Jaisy Chacko vs Kerala State Electricity Board
2021 Latest Caselaw 11590 Ker

W.P.(C) No. 22416/2012                   :1:



                                                                       'CR'


                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                   THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

            FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                           WP(C).No.22416 OF 2012(B)


PETITIONER/S:

                 JAISY CHACKO, AGED 52 YEARS,
                 W/O.CHACKO PLAKKATTU, PLACKATTU HOUSE, MAMOODU P.O.,
                 CHANGANACHERRY, KOTTAYAM DISTRICT.

                 BY ADV. SRI.K.N.RADHAKRISHNAN (THIRUVALLA)

RESPONDENT/S:

        1        KERALA STATE ELECTRICITY BOARD
                 VYDHUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM,
                 REPRESENTED BY THE SECRETARY, PIN-695 001.

        2        EXECUTIVE ENGINEER
                 ELECTRICAL DIVISION, CHANGANACHERRY, KOTTAYAM DISTRICT,
                 PIN-686 101.

        3        ASST. EXECUTIVE ENGINEER
                 ELECTRICAL SECTION, THENGANA, CHANGANACHERRY, KOTTAYAM
                 DISTRICT, PIN-686 101.

        4        THE TAHSILDAR REVENUE RECOVERY
                 PATHANAMTHITTA, PIN-689 645.

        5        VILLAGE OFFICER
                 MADAPPALLY, CHANGANACHERRY, PIN-686 101.

        6        LEELAMMA VARGHESE
                 AGED 62 YEARS
 W.P.(C) No. 22416/2012                 :2:


                W/O.K.C.VARGHESE, KANNAMPALLIL HOUSE, MAMOODU P.O.,
                MADAPPALLY VILLAGE, CHANGANCHERRY, PIN-686 536.

        7       BABY VARGHESE
                AGED 36 YEARS
                S/O.K.C.VARGHESE, KANNAMPALLIL HOUSE, MAMOODU P.O.,
                MADAPPALLY VILLAGE, CHANGANCHERRY, PIN-686 536.

                R1 BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD




                SRI.SUDHEER GANESH KUMAR,SC
                SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-03-2021,
      THE COURT ON 09.04.2021 DELIVERED THE FOLLOWING:
 W.P.(C) No. 22416/2012                  :3:


                                  JUDGMENT

Dated this the 9th day of April, 2021

This writ petition is filed by the petitioner, who was having a 3

phase electricity connection with consumer No. 14167 under the

Assistant Executive Engineer, Electrical Section, Thengana,

Changanacherry, Kottayam District, the third respondent. The

connection was given on 10.06.2004 under the Minimum Guarantee

Scheme. While so, the petitioner sold the property, including the

electricity connection to respondents 6 and 7 on 30.04.2007, which

according to the petitioner, was duly intimated to the third respondent.

It is further submitted that the Assistant Executive Engineer has not

taken any steps to change the name of the Consumer. However,

Ext.P6 recovery notices dated 08.08.2012 under Sections 7 and 34 of

the Kerala Revenue Recovery Act, 1968 (Act, 1968) had been issued

against the petitioner claiming an amount of Rs.1,43,396/-. Aggrieved

by the same, this writ petition is filed.

2. The basic contention advanced by the petitioner is that the

amount is barred by limitation, since as per Section 56 of the

Electricity Act, 2003 (Act, 2003), the alleged due is to be recovered

within a period of 2 years and therefore, the action of the respondent

Board is illegal and arbitrary, liable to be interfered with by this Court.

It is also submitted that the connection was dismantled on

21.03.2009; but, no notice has been given till issuance of Ext.P3

statutory demand for recovery of alleged arrears. Therefore,

according to the petitioner, if interference is not made, it will cause

serious prejudice to the petitioner.

3. The Board has filed a counter affidavit justifying its stand

and contending inter alia that the petitioner has secured a connection

from the Board under a Minimum Guarantee Scheme and that the

period of the same was 7 years and the petitioner had to pay

Rs.3200/- each per month as minimum guarantee charges. It was

also stated that the petitioner never approached the Board for change

of ownership and the minimum guarantee scheme with required

documents. It is the statutory obligation to be carried out by the

petitioner to transfer the ownership of the service connection to the

new owner/occupier immediately on transfer of the property to which

the service connection is provided, after complying with all the

statutory formalities in that regard. It is further contended that by

virtue of the charge created on the consumer as per Regulation 19(4)

of the Kerala State Electricity Board Terms and Conditions of Supply,

2005, all dues to the Board from a consumer shall be the first charge

on the assets of the consumer and all dues, including interest, shall

be realised as public revenue due on land. Therefore, according to the

respondent Board, the Board is at liberty to recover the amount from

the consumer, since the amount due is charged on the assets of the

consumer, irrespective of the property where the connection was

given by the Board. Further, by virtue of Article 62 of the Limitation

Act, 1963 ('Act, 1963'), the Board would get 12 years to recover the

amount from the petitioner.

4. I have heard the learned counsel for the petitioner Sri. K. N.

Radhakrishnan and the learned Standing Counsel for the Kerala State

Electricity Board Sri. Sudheer Ganesh Kumar, and perused the

pleadings and documents on record.

5. The discussion made above would make it clear that the

paramount contention advanced by the petitioner is relying upon

Section 56 of the Act, 2003. Sub-Section (1) thereto specifies that

where any person neglects to pay any charge for electricity or any

sum other than a charge for electricity due from him to a licensee or

the generating company in respect of supply, transmission or

distribution or wheeling of electricity to him, the licensee or the

generating company may, after giving not less than fifteen clear days'

notice in writing, to such person and without prejudice to his rights to

recover such charge or other sum by suit, cut off the supply of

electricity and for that purpose cut or disconnect any electric supply

line or other works being the property of such licensee or the

generating company through which electricity may have been

supplied, transmitted, distributed or wheeled and may discontinue the

supply until such charge or other sum, together with any expenses

incurred by him in cutting off and reconnecting the supply, are paid,

but no longer.

6. However, sub-Section (2) makes it clear that

notwithstanding anything contained in any other law for the time

being in force, no sum due from any consumer, under Section 56 shall

be recoverable after the period of two years from the date when such

sum became first due, unless such sum has been shown continuously

as recoverable as arrear of charges for electricity supplied and the

licensee shall not cut off the supply of the electricity.

7. Therefore, according to the learned counsel for the petitioner,

after a period of 2 years, the Board cannot recover the amount from

the petitioner. Admittedly, the amount was found to have been due

from the petitioner from the year 2007. However, the revenue

recovery action was initiated by the Board apparently only during the

year 2012, when the request was made as per requisition No.

RR/2012/3598/5.

8. The question to be considered is whether after the expiry of

two years, the amount due to the Board can be recovered. In order to

understand the issue raised by the petitioner and the Board, it is

worthwhile to discuss a few of the provisions of the Kerala Electricity

Supply Code, 2005. The Supply Code, 2005 was made by virtue of the

power conferred on the Kerala State Electricity Regulatory Commission

constituted under Section 50 of the Electricity Act, 2003, by which the

modalities are prescribed for recovery of electricity charges, intervals

for billing of electricity charges, disconnection of supply of electricity

for non-payment thereof, restoration of supply of electricity,

tampering, distress or damage to electrical plant etc. Regulation 12,

which deals with dues of previous consumer, stipulates that if a

purchaser of a premise requires to have a new connection, as the

earlier connection has already dismantled after disconnection, the

arrear, if any, shall be realized from the previous owner/occupier of the

premises and not from the purchaser.

9. By virtue of Regulation 18, the licensee is entitled to recover

from a consumer the charges for electricity supplied based on the

approved tariff in force and other charges, subject to certain conditions

contained thereunder. Regulation 30 of the Supply Code, 2005 enables

the licensee i.e., the Kerala State Electricity Board within one month of

coming into force of the Code, to submit to the Commission for

approval the "Draft Terms and Conditions of Supply" in accordance

with the Code dealing with various aspects.

10. The Kerala State Electricity Board has made the KSE Board

Terms and Conditions of Supply, 2005 with effect from 01.02.2006.

Regulation 7 of the KSE Board Terms and Conditions of Supply, 2005

deals with dues of previous consumers and it specifies that if a

purchaser of a premise requires to have a new connection, as the

earlier connection has already been dismantled after disconnection,

the arrear, if any, shall be realized from the previous owner/occupier of

the premises and not from the purchaser.

11. Regulation 19 of the KSE Board Terms and Conditions of

Supply, 2005 deals with agreement for service connection. It is an

admitted fact that the petitioner has entered into an agreement with

the Kerala State Electricity Board Ltd. for securing a connection. Sub-

regulation (4) of Regulation 19 makes it clear that all dues to the

Board from a consumer shall be the first charge on the assets of the

consumer and all dues including interest shall be realized as public

revenue due on land.

12. Therefore, when reading together the provisions of the

Supply Code, 2005 and the Terms and Conditions of Supply, 2005, it is

clear that if any amount was due from a previous owner of the

property, it cannot be recovered from the purchaser. However, in my

considered opinion, though a period of two years is fixed as per

Section 56 of the Act, 2003 for recovery of the amount, it can be

recovered by the Board from the previous consumer, if it is shown that

the amount is continuously recoverable as arrears of charges for the

electricity supplied.

13. This is a case where the petitioner transferred the property

in favour of a third person; but the power supply was never

disconnected by the Board before the transfer. However, the Board, on

subsequent inspection, realised that the amounts were due from the

petitioner and it was accordingly that revenue recovery action was

initiated. It is also an admitted fact that the revenue recovery action

was initiated not only after two years, but nearly after 5 years.

Therefore, the sole question to be considered is, can the recovery be

permitted resorting to Exts.P6 recovery notices issued under Sections

7 and 34 of the Act, 1968.

14. As I have pointed out earlier, a charge is created under

Regulation 19(4) of the KSE Board Terms and Conditions of Supply,

2005, which is made by the Kerala State Electricity Board by virtue of

the powers conferred on it under Regulation 30 of the Supply Code,

2005. Even though the petitioner has a contention that no recovery

can be made after a period of two years, as is stated in Section 56 of

Act, 2003, I am unable to agree with the same for the reason that the

second limb of Section 56 makes it clear that if the sum has been

shown continuously as recoverable as arrear of charges for electricity

supplied, the Board is entitled to recover the same. Therefore, when a

charge is created under the Terms and Conditions of Supply, 2005, the

Board has got a period of 12 years to recover the amount by virtue of

Article 62 of the Act, 1963.

15. Article 62 of the Act, 1963 makes it clear that to enforce

payment of money secured by a mortgage or otherwise charged upon

immovable property, the period prescribed is 12 years, when the

money sued for becomes due.

16. Regulation 19(4) of the KSE Board Terms and Conditions of

Supply, 2005 makes it clear that all dues to the Board from a

consumer shall be the first charge on the assets of the consumer.

Therefore, even though the subsequent purchaser cannot be

proceeded with under the KSE Board Terms and Conditions of Supply,

2005 and the Supply Code, 2005, the Board is entitled to proceed

against the consumer for recovery of arrears due, since the amount

due is charged upon the assets of the consumer, which is a legal fiction

created to protect public money, and thus entitling and enabling the

Board to do so within a period of 12 years.

17. Taking into account the above aspects and the legal position

discussed above, I have no reason to think that the action initiated by

the Board to recover the amounts due to it is, in any way, illegal or

arbitrary. However, the learned counsel for the petitioner has invited

my attention to a Full Bench judgment of the Bombay High Court in

Awadesh S. Pandey v. Tata Power Co. Ltd. and others [2007 KHC

6971=AIR 2007 Bom. 52], which was a case dealing with the

limitation prescribed under Section 56 of the Act, 2003.

18. However, as I have pointed out above, by virtue of the

second limb of Section 56 r/w Regulation 19(4) of the KSE Board

Terms and Conditions of Supply, 2005, it is clear that it is a continuing

liability charged on the assets of the consumer, guided by Section 62

of the Act, 1963, at least for a period of 12 years. Learned counsel

has also invited my attention to a Full Bench decision of the Bombay

High Court in Maharashtra State Electricity Distribution Co. Ltd.

v. Electricity Ombudsman [2019 KHC 3298]. There also, the issue

discussed was with regard to the amount due as per the first limb of

Section 56 and it has never considered the second limb regarding the

continuous liability.

19. Anyhow, a Division Bench of this Court in M.G.

Raveendran Nair v. State of Kerala and others [judgment dated

21.12.2015 in W.P.(C) No. 28558 of 2013], wherein I was a party, has

considered the very same issue in regard to the limitation and it is

held as follows at paragraph 47:

"47. Therefore, in our considered opinion Section 71 of the Act is intra vires the provisions of the Constitution of India and the challenge raised by the petitioner against the said provision cannot be sustained and will not stand the test of law and legal principles laid down by this Court as well as the Apex Court in its various judgments cited supra. We also find that since there is a charge created over the properties as per the regulations cited supra against the charges for electricity consumption, the Board has got a 12 years period to recover the same. On consideration of the facts also, the petitioner is not entitled to get any relief in view of the illegalities committed by him, by tapping electricity with the aid of external devices. Materials on record show that, petitioner does not deserve any sympathy at all. The petitioner has not resorted to any statutory remedies available under the Act and the regulations impugning Exts.P5 assessment and P6 demand. We do not find any illegality, legal infirmity or violation of any of the legal principles settled by the Courts of Law to interfere with the said impugned orders invoking our power conferred under Article 226 of the Constitution of India.

Therefore the Writ Petition fails and accordingly the same is dismissed."

20. Therefore, in my view, the judgments of the Bombay High

Court referred to above are clearly distinguishable, in view of the

specific provision contained under the KSE Board Terms and Conditions

of Supply, 2005, which when correlated with the second limb of

Section 56 of Act, 2003 is a continuing liability of the consumer.

21. Upshot of the above discussion is that the petitioner has not

made out any case of arbitrariness or illegality, liable to be interfered

with by this Court exercising the power of judicial review under Article

226 of the Constitution of India. Moreover, Section 69(2) of the Act,

1968 makes it clear that the proceedings under the Act starts, when a

requisition is made. This is a case where the requisition was made in

the year 2012 and action was initiated by virtue of Section 7 demand

against the movable article and Section 34 demand against the

immovable properties. Therefore, the Board is at liberty to proceed to

recover the amount from the petitioner. However, since the subject

matter was pending consideration before this Court for more than 8

years and a stay of recovery is in force, I am of the considered view

that a reasonable time can be granted to the petitioner to participate

in the proceedings initiated under the Act, 1968. Therefore, the

petitioner is granted 15 days' time from the date of receipt of a copy of

this judgment to file objections to Ext. P6 recovery demand notices,

and if filed the authority under the Act, 1968 is granted a month's

time thereafter to adjudicate the issue in accordance with law and the

findings and observations contained above, and till such time, the

coercive action pursuant to Ext P6 demand notices issued under the

Act, 1968 shall be kept in abeyance.

Accordingly, though the reliefs sought for in the writ petition are

declined, it is disposed of with the above directions.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1: TRUE COPY OF THE SALE DEED NO.1610 OF 2007 OF THENGANA SUB REGISTRAR OFFICE.

EXHIBIT P2: PHOTOCOPY OF THE LETTER SUBMITTED TO THE 3RD RESPONDENT DATED 20.05.2007.

EXHIBIT P3: PHOTOCOPY OF THE NOTICE DATED 11.05.2012 NO. BB/RR/2012 FROM THE THIRD RESPONDENT.

EXHIBIT P4: PHOTOCOPY OF THE LETTER DATED 22.05.2012 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P5: PHOTOCOPY OF THE LETTER DATED 16.08.2012 RECEIVED BY THE PETITIONER FROM THE 4TH RESPONDENT.

EXHIBIT P6: PHOTOCOPY OF THE NOTICE DATED 08.08.2012 ISSUED BY THE 4TH RESPONDENT.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS To Judge.

rv