IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 719 of 2000()
1. PURUSHOTHAMAN
... Petitioner
Vs
1. THE SECRETAREY, K.S.E.B.
... Respondent
For Petitioner :SRI.K.G.BALASUBRAMANIAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/12/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 719 OF 2000
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Dated this the 7th day of December , 2010.
J U D G M E N T
This appeal is preferred against the
judgment and decree passed by the Subordinate
Judge, Irinjalakuda in O.S.556/95. The suit is
one for a declaration and consequential
injunction. The plaintiff is an unfortunate
small scale unit ‘S.M.Industries’ which was
started but had only a short span of life. On
account of the labour problems and other
difficulties repayment to the K.F.C. became an
impossibility which resulted in taking
possession of the assets of the firm by the
Corporation and it led to the non-functioning of
the unit. The Kerala State Electricity Board
had sent a notice demanding Rs.40,052/- which
according to them are the dues from the month of
January, 1992 till 1994. It is also contended
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that there had been a subsequent dismantlement
of connection and therefore the plaintiff prays
for the declaratory relief that it cannot be
directed to pay amount as it had not been
functioning and as electricity connection has
been disconnected.
2. Defendants 1 and 2 would contend that
there was disconnection of electricity on
29.1.92 and dismantlement of electrical
connection on 31.12.94. Irrespective of the
question of disconnection the consumer is liable
to pay the fixed charges and therefore the
demand is in order and further as there is an
alternate remedy the suit is not entertainable.
The Revenue authorities had acted on the
requisition of the K.S.E.B. and they would
contend that the suit as filed against them is
not maintainable. The learned trial judge on
exhaustive consideration of the materials held
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that the plaintiff is not entitled to the
declaration, found that the suit is not
maintainable but ultimately granted a relief in
the form of a direction to file an appeal or
complaint to the Board and on condition that it
deposits the amount in five monthly instalments.
There was also a direction, in case of success
for the plaintiff, to get back the amount with
12% interest from the K.S.E.B. but ultimately
the suit had been dismissed. It is against that
decision the plaintiff has come up in appeal.
3. The learned counsel for the appellant
would submit before me that the learned
Subordinate judge had lost sight of Rules 34(c)
and (d) and thereby has committed grave error.
As per Rule 34(c) of the conditions of supply of
electric energy if the service remains
disconnected for more than one month, energy
charge will not be levied for that period. But
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there is a liability to pay fixed charge. Under
Rule 34 clause (c) (ii) normally no service
shall be kept disconnected for more than six
months continuously at a time and under Rule 35
(d) “no service shall remain disconnected
continuously for a period exceeding six months
for non-payment of amount due to the Board. If
the dues are not paid within the six months
period of disconnection, the service shall be
dismantled and agreement terminated immediately
after the six months of disconnection after
giving 15 days notice to the consumer.”
4. In this case admittedly disconnection
has been done in the month of January, 1992 more
specifically on 29.1.1992 and the dismantlement
has been done only on 31.12.94. So it is really
against the rules. I have just stated these
things for the authority to consider it.
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5. The trial court has non-suited the
plaintiff in the light of the decision of the
Hon’ble Supreme Court reported in Punjab State
Electricity Board & another v. Ashwani Kumar
(1997 (5) SCC 120). The learned counsel for the
appellant wanted to distinguish that decision
stating that it is only one for injunction
whereas the suit is filed by the plaintiff is
one for declaration. But the principle laid
down by the Hon’ble Supreme Court is that when
there is an alternate remedy provided under the
statute itself by way of departmental appeal
then it is desirable to exercise that and not to
entertain a case by the civil Court. So in the
light of the same I am also to hold that the
civil suit need not be entertained but some
remedy for a hearing is absolutely necessary for
the plaintiff in the light of the rules
extracted above. Therefore I close this appeal
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with a direction to the plaintiff to file an
appeal or complaint as provided under Rules
before appropriate authority and direct that
authority to consider the case of the plaintiff
especially with reference to Rules 34(c) and (d)
of the conditions of supply of electrical
energy. An open hearing may be provided to
raise all contentions by the department as well
as by the plaintiff and thereafter the matter
may be decided in accordance with law. I also
make it clear if at all there is any question
regarding interest that also may have to be
considered judiciously in the light of the
Hon’ble Supreme Court’s decisions and the matter
be disposed of in accordance with law.
6. The legal representatives of the
appellant are directed to prefer an appeal or
complaint as the case may be within six weeks
from today and it is further made clear till a
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final decision is taken in the matter coercive
proceedings be averted to realise the amount
demanded by the notice. Parties are directed to
bear their respective costs.
7. It is made clear that any finding
entered into by the trial Court shall not be the
criteria for deciding the case and untrammeled
by the observations thereunder, the matter can
be heard and disposed of.
M.N. KRISHNAN, JUDGE.
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M.N. KRISHNAN, J.
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A.S. No. 719 OF 2000
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J U D G M E N T
7th December, 2010.