Telangana High Court

Anwarululoom, Hyd Another vs Chairman M.D. A.P.C.P.D.C.L. 3 ... on 24 February, 2022

Bench: Satish Chandra Sharma, Abhinand Kumar Shavili

 THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                           AND
      THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                     WRIT APPEAL No.1234 OF 2009

JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)

        The appellant No.1, a Society registered under the Andhra

Pradesh (T.A.) Public Societies Registration Act, 1350 Fasli, and

the appellant No.2, a college being run by the appellant No.1,

have filed the present appeal being aggrieved the order dated

23.07.2009          passed        by     the      learned       Single    Judge     in

W.P.No.27569 of 2005.

        The undisputed facts of the case reveal that a demand

dated 30.11.2005 was raised by the respondents for payment of

electricity dues. The appellants came before the learned Single

Judge stating that no amount can be recovered after a period of

two years is over from the date it became due. The learned

Single Judge has dismissed the writ petition. The facts of the

case further reveal that earlier the appellant No.2/institution

was in category-VII of the consumers. Meaning thereby, they

were required to pay electricity dues at a cheaper rate and as

per the revised categorisation dated 30.06.2000, the appellant

No.2/institution came under category-II with effect from

01.07.2001. The categorisation is the subject matter of a writ

petition i.e., W.P.No.15430 of 2001 and during the pendency of

the writ petition, an application in W.P.M.P.No.19312 of 2001

was preferred seeking suspension of the aforesaid demand

proceedings and the same was dismissed. After dismissal of the

interlocutory application, a writ appeal in W.A.No.1460 of 2001

was preferred and the following order dated 24.09.2001 has

been passed in the writ appeal:-

"Keeping in view the fact that a substantial question of law has arisen as to whether the re-classification should be given a retrospective effect, we are of the opinion that the interest of justice would be sub served if the appellant is directed to pay the amount at the new rate from 1-7-2001, the date of passing the demand notice. There, however, cannot be any doubt whatsoever that in the event the writ petition is dismissed the writ petitioners - appellants shall pay the balance amount forthwith or as directed by the learned single Judge to the aforementioned extent. The appellants may file an undertaking before the learned single Judge in that regard. We however, make it clear that the revised payment should be made within a period of one week from date.

With the aforementioned observations, the writ appeal is disposed of. No order as to costs."

The aforesaid order reveals that the demand was certainly

raised in the year 2001 on account of revised categorisation and

the same was not paid. Meaning thereby, the appellants were

well aware that they have to pay electricity dues by treating

them as classified under category-II. However, they did not opt

to pay as category-II consumer. The aforesaid order 24.09.2001

passed in W.A.No.1460 of 2001 has attained finality. Thereafter,

as the dues accumulated in the matter, a writ petition was

again preferred in W.P.No.27569 of 2005 and a plea was raised

that in the light of Section 56(2) of the Electricity Act, 2003 (for

short "the Act"), the dues are not recoverable.

Section 56(2) of the Act is reproduced as under:-

"56(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section 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."

The facts of the case reveal that right from 01.07.2001

i.e., the date of revised categorisation, all attempts are being

made by the appellants not to pay electricity dues by falling

under Category-II. The appellants were well aware that they

have to pay electricity dues by treating them under category-II,

on account of litigation the amount kept on accumulating and

the respondents have rightly issued a final bill on 30.11.2005.

The learned Single Judge has taken care of the aforesaid

situation in paragraphs 7 and 8 of the impugned order, which

read as under:-

"7. In view of the rival contentions on either side, in this case, it is to be noted that initially the electricity service provided to the petitioners was categorized under category VII and as per the revised categorization notified in M.S.No.50 dated 30-06-

2000, it was recategorized to category II. In that view of the

matter, though it was obligatory on the part of the petitioners to pay the charges which are applicable to service connection categorized under category II, but, the petitioners continued to pay the bills under category VII. In view of the same, when, for the differential amount, demand was made, petitioners approached this court and filed writ petition and when interim orders were passed subject to payment of entire demanded amount, the matter was carried in appeal and in view of the orders passed by the Division Bench of this court in the writ appeal, petitioners were to pay the bills under category II with effect from 01-07-2001. In spite of the same, petitioners did not pay the bills as per rates applicable to revised category. As such, towards differential amount, Rs.8,48,253/- was demanded. In the impugned proceedings, it is made clear that the demand is made in view of the orders passed by the Division Bench of this court referred above. As the demand in question is pursuant to the directions issued by the Division Bench of this court in W.A.No.1460 of 2001, petitioners cannot question the consequential demand made in the impugned proceedings, by way of a writ petition again. Even with regard to the bill amount for the month of 12/2005 and the consequential electricity consumption bill dated 06-12- 2005 and also intimation slip dated 24-12-2005, it is clarified that the said demands were inclusive of the current consumption month charges and the earlier arrears which includes surcharge and also the differential amount for the period upto 2005 in view of change in category, i.e. from category VII to category II. Although, it is contended by the learned counsel for petitioners, Sri B. Nalin Kumar, that recovery cannot be made in view of the provision under Section 56(2) of the Indian Electricity Act, 2003, there is no basic pleading in the affidavit filed in support of the writ petition stating that arrears towards recovery were not shown continuously in the bills. In absence of such pleading, it is always open to recover the amount due, without reference to any limitation contemplated under Section 56(2) of the Indian Electricity Act, 2003. Further, in the judgment rendered by the Hon'ble Supreme Court in the case of M/s. Kusumam

Hotels (P) Ltd. V. Kerala State Electricity Board and Ors. (2008 AIR SCW 4638) , it is held that limitation prescribed under Section 56 (2) of the Act has no application to the dues arising under Electricity (Supply) Act, 1948. Even in the instant case, it is to be noted that the service provided to the petitioners is governed by the terms and conditions of supply framed under Section 49 of the Electricity (Supply) Act, 1948. Hence, the plea of the petitioners that in view of limitation they are not liable to pay the impugned demand cannot be accepted. As much as the demand in question is consequent to the orders of the Division Bench of this court in the writ appeal referred above, as per which respondents were entitled to collect differential amount in view of respondents- categorization from category VII to category II, it is not open to the petitioners to question the impugned demand on the ground that it is not preceded by any notice. Precisely, the impugned demand made is with reference to the arrears which are inclusive of the current consumption charges. For the aforesaid reasons, I do not find any merit in the writ petition, for grant of relief as prayed for.

8. The writ petition is accordingly dismissed, however, in the circumstances, without any order as to costs. However, the petitioner-society is granted six weeks time to clear the arrears payable by it. Till such time, no action shall be taken for disconnection of the petitioner's service connection."

This Court after careful consideration of the earlier order

passed by the Division Bench in W.A.No.1460 of 2001, which

makes it very clear that the appellants were told about the

payment at higher rates under category-II and the demands

were raised from time to time, the learned Single Judge was

certainly justified in dismissing the writ petition. This Court is

of the considered opinion that no case for interference is made

out in the matter.

Resultantly, the writ appeal stands dismissed.

Pending miscellaneous applications, if any, shall stand

closed. There shall be no order as to costs.

________________________ SATISH CHANDRA SHARMA, CJ