Kerala High Court
Jaisy Chacko vs Kerala State Electricity Board on 9 April, 2021
Equivalent citations: AIR 2021 KERALA 100, AIRONLINE 2021 KER 371
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
W.P.(C) No. 22416/2012 :1:
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
WP(C).No.22416 OF 2012(B)
PETITIONER/S:
JAISY CHACKO, AGED 52 YEARS,
W/O.CHACKO PLAKKATTU, PLACKATTU HOUSE, MAMOODU P.O.,
CHANGANACHERRY, KOTTAYAM DISTRICT.
BY ADV. SRI.K.N.RADHAKRISHNAN (THIRUVALLA)
RESPONDENT/S:
1 KERALA STATE ELECTRICITY BOARD
VYDHUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM,
REPRESENTED BY THE SECRETARY, PIN-695 001.
2 EXECUTIVE ENGINEER
ELECTRICAL DIVISION, CHANGANACHERRY, KOTTAYAM DISTRICT,
PIN-686 101.
3 ASST. EXECUTIVE ENGINEER
ELECTRICAL SECTION, THENGANA, CHANGANACHERRY, KOTTAYAM
DISTRICT, PIN-686 101.
4 THE TAHSILDAR REVENUE RECOVERY
PATHANAMTHITTA, PIN-689 645.
5 VILLAGE OFFICER
MADAPPALLY, CHANGANACHERRY, PIN-686 101.
6 LEELAMMA VARGHESE
AGED 62 YEARS
W.P.(C) No. 22416/2012 :2:
W/O.K.C.VARGHESE, KANNAMPALLIL HOUSE, MAMOODU P.O.,
MADAPPALLY VILLAGE, CHANGANCHERRY, PIN-686 536.
7 BABY VARGHESE
AGED 36 YEARS
S/O.K.C.VARGHESE, KANNAMPALLIL HOUSE, MAMOODU P.O.,
MADAPPALLY VILLAGE, CHANGANCHERRY, PIN-686 536.
R1 BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD
SRI.SUDHEER GANESH KUMAR,SC
SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-03-2021,
THE COURT ON 09.04.2021 DELIVERED THE FOLLOWING:
W.P.(C) No. 22416/2012 :3:
JUDGMENT
Dated this the 9th day of April, 2021 This writ petition is filed by the petitioner, who was having a 3 phase electricity connection with consumer No. 14167 under the Assistant Executive Engineer, Electrical Section, Thengana, Changanacherry, Kottayam District, the third respondent. The connection was given on 10.06.2004 under the Minimum Guarantee Scheme. While so, the petitioner sold the property, including the electricity connection to respondents 6 and 7 on 30.04.2007, which according to the petitioner, was duly intimated to the third respondent. It is further submitted that the Assistant Executive Engineer has not taken any steps to change the name of the Consumer. However, Ext.P6 recovery notices dated 08.08.2012 under Sections 7 and 34 of the Kerala Revenue Recovery Act, 1968 (Act, 1968) had been issued against the petitioner claiming an amount of Rs.1,43,396/-. Aggrieved by the same, this writ petition is filed.
2. The basic contention advanced by the petitioner is that the amount is barred by limitation, since as per Section 56 of the Electricity Act, 2003 (Act, 2003), the alleged due is to be recovered within a period of 2 years and therefore, the action of the respondent Board is illegal and arbitrary, liable to be interfered with by this Court. W.P.(C) No. 22416/2012 :4: It is also submitted that the connection was dismantled on 21.03.2009; but, no notice has been given till issuance of Ext.P3 statutory demand for recovery of alleged arrears. Therefore, according to the petitioner, if interference is not made, it will cause serious prejudice to the petitioner.
3. The Board has filed a counter affidavit justifying its stand and contending inter alia that the petitioner has secured a connection from the Board under a Minimum Guarantee Scheme and that the period of the same was 7 years and the petitioner had to pay Rs.3200/- each per month as minimum guarantee charges. It was also stated that the petitioner never approached the Board for change of ownership and the minimum guarantee scheme with required documents. It is the statutory obligation to be carried out by the petitioner to transfer the ownership of the service connection to the new owner/occupier immediately on transfer of the property to which the service connection is provided, after complying with all the statutory formalities in that regard. It is further contended that by virtue of the charge created on the consumer as per Regulation 19(4) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005, all dues to the Board from a consumer shall be the first charge on the assets of the consumer and all dues, including interest, shall W.P.(C) No. 22416/2012 :5: be realised as public revenue due on land. Therefore, according to the respondent Board, the Board is at liberty to recover the amount from the consumer, since the amount due is charged on the assets of the consumer, irrespective of the property where the connection was given by the Board. Further, by virtue of Article 62 of the Limitation Act, 1963 ('Act, 1963'), the Board would get 12 years to recover the amount from the petitioner.
4. I have heard the learned counsel for the petitioner Sri. K. N. Radhakrishnan and the learned Standing Counsel for the Kerala State Electricity Board Sri. Sudheer Ganesh Kumar, and perused the pleadings and documents on record.
5. The discussion made above would make it clear that the paramount contention advanced by the petitioner is relying upon Section 56 of the Act, 2003. Sub-Section (1) thereto specifies that where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days' notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of W.P.(C) No. 22416/2012 :6: electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer.
6. However, sub-Section (2) makes it clear that notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under Section 56 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.
7. Therefore, according to the learned counsel for the petitioner, after a period of 2 years, the Board cannot recover the amount from the petitioner. Admittedly, the amount was found to have been due from the petitioner from the year 2007. However, the revenue recovery action was initiated by the Board apparently only during the year 2012, when the request was made as per requisition No. RR/2012/3598/5.
W.P.(C) No. 22416/2012 :7:
8. The question to be considered is whether after the expiry of two years, the amount due to the Board can be recovered. In order to understand the issue raised by the petitioner and the Board, it is worthwhile to discuss a few of the provisions of the Kerala Electricity Supply Code, 2005. The Supply Code, 2005 was made by virtue of the power conferred on the Kerala State Electricity Regulatory Commission constituted under Section 50 of the Electricity Act, 2003, by which the modalities are prescribed for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, tampering, distress or damage to electrical plant etc. Regulation 12, which deals with dues of previous consumer, stipulates that if a purchaser of a premise requires to have a new connection, as the earlier connection has already dismantled after disconnection, the arrear, if any, shall be realized from the previous owner/occupier of the premises and not from the purchaser.
9. By virtue of Regulation 18, the licensee is entitled to recover from a consumer the charges for electricity supplied based on the approved tariff in force and other charges, subject to certain conditions contained thereunder. Regulation 30 of the Supply Code, 2005 enables the licensee i.e., the Kerala State Electricity Board within one month of W.P.(C) No. 22416/2012 :8: coming into force of the Code, to submit to the Commission for approval the "Draft Terms and Conditions of Supply" in accordance with the Code dealing with various aspects.
10. The Kerala State Electricity Board has made the KSE Board Terms and Conditions of Supply, 2005 with effect from 01.02.2006. Regulation 7 of the KSE Board Terms and Conditions of Supply, 2005 deals with dues of previous consumers and it specifies that if a purchaser of a premise requires to have a new connection, as the earlier connection has already been dismantled after disconnection, the arrear, if any, shall be realized from the previous owner/occupier of the premises and not from the purchaser.
11. Regulation 19 of the KSE Board Terms and Conditions of Supply, 2005 deals with agreement for service connection. It is an admitted fact that the petitioner has entered into an agreement with the Kerala State Electricity Board Ltd. for securing a connection. Sub- regulation (4) of Regulation 19 makes it clear that all dues to the Board from a consumer shall be the first charge on the assets of the consumer and all dues including interest shall be realized as public revenue due on land.
12. Therefore, when reading together the provisions of the Supply Code, 2005 and the Terms and Conditions of Supply, 2005, it is W.P.(C) No. 22416/2012 :9: clear that if any amount was due from a previous owner of the property, it cannot be recovered from the purchaser. However, in my considered opinion, though a period of two years is fixed as per Section 56 of the Act, 2003 for recovery of the amount, it can be recovered by the Board from the previous consumer, if it is shown that the amount is continuously recoverable as arrears of charges for the electricity supplied.
13. This is a case where the petitioner transferred the property in favour of a third person; but the power supply was never disconnected by the Board before the transfer. However, the Board, on subsequent inspection, realised that the amounts were due from the petitioner and it was accordingly that revenue recovery action was initiated. It is also an admitted fact that the revenue recovery action was initiated not only after two years, but nearly after 5 years. Therefore, the sole question to be considered is, can the recovery be permitted resorting to Exts.P6 recovery notices issued under Sections 7 and 34 of the Act, 1968.
14. As I have pointed out earlier, a charge is created under Regulation 19(4) of the KSE Board Terms and Conditions of Supply, 2005, which is made by the Kerala State Electricity Board by virtue of the powers conferred on it under Regulation 30 of the Supply Code, W.P.(C) No. 22416/2012 : 10 : 2005. Even though the petitioner has a contention that no recovery can be made after a period of two years, as is stated in Section 56 of Act, 2003, I am unable to agree with the same for the reason that the second limb of Section 56 makes it clear that if the sum has been shown continuously as recoverable as arrear of charges for electricity supplied, the Board is entitled to recover the same. Therefore, when a charge is created under the Terms and Conditions of Supply, 2005, the Board has got a period of 12 years to recover the amount by virtue of Article 62 of the Act, 1963.
15. Article 62 of the Act, 1963 makes it clear that to enforce payment of money secured by a mortgage or otherwise charged upon immovable property, the period prescribed is 12 years, when the money sued for becomes due.
16. Regulation 19(4) of the KSE Board Terms and Conditions of Supply, 2005 makes it clear that all dues to the Board from a consumer shall be the first charge on the assets of the consumer. Therefore, even though the subsequent purchaser cannot be proceeded with under the KSE Board Terms and Conditions of Supply, 2005 and the Supply Code, 2005, the Board is entitled to proceed against the consumer for recovery of arrears due, since the amount due is charged upon the assets of the consumer, which is a legal fiction W.P.(C) No. 22416/2012 : 11 : created to protect public money, and thus entitling and enabling the Board to do so within a period of 12 years.
17. Taking into account the above aspects and the legal position discussed above, I have no reason to think that the action initiated by the Board to recover the amounts due to it is, in any way, illegal or arbitrary. However, the learned counsel for the petitioner has invited my attention to a Full Bench judgment of the Bombay High Court in Awadesh S. Pandey v. Tata Power Co. Ltd. and others [2007 KHC 6971=AIR 2007 Bom. 52], which was a case dealing with the limitation prescribed under Section 56 of the Act, 2003.
18. However, as I have pointed out above, by virtue of the second limb of Section 56 r/w Regulation 19(4) of the KSE Board Terms and Conditions of Supply, 2005, it is clear that it is a continuing liability charged on the assets of the consumer, guided by Section 62 of the Act, 1963, at least for a period of 12 years. Learned counsel has also invited my attention to a Full Bench decision of the Bombay High Court in Maharashtra State Electricity Distribution Co. Ltd. v. Electricity Ombudsman [2019 KHC 3298]. There also, the issue discussed was with regard to the amount due as per the first limb of Section 56 and it has never considered the second limb regarding the continuous liability.
W.P.(C) No. 22416/2012 : 12 :
19. Anyhow, a Division Bench of this Court in M.G. Raveendran Nair v. State of Kerala and others [judgment dated 21.12.2015 in W.P.(C) No. 28558 of 2013], wherein I was a party, has considered the very same issue in regard to the limitation and it is held as follows at paragraph 47:
"47. Therefore, in our considered opinion Section 71 of the Act is intra vires the provisions of the Constitution of India and the challenge raised by the petitioner against the said provision cannot be sustained and will not stand the test of law and legal principles laid down by this Court as well as the Apex Court in its various judgments cited supra. We also find that since there is a charge created over the properties as per the regulations cited supra against the charges for electricity consumption, the Board has got a 12 years period to recover the same. On consideration of the facts also, the petitioner is not entitled to get any relief in view of the illegalities committed by him, by tapping electricity with the aid of external devices. Materials on record show that, petitioner does not deserve any sympathy at all. The petitioner has not resorted to any statutory remedies available under the Act and the regulations impugning Exts.P5 assessment and P6 demand. We do not find any illegality, legal infirmity or violation of any of the legal principles settled by the Courts of Law to interfere with the said impugned orders invoking our power conferred under Article 226 of the Constitution of India.
Therefore the Writ Petition fails and accordingly the same is dismissed."
20. Therefore, in my view, the judgments of the Bombay High Court referred to above are clearly distinguishable, in view of the specific provision contained under the KSE Board Terms and Conditions W.P.(C) No. 22416/2012 : 13 : of Supply, 2005, which when correlated with the second limb of Section 56 of Act, 2003 is a continuing liability of the consumer.
21. Upshot of the above discussion is that the petitioner has not made out any case of arbitrariness or illegality, liable to be interfered with by this Court exercising the power of judicial review under Article 226 of the Constitution of India. Moreover, Section 69(2) of the Act, 1968 makes it clear that the proceedings under the Act starts, when a requisition is made. This is a case where the requisition was made in the year 2012 and action was initiated by virtue of Section 7 demand against the movable article and Section 34 demand against the immovable properties. Therefore, the Board is at liberty to proceed to recover the amount from the petitioner. However, since the subject matter was pending consideration before this Court for more than 8 years and a stay of recovery is in force, I am of the considered view that a reasonable time can be granted to the petitioner to participate in the proceedings initiated under the Act, 1968. Therefore, the petitioner is granted 15 days' time from the date of receipt of a copy of this judgment to file objections to Ext. P6 recovery demand notices, and if filed the authority under the Act, 1968 is granted a month's time thereafter to adjudicate the issue in accordance with law and the findings and observations contained above, and till such time, the W.P.(C) No. 22416/2012 : 14 : coercive action pursuant to Ext P6 demand notices issued under the Act, 1968 shall be kept in abeyance.
Accordingly, though the reliefs sought for in the writ petition are declined, it is disposed of with the above directions.
sd/-
SHAJI P. CHALY, JUDGE.
Rv W.P.(C) No. 22416/2012 : 15 : APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE SALE DEED NO.1610 OF 2007 OF THENGANA SUB REGISTRAR OFFICE.
EXHIBIT P2: PHOTOCOPY OF THE LETTER SUBMITTED TO THE 3RD RESPONDENT DATED 20.05.2007.
EXHIBIT P3: PHOTOCOPY OF THE NOTICE DATED 11.05.2012 NO. BB/RR/2012 FROM THE THIRD RESPONDENT.
EXHIBIT P4: PHOTOCOPY OF THE LETTER DATED 22.05.2012 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P5: PHOTOCOPY OF THE LETTER DATED 16.08.2012 RECEIVED BY THE PETITIONER FROM THE 4TH RESPONDENT.
EXHIBIT P6: PHOTOCOPY OF THE NOTICE DATED 08.08.2012 ISSUED BY THE 4TH RESPONDENT.
RESPONDENTS' EXHIBITS: NIL /True Copy/ PS To Judge.
rv