Kerala High Court
K.R.Prakash vs Kerala State Electricity Board on 4 May, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
MONDAY, THE 28TH DAY OF MAY 2012/7TH JYAISHTA 1934
WP(C).No. 31023 of 2011 (C)
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PETITIONERS:
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1. K.R.PRAKASH, S/O.RAGHAVAN,
KAVUMPERAYIL HOUSE, CHITHIRAPURAM P.O.
IDUKKI DISTRICT, PIN 685 565.
2. ARUN K.PRAKASH, S/O.K.R.PRAKASH,
KAVUMPERAYIL HOUSE, CHITHIRAPURAM P.O.
IDUKKI DISTRICT, PIN 685 565.
3. SHIJO K.PRAKASH, S/O.K.R.PRAKASH,
KAVUMPERAYIL HOUSE, CHITHIRAPURAM P.O.
IDUKKI DISTRICT, PIN 685 565.
BY ADVS.SRI.S.VINOD BHAT
SRI.LEGITH T.KOTTAKKAL
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD,
VIDYUTHI BHAVAN, PATTOM P.O.
THIRUVANANTHAPURAM- 695 004.
2. THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL MAJOR SECTION
KERALA STATE ELECTRICITY BOARD, ADIMALI P.O.
PIN 685 561.
3. THE KERALA FINANCIAL CORPORATION,
HEAD OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM
REPRESENTED BY ITS, MANAGING DIRECTOR, PIN 695 033.
4. DEPUTY TAHSILDAR (R.R),
KERALA FINANCIAL CORPORATION, KATTAPPANA-685 508.
VK
WP(C).No. 31023 of 2011 (C)
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ADDL.R5 IMPLEADED
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ADDL.R5. K.P.WILSON, KUDIYIRICKAL HOUSE, MACHIPLAVU,
ADIMALI, IDUKKI DISTRICT 685561,
ADDL.R5 IS MPLEDED VIDE ORDER DT. 8.2.12 IN IA.N0.1686/12.
R1, 2 BY SRI.K.M.SATHYANATHA MENON,SC,KSEB
SRI.T.R.RAJAN,SC,K.S.E.B.
R3 BY ADV. SRI.M.M.SAYED MUHAMMED, SC, KFC
SRI.T.V.GEORGE, SC, KFC
BY ADV. SRI.K.S.ROCKEY
ADDL.R5 BY ADV. SRI.AUGUSTINE JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 31023 of 2011 (C)
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APPENDIX
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PETITIONER(S) EXHIBITS
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EXHIBIT-P1. COPY OF THE SANCTION LETTER DATED 4.5.2000.
EXHIBIT-P2. COPY OF THE LOAN SANCTION LETTER DATED 16.11.2001.
EXHIBIT-P3. COPY OF PROVISIONAL STATEMENT OF ACCOUNTS.
EXHIBIT-P4. COPY OF THE NOTICE DATED 28.11.2006 ISSUED BY GENERAL
MANAGER, KFC.
EXHIBIT-P5. COPY OF THE LETTER NO.040189010/1177/06 DATED 29.11.2006
ISSUED BY BRANCH MANAGER,KFC.
EXHIBIT-P6. COPY OF THE ORDER DATED 4.4.2008 IN IA 16/2007 IN CC 35/2007
OF CONSUMER DISPUTES REDRESSAL RORUM, IDUKKI.
EXHIBIT-P7. COPY OF THE RECIPT DATED 25.6.2008 ISSUED BY KERALA
FINANCIAL CORPORATION.
EXHIBIT-P8. COPY OF THE LOAN AGREEMENT DATED 11.8.2008 BETWEEN
PETITIONERS AND KERALA FINANCIAL CORPORATION.
EXHIBIT-P9. COPY OF THE LETTER NO.L/2120/2008/L.DIS DATED 9.7.2008
ISSUED BY DISTRICT INDUSTRIES CENTRE, IDUKKI.
EXHIBIT-P10.COPY OF THE LETTER DATED 19.7.2008 ISSUED BY THE 1ST
PETITIONER.
EXHIBIT-P11.COPY OF THE LETTER DATED 22.8.2008 ISSUED BY THE 1ST
PETITIONER.
EXHIBIT-P12.COPY OF THE LETTER DATED 22.8.2008 ISSUED BY THE 1ST
PETITIONER.
EXHIBIT-P13.COPY OF THE ORDER DATED 22.8.2009 IN C.C.49/2009 OF
CONSUMER REDRESSAL FORUM, IDUKKI.
EXHIBIT-P14.COPY OF THE LETER NO.DB9/08-09/PA/22-8-2008 ISSUED BY KSEB.
EXHIBIT-P15.COPY OF THE LETTER NO.B/3/RIA/08-09/96/12-08-09 ISSUED BY
KSEB.
EXHIBIT-P16.COPY OF RECEIPT DATED 29.8.2008.
EXHIBIT-P17.COPY OF NOTICE OF SALE OF IMMOVABLE PROPERTY NO.I.69/11
DATED 7.10.2011 ISSUED BY THE 4TH RESPONDENT.
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WP(C).No. 31023 of 2011 (C)
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RESPONDENTS' EXHIBITS :
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EXT.R1 (A). COPY OF THE NOTICE DATED 9.5.2007 ISSUED BY THE ASSISTANT
ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD,,ADIMALY
EXT.R1(B). COPY OF THE REGISTERED NOTICE DATED 28.5.2007 ISSUED BY THE
ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD,
ADIMALY.
EXT.R1(C0. COPY OF TE POSTAL ACKNOWLEDGING RECEIPT EVIDENCING RECEIPT OF
EXHIBIT R1(B).
EXT.R1(D). COPY OF TE LETTER DATED 26.7.2008 SENT BY ASSISTANT ENGINEER,
ELECTRICAL SECTION, KERAA STATE ELECTRICITY BOARD, ADIMALY.
EXT.R1(E) COPY OF THE COMMUNICATION DATED 26.7.2008 ISSUED BY THE
PETITIONER TO THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE
ELECTRICTY BOARD, ADIMALY.
/ TRUE COPY /
VK P.A. TO JUDGE
P.N.RAVINDRAN,J.
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W.P.(C) No.31023 of 2011
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Dated this the 28th day of May, 2012
JUDGMENT
The first petitioner availed two loans from the Kerala Financial Corporation (hereinafter referred to as 'the KFC' for short) to establish a small scale industrial unit for manufacturing interlocking-bricks. The second and third petitioners are guarantors to the loan availed by the first petitioner. The first petitioner defaulted repayment of the loan. The KFC thereupon took over possession of the industrial unit on 28.11.2006 invoking its power under section 29 of the State Financial Corporations Act. On the next day, the KFC sent Ext.P5 letter to the second respondent requesting him to disconnect and dismantle the electricity supply to the first petitioner's industrial unit. In accordance with the said request, electricity connection to the first petitioner's industrial unit was disconnected on 29.11.2006 and dismantled on 24.7.2007.
2. After the KFC took over the unit, the first petitioner moved the Consumer Disputes Redressal Forum, Idukki by filing C.C.No.35 of 2007. In that complaint, the KFC filed a memo to the effect that it has no objection to the first petitioner re-opening the unit upon payment of W.P.(C) No.31023 of 2011 2 the sum of Rs.1,00,000/-. Taking note of that memo, the Consumer Disputes Redressal Forum passed Ext.P6 order dated 4.4.2008 directing the opposite party to permit the first petitioner to open the industrial unit on payment of the sum of Rs.1,00,000/-. The first petitioner accordingly remitted the sum of Rs.1,00,000/- on 25.6.2008, as can be seen from Ext.P7 receipt. Thereupon, possession of the industrial unit was handed over to the first petitioner on 17.8.2008 for a period of six months after the petitioners and the KFC entered into Ext.P8 loan agreement dated 11.8.2008. In that agreement, the petitioners admitted and agreed that as on 1.7.2008 the overdue amount is Rs.23,74,886/- and the balance outstanding in the loan account is Rs.24,62,986/- and that the KFC will be at liberty to take steps either under the provisions of the State Financial Corporations Act or the Kerala Revenue Recovery Act or any other provisions of law if the petitioners fail to comply with the terms and conditions of the agreement. Even before Ext.P8 agreement was entered into, the General Manager of the District Industries Centre had sent Ext.P9 letter dated 9.7.2008 to the Executive Engineer of the Kerala State Electricity Board requesting him to personally look into the matter and to take step to restore electricity connection to the first petitioner's industrial unit. The first petitioner also took steps to have the electricity supply W.P.(C) No.31023 of 2011 3 restored by sending Ext.P11 letter dated 22.8.2008.
3. The Assistant Engineer, Electrical Section, Adimaly had in the meanwhile sent Ext.R1(d) letter dated 26.7.2008 to the first petitioner calling upon him to remit the sum of Rs.20,528/- for restoration of the dismantled electricity supply. The first petitioner thereupon sent Ext.R1
(e) letter dated 26.7.2008 to the Assistant Engineer, Kerala State Electricity Board, Electrical Section, Adimaly informing him that on account of paucity of funds he is not in a position to deposit the sum of Rs.20,528/-and therefore, further steps on the application may be kept in abeyance. He thereafter filed C.C.No.49 of 2009 in the Consumer Disputes Redressal Forum, Idukki, joining, besides the Branch Manager and the Managing Director of the Kerala Financial Corporation, the Assistant Engineer, Kerala State Electricity Board, Electrical Section, Adimali, the Assistant Executive Engineer, Electrical Sub Division, Chithirapuram and the Secretary of the Kerala State Electricity Board as parties. In that complaint his main grievance was that the Board should not have disconnected the supply on a request made by the KFC and therefore, the Board should restore the power supply. When that complaint was taken up for consideration on 22.8.2009, the opposite parties submitted that they will give electricity connection to the first petitioner's industrial unit if no amount is due from him and if he W.P.(C) No.31023 of 2011 4 complies with all the formalities, within 15 days. Pursuant thereto, the first petitioner was informed that no amount is due from him by way of arrears of energy charges.
4. The electricity connection that was dismantled on 24.7.2007 pursuant to Ext.P5 letter was however not restored. It appears the petitioner had in the meanwhile applied for a fresh service connection to the same building and a new service connection was given on 10.9.2008 with a connected load of 6728 watts. The said connection bears consumer No.17411 of Electrical Major Section, Adimali. While matters stood thus, the KFC issued Ext.P17 notice dated 7.10.2011 proposing to sell 6.07 ares of land situated in Sy.No.419/5 of Mannamkandam Village, Devikulam Taluk, Idukki District by public auction on 25.11.2011 under the provisions of Kerala Revenue Recovery Act, 1968. The instant writ petition was thereupon filed on 21.11.2011 challenging Ext.P17 notice and seeking the following reliefs:
"i) To issue a writ of mandamus or such direction directing the 1st and 2nd respondents to restore the power supply to the Industrial concern set up by the 1st petitioner which is the subject matter of mortgage (item No.1 in Ext.P2);
ii) To issue a writ of certiorari or such other writ or order quashing Ext.P17;
iii) To issue a writ of mandamus or such other order directing the 3rd respondent not to initiate proceedings to W.P.(C) No.31023 of 2011 5 recover the dues from the petitioners for a period of one year from date when the 1st and 2nd respondents restore supply of power to the Unit set up by the 1st petitioner."
5. When the writ petition came up for admission hearing on 25.11.2011, a learned single judge of this Court passed the following order:
"Admit.
The learned Standing Counsel takes notice on behalf of respondents 1 and 2. The learned Standing Counsel takes notice on behalf of respondents 3 and 4.
Sale can go on, but shall not be confirmed without getting orders from this Court.
The respondents shall file their counter affidavit within two weeks. Post after two weeks."
In terms of the said order, the property belonging to the first petitioner was sold in public auction on 25.11.2011 and it was purchased by the additional fifth respondent. The respondents thereupon moved this Court for vacating the interim order passed by this Court on 25.11.2011. Taking note of the fact that the demand in Ext.P17 notice was for Rs.37,88,980/-, a learned single judge of this Court directed that the order of stay earlier granted by this Court will continue to operate only in the event of the petitioners remitting the sum of Rs.25,00,000/- within two weeks. Aggrieved thereby, the petitioners filed W.A.No.856 of 2012. By judgment delivered on 27.4.2012, a W.P.(C) No.31023 of 2011 6 Division Bench of this Court allowed the appeal and directed that the interim order earlier granted by this Court shall continue in the event of the petitioners remitting the sum of Rs.10,00,000/- within ten days. The Division Bench also directed that if the sum of Rs.10,00,000/- is not paid, the interim order shall cease to operate. It is not in dispute that pursuant to the said judgment the petitioners remitted the sum of Rs.10,00,000/- on 3.5.2012.
6. Respondents 1 and 2 have filed a counter affidavit dated 9.12.2011 wherein it is stated that though the officers of the Board had taken steps to restore the electricity connection which was dismantled on 24.7.2007 upon the first petitioner paying the sum of Rs.20,528/-, the first petitioner did not pursue the application on the ground that he does not have the requisite funds to pay the said amount. It is stated that even earlier on the first petitioner's application, a fresh service connection was given on 10.9.2008 with a connected load of 6728 watts. It is also stated that as the first petitioner has an existing connection which was given on 10.9.2008, another service connection cannot be given to the very same premises. When the writ petition came up for hearing today, Sri.T.R.Rajan, learned standing counsel appearing for the Kerala State Electricity Board submitted that if what the petitioner needs is additional connected load, the officers of the W.P.(C) No.31023 of 2011 7 Board will consider the same if an appropriate application in that regard is filed before the Assistant Executive Engineer concerned.
7. The third respondent has filed a counter affidavit dated 9.12.2011 justifying the action taken by the KFC. It is stated that during the past 11 years the petitioners have remitted only Rs.3,64,000/- including the sum of Rs.1,00,000/- remitted pursuant to Ext.P6 order passed by the Consumer Disputes Redressal Forum, Idukki and since the petitioners did not take steps to clear the arrears, the KFC was constrained to initiate revenue recovery proceedings to recover the amount due from them. It is also stated that though as on 1.11.2011 the sum of Rs.40,36,031/- was due from the petitioners, in the sale held on 25.11.2011, the property was purchased by the additional fifth respondent for Rs.23,52,000/-, that on the same day he remitted Rs.3,52,800/- being 15% of the bid amount, but in view of the interim order passed by this Court the confirmation of sale was delayed. The additional fifth respondent has in I.A.No.5672 of 2012 filed by him to vacate the interim order of stay passed by this Court stated that he remitted the sum of Rs.3,52,800/- on 25.11.2011 itself and the balance sum of Rs.19,99,200/- on 23.12.2011 and has thus paid the purchase price in full. The third respondent has filed an additional counter affidavit dated 23.3.2012, contending inter alia that in view of the W.P.(C) No.31023 of 2011 8 deposit of the entire sale price by the additional fifth respondent, if confirmation of the sale is further delayed, it will seriously prejudice the rights of the third respondent and the auction purchaser.
8. I heard Sri.S.Vinod Bhat, learned counsel appearing for the petitioners, Sri.T.V.George, learned standing counsel appearing for the KFC, Sri.T.R.Rajan, learned standing counsel appearing for the Board and Sri.Augustine Joseph, learned counsel appearing for the additional fifth respondent. I have also gone through the pleadings and the materials on record. The petitioners have in the instant writ petition sought two reliefs. One is for an order directing respondents 1 and 2 to restore power supply to the first petitioner's industrial unit. The other is in relation to the sale held on 25.11.2011. As regards the first relief sought, I am of the opinion that the first petitioner who has already obtained a fresh service connection to the very same premises on 10.9.2008 with consumer No.17411 of Electrical Major Section, Adimaly, cannot have any subsisting grievance. The electricity connection that was initially given to his establishment was disconnected on 29.11.2006 and it was dismantled on 24.7.2007, after the maximum permissible period of six months. Thereafter, though the first petitioner applied for restoration of the electricity connection and the Board had agreed to restore the connection on the first petitioner remitting the sum of W.P.(C) No.31023 of 2011 9 Rs.20,528/-, he responded by sending Ext.R1(e) letter dated 26.7.2008, expressing inability to pay the said amount due to paucity of funds. He even requested the Assistant Engineer to defer consideration of the application for restoration of electricity connection. It was thereafter that he applied for and obtained a fresh electricity connection on 10.9.2008 with Consumer No.17411. From the pleadings and the materials on record and the submissions made at the Bar, the grievance of the first petitioner appears to be that with the existing connected load he cannot carry on his business and that he requires at least a connected load of 20KVA to properly run his business. In my opinion, as he is already having a fresh electricity connection his grievance can be redressed by directing that in the event of the first petitioner applying to the competent authority for additional connected load in accordance with the provisions contained in the Electricity Act, 2003 and the regulations made thereunder, the competent authority shall consider the same and take an appropriate decision thereon within one month from the date on which a request in that regard is received from the first petitioner. Needless to say, the first petitioner should comply with the statutory formalities prescribed for the purpose.
9. The only other issue that remains to be considered is whether Ext.P17 notice is liable to be interfered with at the instance of W.P.(C) No.31023 of 2011 10 the petitioners. It is not in dispute that challenging the sale held on 25.11.2011, the first petitioner has moved the Deputy Collector (Revenue Recovery), Kerala Financial Corporation, Thiruvananthapuram by filing an application under section 53 of Kerala Revenue Recovery Act, 1968. It is however not in dispute that the said application was filed only on 8.5.2012, after the instant writ petition was admitted and an interim order staying the confirmation of the sale was passed. In my opinion, as the sale had not been confirmed as on 8.5.2012 and the petitioners have pursuant to the judgment of the Division Bench of this Court in W.A.No.856 of 2012 deposited the sum of Rs.10,00,000/- with the Kerala Financial Corporation on 3.5.2012, the fourth respondent should consider the said application and take an appropriate decision on the merits with notice to the petitioners and respondents 3 and 5 and take an appropriate decision thereon before confirming the sale.
I accordingly dispose of the writ petition with a direction to the Deputy Collector (Revenue Recovery), Kerala Financial Corporation, Thiruvananthapuram to consider the petition dated 8.5.2012 filed by the first petitioner under section 53 of Kerala Revenue Recovery Act, 1968 challenging the sale held on 25.11.2011, with notice to the petitioner, the Kerala Financial Corporation and the additional fifth respondent and take an appropriate decision thereon expeditiously and W.P.(C) No.31023 of 2011 11 in any event within two months from the date on which either of the parties produces a certified copy of this judgment before him. It will be open to all the parties to file written representations before the District Collector, who shall after affording the parties an opportunity of being heard, pass an order giving reasons in support of his findings and conclusions. The contentions of both sides on the merits are kept open. Until such time as the Deputy Collector (Revenue Recovery), Kerala Financial Corporation passes orders as directed above, confirmation of the sale held on 25.11.2011 shall be kept in abeyance.
Sd/-
P.N.RAVINDRAN JUDGE /TRUE COPY/ P.A. To JUDGE vpv