IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY,THE 4TH DAY OF JANUARY 2021/14TH POUSHA, 1942
WP(C).No.22364 OF 2011(U)
PETITIONER:
MARARIKULAM SOUTH GRAMA PANCHAYATH,
KATTOOR P.O., KALAVOOR, ALAPPUZHA,
REPRESENTED BY ITS SECRETARY.
BY ADV. SRI.R.AZAD BABU
RESPONDENT:
V.BHASKARAN, S/O VASU,
KADAPPURATHU HOUSE, M.S.P WARD NO.V,,
T.M.P.L.S WARD, KALAVOOR.P.O.,
ALAPPUZHA-688 001.
BY ADV. DR.V.N.SANKARJEE
BY ADV. SMT.R.UDAYA JYOTHI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 04-01-2021 THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WPC No.22364/2011
:2:
JUDGMENT
~~~~~~~~~ Dated this the 4th day of January, 2021 The petitioner-Mararikulam South Panchayat is challenging Ext.P8 order of the Kerala State Consumer Disputes Redressal Commission in Restoration No.9/2011.
2. From the pleading, it is seen that the respondent filed CC No.38/2009 before the Consumer Disputes Redressal Forum, Alappuzha invoking Section 12 of the Consumer Protection Act. In the complaint, the respondent alleged that he was Convenor of a Committee selected by the Panchayat for undertaking deepening work of a canal passing through Ward Nos.3 and 4 of the Panchayat, having length of about 550 metres. The work was executed and completion of the work was reported to the petitioner. The petitioner did not make any payment. The respondent therefore sought for an Award directing the petitioner to pay WPC No.22364/2011 :3: ₹44,000/- along with 18% interest from 31.03.2005. In addition, a compensation of ₹10,000/- was also sought for.
3. Though the Consumer Disputes Reddressal Forum, Alappuzha issued notice to the petitioner, the petitioner did not appear before the Forum, nor did file their version. Finding that the petitioner is continuously absent, the Forum set the petitioner ex parte on 14.07.2008. Finally, Ext.P2 order was passed on 29.08.2008 whereby the petitioner was directed to release the amount of ₹44,000/- to the respondent along with 18% interest. A compensation of ₹2,000/- and cost of ₹1,000/- were also awarded.
4. It appears that about four months thereafter, the petitioner filed IA No.282/2008 to set aside Ext.P2 order of the District Forum. The District Forum, as per Ext.P3 order dated 27.12.2008, dismissed the said application filed by the petitioner.
5. Ext.P3 order was passed on 27.12.2008. The petitioner filed First Appeal No.26/2009 before the Consumer Disputes Redressal State Forum, Thiruvananthapuram on WPC No.22364/2011 :4: 13.01.2009. It is seen from Ext.P8 order that the petitioner was not pursuing the appeal properly and the appeal was dismissed for default. The State Commission noted that the matter is of the year 2008 and the petitioner was not pursuing the case diligently. The State Commission found that there is gross lapse on the part of the petitioner which amounts to abuse of the process of the Forum and of the State Commission. The State Commission accordingly dismissed the restoration application filed by the petitioner as per Ext.P8 order. The petitioner is before this Court seeking to quash Ext.P8 and order restoration of the case before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram.
6. The learned counsel for the petitioner would urge that the Commission should have found that the petitioner's counsel from Alappuzha could not reach Thiruvananthapuram on time to represent in IA No.827/2010. Another Advocate to whom the petitioner's counsel made a request to make representation, also could not make an WPC No.22364/2011 :5: effective representation. There was no negligence on the part of the petitioner or his counsel in making representation in time.
7. The learned counsel for the petitioner pointed out that the State Commission lost sight of the fact that the petitioner is a Grama Panchayat represented by its Secretary and can act only on instructions from the Superiors. The State Commission ought to have found that the petitioner has got very valid contentions to be agitated before the Forum and hence dismissal of the restoration petition resulted in grave prejudice and loss to the petitioner.
8. The learned counsel for the respondent argued that the amount directed to be paid to the respondent is the expenditure the respondent had incurred to complete the work of deepening wall passing through Ward Nos.3 and 4 of the Mararikulam South Grama Panchayat. Ext.R1(a) detailed estimate prepared and submitted by the Assistant Engineer, LSGD (PWD), Mararikulam South Grama Panchayat would show that the respondent has completed WPC No.22364/2011 :6: the work and amounts are due to the respondent. The petitioner was not diligent in defending the case, both before the District Forum and State Commission. Interference by this Court with the impugned orders at this distance of time would cause undue hardship to the respondent.
9. Heard.
10. I have perused the pleadings and considered the arguments advanced. The respondent had carried out a work as Convenor of a Committee selected by the petitioner. There are materials on record to show that amounts are due to the respondent. The respondent filed a consumer case about 13 years ago seeking the amounts due to him. The petitioner remained ex parte in the proceedings and accordingly Ext.P2 order was passed on 29.08.2008.
11. Thereafter, the petitioner filed First Appeal No.26/2009 before the State Commission on 13.01.2009. The said appeal was dismissed by the State Commission on 24.02.2010, again for the default of the petitioner to appear personally or through counsel. After the dismissal of the WPC No.22364/2011 :7: appeal for default in the year 2010, the petitioner filed a restoration application in the year 2011. The said restoration application was dismissed on 24.02.2011. It is seen that the writ petition against Ext.P8 was filed only on 11.08.2011, about six months thereafter.
12. The pleadings would disclose that the petitioner has been consistently defaulting in defending the case before the District Forum as well as State Commission. The respondent filed the claim in the year 2008. The petitioner has no case even in this writ petition that no amounts are due to the respondent. Interference with the orders of the District Forum and State Commission would be a travesty of justice at this distance of time.
In the circumstances, this Court finds that the writ petition is devoid of merits and consequently it is dismissed.
Sd/-
N. NAGARESH, JUDGE aks/23.12.2020 WPC No.22364/2011 :8: APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMPLAINT IN C.C.NO.38/2009 DATED 20.02.2008.
EXHIBIT P2 TRUE COPY OF THE EXPARTE ORDER DATED 29.08.2008 PASSED BY THE CDRF EXHIBIT P3 TRUE COPY OF THE ORDER DATED 27-12-2008 DISMISSING IA NO.282/2008 PASSED BY THE CDRF.
EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM DATED 13-1-2009 FILED BEFORE THE STATE COMMISSION.
EXHIBIT P5 TRUE COPY OF I.A.NO.48/2009 DATED 13-1-
2009 TO CONDONE DELAY FILED BEFORE THE STATE COMMISSION.
EXHIBIT P6 TRUE COPY OF I.A.NO.827/2010 DATED 23-3-
2010 FOR RE-ADMITTING THE APPEAL, FILED BEFORE THE STATE COMMISSION.
EXHIBIT P7 TRUE COPY OF THE PETITION FILED FOR RESTORING IA.NO.827/2010 FILED BEFORE THE STATE COMMISSION.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 24.02.2011 PASSED BY THE STATE COMMISSION.
RESPONDENT'S EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE DETAILED ESTIMATE
PREPARED AND SUBMITTED BY THE
ASSISTANT ENGINEER LSGD(PW),
MARARIKULAM SOUTH GRAMA PANCHAYAT.