High Court Kerala High Court

The Kerala State Electricity … vs Wilfred Sathyraj on 4 November, 2010

Kerala High Court
The Kerala State Electricity … vs Wilfred Sathyraj on 4 November, 2010
       

  

  

 
 
  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.
        ------------------------------------------------------
                      W.A.No.623 of 2008
           ----------------------------------------------
         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.”

WA No.623/2008 -2-

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

WA No.623/2008 -3-

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

WA No.623/2008 -5-

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

WA No.623/2008 -7-

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

WA No.623/2008 -8-

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

WA No.623/2008 -9-

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.

WA No.623/2008 -12-

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

WA No.623/2008 -13-

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

WA No.623/2008 -15-

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