IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 19756 of 1998(B)
1. C.V.PURUSHOTHAMAN
... Petitioner
Vs
1. THE MUTY.,TSR.
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :17/09/2008
O R D E R
S.SIRI JAGAN, J.
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O.P.No.19756 of 1998
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Dated this the 17th day of September, 2008
J U D G M E N T
The dispute in this writ petition relates to demand for
arrears of electricity charges from the petitioner for the period
from October 1994 to February 1998. The petitioner is a hospital.
By a letter dated 6.4.1998 the petitioner was directed to pay an
amount of Rs.23,00,552.70 towards arrears of electricity charges
for the period from October, 1994 to February 1998. The
petitioner had earlier approached this Court and obtained a
judgment. Against the demand, the petitioner had filed Ext.P1
objections in which he made three contentions. One was that
details of the demand may be communicated to the petitioner.
The second was the necessity to compute electricity charges in
accordance with the judgment in O.P.No.949/1995. The third was
that as per the said judgment, it was held that the hospitals are
liable to pay charges only under LT-VI tariff till February 1998.
Thereafter, the petitioner was served with Ext.P2 letter enclosing
a statement of details regarding the demand. The petitioner
challenged that statement by filing O.P.No.9332/1998, in which
o.p.19756/98 2
Ext.P3 judgment was passed as follows:
“When the matter came up for hearing, I heard learned counsel
for the petitioner as well as the learned counsel appearing for the
Municipality. Counsel for the petitioner brought to my notice an interim
order passed by this Court in C.M.P.No.1649 of 1995 in O.P.No.949 of
1995, wherein this court granted stay of collection of amount in excess
of LT-VI rates, pending disposal of the original petition.
2. Counsel for the Municipality submitted that the petitioner
has been remitting only an amount of Rs.61,081/- which, according to
counsel for the Municipality, is not LT-VI tariff. He further submitted
that the amount under LT-VI tariff the petitioner is bound to pay. The
amount shown in column 3 of Ext.P3 is LT-VI tariff. It is seen that it
was on a mistake that the Municipality did not collect the amount
shown in column 3 of Ext.P3.
3. Counsel for the petitioner submitted that the Municipality
has no power to collect penal interest. Counsel for the Municipality
submitted that penal interest is not included in Ext.P3. Considering the
facts and circumstances of the case it is just and proper that the
petitioner is given some time for payment of the amount mentioned in
Ext.P3. Petitioner is permitted to pay the amount in ten equal
instalments starting from 1.7.1998. Regarding the penal interest,
counsel for the Municipality submitted that the same will be considered
by them, provided a representation is made by the petitioner. If the
petitioner makes the payment, the first respondent will not disconnect
the supply. It is further made clear that if there is any default in
payment as mentioned above, it is open to the Municipality to proceed
with further steps.
The Original Petition is disposed of as above.”
Pursuant to Ext.P3 judgment, the petitioner filed Exts.P4 and P5
representations in the matter, in which he also challenged the
correctness of the statement of accounts again. Against the
judgment, the petitioner filed a review petition, in which Ext.R1
(a) order was passed as follows:
“When the matter came up for hearing, I heard counsel for the
Review Petitioner and counsel appearing for the Municipality. I do not
find any reason to review the judgment. Counsel for the petitioner,o.p.19756/98 3
however, referred to paragraph 3(a) of the Review Petition and
annexures 2 and 3 representations filed before the Municipality. It is
for the Municipality to consider Annexures 2 and 3 and pass orders in
accordance with law. I am not expressing any opinion with regard to
those representations. Final orders will be passed by the Municipality
within a period of two months from the date of receipt of a copy of this
order.”
Thereafter Ext.P7 order was communicated to the petitioner,
whereby the earlier statement of accounts, which is Ext.P2
herein, has been confirmed. The petitioner is challenging Ext.P7
order in this original petition.
2. The petitioner contends that although it would prima
facie appear from Ext.P3 judgment that his contentions on merits
against the quantification of the demand have been repelled, in
view of the direction in Ext.R1(a) order directing consideration of
the representations, which are Exts.P4 and P5 herein, the issue
was still at large and therefore, there was necessity to reconsider
the validity of the demand itself afresh. The petitioner would
further submit that the very same Judge who passed Ext.P3
judgment and Ext.R1(a) order in review had admitted this
original petition and granted an interim stay. He also points out
that another learned Judge of this Court had heard the entire
original petition and passed an order on 22.2.2002 upholding the
contentions of the petitioner substantially and directing the
o.p.19756/98 4
respondent to recompute the petitioner’s liability in accordance
with the direction in that order. Therefore, according to the
petitioner, the issue is still at large despite Ext.P3 judgment and
therefore, the contention of the petitioner has to be considered
on merits regarding the sustainability of Ext.P2 statement of
accounts itself.
3. The contentions of the petitioner are refuted by the
respondent, by filing a counter affidavit and a statement.
4. I have considered the rival contentions in detail.
5. Despite the persuasive arguments of the petitioner, I
am an not persuaded myself to hold that Ext.P3 judgment does
not cover the issue on merits. In Ext.P3 judgment, the challenge
of the petitioner against the statement of accounts appended
along with Ext.P2, has not been accepted by this Court. Instead,
the petitioner was directed to pay the amount in 10 equal
monthly instalments. Relief was granted only in relation to the
demand for penal interest, which was directed to be considered
on a representation to be made by the petitioner. That being so, I
am of opinion that the issue on merits is finally concluded by
Ext.P3 judgment in so far as the same has become final as the
petitioner has not chosen to challenge the same in appeal. Of
o.p.19756/98 5
course the petitioner would raise a contention that in view Ext.R1
(a) order in review, the issue is still at large, that also I am not
inclined to countenance. In Ext.R1(a) order it is specifically stated
that the learned Judge does not find any reason to review Ext.P3
judgment. It is further stated that in respect of annexures 2 and
3 representations the learned Judge has not expressed any
opinion, although in that order there is a direction to pass final
order within two months. I am of opinion that that can only be in
respect of the penal interest which was directed to be considered
as per Ext.P3 judgment. Therefore, even if the petitioner’s
contentions are valid on merits, it cannot now be reopened the
validity of Ext.P2 having been upheld in Ext.P3 judgment. Ext.P3
judgment read with Ext.R1(a) order in review operates as
resjudicata for the petitioner to challenge Ext.P3 on merit.
Therefore, I do not find any merit in the original petition and
accordingly the same is dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
o.p.19756/98 6
S.SIRI JAGAN, J.
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O.P.No.19756 of 1998-B
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J U D G M E N T
17th September, 2008