Kerala High Court
Shiju Joseph vs State Of Kerala on 28 May, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 10563 OF 2016
PETITIONER/S:
1 SHIJU JOSEPH,
AGED 46 YEARS
S/O.JOSEPH, KAYYALAPARMBIL HOUSE, THIRUMENI P.O.,
KANNUR - 670 011.
2 HASHEEM N.,
NALAKATH VEEDU, KANNOTHUMCHAL P.O., CHOVVA, KANNUR
DISTRICT, PIN - 670 006.
3 K.S.MOHANDAS,
S/O.SREEDHARAN, KOCHU THUNDIYIL, PRAPOYIL, PRAPOYIL
P.O., KANNUR DISTRICT.
4 P.S.SREENIVAVSAN
PERINJAPATTE HOUSE, PRAPOYIL P.O., KANNUR DISTRICT.
5 RATNAKARAN E.D.,
ELAM PURAYIDATHIL HOUSE, KARTHIKAPURAM P.O., KANNUR
DISTRICT.
6 M.K.ANIL KUMAR
MANDOTHANKULLANGOTT, KUMAR BHAVAN, TALAP, KANNUR
DISTRICT. (ALL ARE PARTNERS OF ERSTWHILE FIRM
M/S.SOFTEX INDUSTRIES, ARAVANCHAL).
BY ADVS.
K.SHIBILI NAHA
SAJU RAGHAVAN
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2 SPECIAL DEPUTY TAHASILDHAR,
(REVENUE RECOVERY), KANNUR - 670 001.
3 THE VILLAGE OFFICER,
KANNUR VILLAGE, KANNUR TALUK, PIN - 670 002.
4 EXECUTIVE ENGINEER,
K.S.E.B., ELECTRICAL DIVISION, PAYYANNUR.
5 THE ASST.ENGINEER ELECTRICAL SECTION,
K.S.E.B., PADDYCHAL P.O., KANNUR DISTRICT.
6 T.P.MOHAMMED RAFI ,
AGED 54 YEARS
S/O.ABDUL KADAR HAJI, TPK HOUSE, FERRY ROAD,
WP(C) NO. 10563 OF 2016
2
VALAPATTANAM P.O., KANNUR DISTRICT.
BY ADVS.
GOVERNMENT PLEADER
G.KEERTHIVAS
OTHER PRESENT:
SMT. THUSHARA JAMES- SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 10563 OF 2016
3
JUDGMENT
The petitioner's firm was the consumer of electricity under
the provisions of the Kerala Electricity Act, 2003. The petitioners
are the partners of the erstwhile firm (M/s Softex Industries,
Aravanchal) which was engaged in manufacture of coconut fiber.
The petitioners availed the electricity connection in the year 1993
and entered into an agreement with the Kerala State Electricity
Board Limited on 11/1/1993. The petitioners were guarantor of the
agreement and they undertook to pay to the Board energy charges
subject to the minimum amount specified in the schedule appended
in the agreement, which would be equal to 15 % of the estimated
capital cost or the actual cost of work including 10% establishment
charges for a minimum period of 10 years or such other period as
the Board may fix from time to time, with or without notice.
2.According to the petitioners, they close down their firm and
dismantled the electricity connection on 16.10.1998. After closing
down the firm, Kerala Financial Corporation took the possession of
the premises and sold the premises in favour of the 6 th respondent
on 05.11.2005. It appears that the 6 th respondent had applied for a
new electricity connection at the premises. However, since the
minimum guarantee charges as per the agreement were not paid
WP(C) NO. 10563 OF 2016
by the petitioners, the notice for unpaid charges was issued to the
6th respondent. The 6th respondent denied the liability stating that ,
for the previous charges before purchasing the premises, it would
be the responsibility of the erstwhile owner. Thereafter, a notice
was issued to the petitioners for electricity charges for the
minimum guarantee under the agreement. The petitioners denied
the notice and stated that the electricity connection was
dismantled way back on 16.10.1998 and therefore, after
dismantling the connection they would not be liable to pay the
electricity charges.
3.Learned counsel for the petitioners submits that the
petitioners are liable for payment of minimum guarantee charges
till the date they dismantled the connection. The respondents have
never denied the date of dismantling the connection. He further
submits that the demanding charges for a period after 16.10.1998
from the petitioner is wholly unjustified and that demand is
unsustainable.
4.Ms. Thushara James, the learned Senior Standing counsel
for the Electricity Board, however submits that dismantling by the
petitioners is immaterial in view of the specific agreement entered
between the Electricity Board and the petitioners for minimum
guarantee charges for a period of ten years with effect from
WP(C) NO. 10563 OF 2016
11.01.1993. She therefore, submits that, even if it is believed that
the petitioners dismantled the electricity connection on
16.10.1998, they would still be liable for payment of minimum
guarantee charges for a period of ten years with effect from
11.01.1993.
5.In support of the submissions, the learned counsel for the
respondent has placed reliance on the judgments of this court in
case of Rajesh v. KSEB [2006 KHC 207] and Abdul Vahab v.
Kerala State Electricity Board, Tvm and others [ 2015 (4)
KHC 57].
6.On a close reading of the judgments cited by the learned
counsel for the respondent, it can be seen that in the aforesaid two
judgments cited, the consumer did not dismantle the electricity
connection and no intimation to that effect was sent to the KSEB.
However, in the present case, it can hardly be denied that the
petitioners had dismantled the connection on 16.10.1998 and they
had intimated this to the KSEB as well. Therefore, I am of the
considered view that, when the electricity connection was
dismantled on 16.10.1998, the demand of the minimum guarantee
charges thereafter would be higly inequitable.
In view of the specifc stand of the learned counsel for the
WP(C) NO. 10563 OF 2016
petitioners that the petitioners are libale to pay the electricity
charges for minimum guarantee in pursuance to the agreement
dated 11.01.1993 up to the date of dismantling ie., 16.10.1998, the
present writ petition is disposed of, with liberty to the KSEB to
issue a fresh demand notice upto 16.10.1998, and the petitioner
shall remit the said amount within a period of one month
thereafter.
Sd/-
DINESH KUMAR SINGH
JUDGE
SJ
WP(C) NO. 10563 OF 2016
APPENDIX OF WP(C) 10563/2016
PETITIONER EXHIBITS
EXT.P1 A TRUE COPY OF THE SDALE DEED DATED
16.09.2008.
EXT.P2 A TRUE COPY OF THE DEMAND NOTICE ISSUED
U/S 7 OF THE REVENUE RECOVERY ACT ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONERS
ARE OTHER DATED 23.11.2015.
EXT.P3 A TRUE COPY OF THE DEMAND NOTICE PRIOR TO
ATTACHMENT RECEIVED BY THE PETITIONERS.
EXT.P4 A TRUE COPY OF THE LAWYER NOTICE DATED
27.01.2016.
EXT.P5 A TRUE COPY OF THE JUDGEMENT IN WP(C)
NO.25357/2013 DATED 03.12.2013.
EXT.P6 A TRUE COPY OF THE LAWYER NOTICE DATED
18.02.2014.
EXT.P7 A TRUE COPY OF THE METER NO.BB/RR/2013-14
- 03.02.2014 ISSUED BY THE 5TH RESPONDENT.
