Kerala High Court
Dr.K.K.Usman vs Executive Engineer on 3 March, 2011
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935
WP(C).No. 9360 of 2011 (T)
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PETITIONER:
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DR.K.K.USMAN, AGED 71,
S/O.KADIR HAJI, KIZHAKKEVEETTIL, KODER LANE,
BYPASS JUNCTION, ALUVA-1.
BY ADVS.SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SRI.UDAYAKUMAR SREEDHARAN
RESPONDENTS:
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1. EXECUTIVE ENGINEER,
KERALA STATE ELECTRICITY BOARD,
ELECTRICAL DIVISION, ALUVA - 683 101.
2. THE DEPUTY TAHASILDAR,
REVENUE RECOVERY, ALUVA - 683 101.
3. THE VILLAGE OFFICER,
ALUVA WEST VILLAGE, ALUVA - 683 101.
BY GOVERNMENT PLEADER SRI.M.A.ABDUL SHUKOOR
R1 BY ADV. SMT.P.K.RADHIKA - SC
BY SRI.P.P.THAJUDEEN, SC, K.S.E.B
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21-11-2013, ALONG WITH WPC. NOS.15950/2011, WPC. 22512/2011, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 9360 of 2011 (T)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE NOTICE UNDER SECTION 7 OF THE REVENUE RECOVERY ACT
DEMANDING RS.2,16,792/- WITH 5% COLLECTION CHARGES ETC.
EXT.P2: COPY OF THE NOTICE UNDER SECTION 34 OF THE REVENUE RECOVERY ACT
DEMANDING RS.2,16,792/- WITH 5% COLLECTION CHARGES ETC.
EXT.P3: COPY OF THE REPRESENTATION DATED 3.3.2011 OBJECTING TO THE
REVENUE RECOVERY ACTION OF THE RESPONDENTS 2 AND 3.
EXT.P4: COPY OF THE REPRESENTATION MADE TO THE 1ST RESPONDENT
REQUESTING TO RECALL THE REVENUE RECOVERY PROCEEDING VIDE EXT.P1 AND P2.
RESPONDENT'S EXHIBITS:
EXT.R1(A) : COPY OF THE COMMUNICATION DATED 19.3.2003.
EXT.R1(B) : COPY OF THE CALCULATION STATEMENT.
//True Copy//
P.A to Judge
ab
C.K.ABDUL REHIM, J
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W.P(C)Nos.9360/2011, 15950/2011
& 22512/2011
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Dated this the 21st day of November, 2013
J U D G M E N T
Petitioners in all these cases are the sons of one Sri.Khader Haji of Kizhakke Veetil House, Edavanakkad, who was running a Tile Factory under the name and style, Osmaniya Tile Works, Thuruthu, Aluva. The Tile Factory in question was provided with an electric connection with Consumer No.369.
2. Challenge in these writ petitions are against revenue recovery proceedings initiated pursuant to notices issued under Section 7 and 34 of the Kerala Revenue Recovery Act, against the petitioners. An amount of Rs.2,16,792/- was sought to be recovered along with collection charges and other charges through the impugned revenue recovery proceedings.
3. Averments in all these writ petitions are more or less identical. According to the petitioners Sri.Khader Haji, who was the registered consumer, expired long back, in the year 1950. It is conceded that, after death of Sri.Khader Haji the industry was run for sometime on the basis of a partnership W.P(C)Nos.9360/2011, 15950/2011 & 22512/2011 2 constituted in the year 1957. The petitioners in these cases along with other legal heirs of late Sri.Khader Haji were partners of the firm, along with certain others. It is stated that the Tile Factory along with its properties was sold in February 1978. In the impugned notice it is mentioned that the arrears pertains to the period upto 12/95. Therefore it is contended that, the petitioners are not liable for payment of the amount of electricity charges demanded under the impugned revenue recovery notices.
4. In the counter affidavit filed in W.P(C) No.9360/2011 it is mentioned that, the electric connection in question was dismantled on 6.1.1996 and since the arrears was not paid the revenue recovery action was initiated against the registered consumer, in the year 2000. But report received from the Tahsildar in the year 2003 revealed that the registered consumer had expired and there is no such firm functioning. Since the Tahsildar had intimated details of the legal heirs, fresh requisition was forwarded to initiate revenue recovery steps against the legal heirs. It is alleged that neither the death of the registered consumer nor the transfer of the property was duly intimated to the authorities of the Board.
W.P(C)Nos.9360/2011, 15950/2011 & 22512/2011 3
5. While considering the matter on 16.7.2012, this Court noticed that the counter affidavit is silent on the aspect as to which period the demand relates to. Therefore the KSEB was directed to file an affidavit indicating details regarding the impugned demand.
6. In an additional affidavit filed on 7.8.2012 by the Assistant Executive Engineer it is stated that, on a perusal of the records it is found that the charges were as due from 7/2005 to 12/05. A calculation statement was also produced as per Ext.R1
(b). It indicates that the balance outstanding as arrears as on 12/2005 is Rs.1,07,536/-. But the additional affidavit is more confusing, because it is admitted that the connection was dismantled as early as on 6.1.1996. But the impugned notice indicates that the arrears pertains to the period up to 12/1995.
7. Under such circumstances, this Court directed the Executive Engineer to file a personal affidavit enumerating all aspects of the matter. In a counter affidavit filed in response to the above direction it is conceded that, the facts stated in the affidavit filed by the Assistant Executive Engineer is not correct and the arrears pertains to the period between 7/1995 to W.P(C)Nos.9360/2011, 15950/2011 & 22512/2011 4 12/1995. In the additional affidavit it is contended that the petitioners along with others have conducted the unit in partnership after the death of Sri.Khader Haji and therefore they are liable to pay the amount. It is also contended that the petitioners and others are liable for payment of the amount as legal heirs of the deceased registered consumer. However, it is conceded that the details regarding payments effected in the connection, was not available in the office concerned. According to the Executive Engineer, the amount demanded in the impugned notices pertains to arrears up to 12/1995 along with surcharge due upto 10/99.
8. From the factual aspects enumerated as above, it is evident that the electric connection was provided in the name of the deceased father and it was dismantled in the year 1996. The respondents are not in a position to dispute the fact that the registered consumer expired during the year 1950. It is evident that the revenue recovery steps were initiated only in the year 2000, that too against the deceased consumer. It is only on the basis of the report received from the Tahsildar that fresh steps for revenue recovery was initiated against the petitioners, in the year 2003, as the legal heirs of the defaulter. Contention of the W.P(C)Nos.9360/2011, 15950/2011 & 22512/2011 5 petitioners is that they have conducted the unit in partnership only upto the year 1978 and the property along with the unit was sold during February 1978. Learned counsel made available for my perusal a certified copy of the sale deed executed in this regard. If that be so, it is evident that the arrears fallen due during the year 1995 cannot be realised either from the deceased original consumer or from his legal heirs. Eventhough a contention was raised in the additional affidavit to the effect that the petitioners and other partners are liable on the basis that the partnership firm conducted the unit, it is not evident for which period the unit was conducted under the partnership and as to whether there was any arrears pertaining to such period. Those aspects were not examined by any competent authority. It is also pertinent to note that, as legal heirs of the deceased registered consumer, the petitioners will be liable only for the default if any committed by him, that too only to the extent of estate if any inherited from the deceased father. The revenue recovery steps initiated against the petitioners without considering all these aspects and without conducting any adjudication with respect to liability of the petitioners cannot be sustained.
W.P(C)Nos.9360/2011, 15950/2011 & 22512/2011 6 Under the above mentioned circumstances, these writ petitions are allowed and the revenue recovery proceedings impugned in all these three petitions are hereby quashed. Liberty is reserved in favour of KSEB and its authorities to initiate fresh steps to recover the amounts due from the petitioners, if it is found that they are legally liable for payment of said amount. But such steps can be initiated only after providing opportunity to the petitioners and only after fixing liability upon them on the basis of an adjudication conducted. If the respondents proposes to take any such action, the Executive Engineer, KSEB, Electrical Division, Aluva shall issue notice to the petitioners and they shall be afforded with opportunity to object such proposal.
C.K.ABDUL REHIM JUDGE ab