondent and on the basis of the above finding, has passed the order being impugned in the present proceedings.

FEELING aggrieved, the appellant has filed the present appeal under Section 15 of the Act. We have heard the learned Counsel for the appellant at length on the question of admission of the present appeal and have also carefully gone through the documents/material on record. In terms of the provisions contained in Section 15 of the Act a person aggrieved by an order, made by the District Forum, can prefer an appeal against such order to State Commission within a period of 30 days from the date of the order. However, proviso to Section 15 of the Act provides that the State Commission may entertain an appeal even after the expiry of the above said period of 30 days, if it is satisfied that there was ''sufficient cause'' for not filing the same within the above said period. The words ''sufficient cause'', occurring in proviso to Section 15 of the Act, are of utmost significance. As per settled law, culled out from various judicial decisions, the above expression ''sufficient cause'', though deserves to receive a liberal interpretation, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of expiry of the prescribed period of limitation and the injustice of depriving the appellant of adjudication of his grievances on the merits of his appeal for causes beyond his reasonable control, which means the cause is bona fide and beyond the control of the appellant. Though, no hard and fast line can be drawn as to what affords ''sufficient cause'' in a given case yet, again, as per settled law, any cause which prevents a person from approaching the Court within time is ''sufficient cause''. In doing so, it is the test of a reasonable man in normal circumstances which has to be applied.

ADMITTEDLY, the present appeal has not been filed by the appellant within the prescribed period of 30 days because the order being impugned in the present proceedings was passed by the learned District Forum on 22.4.2003 and the present appeal has been filed by the appellant on 20.6.2003. Therefore, the question requiring consideration at the very threshold is as to whether the appellant has shown sufficient cause for not filing the appeal in time within the meaning of proviso to Section 15 of the Act. The appellant, along with the appeal has filed an application seeking condonation of delay in filing the present appeal. The reasons for not filing the present appeal in time have been stated in paras 3, 4 and 5 of the above said application which read as under: "3. That it is submitted that certified copy of the order in Case No. 586 of 2001 has been received by legal assistant of the respondent on 8.5.2003. 4. That however the certified copy of the impugned order was misplaced in transit by the legal assistant and it was traced only on 17.6.2002. 5. That it is submitted that for the aforesaid reasons there has been a delay of 12 days in filing the accompanying appeal against the impugned judgment and order dated 22.4.2003 and received on 8.5.2002 the said delay in filing the appeal is not an intentional one and as has been explained in the preceding para. Therefore, in the interest of justice that the delay in filing the accompanying appeal be condoned and the appeal be heard on merits."

On a perusal of the contents of the above para it is apparent that certified true copy of the order being impugned in the present proceedings was received by the appellant on 8.5.2003 and if the period of limitation for filing the appeal is to be computed, as commencing from the date of communication of the order, as has been held by the Hon''ble Supreme Court in case Housing Board, Haryana v. Housing Board Colony Welfare Association and Others, reported as III (1995) CPJ 28 (SC), the present appeal should have been filed by 9.6.2003. The same, as already stated, has been filed much beyond the prescribed period of limitation on 20.6.2003.

THE reason assigned for not filing the appeal in time, as stated in para 4 of the application, in the eyes of law, virtually, is no reason because it is stated that certified copy of the impugned order was misplaced in transit by the legal assistant. Utter negligence cannot be treated or termed as ''sufficient cause'' within the meaning of proviso to Section 15 of the Act. Moreover, it is not stated either in the application or in the supporting affidavit as to on which date the same was sent in transit, when the same was misplaced and only a bald statement had been made in para 4 of the application to the above effect. Delay in filing the appeal cannot be condoned as a matter of generosity. Proof of ''sufficient cause'' is a condition precedent for the exercise of such discretion by the appellate authority. In our above views, we stand fortified by a decision of the Hon''ble National Commission in case Vice-Chairman, Delhi Development Authority v. O.P. Gauba, reported as III (1995) CPJ 18 (NC)=1986-96 CONSUMER 2731 (NS).

IN the presence of the above facts and the position explained above, in our opinion, whatever liberal interpretation might be put on the words ''sufficient cause'' it would be impossible for us to hold that there was no negligence on the part of the appellant. IN our opinion, as a matter of fact, the appellant has miserably failed to show ''sufficient cause'' for condoning the delay in filing the present appeal and, therefore, the application filed on behalf of the appellant for condoning the delay in filing the present appeal is hereby rejected. The present appeal, filed by the appellant, besides being barred by limitation, is also devoid of substance of merits because, as already stated, it has been held by the learned District Forum that no show-cause notice was issued to the respondent, Shri Tikam Singh, before the levy of misuse charges. During the course of arguments also we have put a specific query to the learned Counsel for the appellant on the point as to whether any show-cause notice, before the levy of misuse charges, was issued to the respondent but no satisfactory reply to our above query has been given by the learned Counsel for the appellant. In the presence of the above facts, no fault can be found with the finding of the learned District Forum. The same as a matter of fact, suffers from no infirmity so as to call for any interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant, is, therefore, devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine, with no order as to costs.

However, before concluding we would like to make it clear that the dismissal of the present appeal by this Commission will not operate to the prejudice of the appellant in the matter of taking fresh action, for the alleged default on the part of the respondent, in accordance with law.

THE above mentioned appeal, filed by the appellant, stands disposed of in above terms. Appeal dismissed.