Abdul Wahab vs Kerala State Electricity Board
2021 Latest Caselaw 19355 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
                                       &
                THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
         FRIDAY, THE 16TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
                             RP NO. 543 OF 2021
 AGAINST THE JUDGMENT IN WA 1867/2015 DATED 12.11.2015 OF HIGH COURT OF
                                     KERALA
REVIEW PETITIONER/PETITIONER:

             ABDUL WAHAB, AGED 48 YEARS
             S/O IBRAHIM MUSALIAR, KUZHIMANNIL,
             NEAR MANNUMMEL PALLI, THATTACHERYMALA, VALIYORA AMSOM,
             KOORIYADU P.O, VENGARA, THIRURANGADK THAKUL,
             MALAPPURAM DISTRICT.

             BY ADVS.
             N.N.SUGUNAPALAN (SR.)
             SUNIL J.CHAKKALACKAL
             V.DEEPA
             R.SURAJ KUMAR


RESPONDENT/S:

1 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAAN, PATTOM, THIRUVANANTHAPURAM, PIN-695004.

2 THE SPECIAL OFFICER(REVENUE), VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM,PIN-695004.

     3       THE ASSISTANT ENGINEER.
             ELECTRICAL MAJOR SECTION,

CHELARI, CALICUT UNIVERSITY P.O, MALAPPURAM, PIN-673635.

4 SAROJINI, AGED 65 YEARS, D/O KARIKUTTY, NOW RESIDING AT YADATHUM PADIKKAL HOUSE, THEJAS RESIDENTIAL ASSOCIATION, BEYPORE, CALICUT DISTRICT, PIN-673015 (KOTTOOD PARAMBIL, THENJIPPALAM P.O THIRURANGADI, MALAPPURAM DISTRICT, PIN-673635.)

BY ADVS.

RAJU JOSEPH (SR.) C.JOSEPH ANTONY

THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON 16.10.2021 DELIVERED THE FOLLOWING:

 RP NO. 543 OF 2021


                              O R D E R                               C.R.

              C.M. Appln 1 of 2021 and RP No.543 of 2021
                            in WA No.1867 of 2015


SHAJI P.CHALY, J

The said application is filed by the review petitioner seeking to condone

the delay of 1103 days in filing the review petition. The judgment in which

review sought was dismissed on 12.11.2015. The case projected by the

petitioner is that, later when coercive proceedings were initiated to sell the

property of the petitioner, W.P.(C). 34933/2018 was filed, which was

disposed on 29.11.2018, leaving open the liberty of the petitioner to approach

the Division Bench seeking review of the judgment in WA No.1867/2015 and

till 20.12.2018, the coercive proceedings were directed to be kept in abeyance.

The record of proceedings show that the review petition was filed on

22.12.2018 and it was lying dormant in the registry till it was posted before

the bench on 13.08.2021 for condoning delay of 206 days in re-presenting the

review petition after curing the defect. On that day the re-presentation delay

was condoned .

RP NO. 543 OF 2021

2. The paramount contention advanced in the delay condonation

petition is that the petitioner is entitled to secure the benefit of regulation 40

of the Kerala Electricity Supply Code, 2014, and that was not a subject matter

considered in the writ petition, leading to the writ appeal in question. It is

also stated that the petitioner was bonafidely prosecuting the subject matter

before the respondents, i.e., the Kerala State Electricity Board Ltd and its

officials. It is further submitted that in response to the request for grant of

benefit of one time settlement scheme, the 3rd respondent i.e., the Assistant

Engineer, Electrical Major Section, Chelari, Malappuram district, issued a

letter dated 26.07.2018. Thereupon, petitioner intended to avail fresh

electricity connection to the premises and consequently petitioner sought

legal advice, and in terms of the same, the representation dated 7.8.2018 was

submitted before the Kerala State Electricity Board Ltd in order to avail the

benefit under regulation 40 (3) of the Kerala Electricity Supply Code 2014. It

is also pointed out that, due to the inaction on the part of the respondents to

consider the representation, petitioner had to file W.P.(C).No.34933/2018

before this Court, specified above. It is further submitted that, after the

disposal of the said writ petition, petitioner has submitted an application for RP NO. 543 OF 2021

the issuance of the certified copy of the judgment in W.A.No.1867/2015 on

29.11.2018 and it was secured on 01.12.2018. These are the reasons shown by

the petitioner to condone the huge delay of 1103 days in filing the review

petition.

3. On a proper evaluation of the reasons assigned in the affidavit, it can

be seen that, no reasons are assigned at all for condonation of the delay

occurring from the date of the judgment in W.A. No.1867/2015, i.e., 12th day

of November 2015 up to the date of filing of W.P.(C).No.34933/2018. That

apart, the reasons assigned in the affidavit clearly shows that, petitioner has

approached the writ court by filing the subsequent writ petition only when

coercive action to sell off the property was taken by the Kerala State

Electricity Board in order to recover the arrears of an amount of Rs.7140597/-

(Seventy One Lakhs Forty Thousand Five Hundred and Ninety Seven only).

This we say because, even according to the petitioner, the certified copy of the

judgment in writ appeal was applied for only on 29.11.2018, i.e., after three

years of the judgment in writ appeal. More over an incompetent writ

proceedings instituted subsequent to the dismissal of the writ appeal

upholding the recovery proceedings cannot be termed as a bonafide RP NO. 543 OF 2021

prosecution of any proceeding, entitling the petitioner to get the delay

condoned on the basis of the pendency of the said writ petition. Moreover, yet

another ground shown in the delay petition is that the issue with respect to

the benefit of regulation 40 (3) of the Kerala Electricity Supply Code 2014 was

not considered by the Division Bench in the writ appeal in question . Since ,

the petitioner has a contention that, by virtue of regulation 40 (3) of the

Kerala Electricity Supply Code, 2014 petitioner is not liable to pay the arrears

due from the previous owner of the property and therefore, the property

purchased by the petitioner cannot be proceeded with, we propose to consider

the merits of the said argument in order to identify as to whether any matter

of substantial justice was involved in the matter and if so whether it was

overlooked by the Division Bench.

4. In fact, one Sarojini, Kottodiparambil, Thenjipalam, who is the 4 th

respondent in the instant proceedings, was the owner of a property comprised

in Re.Sy.No.88/11 of Thenjipalam village, Malappuram district, who was

liable to pay an amount of Rs.71,40,597/- toward arrears of energy charges on

account of a high tension electricity connection. Petitioner has purchased the

property from Sarojini as per Exhibit.P1 sale deed dated 24.11.2010. RP NO. 543 OF 2021

Exhibit.P2 makes it clear that Sarojini was a high tension consumer

conducting a steel re-rolling mill. The claim raised by the petitioner in the

writ petition leading to the writ appeal in question was that, the demand

raised by the Kerala State Electricity Board Ltd for the period from 1996 to

2002 was time barred and further that, Exhibit.P2 demand has been issued

only on 13.01.2014 and the appellant has not received any intimation other

than the said notice informing that any amounts were payable by Sarojini, or

for that matter any proceedings for recovery thereof were initiated against the

property held by the petitioner. It was also pointed out that, the recitals in

the sale deed makes it clear that there was no subsisting liability on the

property. It was in the said background that Exhibit. P2 notice of demand was

sought to be quashed. Sarojini who was the 4th respondent remained ex-

party in the writ petition.

5. The case projected by the Electricity Board was that, a statutory

charge was created on the property by virtue of regulation 15 (d) of the

Conditions of Supply of Electric Energy, 1990, which was framed by the

Kerala State Electricity Board by virtue of the powers conferred under Section

79 (j) of the Electricity (Supply) Act, 1948. It was also submitted that, RP NO. 543 OF 2021

Sarojini, by virtue of the provisions contained under the Conditions of Supply

of Electric Energy had executed an agreement for supply of electric energy in

the proforma prescribed by the Conditions of Supply of Electric Energy, 1990.

Therefore, according to the Board, a charge was created on the property of

Sarojini with respect to the amounts due to the Kerala State Electricity Board

and therefore, Article 62 of the Limitation Act, 1963, came into play and the

Board had a period of 12 years to recover the amount.

6. The learned Single Judge after assimilating the factual situation and

the legal circumstances pointed out, had arrived at the conclusion that, since

charge was created, the demand raised by the Electricity Board is not barred

by limitation and it was accordingly that the writ petition was dismissed. In

the appeal in question, it was submitted that the Electricity Act, 2003 has

already come into force and Section 185 of the said Act repeals all the

previous enactments. Therefore, the recovery is impermissible under the

provisions of the erstwhile electricity laws. It was also submitted that, Section

56 of the Electricity Act, 2003, prescribes a period of limitation of two years

and the said period having expired, the proceedings are barred by the law of

limitation. Therefore, according to the petitioner, the amount was not RP NO. 543 OF 2021

recoverable from the petitioner by resorting to the provisions of the Kerala

Revenue Recovery Act, 1968 and therefore, the arrears which fell due in the

year 1996 and upto 2002 cannot be recovered being barred by limitation. The

stand adopted by the Board in the writ appeal was that, despite the coming

into force of the Electricity Act, 2003, proceedings initiated for recovery of

the dues under the erstwhile Electricity Act and the Laws could be continued.

It was also contended that, Sarojini having entered into an agreement with

the Board and created a charge over the property, the respondents were

perfectly justified in proceeding against the property. It was also submitted

that no proceedings were initiated against the petitioner to recover the

remaining dues from the previous owner namely, Sarojini, and the attempt of

the Board is to recover the money due from Sarojini by selling off the property

against which charge was created when the property was in the ownership

and custody of Sarojini.

7. The Division Bench of this Court, after conducting an elaborate

survey of the provisions of law, has arrived at the conclusion that, by virtue of

regulation 15 (d) of the Conditions of Supply of Electric Energy, 199o a charge

was created in favour of the Board and as soon as the energy charges have RP NO. 543 OF 2021

fallen due, the property became liable to be proceeded against. Accordingly,

it was found that the Board had a period of 12 years to proceed against the

property for recovery of the arrears due. The findings were rendered by the

Division Bench on being realised, evident from Exhibit. R1(a) produced along

with the writ petition by the Board, requisition was made under Section 69(2)

of the Kerala Revenue Recovery Act as early as on 19.01.2002 and therefore,

the proceedings were settled and what remained was the recovery of the

amounts due. It was also found that, the dues are only made recoverable as

arrears of public revenue due on land consequent to the provisions contained

under the Kerala Revenue Recovery Act, 1968 and not on the basis that the

dues is a public revenue. It was accordingly that the writ appeal was

dismissed.

8. Be that as it may, the contention in the delay condonation petition

and the review petition is that, as per regulation 178 of the Kerala Electricity

Supply Code, 2014, dealing with repeal and savings, the regulations issued by

the commission namely, the Kerala Electricity Supply Code, 2005, and the

terms and conditions of supply issued there under, is repealed. However, as

per sub regulation (2) of regulation 178, notwithstanding such repeal, RP NO. 543 OF 2021

anything done or action taken or purported to have been taken or proceedings

initiated under such repealed regulations shall be deemed to have been taken

under this code to the extent that, same were not inconsistent with the Act.

Relying upon the said provision only, learned Senior Counsel for the

petitioner has advanced the contention that, regulation 40 of the Kerala

Electricity Supply Code 2014, would come into play and thereby, the

petitioner is saved from the liability created by the erstwhile owner of the

property namely, Sarojini. Learned Counsel has also submitted that, on a

reading of regulation 178 and regulation 40 of the Supply Code, 2014, it is

clear that the recovery has to be effected from the previous owner, since the

repealed regulations cannot be resorted to for continuing the proceedings.

Contentions were also addressed relying upon section 6 of the General clauses

Act, 1897 .

9. Heard learned Senior Counsel for the Petitioner Sri N.N .

Sugunapalan and Sri Raju Joseph learned Senior Counsel appeared for the

Electricity Board and perused the pleadings and materials on record .

10. Learned Senior Counsel has relied upon the judgment of the Apex

Court in Jharkhand State Electricity Board and Others vs. M/s. RP NO. 543 OF 2021

Laxmi Business and Cement Company Private Ltd and another

dated 28.02.2014 reported in (2014) 5 SCC 236. However, there the

issue considered was in respect of validity of the bills raised by the Jharkhand

State Electricity Board on the ground that, the bills were contrary to and in

excess of the tariff by which the Jharkhand State Electricity Regulatory

Commission viz-a-viz a provision of the minimum guarantee charges in the

backdrop of Electricity Act, 2003 and the tariff framed. The question

therefore considered was (i) whether after the enactment of the Electricity

Act, 2003, which came into force on 10.06.2003 and after passing of the new

tariff order dated 27.12.2003 by the Jharkhand State Electricity Regulatory

Commission as per the Act of 2003, can the State Electricity Board still

charge a tariff determined by itself; (ii) whether the issue of demand charged

to HTS-I category of consumer has been left not considered by the State

Commission in the tariff order dated 27.12.2003 so that, the same may be

continued in the manner existed in the State or whether the same has been

considered and given effect to in the tariff order dated 27.12.2003 which came

into effect from 01.01.2004; and (iii) what could be the effect of Section 185

(Repealing and Saving Clause) of the Electricity Act,2003 upon the HT supply RP NO. 543 OF 2021

agreement entered upon by and between the Board and the consumer prior to

Electricity Act, 2003.

11. Ultimately, after considering the said questions raised by the

Jharkhand State Electricity Board, the appeal was dismissed. However, we

are of the considered opinion that the issue raised in the said appeal was in

respect of excess tariff fixed as per the Electricity laws prior to the

introduction of the Electricity Act, 2003 and the consequences subsequent to

the Act 2003, which has no bearing to the issue at hand. Here in this case,

the issue raised is entirely different as to whether a charge created on a

property on the basis of electricity dues from the previous owner of the

property is liable to be removed, consequent to regulation 40 of the Kerala

Electricity Supply Code, 2014. Learned Counsel has also relied on a Division

Bench judgment of this Court in Rafeeq C.A. v. Kerala State Electricity

Board and others 2019 (4) KLT 135 wherein the question considered

was whether the Board is entitled to insist upon an applicant for a new

connection for payment of defaulted electricity charges or other liabilities of

the previous owner. Moreover a subsequent Judgment rendered can never be

brought into play for seeking review of a previous Judgment in view of the RP NO. 543 OF 2021

specific provision contained under Order XXLVII of the Code of Civil

Procedure. In fact, a Division Bench of this Court in Ramachandran Vs.

Kerala State Electricity Board 2000 (2) KLT 694 has considered the

question whether the Board is bound to provide electricity to a premises if

there are arrears of electricity charges from the previous owner and held that,

by virtue of regulation 15(d) of the Regulations relating to conditions of

Supply of Electrical Energy, 1990, dues to the Board from a consumer shall be

a first charge on the assets of the consumer and all dues including penalty

shall be, realised as public revenue due on land and the Board is not bound to

provide electricity to a premises if there are arrears of electricity charges from

the previous owner. There is no doubt that the amount cannot be recovered

from the new consumer or the purchaser of the property by virtue of

regulation 40 of the Kerala Electricity Supply Code, 2014. As held by the

Division Bench in the appeal in question, the Kerala State Electricity Board

has not proceeded against the petitioner but only against the property against

which the charge was created for the period 1996 to 2002, while the property

was in the ownership and possession of the defaulter Sarojini . Merely

because the property against which a charge created is purchased by a third RP NO. 543 OF 2021

party that will not remove the charge as the charge already created actually

runs with the property. It is an admitted fact that the requisition was made

by the Electricity Board to the revenue authority to recover the amount on

19.01.2002, much prior to the purchase of the property by the petitioner in

the year 2010. In order to understand the contention advanced and the true

implication put forth by the learned Senior counsel Sri Sugunapalan,

regulations 40 and 41 of the Kerala Electricity Supply Code, 2014 are

extracted here under :-

"40. Recovery of arrears relating to the previous consumer.- (1) The arrears of electricity charges and other liabilities if any, in the accounts of the previous consumer of any premises shall be recovered from such previous consumer of the premises, with whom the licensee has executed the service connection agreement, and not from the purchaser or lessee or occupier of the premises.

(2) The licensee shall, on disconnection of supply and dismantling of the service connection on account of arrears of electricity charges, determine the agreement with such consumer and shall forthwith initiate legal proceedings for recovery of arrears of electricity charges and other liabilities from such consumer and shall obtain necessary interim or final orders from the appropriate legal forum:

RP NO. 543 OF 2021

Provided that the amount of arrears of electricity charges and other liabilities finally recoverable from the consumer and the modus of recovery shall be in accordance with such interim or final orders of the appropriate legal forum.

(3) If a purchaser or lessee or occupier of such premises requires a new connection, as the earlier connection given to the previous consumer in that premises has already been 19 disconnected and dismantled on the ground of outstanding dues of the previous consumer, new connection shall not be denied to such purchaser or lessee or occupier of the premises provided he furnishes a deposit which shall be equal to the arrears of electricity charges and other liabilities if any, excluding interest thereon, till the licensee obtains from the appropriate legal forum an order on the recovery of arrears and other liabilities or till the licensee settles the arrears and liabilities with the previous consumer or till completion of three years whichever is less:

Provided that on obtaining order from the appropriate legal forum on the recovery of such arrears of electricity charges and other liabilities, or on settlement of the arrears and liabilities by the licensee with previous consumer or on completion of three years as aforesaid, the licensee shall release the entire amount of deposit furnished by such owner or lessee or occupier of the premises, along with interest at bank rate as on the date of furnishing such deposit.

41. Transfer of service connection and continuance of supply of electricity to the premises with arrears of electricity charges.- (1) The service connection RP NO. 543 OF 2021

shall be transferred and supply of electricity shall be continued to the premises with arrears of electricity charges and other liabilities, only if:-

(a) the consumer agrees to transfer the service connection along with the security deposit as well as the liability of arrears of electricity charges and other liabilities if any, to the transferee; and

(b) the transferee agrees to take over from the consumer, the service connection along with the security deposit as well as the liability of arrears of electricity charges and other liabilities if any.

(2) A consumer, who at any time, during the currency of the agreement, proposes to transfer the ownership or possession of the premises by sale or by lease or by any other means of transfer, in whole or in part of the premises or the business to which supply of electricity is given or has been contracted for, shall submit to the licensee, an application, at least one month in advance of the proposed transfer, in the format specified in Annexure - 2, intimating the following details:-

(a) nature of transfer of ownership or possession and the proposed date of such transfer;

(b) name and address of the proposed transferee;

(c) willingness or otherwise of the consumer to pay to the licensee all the dues to it in terms of the agreement before the date of the proposed transfer of the ownership or possession of the premises;

RP NO. 543 OF 2021

(d) willingness or otherwise of the consumer to transfer the service connection to the transferee along with the security deposit as well as the liability of arrears of electricity charges and other liabilities if any, due to the licensee;

(e) consent or otherwise of the consumer to give to the proposed transferee any information relating to the agreement with the licensee and the amount of arrears of electricity charges and other liabilities thereunder, due to the licensee;

(f) willingness or otherwise of the consumer to determine the service connection agreement, pay all dues to the licensee and to terminate the service connection agreement before such transfer;

(g) such other details as are required by the licensee. (3) If the consumer intimates his willingness to transfer the connection to the proposed transferee, the licensee shall within three days from the date of receipt of such intimation, issue a notice to the consumer demanding him to pay before the date of proposed transfer, all dues as per the terms of the agreement and directing him in the alternative to submit within seven days, the consent of the proposed transferee for availing the service connection with arrears of electricity charges and other liabilities if any payable by the consumer.

(4) The licensee shall also issue a notice to the proposed transferee requesting him to intimate within seven days of the date of notice, his readiness to get the service connection of the consumer transferred to him and intimating him the particulars of:-

RP NO. 543 OF 2021

(a) the amount of arrears of electricity charges and other liabilities if any;

(b) agreement to be executed by him and the security deposit to be furnished by him:

Provided that the licensee may give any further information relating to the service connection agreement and the liability thereunder, on the request of the transferee, if the consumer has given his consent in this regard in the application submitted under subregulation (2) above.

(5) If the consumer has paid all electricity charges and other liabilities if any till the proposed date of transfer and has conveyed his willingness to transfer the service connection to the transferee, the licensee may transfer the service connection to the transferee and get necessary agreement executed by the transferee after obtaining necessary security deposit.

(6) If the consumer has conveyed in writing, his willingness to transfer the service connection to the transferee along with the security deposit as well as the liability of arrears of electricity charges and other liabilities if any, till the proposed date of transfer, and if the transferee has conveyed in writing his willingness to take over the service connection along with such security deposit as well as the arrears of electricity charges and other liabilities; the licensee may, after obtaining additional security deposit, if any required; transfer the service connection to the transferee and get executed by the transferee, the necessary agreement incorporating among other things, the terms and conditions to ensure that the transferee shall be liable RP NO. 543 OF 2021

for the arrears of electricity charges and other liabilities if any due from the consumer.

(7) The licensee may transfer the connection to the proposed transferee following the procedure specified in regulation 91.

(8) The transferee may also opt for availing a new connection to such premises following the procedures specified for availing new connection.

(9) If the consumer intimates his readiness to determine the service connection agreement on payment of all dues and to terminate the agreement on or before the proposed date of transfer of the premises, the licensee shall, on receipt of such intimation, prefer a demand within ten days thereof, for all the amounts payable by the consumer and indicating the due date for payment of such amounts.

(10) The licensee shall, disconnect the supply of electricity and dismantle the connection with effect from the date agreed upon by the consumer and terminate the agreement after realisation of all dues.

(11) If the consumer does not intimate his willingness to transfer the connection to the proposed transferee along with the consent of such transferee for availing the connection transferred in his favour, as specified in subregulation (2) above or if the proposed transferee does not convey his willingness as specified in subregulation (6) above, the licensee shall disconnect the supply of electricity and dismantle the connection with effect from the date of such proposed transfer of the premises or such RP NO. 543 OF 2021

other earlier date as may be agreed upon by the consumer and shall terminate the agreement.

Explanation.- For the purpose of this regulation,-

(a) the term 'other means of transfer', shall include transfer of ownership or possession of the premises to a transferee by way of merger or demerger or acquisition of shares of a company or of a partnership firm or of a society or of any other organization, or by way of any other processes of transfer of ownership or possession of the premises,

(b) the term 'transferee' shall include an individual or a company or a firm or a society or any other person to whom the ownership or possession of the premises is transferred."

12. On an evaluation of regulation 40, it is clear that, the arrears of

electricity charges and other liabilities if any in the accounts of the previous

consumer of any premises shall be recovered from such previous consumer or

the person with whom the licensee has executed the service connection

agreement and not from the purchaser or lessee or occupier of the premises.

Sub regulation 2 of regulation 40 and other provisions make it clear that, the

Board is entitled to disconnect the supply and dismantle the service

connection on account of arrears of electricity charges and determine the

agreement with such consumer and shall forth with initiate legal proceedings RP NO. 543 OF 2021

for recovery of arrears of electricity charges and other liabilities from such

consumer. The other provisions of regulation 40 and regulation 41 further

make it clear that, the proceedings against the purchaser alone is prohibited

there under and no manner of prohibition is created to proceed against the

property wherein a charge was created as per regulation 15(d) of the

Conditions of Supply of the Electrical Energy, 1990. Regulation 15(d)

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

on the assets of the consumer and all dues including penalty shall be, realised

as public revenue due on land. Regulation 15(c) also specifies that, when

there is a transfer of ownership and right of the occupancy of the premises,

registered consumer shall intimate the transfer of right of occupancy of the

premises within 7 days to the Assistant Engineer/Assistant Executive

Engineer concerned, and on such intimation, the service shall be

disconnected. If the transferee desires to enjoy service connection, he shall

pay off the dues to the Board, and apply for transfer of ownership of service

connection within 15 days and execute fresh agreement and furnish

additional security. The provisions also make it clear that the petitioner

cannot be heard to say that he was unaware of the arrears due from Sarojini . RP NO. 543 OF 2021

13. On a reading of regulation 41 of the Kerala Electricity Supply Code,

2014, the service connection shall be transferred and supply of electricity

shall be continued to the premises with the arrears of electricity charges and

other liabilities, only if the consumer agrees to transfer the service connection

along with the security deposit as well as the liability of arrears of electricity

charges and other liabilities, if any, to the transferee and the transferee agrees

to take over from the consumer the service connection along with security

deposit as well as liability of arrears of electricity charges and other liabilities

if any. Evidently, none of the requirements contained under regulations 40

and 41 of the Kerala Electricity Supply Code, 2014, were complied with by the

consumer and the purchaser of the property. Therefore, in our view, the

contention advanced in the delay condonation petition and the review

petition on the basis of the stipulations contained under the said provisions

would not inure to the benefit of the petitioner.

14. The contention with respect to the limitation prescribed under

Section 56 of Act, 2003 was considered by the Division Bench in the

judgment in question viz-a-viz the provisions of Section 185 of the Electricity

Act, 2003, dealing with repeal and saving, and declined the relief sought RP NO. 543 OF 2021

under the same and therefore, no contention can be advanced on the basis of

the same. However, the petitioner has advanced contention on the basis of

regulation 178 of the Kerala Electricity Supply Code, 2014, which in fact, has

protected the provisions of the Kerala Electricity Supply Code, 2005 and

other regulations which is not a subject matter of issue raised by the

petitioner in the delay petition and the review, so as to secure any advantage

if at all available to the petitioner. Another contention advanced by the

learned Senior Counsel for the petitioner is relying upon Section 6 of the

General Clauses Act, 1897 (Central Act), Section 6 deals with effect of repeal,

which reads thus:

"6. Effect of repeal.- Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or RP NO. 543 OF 2021

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

15. On a consideration of the provisions of Section 6, what we could

gather is that, unless a different intention appears, the repeal shall not affect

the aspects contained under Section 6 of Act, 1897 . Since the Electricity

Supply Code, 2014, is a State enactment, Section 4 of the Kerala

Interpretation and General Clause Act, 1125 would apply. Section 4 thereto

deals with the effect of repeal which is in pari materia with Section 6 of the

Central Act. Learned Counsel has also invited our attention to the following

judgments of the Apex Court, Hasan Nurani Malik v. S.M.Ismail,

Assistant Charity Commissioner, Nagpur and Others AIR 1967 SC

1742, Jayantilal Amratlal v. Union of India and Others 1972 (4)

SCC 174, Gupta M.C. v. Central Bureau of Investigation, RP NO. 543 OF 2021

Dehradun 2012(8) SCC 669, Fibre Boards (M/s) (P) Ltd,

Bangalore v. Commissioner of Income Tax, Bangalore 2015 (10)

SCC 333 and Union of India and Others v. T.R.Mehra 2020 (15)

SCC 125.

16. However, on a reading of the principles of law evolved, we are of the

considered opinion that the aforesaid judgments rendered by the Apex Court

would not in any manner help the case advanced by the petitioner, since they

are rendered absolutely following the provisions of law governed under

Section 6 of the Act, 1897, dealing with the manner in which the provisions of

a repealed enactment to be tackled. We are in fact unable to understand how

section 6 of Act 1897 would be beneficial to the petitioner, since the

petitioner's case is that consequent to the introduction of the Electricity Act,

2003 and the attendant laws, the proceedings initiated under the erstwhile

laws would vanish . In our view it is the other way round, because the

intention of section 6 is to protect actions taken under the repealed

enactments . In that view of the matter, the petitioner is not entitled to

succeed on that ground also.

RP NO. 543 OF 2021

17. That apart, in our view, the proceedings were complete in respect of

the arrears due from Sarojini as early as in 2002 and what is remaining is

only the pending proceedings to recover the amount due from Sarojini on the

basis of charge created in the property purchased by the petitioner. As we

have pointed out above, none of the provisions of regulation 40 of the Kerala

Electricity Supply Code, 2014 would come to rescue the petitioner. Therefore,

taking into account the factual and legal circumstances and the contents of

the affidavit supporting the delay condonation petition, we are of the

undoubted opinion that, petitioner has not made out any case for

condonation of delay and for that matter, even for consideration of the review

petition, there being no error apparent on the face of the record or other legal

infirmities justifying us to do so . Whatever that be, we do observe that, an

amount which has fallen due to the Electricity Board, which is a public

money, is unable to be recovered in spite of an elapse of nearly 20 years and

the petitioner was successful in prolonging the issue against the charged

property throughout the years by instituting recurring proceedings. We are

also of the view that even going by the averments made by the petitioner,

pursuant to the judgment in the writ appeal, petitioner has sought for RP NO. 543 OF 2021

payment of the amount in one time settlement scheme available, which was in

fact granted, and therefore, the judgment was even acted upon, and later the

petitioner is not at liberty to turn around and seek review of the Judgment .

Needless to say, we dismiss the CM application for condonation of

delay and consequently, the review petition. In the facts and circumstances,

and due to the prevailing emergent situation of Covid - 19 pandemic, we

restrain ourselves from imposing costs.

Sd/-

SHAJI P.CHALY JUDGE

Sd/-

MURALI PURUSHOTHAMAN JUDGE

uu 14.09.2021