IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15146 of 2010(P)
1. C.C.SAMUEL, S/O.CHACKO,
... Petitioner
Vs
1. THE KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE ASSISTANT ENGINEER,
3. THE EXECUTIVE ENGINEER,
4. THE TAHSILDAR (R.R.),
5. THE DY. CHIEF ENGINEER,
For Petitioner :SRI.K.MOHANAKANNAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :29/06/2010
O R D E R
P.R. RAMACHANDRA MENON, J.
..............................................................................
W.P.(C) No. 15146 OF 2010
&
R.P.No. 415 OF 2010
.........................................................................
Dated this the 29th June, 2010
J U D G M E N T
The petitioner in W.P.(C) No. 15416 OF 2010 is
challenging the correctness and sustainability of the demand
placed by the Electricity Board for a sum of Rs.7,83,472/- vide
Ext. P5, so as to record satisfaction under the OTS Scheme. The
petitioner has also preferred R.P. 415 of 2010 before this Court
with respect to the judgment passed earlier in W.P.(C) 12647 of
2010, whereby the Writ Petition filed by the petitioner seeking
for a direction to be issued to the first respondent to furnish
details of the electricity charges in respect of the consumer No.
10166 of Velanthavalam section, was finalised.
2. The sequence of events is as follows:
The petitioner purchased the property in public auction
from the KFC, as per Ext.P1 in W.P.(C) 15146 of 2010, paying
W.P.(C) No. 15146 OF 2010 &
R.P.No. 415 OF 2010
2
the sale consideration, on becoming the successful bidder in the
tender notified by the KFC. Ext.P1 is the sale deed dated
27.08.2008. Subsequently, as per Ext.P2 sale deed, the
petitioner conveyed the property to another person for valuable
sale consideration . However, the vendee therein chose to retain
a sum of Rs.7,83,472/- without being paid to the petitioner, in
view of the fact that there was some liability for the ‘defaulter’
who owned the property earlier, to be cleared to the Board, in
respect of the power supply provided to the unit. The case of the
petitioner was that, despite approaching the authorities of the
Board, proper statement of accounts was not made available,
which compelled the petitioner to approach this Court by filing
W.P.(C) No. 12647 of 2010 with the following prayers:
"(i) Issue a writ of mandamus or any
other appropriate writ commanding the 1st
respondent to furnish the details of electricity
charges due on consumer No. 10166 of
Velanthavalam Section to the petitioner and to
W.P.(C) No. 15146 OF 2010 &
R.P.No. 415 OF 2010
3
receive the arrears without insisting for
payment through Revenue Recovery
proceedings ; and
(ii) to pass such other orders or reliefs as this
Hon’ble Court deems fit in the interest of
justice. ”
After considering the limited nature of the relief prayed for, the
said Writ Petition was disposed of by Ext.P4 judgment,
whereby the first respondent was directed to inform the
petitioner as to the balance amount due to the electricity Board
within one week, on which event, the same was directed to be
satisfied by the petitioner within a further period of one week;
making it clear that, if any default was committed in paying the
balance amount due to the Board, the respondents would be at
liberty to proceed with further steps.
3. The learned Counsel for the petitioner submits that
pursuant to Ext.P4 judgment, Ext.P5 proceedings have been
pursued by the second respondent, whereby a sum of Rs.
W.P.(C) No. 15146 OF 2010 &
R.P.No. 415 OF 2010
4
783472/- was demanded to be cleared by the petitioner, which
according to the petitioner is per se wrong and illegal. The
petitioner filed Ext.P6 and P7 before the 3rd respondent/the
Executive Engineer and approached this Court by filing W.P.(C)
No.15146 of 2010 seeking to quash Ext.P5 and for a diretion to
be given to the 3rd and 5th respondents to consider Exts.P6 and
P7 appeals and to finalise the same after hearing the petitioner,
within a time frame.
4. The learned Counsel for the petitioner submits that the
liability fixed in Ext.P5 is not correct or sustainable. The
learned Counsel submits that the petitioner has also filed
R.P.415 of 2010 seeking to review Ext.P4 judgment to the
limited extent that the petitioner might be reserved with the
liberty to challenge the ‘quantum’ fixed by the respondents,
pursuant to the judgment passed as aforesaid. The liability now
sought to be fixed as per Ext.P5 is stated as not at all correct or
proper, in so far as the power was disconnected in the year
2002, while it was dismantled only in the year 2004 . Referriing
W.P.(C) No. 15146 OF 2010 &
R.P.No. 415 OF 2010
5
to the relevant statutory provisions, it is pointed out that, no
disconnection shall be continued for more than ‘six’ months, on
which event it has to be ‘dismantled’ . This being the position,
the maximum liability could not be more than for a period of
‘six’ months after disconnection in the year 2002. Some other
grounds are also raised wth regard to the actual liability.
5. The prayers in the writ Petition and in the R.P. are
vehemently opposed by the learned Standing Counsel, who
submits that the idea and understanding of the petitioner is quite
wrong and misconceived. The learned Standing Counsel further
points out that the petitioner did never have a challenge with
regard to the ‘quantum’ involved, as discernible from
paragraph 8 of the W.P.(C) 12647 of 2010, which is extracted
below:
“the petitioner respectfully wishes to submit
that the 1st respondent is not justified in trying
to wriggle out from the enforcement of demand
of arrears of elelctricity charges due under
consumer No.10166 even after the successor in
W.P.(C) No. 15146 OF 2010 &
R.P.No. 415 OF 20106
interest expresses his willingness to clear the
arrears of electricity charges legitimately due
by the predecessor in interest. Aggrieverd by
the lethargic attitude of the 1st respondent in
refusing to accept the payment of arrears of
electicity charges the petitioner is highly
aggrieved and left with no other efficacious or
alternative remedy the petition is preferring this
Writ Petition under Article 226 of the
Constitution of India, on the following among
other…”
It is after taking note of the specitic contention that the
amount/liability was never disputed, Ext.P4 judgment was passed
by this Court, of course after hearing the Counsel (represented
through another lawyer at that point of time ), directing the
respondents to provide a statement of accounts enabling the
petitioner to clear the liability within a further period of one
week . This being the position, the petitioner is not justified in
challenging the ‘quantum’ , submits the learned Counsel.
6. This Court finds considerable force in the said
W.P.(C) No. 15146 OF 2010 &
R.P.No. 415 OF 2010
7
submission. This Court finds that there is absolutely no error
apparent on the face of the records, so as to call for any
interference exercising the power of review. More so, in view
of the law declared by the Apex Court in Meera Bhanja vs.
Nirmala Kumari Choudhury (AIR 1995 SC 455 ), holding
that the Review Petition cannot be taken as a substiutute for
appeal. That apart, it is more obviouis to note that the original
defaulter did never have a case with regard to the liability to be
satisfied to the Board. So also, the property was notified to be
sold in ‘public auction’, which does not form the subject matter of
challenge in the Writ Petition. It is also conceded that the
property was purchased by the petitioner being the successful
bidder, in response to the tender notified in the year 2004.
After bidding the property ‘in as is, where is condition’ and after
having approached this Court by filing the W.P(C)No.12647 of
2010, leading to Ext. P4 judgment, assuring and undertaking to
satisfy the entire liability, it is no more open to take a ‘U’ turn
and to seek to step into the shoes of the original defaulter to
W.P.(C) No. 15146 OF 2010 &
R.P.No. 415 OF 2010
8
challenge the correctness/sustainability of the liability to be
cleared by the original defaulter.
7. In the above circumstances, this Court finds no merit
either in the Writ Petition or in the R.P.. However, taking note
of the persuasive submissions made by the petitioner that he
may be permitted to clear the liability in a phased manner, this
Court finds it fit and proper to have the liability satisfied by way
of ‘four’ equal monthly installments ( since the amount was not
quantified when the matter was finalised as per Ext.P4
judgment), with accrued interest if any. The first installment
shall be satisfied on or before 30.07.2010, to be followed by
similar installments to be effected on or before the 30th of the
succeeding months. Subject to this, the recovery proceedings
against the petitioner shall be kept in abeyance for the time
being . If any default is made in clearing the due amount as
above, it will be open for the respondents to proceed with further
steps for realization of the entire amount in lump sum, by
pursuing such steps from the stage where it stands now.
W.P.(C) No. 15146 OF 2010 &
R.P.No. 415 OF 2010
9
Interference is declined and both the Writ Petition and the Review
Petition are dismissed, subject to the observations made above.
P.R. RAMACHANDRA MENON,
JUDGE.
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