JUSTICE J. M. MALIK, PRESIDING MEMBER

1.       Counsel for the parties present.  Arguments heard.  The facts of this case are these.  Mr. Lalit Kumar, the complainant is the owner of a shop bearing No. 186, situated in Old Anaj Mandi, Near Gurgaon Gramin Bank, Sohna, District Gurgaon.  An electric Pole was erected in front of his shop in the year 1986.  The said electric pole got broken due to an accident and the respondent installed the said electric pole by way of binding of wire with the roof of the complainant’s shop.  The District Forum, vide order dated 30.09.1999, ordered that the binding wire on the roof of the shop was illegal and it was ordered that the broken pole be removed and the wire binding on the roof of the complainant be removed, within 15 days.  No appeal was preferred against this order and this order has attained the finality.

2.       Thereafter, Execution Petition was filed before the District Forum.  The District Forum vide its order dated 22.02.2001, directed the respondent/OP to comply with the order within one month from the date of receipt of the said order, failing which, the respondent would be liable to pay Rs. 50/- per day to the complainant for the delay.

3.       Thereafter, fresh Execution Petition was filed on 04.07.2003.  During the filing of the fresh Execution Petition, a Local Commissioner, Ms. Sunita Bhargave was appointed.  The relevant extract of report of the Local Commissioner runs as follows:-

        “I am shown the shop of the complainant in site plan marked by letters A B C D and I have shown the new pole on point ‘X’ which was erected on the spot and I have shown the old broken pole on point ‘Y’ which was erected on the spot and wires of the said pole were lying on the roof of the shop of the complainant.  A gap between point ‘X’ and ‘Y’ is near about 4 inches and gap between point ‘Y’ and ‘D’ is near about 6” and gap between point ‘X’ and ‘D’ is near about 10”.  There are no difficulty on the spot if the new pole is erected on point ‘D’ i.e. corner of the shop which will just and proper for the parties in dispute.”

4.       Ultimately the order was passed by the District Forum on 13.08.2004, which runs as follows:-

“The SDO HVPN, appeared and made a statement that the compliance or the order has been made and the pole has been erected and wires binding on the shop have been removed.  Heard.  In view of the statement so made today, we do not find and force in this petitioner which is therefore, dismissed, file be consigned.”

5.       Thereafter, the complainant filed the fresh Execution Petition on 04.11.2006 wherein it was prayed that penalty (approx.Rs. 55000/-) be paid to the decree holder.  The District Forum dismissed the fresh Execution Petition and passed the following order:-

“Heard.  Our attention has been drawn towards the order of this Forum dated 13.08.2004 by which the earlier execution petition was dismissed as satisfied on the statement of SDO of the opposite party.  Present execution application in view of the above is not maintainable.  Hence, the same is dismissed.  File be consigned to the records after making due compliance.”

6.       Aggrieved by that order, appeal was preferred before the State Commission, which also dismissed the same.

7.       We have heard the counsel for the parties.  Learned counsel for the petitioner has reiterated the above said facts.  Counsel for the respondent submits that the stand taken by the petitioner is contradictory.  On the one hand, he admits that SDM had done the needful on 13.08.2004, but on the other hand in para No. 6 of the fresh petition, it was averred that the respondent had made a false statement before the Hon’ble Forum on 13.08.2004 to this effect.  Second submission made by the counsel for the petitioner was that the petitioner did not state the exact date when the needful was done.  He has not come to the Court with clean hands.  The attention of this Commission was invited towards averment made in the fresh Execution Petition’s Para No. 5, wherein it is stated:-

“5.    That on 11.05.2004 the employees of the respondent came to the premises/shop of the petitioner for changing of broken pole without paying of previous penalty as per order dated 22.02.2001 and also with illegal manners just for harassment of  the petitioner to affix the new pole on the front of the shop of the petitioner as per shown in the site plan marked by the letters ‘X’ shown in red colour in the site plan at attached with this petition while the previous broken pole was installed on point ‘E’ shown in blue colour in the site plan attached on the corner of the shop of the petitioner.”

8.       We find force in the arguments advanced by the counsel for the respondent/OP, in a measure.  It is true that the complainant could not prove the date when the decree was complied with partly.   These are  his mere assertions, which are not supported by any evidence.  However, the report of the Local Commissioner clearly goes to show that the pole on point ‘X’, which was erected on the spot, wires of the pole were still lying on the shop of the complainant.  She also reported that broken pole was lying at point ‘Y’.  On 22.02.2001, the respondent was directed to comply with the order within one month.  However, the needful was not done.  Consequently, the OP is liable to pay the penalty in the sum of Rs. 50/- per day to the complainant for the delay from 22.03.2001 to the date of the report made by the Local Commissioner on 04.06.2004.  It must be borne in mind that the order dated 22.03.2001 has also attained the finality.  No appeal was preferred against that order.

9.       The complainant has filed the computation sheet, which goes to show that the petitioner is liable to pay Rs. 62050/- for the period from 22.03.2001 to 13.08.2004.  The said computation runs as follows:-

10.     We find that the last two serials cannot be taken into account.  The OP is liable to pay the amount from 22.03.2001 to 21.05.2004 (Sr. No. 1 to 5) and from 22.05.2004 to 04.06.2004.  Total comes to Rs. 57,920/-.

11.     It is surprising to note that the OP could not produce its record to show as to when did it comply with the order of the District Forum. Surprisingly, the counsel for the OP argued that it is the complainant and nobody else, who is to carry the ball in proving his case.  We are unable to subscribe to his views.  The Fora had directed the OP to do the needful.  Onus of proof lies on the OP to show the proof that it had complied with the order on such and such day.  It shows that the OP does not maintain its record.  The OP is terribly remiss in the discharge of its duties.  They have rather committed the contempt of Court.  The action of the OP is arbitrary, arrogant & despotic.

12.     The action of the OP also smacks of malafide intention.  The distance between the old and the new poles is about 4 inches only.  Instead of erecting the pole at point ‘D’, that is the corner of the shop of the complainant, it would have redressed the grievance to the complainant, but it further made arrangements in erecting the pole nearby to harass the petitioner further.  This was just an eye wash.  It means that the complainant would have to file a new complaint for removal of new pole at point ‘X’.

13.     Keeping in view all the facts and circumstances of the case, we hereby order that the OP will pay penalty of Rs. 57,920/- to the petitioner, within a period of 90 days from the receipt of this order.  We have already taken the lenient view on the OP and have not imposed any further interest and compensation.  However, in case the said amount is not paid, within the above said 90 days, it will carry interest @ 9% till the date of its realization.  Nothing will debar the OP to recover this amount from the concerned S.D.O., who is responsible for disobedience of the order of the Fora below and has adopted contemptuous attitude towards the Consumer Forum.

14.     The Revision Petition stands disposed of.