COMMISSIONER, CORPORATION OF MADRAS vs AKTHAR BI

THIS petition is for condoning a delay of 339 days in filing appeal. An award has been passed by the District Forum, Madras (North) against the Commissioner, Corporation of Madras, against which the appeal is sought to be filed. Since there was a delay of 339 days in filing appeal, this petition has been filed, as aforesaid, for condoning the said delay. The award was passed upon a complaint made by the wife and the children of one Mahaboob Basha. Alleging that while the said Mahaboob Basha was selling footwear on the road side under a lamp post on 6.9.1994, the lamp post suddenly fell down and on account of that he died. Alleging deficiency in service against the Corporation of Madras and the Tamil Nadu Electricity Board, the complaint was filed.

THE District Forum passed an award against the 1st opposite party Corporation of Madras, leaving the 2nd opposite party Tamil Nadu Electricity Board, for a sum of Rs. 75,000 /- with a cost of Rs. 500/-. THE award was passed on 15.4.1996. Regarding the delay in filing appeal, in the affidavit filed in support of the petition, it is stated that due to administrative changes in the Corporation, the Standing Counsel for the Corporation was changed and a new Counsel was appointed and while the files from the previous Counsel were being transferred to the new Counsel, the file relating to the case in question i.e., O.P. No. 55/95, was misplaced in the office of the Corporation and therefore, it could not be given to the present Counsel. It was only on receipt of the Execution Petition, the papers were searched for in the office and they could be located only on 14.3.1997. Immediately, the file was given to the present Counsel for filing appeal. For these reasons, the delay of 339 days had occurred in filing appeal. Therefore, in the said circumstances of the case, it would be just and proper to condone the delay.

A counter has been filed opposing the petition.

WE are clearly of the view that the reason stated in the affidavit filed in support of the petition is not at all sufficient cause for so long a delay of 339 days. When an award has been passed against the Corporation for such a huge amount of Rs. 75,000/- who a cost of Rs. 500/-, it is rather un-understandable as to how the Corporation could be so unconcerned about the matter that they did not care to file an appeal at least within a reasonable time if not immediately if, in their view, the order passed was an incorrect and erroneous one. It is seen from the affidavit filed by the Corporation that an execution petition has been filed seeking for arrest of the Officer concerned, under Section 27 of the Consumer Protection Act, and only on receipt of notice in that petition, the appeal has been sought to be filed with the said inordinate delay of 339 days. It is apparent that if the execution petition seeking for the arrest of the Corporation Commission has not been filed, the Corporation would not have filed the appeal at all. This is clear manifestation of the irresponsibility of the Officers of the Corporation. Here, it may not be out of place to mention that we have come across very many cases in which the Corporations, Municipalities and Panchayat Boards were not responding to the notices issued by the Consumer Courts and awards were passed ex-parte, and only when notices in execution petitions were sent, they were shaken from their slumber and hastened to file appeals.

THE facts of the present case plainly disclose that the opposite party was not sustainable since the complainants were not consumers at all. However that may be, the petition for condoning the inordinate delay of 339 days cannot be, for the reasons above stated, allowed. In this view of the matter, the CMP No. 326/97 is dismissed. As regards the appeal filed, as stated supra, apparently, the complaint is not maintainable since the complainants were not consumers within the meaning of the Consumer Protection Act. The deceased Mahaboob Basha has not availed by any services of the Corporation on payment of any consideration. Payment of tax, if any paid, by the deceased to the Corporation, is not consideration for any service of the Corporation such as proper maintenance of the lamp post. Tax is an exaction. Not voluntary payment. Therefore, the award passed by the District Forum is without jurisdiction and illegal. In this view of the matter, treating the appeal as a revision petition, after summoning the records from the District Forum we heard both sides and then being confirmed of the view that the complaint is not maintainable and the order passed by the District Forum is without jurisdiction as alleged, we set aside the order and dismiss the complaint. Certainly, the complainants will have their remedy in a Civil Court. In the event of their filing a suit or taking any other appropriate proceedings, we believe that the Civil Court will, for the purpose of limitation, consider the time taken in the District Forum and this Commission in the present proceedings. Petition for condonation of delay dismissed. Complaint dismissed.