C.E.S.C. Limited vs PRABHABATI DEVI

THE petition for condonation of delay filed by the appellant is first taken up for hearing and disposal. We have noticed that there is a delay of 76 days in preferring the appeal after receiving the impugned order of the Forum below. Heard argument advanced by the appellant. It is the case of the appellant in the condonation petition that the impugned judgment was passed on 20.5.2002, and the copy of the same was ready and issued on 24.5.2002. It is stated in the condonation petition that this delay was caused in sending papers from local office to corporate legal and therefrom to the legal advisor at the Head Office. THEreafter the papers were placed before the concerned Advocate for preferring the appeal before the Commission. THE concerned Advocate took some time for preparing the relevant papers and then the appeal was filed on 9.8.2002. It is submitted by the learned Advocate for the appellant, that the delay was not intentional and if the delay is not condoned and the appeal is not admitted the appellant will be irreparably prejudiced, not being able to challenge the impugned judgment.

THE respondent is absent on repeated calls, though the respondent had entered appearance on 28.1.2003. In the present appeal the period between 24.5.2002 and 23.6.2002 was the period statutorily prescribed for fling the appeal. The question of explaining that period did not arise as per the judgment passed by the Hon''ble Supreme Court reported in (2002) 9 SCC 593. It is only the period of those 13 days before the filing of the appeal which was required to be explained and proper explanation for that period has been given and we see no reason to disbelieve.

In this context we may refer the settled principle in respect of condonation of delay (vide the decision reported in AIR 1978 Supreme Court 1353) is that the Court should not adopt a pedantic attitude towards the condonation of delay.

CONSIDERING the well settled principle held by the Apex Court in a number of judgments that Courts should take reasonable and liberal view regarding condonation of delay, we are inclined to observe that the explanation is on the whole convincing for the purpose of our coming to a finding that the actual delay of 46 days should be condoned. Having regard to the nature of disputes between the parties, we are of the view that the delay caused in filing the application by the appellant was not wilful and hence is worthy of being condoned. However, in the facts and circumstances of the case we are also of the view that for meeting both ends of justice the delay shall be condoned. Accordingly it is ordered that the petition for condonation of delay under consideration be allowed ex parte.

AFTER condoning the delay we take up the matter for admission hearing. We have the arguments of the appellant and we think the appeal is admissible. So the appeal is admitted and registered. We also take up the appeal for hearing at the instance of the appellant for its disposal. This appeal has arisen out of the judgment passed by the District Forum, Howrah, on 20.5.2002 in Case No. 310/2001 wherein the Forum has allowed the case on contest with cost of Rs. 500/- and compensation of Rs. 4,000/- against the O.P.-C.E.S.C. and directed to give electric supply line to the complainant positively within one month from the date of the order. The Forum has also directed that the entire awarded amount would be deducted from the monthly electric bills starting from the first electrical bill of the complainant. The brief facts of the case of the complainant before the Forum were that being a sole owner of the premises she applied for installation of new electric service connection to the O.P.-C.E.S.C. and deposited security money as per its claim. A case was filed against the complainant''s husband regarding a passage by the adjacent owner claiming that it was a courtyard between the said person and the complainant. The case was disposed of by the learned Civil Judge, Junior Division, Howrah, being Title Suit No. 225/1987. The learned Civil Judge was pleased to dismiss the same declaring that it was not at all a courtyard but it was a common passage. The said adjacent owner Jiban Krishna Debnath filed an appeal before the learned District Judge, Howrah, being numbered 180/1997. That appeal was also dismissed on merit and the Appellate Court affirmed the judgment passed by the learned Civil Judge, Junior Division, Howrah. In spite of payment of the quotational amount the O.P. did not instal the electric meter despite repeated requests and representations. Thereafter the complainant filed the case before the Forum praying for direction upon the O.P. to give electric connection through new electric meter and also prayed for damages.

BEING dissatisfied with the above mentioned order passed by the Forum below the appellant-C.E.S.C. has preferred the present appeal before this Commission. The learned Counsel for the appellant submits that they are ready to instal the meter, but due to strong objection raised by the person to the adjacent plot the installation could not be made. Moreover as it is a case of private dispute by and between the two parties, it is not maintainable before the Consumer Forum or Commission. The appellant has further submitted that there was no deficiency in service on the part of the appellant as they tried to give electric connection and in this respect it has filed a report before the Forum as well as the Commission. According to the appellant the judgment passed by the Forum below is erroneous, unjust and liable to be set aside.

ON careful perusal of the record it is noticed by us that it is an admitted fact that the present respondent paid the entire quotational amount as claimed by the appellant-CESC to the CESC. After the payment long time has been elapsed, but the appellant did not give connection to the respondent in spite of receiving the amount. The respondent made several correspondences with the appellant but to no effect. The appellant''s version is that due to strong objection raised by the adjacent people the C.E.S.C. could not instal the new meter. The C.E.S.C-people went there but failed to give electric connection to the respondent due to the resistance. The appellant has filed a report as per the direction of this Commission dated 23.7.2003. Perusing that report we have understood that the appellant had tried its best to give electric connection to the respondent but could not due to the strong objection by the adjacent people. In this respect we are to say that the learned Civil Judge, Junior Division, Howrah was pleased to dismiss the case filed by the adjacent owner and declared that the passage is a common one and thereafter the Appellate Court also affirmed this judgment. So in our opinion that the passage between the respondent and the adjacent owner is a common one and through that passage the C.E.S.C. can draw the electric line for giving electric connection to the present respondent. Regarding the payment of cost and compensation as awarded by the Forum we are of the opinion that the appellant-C.E.S.C. did not sit idle, moreover the C.E.S.C. tried to give connection even the police help was sought for, but the police did not come forward to help the C.E.S.C.-people at the time of installation. So we do not find any deficiency in service on the part of the appellant and we are inclined to set aside the order of payment of cost and compensation to the respondent by the appellant.

Hence it is ordered that the appellant shall give new service connection by installing a new meter at the respondent''s premises within one month from the date of getting the copy of this order subject to compliance of other formalities if any as per the I.E. Act and if not already paid by the respondent. The order of payment of cost of Rs. 500/- and compensation of Rs. 4,000/- is hereby set aside.

THE appeal is allowed in part ex parte and the judgment passed by the Forum below is modified to the above extent. THE appeal is disposed of accordingly. A copy is to be sent to the respondent immediately. Appeal allowed.