IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 476 of 2009()
1. P.SUNDERDAS, AGED 62 YRS,S/O.P.KRISHNAN,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE ASSISTANT ENGINEER,ELECTRICAL
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent : No Appearance
The Hon'ble the Acting Chief Justice MR.J.B.KOSHY
Dated :03/03/2009
O R D E R
J.B. KOSHY, Ag.C.J. &
V.GIRI, J.
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W.A.No.476 of 2009
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Dated this the 3rd day of March, 2009.
JUDGMENT
GIRI, J.
The petitioner, the Managing Director of a Private
Limited Company, filed the writ petition challenging Ext.P3,
insofar as it contained a demand for surcharge. He also
sought for a declaration that the Electricity Board which had
issued Ext.P3 is not entitled to recover the said amount in
view of Section 56(2) of the Electricity Act {for short “the
Act”}. There was an alternative prayer for permission to pay
the amount as shown in Ext.P2 in 50 instalments excluding
surcharge. Learned single Judge repelled the contention and
dismissed the writ petition. Hence this writ appeal.
2. The appellant/petitioner is Managing Director of
Cannanore Roller Flour Mills Private Limited, Kannur. It has
an LT IV connection. The multiplication factor adopted by
W.A.No.476 of 2009
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the Board in relation to the consumer is 40. But for some
reason, during the period from September, 2005 to October,
2008, 20 was adopted as the multiplication factor instead of
40. It naturally resulted in short levy of charges actually due
from the consumer. On realising the mistake, Ext.P2
additional invoice was issued. The petitioner did not have any
dispute as regards the actual charges payable under Ext.P2.
But, the petitioner prayed for facility to pay the said amount
in instalments. Though the petitioner requested for 50
instalments, the Board granted only 24 instalments as
evidenced by Ext.P3. But, since the instalment facility was
granted, the Board also levied surcharge on such charges,
commencing from the second instalment. The writ petition
was filed essentially challenging the levy of surcharge on the
instalments so levied under Ext.P2. Learned single Judge
repelled the contention and hence this appeal.
3. The only point that has been urged in this appeal
is that the additional invoice came to be issued, not on
W.A.No.476 of 2009
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account of the fault of the consumer, but on account of the
fault committed by the Board. Therefore, surcharge ought
not to have been levied thereon. It is true that adoption of
20 as a multiplication factor instead of 40, was not on account
of the mistake that can be attributed to the consumer and
therefore, if surcharge has been levied for the period up to
the detection of the mistake, then as rightly noted by the
learned single Judge, the contention raised by the consumer
in that regard would have merited acceptance, but what
happened in the instant case is that on realising the mistake,
an additional invoice is issued. The said additional invoice, as
evidenced by Ext.P2 was comprised only of the short
collection of current charges along with the leviable duty
thereon. Had the petitioner, on realising the mistake,
remitted the amount due under Ext.P2, then he would not
have faced the demand for surcharge which is actually
interest on belated payment. But such surcharge is imposed
under Ext.P3 only because the appellant requested for
W.A.No.476 of 2009
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instalments. Therefore, though the amount became payable,
at least, on the service of demand under Ext.P2, the
appellant was granted the facility to pay the same in 24
instalments. Such a facility obviously could be availed, only if
the consumer was ready to pay interest on such belated
payments. Interest is levied only for the period subsequent to
the service of the demand notice and not for the period prior
thereto. If that be so, the imposition of surcharge under
Ext.P3, which is only another name for interest on belated
payments is perfectly justified.
4. The other contention raised before the learned
single Judge under Section 56(2) of the Act really does not
arise for consideration in the facts and circumstances of the
case. The contention regarding the bar of limitation arising
under Section 56(2) of the Act was raised only in relation to
the imposition of surcharge. The surcharge came to be
imposed only on acceptance of the appellant’s demand for
facility to pay the amount due under Ext.P2 in instalments.
W.A.No.476 of 2009
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The appellant had not disputed his liability to pay the
amounts due under Ext.P2.
We are in complete agreement with the findings of
the learned single Judge. We see no merit in this appeal and
accordingly, the same is dismissed. The appellant is granted
time upto 15.03.2009 to pay the 3rd instalment. But it is
made clear that no extension as such is contemplated in
relation to the other instalments.
Sd/-
(J.B. KOSHY)
ACTING CHIEF JUSTICE
Sd/-
(V.GIRI)
JUDGE
sk/
//true copy//
P.S. to Judge