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Purushothaman vs The Secretarey on 7 December, 2010

Kerala High Court
Purushothaman vs The Secretarey on 7 December, 2010




AS.No. 719 of 2000()

                      ...  Petitioner


                       ...       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

A.S. 719 OF 2000

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

A.S. 719 OF 2000

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

A.S. 719 OF 2000

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.

A.S. 719 OF 2000

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

A.S. 719 OF 2000

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

A.S. 719 OF 2000

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.



A.S. 719 OF 2000


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A.S. No. 719 OF 2000
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7th December, 2010.

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