IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 623 of 2008()
1. THE KERALA STATE ELECTRICITY BOARD,
... Petitioner
2. THE ASSISTANT ENGINEER,
3. THE EXECUTIVE ENGINEER,
Vs
1. WILFRED SATHYRAJ, S/O.SATHYRAJ,
... Respondent
For Petitioner :SRI.C.K.KARUNAKARAN, SC FOR KSEB
For Respondent :SRI.ABRAHAM MATHEW (VETTOOR)
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :04/11/2010
O R D E R
K.M.JOSEPH & M.C.HARI RANI, JJ.
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W.A.No.623 of 2008
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Dated, this the 4th day of November, 2010
J U D G M E N T
K.M.Joseph, J.
Appellants are the respondents in the writ petition.
The respondent herein filed the writ petition out of which this
Writ Appeal arises, seeking the following reliefs :-
“i. Issue a writ of certiorari or other appropriate
writs orders or directions quashing Ext.P13.
ii. Issue a writ of mandamus or other
appropriate writs orders or directions commanding
the respondents to reconnect the power supply
under consumer No.2705 which has been assigned
with new No.10555 forthwith.
iii. Issue appropriate directions to the 3rd
respondent to re-compute the fixed charge and
current charges so far collected and the actual
amount chargeable by him from the petitioner with
reference to the category of connection and actual
consumption and to refund the excess amounts so
far collected to the petitioner.
iv. Issue appropriate writs orders or directions
commanding the respondents to dispose off
Ext.P4, Ext.P13 and Ext.P15 representation made
in respect of illegal disconnection and excessive
charging.”
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2. The case of the writ petitioner in brief is as
follows :-
He was conducting a workshop for which the 2nd
appellant sanctioned power connection in consumer No.2705
with a connected power load of 7.76 kilo watts. In 1986, he
made arrangements to start an automobile service station and
he started it in 1989. Though the appellant had allotted a
separate meter for the service station, the consumption in the
Engineering Unit and the service station were clubbed without
providing separate consumer number and accordingly has
been issuing a single bill for each month. After few months,
the appellant removed one meter and connected the entire
load through the old meter No.2705 allotted to the
Engineering Industry. Subsequently they issued a notice to
disconnect the excess load of 9.24 kilo watts as if the
petitioner connected the same to the old meter. Despite the
disconnection notice, an additional bill dated 20.11.1999 was
sent calling upon the petitioner to pay Rs.12,842/-.
Appellants estimated the units consumed for the service
station at 420 units. The petitioner requested the details and
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he filed a suit as O.S.No.792/1999 before the Munsiff’s Court,
Nedumangad for restraining the recovery of the disputed bill.
From December, 1999 onwards, the respondents have been
charging the entire consumption under LT VII category.
Petitioner was served Ext.P2 additional bill. Petitioner filed
writ petition for directing the respondents to restore the
connection and also to provide separate meters for both the
connections. As per Ext.P3 judgment, the respondents
restored the power supply on receiving Rs.30,000/- and still
they did not provide any separate meter as directed by this
Court. Complying with the direction of this Court, the
petitioner filed Ext.P4 appeal. In the year 2000, the fixed
charge was at Rs.765/- (Ext.P5 bill). Thereafter various bills
are produced as Exts.P6, P7 and P8. Aggrieved by above, the
petitioner made Ext.P9 representation. He did not get full
justice and he relies on Exts.P10 and P12 and he states that
the amounts in the various bills are unreasonable and
baseless. Petitioner made Ext.P14 representation followed by
Ext.P15.
3. A counter affidavit is filed by the 2nd
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respondent. In the counter it is inter alia stated as follows:-
” It is respectfully submitted that the petitioner was
running an automobile workshop and a vehicle service
station simultaneously. As per the tariff orders
automobile workshop comes under LT IV tariff and
service station comes under LT VII A tariff. The
workshop was started in the year 1974 under LT IV tariff
with consumer No.2705 with a connected load of 7.76
KW. The automobile service station was started near
the workshop by the petitioner in 1989 and at that time
he was consuming power for the service station also
from the above consumer number. Subsequently the
service station was segregated from the above consumer
number and a new connection with consumer No.2705A
having a connected load 9.24 KW was assigned to the
service station from April 1995 onwards.
” Earlier the consumer was paying energy charges
for above two premises till April 1995 under LT IV tariff.
But from May 1995 onwards the consumer No.2705A
come under LT VII A tariff. The provisional invoice card
system was introduced from 1995 at the rate of Rs.478
per month to the consumer No.2705. But the consumer
refused to pay the amount at the higher tariff and
consequently the supply to Consumer No.2705 A was
disconnected on 10.6.1998. As on the date of
disconnection the reading on the meter was 6214 and
subsequently on inspection in the premises, on
27.9.1999 it was noticed that the reading was changed
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to 8926 which clearly indicates that the machinery in the
service station were run by the petitioner by
unauthorizedly reconnecting the disconnected supply.
Therefore the petitioner was assessed for illegal
abstraction of energy to consumer No.2705A from
consumer No.2705. An arrear notice dated 16.7.1998
for Rs.22080/- was issued to the consumer. Challenging
that notice the petitioner filed OS 494 of 1998 before the
Munsiff Court, Nedumangad and that suit was dismissed
on 31.8.2000. Subsequently the premises were
inspected by the Assistant Executive Engineer on
25.10.1999 and a mahazar was prepared. A true copy
of the said mahazar dated 25.10.1999 is produced
herewith marked as Exhibit R2 (a). In Exhibit R2(a) it is
clearly found that the petitioner was engaged in
unauthorizedly connecting the supply from consumer
No.2705 to 2705A and consumer No.2706. Consumer
No.2706 is the disconnected domestic connection of the
petitioner. So petitioner was found to be a habitual
misuser of electricity. Thereafter as per registered
notice dated 26.9.1999 he was directed to dismantle the
unauthorized load to consumer No.2705A. On receipt of
that notice, the petitioner filed O.S.No.792/1999 before
the Munsiff court, Nedumangad challenging that
demand. The above suit was withdrawn by the
consumer on 7.12.2001. Misuse of energy from lower
tariff to higher tariff was billed at penal rate for higher
tariff as per rules.”
WA No.623/2008 -6-
4. It is further stated that during the pendency of
the suit petitioner filed OP before this Court challenging Ext.P2
demand and it was disposed of directing the Executive
Engineer to consider the appeal to be filed by the petitioner
and to pass orders thereon. Accordingly, the Executive
Engineer issued Ext.R2(b) order. It is found that the
appellant/writ petitioner is liable to pay current charges at the
rate applicable to LT VIIA tariff and directed to recover the
entire amount from the petitioner. The copy of the order was
despatched to the petitioner as per No.25 at 15.11.2002. It
appears that, the petitioner has not challenged the said order
even after receipt of the same.
5. Petitioner filed reply affidavit producing
Exts.P16 to P18f. It is inter alia stated as follows: Through
one meter the respondents were reading the consumption for
lighting purpose and through the other meter they were
reading the energy used for the service station. No
connection under No.2705A has been provided by way of
segregation or otherwise. The officers under the respondents
were ascertaining the consumption on reading both the meters
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and the current charges were determined on calculating
charge under LT IV in respect of one meter and under LT VII
in respect of the power meter. Such a course continued for
several years. The consumption under both the meters have
been separately noted in those invoices. Ext.P16 is produced
as demand notice showing collection of Rs.765/- as fixed
charges and collection charges of Rs.5 under LT VIIA for 144
units. The entire consumption is charged under LT VIIA. The
further bills are produced as Ext.P17 and P18 series. He
denies the allegation that after disconnection of supply to the
service station he has been continuing with the service station
by willfully connecting the service station load to the consumer
No.2705 illegally. It is also contended that the appeal filed
has not been disposed of and no communication to that effect
has been issued by the Executive Engineer or by any other
respondents. It is stated that if at all there is an order dated
15.11.2002, that can only be a fabricated one. LT IV
connection with No.2705 is not sanctioned on 3.12.1987. The
entire demand made under Exts.P2 and P13 are false and the
amount of RS.30,000/- is liable to be refunded. When he
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proposed to start an auto service station he applied for
additional power allocation for establishing service station. It
was sanctioned as per Ext.P1. Subsequently, respondents
installed a higher capacity meter for the motor connection on
changing the old meter. He denies the allegation as false that
on the basis of 1994 tariff revision order, the service station
was classified under LT VIIA segregating the same from
consumer No.2705 and numbered as 2705A with additional
meter from May 1995. He has not defaulted any bills.
Respondents have never issued separate monthly bills for the
service station.
6. Learned Single Judge after referring to the
facts finds as follows. The entire bills are raised at commercial
tariff which is not justified because petitioner was admittedly
running workshop which was his first business. And then the
learned Judge proceeds to find that order calls for
modification because 1/3rd of the demand is attributable to
penal interest. Moreover, it is reported that petitioner has
closed business and the Board itself allowed the petitioner to
continue service station for three years without raising any
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bills or recovering any amount. Since the entire consumption
was not under commercial tariff the learned Judge reduced
the amount payable under the disputed bill to Rs.30,000/-
which has already been paid by the petitioner. The writ
petition was closed observing that if the petitioner is liable to
pay any other amount under conditional orders, respondents
are free to recover such amounts. It is feeling aggrieved by
the said decision, the appellants are before us.
7. We heard Sri.C.K.Karunanakaran, learned
counsel for the appellants and Sri.Abraham Mathew, learned
counsel for the respondent. Learned counsel for the
appellants would contend that Rs.30,000/- was paid only as a
condition pursuant to the direction by the learned Single Judge
in the earlier order of litigation. The petitioner has filed an
appeal against Ext.P2 and that culminated in Ext.R2(b). The
said order passed by the appellate authority has not been
challenged by the petitioner and that has become final. In
terms of the said order,the appellant remains liable to pay the
amount demanded under the original demand. The appellant
having paid Rs.30,000/- as directed by this Court, the
WA No.623/2008 -10-
authority has given due credit to the amount of Rs.30,000/-
paid in the original demand of Rs.53518/- in Ext.P2.
Appellants have only demanded the balance amount and
interest payable as per law. The learned counsel for the
appellants would further contend that inspection revealed that
the petitioner was making use of the connection under
No.2705 for the purpose of running service station for which
Consumer No.2705A was sanctioned. He would submit that in
such circumstances, particularly when the appellate order is
not challenged the learned Single Judge ought not to have
limited recovery of the amount to Rs.30,000/- which has
already been paid.
8. Per contra, learned counsel for the
respondent/petitioner would contend as follows: He would
submit that as contended by him in the petition and in the
reply affidavit though there is a direction to install separate
meters there is no separate meter. The current was
measured through a common meter and only a single bill was
being issued to the respondent. He would further contend
that actually Ext.R2(b) order cannot be relied on. He
WA No.623/2008 -11-
reiterates his contentions. He also submitted that as noted
by the learned Single Judge the entire consumption is built
under Chapter VIIA (commercial) even though good part of it
would have been consumed for running the workshop which is
to be charged under LT IV category. Learned Single Judge
has taken an equitable decision and no interference is called
for. He would reiterate the facts.
9. The writ petitioner/respondent was running a
workshop under consumer No.2705 from the year 1974.
Some time in the late 1980s he also decided to start a service
station. After allocation he started the service station. The
consumer No. was 2705A. He had also domestic consumer
No.2706. Till 1995 it would appear both the work shop and
service station were categories exigible to the same tariff.
From 1995 the service stations were categorised under
commercial category and came under LT VIIA. In other
words, the tariff became higher for the service stations in
comparison to the workshop. It would appear that, demands
for payment of bills for the service station was sent on the
basis of new tariff order of 1994. There was refusal to pay.
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Consequently, connection of service station was disconnected.
Of course, the writ petitioner would contend that it was not
disconnected. But, we see no reason why we should
disbelieve the version of the appellant that it was
disconnected. Subsequently there was an inspection. In the
course of inspection it was found that the service station being
run on the basis of power being taken from consumer No.2705
namely, the workshop. Of course, the case of the appellant
is that it is also used for the domestic connection. This is a
matter where the authorities have prepared a mahazar and it
is on the basis of the mahazar they have decided to demand
the amount demanded in Ext.P2. Petitioner filed civil suit and
still later he filed a writ petition. In the writ petition on
condition of deposit of Rs.30,000/- he was relegated to file
statutory appeal. Reconnection was ordered on condition that
he remitted Rs.30,000/- which undoubtedly he paid. But, this
is only a conditional order to hold good till the appeal was
finally disposed of. The appeal, according to the
appellant came to be disposed of vide Ext.R2(b). The order is
also communicated to him. It may be true that the petitioner
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has a case that it was a fabricated document not
communicated to him. But the fact of the matter is that even
after the appellate order is produced along with the counter
affidavit, petitioner did not choose to amend the writ petition
impugning the order. We see no reason why without
impugning the order which is admittedly served on him how it
will still open to the petitioner to impugn the correctness or
validity of the order. This must be deemed to be served on
him at the time when the counter affidavit is filed. In such
circumstances, we must take it that Ext.P2 stands affirmed by
Ext.R2(b). The present demand is essentially for the amount
claimed by virtue of Ext.P2 being affirmed by the appellate
authority in Ext.R2(b). Since the original order will merge in
the appellate order and the appellate order is not challenged
we do not think that it will be open to the appellant to raise a
contention that Ext.R2(b) cannot be acted upon. A statutory
authority has gone into the question and has found the
contention of the petitioner as not tenable. There is an
inspection. Mahazar was prepared. Statutory authorities have
detected the use of electricity from one connection for
WA No.623/2008 -14-
running commercial establishment (service station) and
accordingly the demands have been raised. In such
circumstances, we do not think that the learned Single Judge
was justified in limiting the amount to be paid to Rs.30,000/-
which was only a conditional payment ordered by this Court
at the time when the writ petitioner was relegated to prefer
statutory appeal and subject to orders to be passed in the
statutory appeal. Once a statutory appeal culminated in
Ext.R2(b) order, we are not in a position to understand how
the petitioner can absolve himself from the liability to honour
the order passed against in the statutory appeal filed.
However, we must also refer certain features in this case.
Petitioner as already noticed is running a workshop. He was
also apparently running a service station. There was misuse.
We notice in the order passed by the appellate authority there
is no reference to the appellant/petitioner being heard in the
matter. In such circumstances, while we are inclined to
accept the case of the appellants that the petitioner must
indeed be called upon to pay Rs.23,528/-, in keeping with the
stand taken by the apex Court which is brought to our notice
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by the learned counsel in the matter of interest as also by this
Court, we feel that petitioner need not be mulcted with liability
to pay interest at full statutory fixed rate of 24%.
10. We allow the appeal and set aside the
judgment of the learned Single Judge and direct that the writ
petitioner will be liable to pay a sum of Rs.23,528/- and
interest at 18% from 7.10.2001 till 18.4.2005 with further
interest at 12% from 19.4.2005 till the date of payment.
Petitioner will be liable to pay a sum of Rs.23,528 +Rs.14,952
(being interest at 18% from 7.10.2001 to 18.4.2005) with
further interest at 12% on Rs.23,528/- from 19.4.2005 till the
date of payment.
(K.M.JOSEPH)
JUDGE.
(M.C.HARI RANI)
JUDGE.
jvt/MS