Kerala High Court
Indus Towers Limited vs The Kerala State Electricity Board Ltd on 10 March, 2020
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941
WP(C).No.7251 OF 2020(F)
PETITIONER:
INDUS TOWERS LIMITED
8TH FLOOR, VANKARATH TOWERS, NH BYPASS,PALARIVATTOM,
COCHIN-682 024, KERALA, INDIA, REPRESENTED BY ITS
AUTHORIZED SIGNATORY MR. RAJKUMAR PAVOTHIL-HEAD
LEGAL, KERALA CIRCLE COMPRISING OF STATE OF KERALA
BY ADVS.
SRI.SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.JENNIS STEPHEN
SRI.VIJAY V. PAUL
SRI.ANIL SEBASTIAN PULICKEL
SMT.DIVYA SARA GEORGE
SMT.VEENA RAVEENDRAN
SMT.KARTHIKA MARIA
RESPONDENTS:
1 THE KERALA STATE ELECTRICITY BOARD LTD.
REPRESENTED BY ITS SECRETARY,
VYDYUTHI BHAVAN, PATTAM,
TRIVANDRUM-695 001
2 THE DEPUTY CHIEF ENGINEER,
ELECTRICAL CIRCLE,
KERALA STATE ELECTRICITY BOARD LTD.,
KOZHIKODE PIN-673 032
3 THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION,
KERALA STATE ELECTRICITY BOARD LTD., MANKAVU,
KOZHIKODE DISTRICT,PIN-673 007
WP(C) No.7251 OF 2020(F)
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4 THE ASSISTANT ENGINEER,
ELECTRICAL SECTION,
KERALA STATE ELECTRICITY BOARD LTD.,
PERUMANNA, KOZHIKODE DISTRICT, PIN-673 019
5 THE KERALA STATE ELECTRICITY APPELLATE AUTHORITY,
(CONSTITUTED UNDER SECTION 127 OF ELECTRICITY ACT,
2003) CC 51/52,VYTTILA, KOCHI-682 019
SRI. N.SATHEESH, SC FOR KSEB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 10.03.2020, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.7251 OF 2020(F)
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JUDGMENT
~~~~~~~~~ Dated this the 10th day of March, 2020 Aggrieved by Exts.P18 and 18(a) orders of the 5th respondent-Appellate Authority constituted under Section 127 of the Electricity Act, 2003, the petitioner is before this Court.
2. Briefly stated, the facts are as follows:-
On 30.07.2009, the KSEB Authorities conducted inspections in the premises of the petitioner bearing consumer No.7697. Consequent thereto, provisional bill amounting to ₹2,16,000/- was issued on 07.08.2009. On the objections raised by the petitioner, the amount of provisional bill was reduced to ₹90,000/-. The petitioner remitted the amount on 08.09.2009.
WP(C) No.7251 OF 2020(F) 4
3. On the basis of certain audit objections, the authorities issued fresh demand as per Ext.P3 dated 08.12.2010. Aggrieved by the fresh demand, the petitioner approached the Janakeeya Vydyudhi Adalat conducted by the 4th respondent. An application in respect of consumer No.7801 was also brought before the Adalat by the petitioner against the excess demand made by the respondents. The Adalat, though considered the matter on 13.02.2011, did not pass any orders till the year 2018.
4. On 23.11.2018, Ext.P5 was issued on the petitioner making a demand for ₹2,23,132/- for consumer No.7697. The petitioner filed Ext.P6 objection dated 31.12.2018. After considering the objection, it appears that the authorities made Ext.P8 demand for non-payment of arrear penal bill towards Exts.P5 and 5(a).
5. Aggrieved by Ext.P8, the petitioner approached the Consumer Grievance Redressal Forum. The Forum allowed the application of the petitioner in respect of consumer WP(C) No.7251 OF 2020(F) 5 No.7697, but rejected the other application relating to consumer No.7801. This was as per Ext.P10 order dated 30.03.2019. Aggrieved by Ext.P10 order, the petitioner filed an appeal before the Ombudsman as per Ext.P11 on 29.04.2019.
6. The learned Ombudsman, after considering the grievance raised by the petitioner, set aside the impugned order as per Ext.P12 and directed the petitioner to file statutory appeals invoking Section 127 of the Electricity Act. In furtherance to the directions given by the Ombudsman, the petitioner filed Ext.P13 appeal under Section 127 of the Act, depositing 50% of the demand as required by law, along with 2% appeal charges. To the dismay of the petitioner, the Appellate Authority rejected the appeal on 07.11.2019 as per Ext.P14 for the reason that no delay condonation application was filed.
7. Thereupon, the petitioner approached this Court filing W.P.(C) No.34236/2019. This Court, as per Ext.P16 WP(C) No.7251 OF 2020(F) 6 judgment, held that the issue warrants interference by this Court and that the dismissal of the appeal filed by the petitioner on the ground of delay is untenable. This Court remitted the matter to the 5th respondent-Appellate Authority. The petitioner was given three weeks time to explain the delay. This Court specifically directed the 5th respondent that the application is to be considered on merits and disposed of in accordance with law. Parties were directed to maintain status quo vis-a-vis subject matter for six weeks.
8. In obedience to the directions given by this Court, the petitioner filed Ext.P17 affidavit explaining the factual circumstances which led to the substantial delay in filing the appeal under Section 127 of the Electricity Act. To the surprise and dismay of the petitioner, the Appellate Authority passed Exts.P18 and 18(a) orders rejecting the appeal again on the ground that the appellant has not explained the inordinate delay.
WP(C) No.7251 OF 2020(F) 7
9. I have heard learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.
10. The learned Standing Counsel appearing for the respondents urged that when the petitioner had a right royal remedy of preferring statutory appeal, the petitioner approached various authorities one after another. When a statutory remedy by way of appeal is available, the petitioner ought not have approached the CGRF. After the orders of the CGRF, the petitioner again approached the Ombudsman. According to the learned Standing Counsel, when statutory alternate remedy was available, the CGRF and Ombudsman ought not have entertained the appeals preferred by the petitioner. The learned Standing Counsel further pointed out that when the fresh demand was issued as per Ext.P3 on 08.12.2010, the petitioner approached the Adalat. From 2011 to 2018, the matter was not pursued by the petitioner diligently. Therefore, there is unexplained delay in the matter. The writ petition is devoid of any merits, contends the learned WP(C) No.7251 OF 2020(F) 8 Standing Counsel for the respondents.
11. Going by the pleadings available in the case and the arguments urged by either side, it is evident that the orders against the petitioner were made in the year 2010. The petitioner submitted application before the Janakeeya Vydhyudi Adalat in the year 2011. The said Adalat was convened at the instance of the respondents themselves. It is not disputed before this Court that the Adalat has not passed any orders from 2011 to 2018. The respondents thereafter acted only on 23.11.2018 as per Ext.P5 by way of issuing a demand notice. The petitioner allegedly filed objections. It was when Ext.P8 demand was again issued on 11.01.2019 that the petitioner has approached the CGRF.
12. The CGRF, a body constituted by the respondents, entertained the applications filed by the petitioner and passed Ext.P10 order. An appeal lies to the Ombudsman from the orders passed by the CGRF. Therefore, the petitioner approached the Ombudsman. The Ombudsman rightly set WP(C) No.7251 OF 2020(F) 9 aside the orders impugned and permitted the petitioner to invoke its statutory appellate remedy under Section 127 of the Electricity Act, as per Ext.P12. Accordingly, the petitioner preferred appeal under Section 127 of the Act depositing 50% of the demand amount and 2% statutory charges. It was these appeals preferred at the instance and as ordered by the Ombudsman, which were rejected by the statutory authority.
13. This Court in W.P.(C) No.34236/2019 considered the entire issue. This Court specifically found that the objection raised by the petitioner is wholly tenable and warrants interference. This Court further found that dismissal of appeal on the ground mentioned by the Appellate Authority is untenable in fact and law. Under the circumstances, Ext.P14 order was set aside and this Court remitted the matter to the 5th respondent to consider the issue of condonation of delay.
14. In spite of the directions of this Court, the Appellate Authority passed Exts.P18 and 18(a) orders. The Appellate WP(C) No.7251 OF 2020(F) 10 Authority simply held that in the instant case, the assessment order was issued on 04.01.2011 and the appellant has filed appeal only on 27.11.2019 after a long period of 102 months. The Appellate Authority found that the fact of appellant approaching various forums for redressal of grievances cannot be a reason to condone the delay.
15. This Court is of the opinion that reasons advanced by the Appellate Authority are untenable. The conduct of the petitioner in bona fide proceeding before wrong legal forums can be a reasonable ground for condoning delay. In the present case, this Court had considered the issue in Ext.P16 judgment and found that the petitioner has a strong prima facie case. This Court therefore, specifically directed the Appellate Authority by Ext.P16 judgment, to consider and decide the issue on merits. It is in spite of the specific directions given by this Court in Ext.P16 that the Appellate Authority has passed Exts.P18 and 18(a) orders. WP(C) No.7251 OF 2020(F) 11 For the above reasons, the impugned orders cannot stand the scrutiny of law. It is held that Ext.P17 delay condonation application filed by the petitioner is liable to be allowed. Consequently, this writ petition is allowed. Exts.P18 and 18(a) orders are set aside. The 5th respondent-Appellate Authority is directed to consider Ext.P13 appeal on merits. Consequential order shall be passed with notice to the petitioner within a period of three months. The respondents are further directed not to take any coercive action against the petitioner on the basis of the orders impugned before the Appellate Authority, till the Appellate Authority takes a decision as directed above.
Sd/-
N. NAGARESH, JUDGE aks/11.03.2020 WP(C) No.7251 OF 2020(F) 12 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF INCORPORATION ISSUED IN FAVOUR OF THE PETITIONER COMPANY EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY GOVT.OF INDIA WITH RESPECT TO THE NAME CHANGE IN FAVOUR OF THE PETITIONER COMPANY EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 8/12/2020 ALONG WITH THE PROVISIONAL BILL AND THE CALCULATION STATEMENT ISSUED BY THE 4TH RESPONDENT EXHIBIT P4 TRUE COPY OF THE PETITION DATED 28.01.2011 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 23.1.2018 ISSUED BY THE 4TH RESPONDENT EXHIBIT P5A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT DATED 12.12.2018 EXHIBIT P6 TRUE COPY OF THE OBJECTION DATED 31.12.2018 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P7 TRUE COPY OF THE DETAILS PROVIDED BY THE 4TH RESPONDENT ON 3.1.2019 TO THE PETITIONER EXHIBIT P8 TRUE COPY OF THE DEMAND CUM DISCONNECTION NOTICE DATED 11.01.2019 ALONG WITH THE UNDERTAKINGS GIVEN BY THE PETITIONER EXHIBIT P9 TRUE COPY OF THE PETITION DATED 25.01.2019 FILED BY THE PETITIONER BEFORE THE CONSUMER GRIEVANCE REDRESSAL FORUM, KOZHIKODE IN RESPECT OF CONSUMER NO,7697 AND CONSUMER NO.7801 EXHIBIT P10 TRUE COPY OF THE ORDER DATED 30.3.2019 IN OP NO.153/2018-19 OF CONSUMER GRIEVANCE WP(C) No.7251 OF 2020(F) 13 REDRESSAL FORUM, KOZHIKODE EXHIBIT P11 TRUE COPY OF THE APPEAL DATED 29.04.2019 FILED BY THE PETITIONER BEFORE THE STATE ELECTRICITY OMBUDSMAN EXHIBIT P12 TRUE COPY OF THE ORDER PASSED BY THE STATE ELECTRICITY OMBUDSMAN DATED 25.06.2019 EXHIBIT P13 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE APPELLATE AUTHORITY ON 19.07.2019 EXHIBIT P14 TRUE COPY OF THE ORDER DATED 7.11.2019 OF THE APPELLATE AUTHORITY IN APPEAL NO.135/2019 EXHIBIT P15 TRUE COPY OF THE DISCONNECTION NOTICE ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER EXHIBIT P16 TRUE COPY OF THE JUDGMENT IN WPC NO.34236 OF 2019 EXHIBIT P17 TRUE COPY OF THE AFFIDAVIT DATED 3.1.2020 SUBMITTED BY THE PETITIONER EXHIBIT P18 TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT IN APPEAL NO.03/2020 EXHIBIT P18A TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT IN APPEAL NO.03A/2020 EXHIBIT P19 TRUE COPY OF THE DEMAND CUM DISCONNECTION NOTICE ISSUED BY THE 4TH RESPONDENT IN CONSUMER NO 7681 EXHIBIT P19A TRUE COPY OF THE DEMAND CUM DISCONNECTION NOTICE ISSUED BY THE 4TH RESPONDENT IN CONSUMER NO.7801 EXHIBIT P20 TRUE COPY OF THE DEMANDS ISSUED ON 5.3.2015,5.8.2916 AND 1.22017 IN RESPECT OF CONSUMER NO.7697 EXHIBIT P20A TRUE COPY OF THE DEMANDS ISSUED ON 5.3.2015,8.3.2016 AND 6.3.2017 IN RESPECT OF CONSUMER NO.7801