S. PRAKASH vs S.D.O. (PHONES)

THIS Revision Petition has been filed against the order dated September 26, 1991 panned by the State Commission, Lucknow allowing Appeal No. 70/SC/91 filed before it by the first respondent herein - S.D.O. (Phones), Rampur Garden Bareilly - and setting aside the order of the District Forum, Bareilly dated January 19,1989 allowing the complaint petition filed by the revision petitioner to the extent of directing the opposite party to adjust the excess amount of Rs. 282.80 demanded in two telephone bills against two other pending bills due by the complainant and to collect Rs. 2.20 from the complainant in full and final settlement of the latter bills and thereafter to restore the complainant''s telephone connection immediately.

THE revision petitioner who was the complainant in the case had approached the District Forum with the grievance that certain telephone bills served on her were incorrect and excessive and that the action taken by the respondent in disconnecting her telephone on the ground of nonpayment of the excess amount was illegal and improper. THE District Forum, Bareilly after hearing both sides passed an order substantially upholding the contentions of the complainant and issuing the directions aforementioned to the opposite party. The first respondent herein (opposite party in the complaint) challenged the other of the District Forum by filing Writ Petition No. 1213 of 1989 before the High Court of Allahabad (Lucknow Bench). In that Writ Petition the Department challenged the jurisdiction of the District Forum to adjudicate upon the dispute concerning telephone bills and questioned the maintainability of the complaint under the Consumer Protection Act, the points taken being that a telephone subscriber is a not a ''consumer'' and the service rendered by the Central Government through it Telecommunications Department is not a "service" to which the Act applies. In addition to these technical points the order was also challenged on the merits. The High Court by its judgment dated February 5,1990 rejected all the contentions raised by the Department and dismissed the Writ Petition. While doing so, the High Court expressly upheld the order passed by the District Forum and confirmed it on the merits also as per paragraph 13 of its judgment, which reads as follows: "The objection raised on behalf of the Union of India as to the availability of Section 7-B of the Indian Telegraph Act, thus, fails. So far as the merits of this case are concerned, the learned Standing Counsel for the Union of India could not dispute that the reasons spelt out in the order were correctly arrived at by the District Forum and which are also unassailable and there is no material to show anything to the contrary."

It was only subsequent to the dismissal of the Writ Petition by the High Court that the first respondent purported to file the appeal before the State Commission raising a challenge against the very same order of the District Forum which had already been confirmed by the High Court on the merits. This appeal was presented before the State Commission only on February 6, 1991. It is that appeal that has been allowed by the State Commission under the order which is now under challenge in this Revision Petition.

UNFORTUNATELY, the State Commission has made no mention at all of the fact that the appeal had been presented before it after a delay of 2 years and 18 days and that the Memorandum of Appeal was even not accompanied by any application for condonation of delay. The time limit allowed by the Act for filing the appeal against an order of the District Forum in only 30 days from the date of the order. Strangely, the State Commission has also not made even a casual mention of the crucial fact that the order which was sought to be appealed against in the highly belated appeal had already been confirmed by the High Court of Allahabad on its being challenged there by the same appellant by filing a Writ Petition. The order of the State Commission is a very brief one and it reads: "In this appeal we have examined the record of the appeal and heard Counsel for the appellant. The respondent has sent intimation to this Commission that it may decide the case on the basis of record of the case and her absence be excused. The dispute in this appeal relates to two bills dated 1.6.84 for Rs. 249.80 and bill dated 1.8.84 for Rs. 273/-. Out of the said bill the complainant has claimed certain deductions. The District Forum Bareilly has granted relief to the complainant. The telephone department has come up to the Commission in appeal. We are of the view that the case of the complainant is highly belated, it was placed on 27.10.1988 after a lapse of more than 3 years of accrual of cause of action. We accordingly allow the appeal and set aside the order of District Forum, Bareilly dated 19.1.1989 in Case No. 1 of 1988 and dismiss the complaint

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WE are constrained to observe that the mode of disposal of the appeal by the State Commission has been very perfunctory and as a result thereof there has been a serious miscarriage of justice. The order of the District Forum had been confirmed by the High Court in the Writ proceedings to which the Department as well as the consumer were parties and the High Court''s order had become final as between them. Further, the statutory time limit of 30 days for preferring an appeal before the State Commission had expired more than 2 years prior to the date on which the Memorandum of Appeal was presented before the State Commission. Mention has already been made of the fact that the said Memorandum of Appeal was not even accompanied by any application for condonation of delay. In the circumstances, the State Commission had no jurisdiction to entertain the belated appeal without first condoning the delay and interfere with the order passed by the District Forum. We accordingly allow this Revision Petition, set aside the order passed by the State Commission and restore the order passed by the District Forum. The first respondent will pay Rs. 1000/- as costs to the revision petitioner. Revision allowed with costs.