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2015 DIGILAW 572 (JK)

Mir Mubashir Shuja v. Ab. Samad Wani

2015-11-03

ALI MOHD.MAGREY, MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Vide order impugned dated 22.07.2014, State Consumer Disputes Redressal Commission, Srinagar, has awarded Rs. 3.75 lacs each in favour of Shahid Rafiq, Farhan, Sumair Rashid, Mohammad Yaqoob Wani and Tafheem-ul-Alam, Rs. 3.70/- lacs in favour of Mehak Zahoor and Rs. 3.65/- lacs in favour of Babar Mushtaq and compensation of Rs. 25,000/- each for agony, harassment, wastage of time and litigation costs suffered by them. Appellant has been held liable to pay the same. Aggrieved by the said award dated 22.07.2014, the appellant initially filed a petition for review before the State Commission which at the request of counsel for the appellant was dismissed as withdrawn with liberty to the appellant to seek appropriate legal remedy, if so advised. The appellant instead of filing a statutory appeal as prescribed under Section 17 of the J & K Consumer Protection Act, filed a writ petition bearing OWP No. 829/2015 which, in terms of order dated 12.05.2015, on the submission of counsel for the appellant has been permitted to be withdrawn with liberty to the appellant to file statutory appeal. 2. The period of limitation prescribed for preferring appeal against an award is 30(thirty) days which period has since expired, as a result whereof, appellant has chosen to file three appeals, as such, has filed above referred three applications seeking condonation of delay and has also filed three more applications in three appeals seeking exemption from depositing 25% of the award money. 3. Counsel appearing for the respondents opposed the prayer for condonation on two counts, first that there is no plausible explanation for condoning the delay, and second the memorandum of three appeals accompanying three applications seeking condonation of delay are not accompanied by a certificate issued by the Chairman of the State Commission to the effect that the appellant has deposited 25% of the award amount and instead appellant has sought exemption which is not permissible. Supporting his submission, has relied on the judgment of Division Bench of this Court rendered in the case of Abdul Qayoom Karimi v. Consumers of Bandipora & Gurez (COD No. 182/2008). Following para from the said judgment is relevant to be quoted: "The right of appeal, being statutory in nature, the right conferred by the Statute can only be exercised in terms of the provisions contained therein. Following para from the said judgment is relevant to be quoted: "The right of appeal, being statutory in nature, the right conferred by the Statute can only be exercised in terms of the provisions contained therein. The Appellate Court has not been authorised to dispense with the condition imposed by the Statute while conferring the right to prefer an appeal." 4. Section 17 of the J & K Consumers Protection Act provides for an appeal against the order of State Commission to be filed within 30(thirty) days from the date of order. Proviso 3rd reads as under: "Provided also that no appeal shall lie unless the memorandum of appeal is accompanied by a certificate issued by the Chairman State Commission to the effect that the appellant has deposited 25% of the amount payable under the order." This Proviso is pari materia to third Proviso to Section 30 of the Workmen's Compensation Act, which, for facility of reference is quoted here-under: "Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate issued by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against." 5. The Division Bench of this Court while referring the judgment in the case titled Amar Nath Baldev Forest Lessees (Firm) v. Des Raj & 2 Ors. (CIMA No. 50/1982) decided on 30.10.1987 (SLJ 1991 297) : JKJ Soft JKJ/10462, has held that necessity of filing of certificate of payment along with memo of appeal is a mandatory requirement. In the reported judgment the award passed by the Commissioner, Workmen's Compensation Act (Assistant Labour Commissioner) was challenged by medium of an appeal which was accompanied by a cheque of Rs. 23,310/- payable to the Deputy Registrar, High Court, Jammu. The respondent therein challenged the maintainability of the appeal on the plea that the appeal is not accompanied by the certificate of payment of the awarded amount under the proviso to sub-section (1) of Section 30 of the Act. The appeal is barred by limitation because it cannot be deemed to be properly presented unless accompanied by the certificate as required. The appeal is barred by limitation because it cannot be deemed to be properly presented unless accompanied by the certificate as required. In view of the objection on the point of limitation, an application was filed seeking condonation of delay in making the deposit with the Assistant Labour Commissioner accompanied by the certificate of payment of amount of Rs. 23,310/-. The question arose as to whether delay could be condoned and whether the appeal could be held competent in absence of certificate of payment along with the appeal. Following portion from para 7 and 8 is relevant to be quoted: "7. It is the mandate of law, the fulfillment of which is a condition precedent for the entertainment of an appeal as the words "no appeal by an employer under clause (a) shall lie" makes it abundantly clear the non-compliance of which makes the appeal in-competent. In order to get the benefit of Section 5 of the Limitation Act, it is not sufficient merely to show that the appellant was under a genuine impression and believing upon the deposited cheque with the appeal or that he never intended to avoid to deposit the awarded amount and filed the certificate by depositing the amount after a long lapse of about 11/2 years, it cannot be either termed as bona fide nor sufficient cause within the meaning of Section 5 of the Limitation Act. We, therefore, find that there is no sufficient cause available to the petitioner/appellant to get the delay condoned in depositing the amount and filing the certificate, which admittedly did not accompany the Memo of Appeal, which is in clear violation of proviso 3 to sub-section 30 of the Act. The provision of filing the certificate along with the Memo of appeal being mandatory, strict compliance is necessary. The application for condonation of delay is, therefore, rejected. 8. As a result of rejection of the application condonation of delay, the present appeal in the absence of the accompanying certificate as required under proviso 3 to sub-section (1) of Section 30 of the Act, which is a mandatory requirement, the appeal becomes in-competent and the defect is not cured by presentation of the cheque with the Memo of Appeal in the High Court. We have already taken a similar view in Civil 1st Misc. Appeal Nos. We have already taken a similar view in Civil 1st Misc. Appeal Nos. 81 of 1982 (Executive Engineer, Flood Control Division, Aknoor v. Smt. Swarna Devi & others) and for the non-compliance of the proviso for not filing the certificate along with the appeal dismissed the appeal as not maintainable by order dated December 29, 1986. The appeal, therefore, fails being incompetent and not maintainable. This also disposes of CMP No. 155, there shall be no order as to costs." 6. Applying the principle as has been laid down, to the present case, it can be safely concluded that the appeal if at all entertained after condonation of delay has to be dismissed as being incompetent and not maintainable for want of satisfying the pre-condition as envisaged by Proviso 3rd to Section 17 of the J & K Consumers Protection Act. 7. The Legislature in its wisdom, for advancing the object of the Consumers Protection Act and to make it more consumer friendly, has provided a particular mode and method for entertaining appeal as embodied in Section 17 of the J & K Consumers Protection Act. Same is not open to be diluted. To hold otherwise, would amount to rewriting the statute which is not the domain of the Court. 8. Learned counsel for the appellant tried to project that during the pendency of the application seeking condonation of delay as well as application seeking exemption from deposit of 25% of the award amount, in pursuance of direction of the Court dated 27.07.2015, appellant has deposited the statutory amount in all the three cases, therefore, object is achieved. The argument is misplaced. Deposit on direction would not dilute the requirement of law. Another mode and method adopted by the appellant de horse the statutory requirement will not cure the defect of incompetence of the appeal. Such position is already set at rest by the Division Bench of this Court in the case of Abdul Qayoom Karimi v. Consumers of Bandipora & Gurez as referred to above, wherein it has been held that the Appellate Court has not been authorized to dispense with the condition imposed by the Statute while conferring the right to prefer an appeal. 9. To condone the delay in the afore-stated position of law shall be an otiose because result of the appeal being incompetent is known. 9. To condone the delay in the afore-stated position of law shall be an otiose because result of the appeal being incompetent is known. To condone the delay and then to dismiss the appeal as being incompetent shall be a sheer wastage of time. 10. Aforesaid position apart, even otherwise, delay in preferring the appeal has not been well explained. The award has been passed by the State Commission on 22.07.2014, review petition has been filed on 20th August, 2014 which has been dismissed on 07.05.2015. Then instead of filing statutory appeal, writ petition (OWP) No. 829/2015 has been filed on 08.05.2015 which has been dismissed on 12.05.2015 and then instant applications seeking condonation of delay have been filed on 10.06.2015. The prescribed period of limitation was 30 days. The delay in preferring the appeal has been attempted to be explained by stating that a review petition was filed, then a writ petition was filed, furthermore, in the month of September, 2014 there were floods but the memo of appeal was not accompanied by the certificate of deposit of statutory amount, instead an application was filed for exemption from deposit thereof and then finally in pursuance to the order dated 27.07.2015 appellant was asked to deposit the statutory amount which he has deposited on 29.07.2015, so, in-effect, if at all deposit of statutory amount is taken to have been validly deposited, same has been deposited on 29.07.2015, so on that count also appeal cannot be said to have been filed within time. That apart, the deposit of statutory amount on 29.07.2015 is de horse the statutory requirement i.e. Proviso 3rd to Section 17. Delay in any case cannot be condoned. No doubt it is trite that for condoning the delay, cause projected has to be liberally construed. Even if liberally construed but still end result will remain the same i.e. as already concluded, the appeal filed is incompetent for want of satisfying the statutory requirement as referred to hereinabove. In the totality of the circumstances and the law as referred to above, the applications seeking condonation of delay are dismissed. As a necessary corollary thereto, which otherwise is the conclusion, the appeals as have been filed along with instant applications being barred by limitation and being incompetent shall stand dismissed. In the totality of the circumstances and the law as referred to above, the applications seeking condonation of delay are dismissed. As a necessary corollary thereto, which otherwise is the conclusion, the appeals as have been filed along with instant applications being barred by limitation and being incompetent shall stand dismissed. CIMA No. 143/2014 CIMA No. 133/2014 M/S: I Soft & Sami Yaqoob, Advs. for appellants Instant two appeals having no merit are dismissed. The amount as has been deposited shall be released in favour of the respondents in accordance with the terms of the award. For recovery of balance un-deposited amount, if any, respondents shall be at liberty to take appropriate steps.