Kerala High Court
Shiju Joseph vs State Of Kerala on 28 May, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 10563 OF 2016
PETITIONER/S:
1 SHIJU JOSEPH,
AGED 46 YEARS
S/O.JOSEPH, KAYYALAPARMBIL HOUSE, THIRUMENI P.O.,
KANNUR - 670 011.
2 HASHEEM N.,
NALAKATH VEEDU, KANNOTHUMCHAL P.O., CHOVVA, KANNUR
DISTRICT, PIN - 670 006.
3 K.S.MOHANDAS,
S/O.SREEDHARAN, KOCHU THUNDIYIL, PRAPOYIL, PRAPOYIL
P.O., KANNUR DISTRICT.
4 P.S.SREENIVAVSAN
PERINJAPATTE HOUSE, PRAPOYIL P.O., KANNUR DISTRICT.
5 RATNAKARAN E.D.,
ELAM PURAYIDATHIL HOUSE, KARTHIKAPURAM P.O., KANNUR
DISTRICT.
6 M.K.ANIL KUMAR
MANDOTHANKULLANGOTT, KUMAR BHAVAN, TALAP, KANNUR
DISTRICT. (ALL ARE PARTNERS OF ERSTWHILE FIRM
M/S.SOFTEX INDUSTRIES, ARAVANCHAL).
BY ADVS.
K.SHIBILI NAHA
SAJU RAGHAVAN
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2 SPECIAL DEPUTY TAHASILDHAR,
(REVENUE RECOVERY), KANNUR - 670 001.
3 THE VILLAGE OFFICER,
KANNUR VILLAGE, KANNUR TALUK, PIN - 670 002.
4 EXECUTIVE ENGINEER,
K.S.E.B., ELECTRICAL DIVISION, PAYYANNUR.
5 THE ASST.ENGINEER ELECTRICAL SECTION,
K.S.E.B., PADDYCHAL P.O., KANNUR DISTRICT.
6 T.P.MOHAMMED RAFI ,
AGED 54 YEARS
S/O.ABDUL KADAR HAJI, TPK HOUSE, FERRY ROAD,
WP(C) NO. 10563 OF 2016
2
VALAPATTANAM P.O., KANNUR DISTRICT.
BY ADVS.
GOVERNMENT PLEADER
G.KEERTHIVAS
OTHER PRESENT:
SMT. THUSHARA JAMES- SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 10563 OF 2016
3
JUDGMENT
The petitioner's firm was the consumer of electricity under the provisions of the Kerala Electricity Act, 2003. The petitioners are the partners of the erstwhile firm (M/s Softex Industries, Aravanchal) which was engaged in manufacture of coconut fiber. The petitioners availed the electricity connection in the year 1993 and entered into an agreement with the Kerala State Electricity Board Limited on 11/1/1993. The petitioners were guarantor of the agreement and they undertook to pay to the Board energy charges subject to the minimum amount specified in the schedule appended in the agreement, which would be equal to 15 % of the estimated capital cost or the actual cost of work including 10% establishment charges for a minimum period of 10 years or such other period as the Board may fix from time to time, with or without notice.
2.According to the petitioners, they close down their firm and dismantled the electricity connection on 16.10.1998. After closing down the firm, Kerala Financial Corporation took the possession of the premises and sold the premises in favour of the 6 th respondent on 05.11.2005. It appears that the 6 th respondent had applied for a new electricity connection at the premises. However, since the minimum guarantee charges as per the agreement were not paid WP(C) NO. 10563 OF 2016 4 by the petitioners, the notice for unpaid charges was issued to the 6th respondent. The 6th respondent denied the liability stating that , for the previous charges before purchasing the premises, it would be the responsibility of the erstwhile owner. Thereafter, a notice was issued to the petitioners for electricity charges for the minimum guarantee under the agreement. The petitioners denied the notice and stated that the electricity connection was dismantled way back on 16.10.1998 and therefore, after dismantling the connection they would not be liable to pay the electricity charges.
3.Learned counsel for the petitioners submits that the petitioners are liable for payment of minimum guarantee charges till the date they dismantled the connection. The respondents have never denied the date of dismantling the connection. He further submits that the demanding charges for a period after 16.10.1998 from the petitioner is wholly unjustified and that demand is unsustainable.
4.Ms. Thushara James, the learned Senior Standing counsel for the Electricity Board, however submits that dismantling by the petitioners is immaterial in view of the specific agreement entered between the Electricity Board and the petitioners for minimum guarantee charges for a period of ten years with effect from WP(C) NO. 10563 OF 2016 5 11.01.1993. She therefore, submits that, even if it is believed that the petitioners dismantled the electricity connection on 16.10.1998, they would still be liable for payment of minimum guarantee charges for a period of ten years with effect from 11.01.1993.
5.In support of the submissions, the learned counsel for the respondent has placed reliance on the judgments of this court in case of Rajesh v. KSEB [2006 KHC 207] and Abdul Vahab v. Kerala State Electricity Board, Tvm and others [ 2015 (4) KHC 57].
6.On a close reading of the judgments cited by the learned counsel for the respondent, it can be seen that in the aforesaid two judgments cited, the consumer did not dismantle the electricity connection and no intimation to that effect was sent to the KSEB. However, in the present case, it can hardly be denied that the petitioners had dismantled the connection on 16.10.1998 and they had intimated this to the KSEB as well. Therefore, I am of the considered view that, when the electricity connection was dismantled on 16.10.1998, the demand of the minimum guarantee charges thereafter would be higly inequitable.
In view of the specifc stand of the learned counsel for the WP(C) NO. 10563 OF 2016 6 petitioners that the petitioners are libale to pay the electricity charges for minimum guarantee in pursuance to the agreement dated 11.01.1993 up to the date of dismantling ie., 16.10.1998, the present writ petition is disposed of, with liberty to the KSEB to issue a fresh demand notice upto 16.10.1998, and the petitioner shall remit the said amount within a period of one month thereafter.
Sd/-
DINESH KUMAR SINGH JUDGE SJ WP(C) NO. 10563 OF 2016 7 APPENDIX OF WP(C) 10563/2016 PETITIONER EXHIBITS EXT.P1 A TRUE COPY OF THE SDALE DEED DATED 16.09.2008.
EXT.P2 A TRUE COPY OF THE DEMAND NOTICE ISSUED U/S 7 OF THE REVENUE RECOVERY ACT ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS ARE OTHER DATED 23.11.2015.
EXT.P3 A TRUE COPY OF THE DEMAND NOTICE PRIOR TO ATTACHMENT RECEIVED BY THE PETITIONERS. EXT.P4 A TRUE COPY OF THE LAWYER NOTICE DATED 27.01.2016.
EXT.P5 A TRUE COPY OF THE JUDGEMENT IN WP(C) NO.25357/2013 DATED 03.12.2013.
EXT.P6 A TRUE COPY OF THE LAWYER NOTICE DATED 18.02.2014.
EXT.P7 A TRUE COPY OF THE METER NO.BB/RR/2013-14
- 03.02.2014 ISSUED BY THE 5TH RESPONDENT.