DIVISIONAL ELECTRICAL ENGINEER, APSEB Vs. T.NARASAIAH

JUDGEMENT

(1.) We do not find that a proper appeal was filed before this Commission. FA SR No. 2159/1997 purports to be an appeal presented by the opposite parties in O.P. No. 618/1996 seeking to question the order of the Nellore District Forum in that O.P. dated 30.6.1997. The appeal papers were presented on 28.8.1997 with only a typed copy of the order of the District Forum and without the certified copy of the order. The papers were returned by the office on 30.8.1997 raising several objections including the objection as regards non -filing of the certified copy of the order of the District Forum. Appeal papers were resubmitted on 4.10.1997. Subsequently an application for condoning the delay of 436 days in presenting the appeal i.e., FA IA No. 1222/1998 was filed on 12.10.1998. The petition for condoning the delay itself was dated 12.12.1997 and the affidavit in support of the same was dated 12.12.1996 (obviously a typographical error for 1997). In that affidavit it was stated : .the F.A. (obviously meaning opposite party) was disposed of by an order dated 30.6.1997 by the learned District Forum which was dispatched on 26.7.1997 which was subsequently received by the respondents (petitioners ?) herein on 28.7.1997 after receipt of the above orders the respondents (petitioners ?) have initiated step to proceed in appeal of the above said matter. Due to the administrative formalities there occurred some delay. I submit that a delay of one day had occurred mainly due to the administrative reasons which is neither wilful nor wanton . From this it is obvious that it was the petitioners who received the copy of the order on 28.7.1997 and as the appeal papers (though without the copy of the order) were presented on 28.8.1997, it was reckoned that there was a delay of one day in presenting the appeal.

(2.) But no appeal can be validly presented without the certified copy of the order of the District Forum questioned in the appeal. Section 15 of the Consumer Protection Act, 1986 provides that any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission in such form and manner as may be prescribed . Sub - rule (3) of Rule 8 of the A.P. State Consumer Protection Rules, 1987 the A.P. Rules for short) requires that each memorandum (appeal) shall be accompanied by the certified copy of the order of the District Forum appealed against and such of the documents as may be required to support grounds of objection mentioned in the memorandum . Thus Rule 8(3) of the A.P. Rules mandates that a certified copy of the order should be filed alongwith the memorandum of appeal. Filing of the certified copy of the order under appeal is also necessary for finding out whether the appeal was presented within time or not. Interpreting Rule 1 of Order 41 of the Code of Civil Procedure, a three Judges Bench of Supreme Court held in Shakuntala Devi Jain v. Kuntal Kumari & Ors., AIR 1969 SC 575, that the memorandum of appeal is not validly presented, unless it is accompanied by certified copies of the decree and the judgment  and that under that rule the Appellate Court could dispense with the filing of the copy of the judgment but it had no power to dispense with the filing of the copy of the decree ''this was because that rule provided that the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) on the judgment on which it is founded . Sub -rule (3) of Rule 8 of the A.P. Rules expressly des not provide for dispensing with filing of the certified copy of the order of the District Forum appealed against. In Telecom District Engineer & Ors. v. Bhushan Dewan, II (1998) CPJ 164, the Himachal Pradesh State Commission held that where the memorandum of appeal was not accompanied by a certified copy of the order, the appeal was defective, incompetent and was not validly presented, and therefore, dismissed the appeal. Sub -rule (3) of Rule 22 of the Himachal Pradesh Consumer Protection Rules, 1988 is in pari materia with and identical to Sub -rule (3) of Rule 8 of A.P. Rules.

(3.) We may also state that the appeal papers were presented without an application for dispensing with the filing of the certified copy of the order of the District Forum under appeal. That application i.e., FA IA SR. No. 3047/1998 was filed only on 28.10.1998 and in the affidavit in support of the said application it was stated as follows : I respectfully submit that the above O.P. was disposed of by the Honble District Forum, Nellore. We have not received original certified copy of the District Commission. So, we have not received the order copy of original certified. So I have not in possession to the same to file alongwith appeal.  This affidavit in support of FA IA SR. No. 3047/ 1998 was filed by the Advocate clerk in A.P.S.E.B. Standing Counsels Office. He is not the one to state whether the certified copy of the order of the District Forum was served on the petitioners or not. Therefore, his statement in that regard cannot be given any credence. The affidavit in support of FA IA No. 1222/1998 for condoning the delay was given by one Mr. V. Raghuramaiah who has working as Deputy Secretary (Legal) in the A.P. State Electricity Board and therefore, we have to proceed on the basis that the certified copy of the order was received by the petitioners / appellants on 28.7.1997 based on which it was stated that there was one days delay in presenting the appeal without realising that the appeal was presented without the certified copy of the order. If really the certified copy of the order was not served on the petitioners, nothing prevented them from applying for a certified copy of the same and filing it, when they had ample time to do so from 28.8.1997 when the appeal papers without the certified copy of the same were presented before this Commission. This establishes inaction, negligence and total lack of diligence on the part of the petitioners and their Counsel. Discretion to condone delay has to be exercised giving liberal construction to sufficient cause so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant . But we find inaction and negligence on the part of the appellants in the present case. In the result we do not find any sufficient cause made out for condoning the delay in presenting the appeal. FA. IA. No. 1222/1998 for condoning the delay is therefore, dismissed and consequently FA. SR. No. 2159/1997 is rejected. We have carefully perused the order of the District Forum to satisfy ourselves about its legality and regularity. We find that inspite of the directions of the Honble High Court of Andhra Pradesh in W.P. No. 10268/1996 dated 5.6.1996, the opposite parties in O.P. No. 618 /1996 did not give service connection to the complainants borewell for agricultural purposes. It was under those circumstances that the District Forum directed the opposite parties to provide service connection and by order dated 30.6.1997 also directed the opposite parties to pay compensation of Rs. 5,000/ - and costs of Rs. 1,000/ -. In view of the fact that even till the date of the order the service connection was not granted, we do not find any illegality or irregularity in the order of the District Forum. Appeal dismissed.