Kerala High Court
K.Subramonian Pillai vs The Assistant Executive Engineer on 5 June, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
WP(C) NO. 6409 OF 2009
PETITIONER:
K.SUBRAMONIAN PILLAI,
PRESIDENT, PATTATHANAM THARAVATHIL NELLULPADAKA,
SAMITHI, KUDAVACHOOR, VAIKOM, KOTTAYAM DIST.
BY ADV A.K.HARIDAS
RESPONDENTS:
1 THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION, K.S.E.B, VAIKOM
2 THE ASSISTANT ENGINEER,
ELECTRICAL SECTION, K.E.S.E.B, THALAYAZHAM, VAIKOM
3 THE DEPUTY TAHSILDAR (R.R.),
VAIKOM, KOTTAYAM DISTRICT
4 THE AGRICULTURAL OFFICER,
AGRICULTURAL BHAVAN,VECHOOR, VAIKOM,, KOTTAYAM
DISTRICT
5 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,
AGRICULTURE DEPARTMENT, GOVERNMENT ,SECRETARIAT,
THIRUVANANTHAPURAM
BY ADVS.
ARUN KUMAR SC, KERALA STATE ELECTRICITY BOARD
LIMITED,
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.04.2024, THE COURT ON 05.06.2024 DELIVERED THE FOLLOWING:
W.P.(c) No.6409 of 2009 :2:
JUDGMENT
The petitioner, a person in his late seventies, has approached this
Court to challenge the revenue recovery proceedings initiated against
him for unpaid electricity charges for a 10HP dewatering pump set
installed by the 'Pattathanam Tharavathil Nellulpadaka Samithi' (referred
to as the 'Samithi') in their Padasekharam at Kaduvachoor, Vaikom,
Kottayam district, of which the petitioner was the President.
2. The petitioner was the President of the Samithi, a society
registered under the Travancore Cochin Literary, Scientific and
Charitable Societies Registration Act, 1955, from 26.01.1997 to
16.7.2000. The Samithi consists of 44 agriculturists, each having paddy
fields of less than one acre on average. The total extent of paddy fields
under the control of the Samithi was 40 acres.
3. As part of the Government's initiative, a scheme for supplying a
10HP motor for the dewatering process was introduced. The petitioner,
as the President of the Samithi, applied to the Kerala State Electricity
Board (KSEB) to convert the single-phase connection to three-phase.
The connection was provided on July 30, 1999, to the motor shed in the
Padasekharam. Ext.P1 is the Minimum Guarantee Register of the KSEB,
where the petitioner's name is shown as the President of the Samithi in
relation to the 10HP connection for agricultural land. Ext.P2 is the
electricity bill dated July 1, 2000, which does not show the name of the
consumer, but lists the consumer number as '9204'. After installing the
10HP motor, it was found to be insufficient for pumping water from the
Padasekharam. Therefore, the Samithi had to arrange for a diesel engine
for the dewatering process. In the meantime, survey stones were laid
through the center of the Padasekharam for the construction of the
Kodimatha-Cherthala Highway, leading most members to stop
cultivation. The electric motor was used only for a short period of five
months in 1999.
4. While so, the petitioner received Ext.P3 notice from the 2 nd
respondent, the Assistant Engineer, KSEB, intimating that an amount of
Rs.66,529/- is due to KSEB towards arrears of electric charges in respect
of consumer No. 9204 in the name of the petitioner. The petitioner
submitted Ext. P4 reply stating that the petitioner was the President of
the Samithi for the period from 26.01.1997 to 16.7.2000 and no
electricity was consumed in respect of the said connection after 1999 and
the petitioner is not liable to pay the amount demanded in Ext. P3. To
Ext. P4, the petitioner did not receive any reply. Thereafter, the members
of the Samithi submitted Ext. P5 representation before the Agricultural
Officer, Vechoor referring to Ext. P3 notice and requesting to take steps
for payment of the amount demanded in Ext. P3. Ext. P5 was also not
responded to. The members of the Samithi also addressed Ext. P6 letter
to the Hon'ble Minister for Agriculture, seeking intervention to exclude
the members from the liability to pay the electricity charges.
5. While so, the 3rd respondent, the Deputy Tahasildar (Revenue
Recovery) issued Ext. P7 notice under Section 34 of the Kerala Revenue
Recovery Act, 1968 for recovery of an amount of Rs.1,47,979/- towards
electricity charges for the period May,2000 to May,2008. The petitioner
has filed this writ petition challenging Ext. P3 notice and Ext. P7
revenue recovery demand notice.
6. It is contended by the petitioner that the electric connection was
taken by the Samithi for installation of 10HP motor pump for pumping
water from the padasekharam and he has no personal liability to pay the
amount demanded in Exts. P3 and P7 notices. The motor was purchased
as per a Government's Scheme on the premises that the electricity
charges will be remitted by the Agricultural Department. It is contended
that the petitioner is not the consumer in respect of the electric
connection and he cannot be made liable for the amounts demanded in
Exts. P3 and P7.
7. A counter affidavit has been filed on behalf of respondents 1 and
2, wherein it is stated that the petitioner has executed a minimum
guarantee agreement for Rs.36,500/- and as per the agreement, the
petitioner is bound to pay electricity charges demanded by the KSEB.
The respondents 1 and 2 have produced Consumer's Personal Deposit
Register, wherein the name of the consumer has been entered as that of
the petitioner. It is contended that as per the minimum guarantee
agreement, the petitioner is liable to pay the amount due as electricity
charges in respect of consumer No.9204. It is further stated that as per
Section 2(15) of the Electricity Act, 2003 and clause 1(m) of the Kerala
State Electricity Board Terms and Conditions of Supply, 2005 'consumer'
means any person who is supplied with electricity for his own use by a
licencee or the Government or any other person engaged in the business
of supplying electricity to the public. Since the petitioner is the
guarantor, the petitioner, as the consumer, has to pay the electricity
charges.
8. The petitioner has filed a reply affidavit rebutting the averments
in the counter affidavit.
9. In the light of the averments in the counter affidavit that the
petitioner has executed a minimum guarantee agreement with the KSEB.
This Court by order 27.05.2014, directed the 1 st respondent to produce a
copy of the minimum guarantee agreement. Since the agreement was not
produced, this Court by order dated 25.05.2015 granted further time for
production of the agreement. On 30.06.2015, this Court recorded that
the order dated 25.05.2015 to produce a copy of the minimum guarantee
agreement was not complied with. The 1 st respondent has not so far
produced the copy of the minimum guarantee agreement as directed by
this Court.
10. Heard the learned counsel for the petitioner, the learned
standing counsel for the KSEB and the learned Government pleader.
11. It is contended by the petitioner that the Samithi is a
Padasekharam Committee constituted as per Section 7A of the Kerala
Land Development Act, 1964. The term of office of the President of the
Committee is ordinarily for a period of three years. As per the scheme
framed under the said Act, the Committee will be provided with pump
sets and platforms for the erection of pump sets for dewatering process.
Section 18 empowers the Government to grant loans to the
Padasekharam Committee or stand guarantee for payment of any loan
advanced by any bank or financial institution or to any person for
carrying out any work under the scheme. It is contended that the
petitioner cannot be fastened with liability to pay the bills for the
electricity supplied for the use of the Samithi.
12. There is no dispute that the petitioner was the President of the
Nellulpadaka Samithi for the period 26.01.1997 to 16.7.2000. The
connection was effected on 03.07.1999. It was for the benefit of all
members of the Samithi. According to respondents 1 and 2, there is a
minimum guarantee agreement executed by the petitioner with the
KSEB and therefore, the petitioner is the consumer in respect of the
10HP 3 phase motor connection. As per Section 2(15) of the Electricity
Act, 2003 and clause 1(m) of the Kerala State Electricity Board Terms
and Conditions of Supply, 2005, 'consumer', means any person who is
supplied with electricity for his own use by a licencee. The electricity
connection with consumer No.9204 has been given for the purpose of
installation of 10HP motor for dewatering at padasekaram. Electricity
was supplied for the use of the members of the Samithi and not for the
personal use of the petitioner.
13. It is contended by respondents 1 and 2 that even though the
petitioner was not using electricity for his own use, as a guarantor, he is
responsible for paying the electricity charges to the KSEB. The
minimum guarantee agreement has not been produced by respondents 1
and 2, despite repeated directions by this Court. It is not evident whether
the agreement was executed by the petitioner in the capacity of the
President of the Samithi or in his personal capacity. It is also not clear
whether, in the minimum guarantee agreement, the petitioner had given
any personal guarantee for honouring the minimum guarantee agreement
or had created any charge over his personal properties. Furthermore, it is
not evident whether the agreement provides that the dues that may
become payable by the guarantor, in relation to or by virtue of the
agreement by reason of breach or otherwise, are recoverable under the
provisions of the Revenue Recovery Act. Since respondents 1 and 2 have
not produced the minimum guarantee agreement, I have to draw an
adverse inference against them. In the absence of records, I reject the
contention of respondents 1 and 2 that as a guarantor, the petitioner is
responsible for paying the electricity charges to the KSEB. Accordingly,
Exts. P3 and P7 are set aside. The petitioner is entitled to get a refund of
the amounts which he has remitted as a condition for stay of recovery
proceedings. Respondents 1 and 2 shall refund the amount within a
period of two months from the date of receipt of a certified copy of this
judgment.
The writ petition is allowed.
sd/-
MURALI PURUSHOTHAMAN,
JUDGE
sj
APPENDIX OF WP(C) 6409/2009
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE MINIMUM GURANTEE REGISTER
MAINTAINED AT THE OFFICE OF THE FIRST
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ELECTRICITY BILL DATED 1-7-
2000.
EXHIBIT P3 TRUE COPY OF THE NOTICE GIVEN BY THE 2ND
RESPONDENT DATED 16-8-2005.
EXHIBIT P4 TRUE COPY OF THE REPLY GIVEN BY THE
PETITIONER TO THE 2ND RESPONDENT DATED 19-9-
2005.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION FILED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT DATED
19-9-2005.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BY THE
MEMBERS OF THE NELLUPADAKA SAMITHI TO THE
HON'BLE MINISTER FOR AGRICULTURE DATED 9-4-
2008.
EXHIBIT P7 TRUE COPY OF THE R.R. NOTICE ISSUED TO THE
PETITIONER.
EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 5/1/2011
ISSUED BY THE THIRD RESPONDENT RECEIVED BY
THE PETITIONER ON 20.1.2011 AS PER ORDER
DATED 5-4-2011 IN IA NO.1789/11.
