IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 WP(C).No. 13167 of 2007(P) --------------------------------------- PETITIONER: ------------------- K.V.VEERANKUTTY, S/O. AHAMMED, MUDAVANNOOR, MEZHATHUR P.O., THRITHALA, PALAKKAD-679 534. BY ADV. SRI.C.S.MANU, SRI.S.K.PREMRAJ, SRI.ANOOP JOSEPH, SRI.ANOOP.V.NAIR, SRI.ABHILASH AKBAR. RESPONDENTS: ------------------------ 1. KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY. 2. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, NUT STREET, ELECTRICAL SECTION, VADAKARA. 3. M.C.RAHIM, S/O. UMMER, MEETHALECHALIL, VADAKARA BEACH P.O., VADAKARA TALUK. R1 & R2 BY SRI. P.P. THAJUDEEN, R3 BY ADV. SRI.C.VALSALAN, ADV. SMT.THUSHARA.V, ADV. SRI.GEORGEKUTTY JACOB, ADV. SRI.K.RAKESH ROSHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13167/2007-P: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE JUDGMENT DTD. 30/03/2002 IN O.S. NO. 110/2001 ON THE FILES OF MUNSIFF'S COURT, VADAKARA. EXT.P.2: COPY OF THE JUDGMENT DTD. 20/06/06 IN A.S. NO. 18/2002 ON THE FILES OF SUB COURT, VADAKARA. EXT.P.3: COPY OF THE JOINT STATEMENT DTD. 27/08/06 FILED BEFORE THE MUNSIFF'S COURT, IN O.S. NO. 32/2006. EXT.P.4: COPY OF THE AWARD DTD. 27/08/06 ISSUED BY THE LOK ADALATH. EXT.P.5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.2. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.13167 OF 2007 ------------------------------------------- Dated this the 7th day of February, 2008 JUDGMENT Petitioner is the owner of a premises, to which, electricity was supplied by the first respondent. The third respondent was the tenant of the premises for some time. The establishment to which energy is supplied is an ice factory. While the third respondent was the tenant, the Electricity Board raised a demand based on Anti Power Theft Squad inspection. The third respondent filed a suit for prohibitory injunction against realisation of the amounts demanded by the Board. That suit was dismissed, Ext.P1 being the judgment. Ext.P2 is a judgment leading to the dismissal of the appeal of the third respondent. Thereafter, the third respondent filed another suit with the Electricity Board officials and the writ petitioner as defendants. During the pendency of that suit, a settlement was drawn up and signed between the writ petitioner and third respondent, without the junction of the officials of the K.S.E.Board. In that document WPC.13167/07 Page numbers (Ext.P3), the writ petitioner and the third respondent agreed that third respondent has been paid by the plaintiff, an amount of Rs.1,50,000/- which was due on quiting. It was also stated therein that the third respondent has paid an amount of Rs.19,131/- towards electricity charges and that no amounts are due from him to the Electricity Board. On the basis of that, Ext.P4 award was issued by the Lok Adalath. 2. Thereafter, the Board took the stand that the amounts outstanding as per the demand following the APTS inspection, which was subject matter of Exts.P1 and P2 judgment, have not been paid and that therefore, the power supply to the premises cannot be restored. It is also stated that other regular charges are also outstanding. Hence, this writ petition by the owner of the premises seeking a direction to restore power supply. 3. The undisputed fact remains that the amounts due to the Board on the basis of the demand following the APTS inspection and other incidentals as claimed by it are still outstanding. WPC.13167/07 Page numbers Neither the petitioner, nor the third respondent has a case that those amounts have been paid off. O.S.32/06, in which, Ext.P3 agreement was drawn up between the petitioner and the third respondent, had the Electricity Board and its officials also as defendants. However, they are not parties to the settlement Ext.P3. They are not even parties to Ext.P4 award of the Lok Adalath. Neither the Board officials nor the Board counsel had signed Ext.P4 award. Therefore, Exts.P3 and P4 have no bearing on the rights of the Board to enforce recovery and also to refuse power supply till the outstandings are paid. To that extent, the petitioner's prayer for a direction to restore power supply is only to be refused. 4. The plea of the petitioner is that the settlement Ext.P3 and the resultant award Ext.P4 were arrived at only on the basis of the representation of the third respondent that all amounts due to the Board has been paid off. The Board being a party to Ext.P3 and Ext.P4, it is only reasonable to assume that the WPC.13167/07 Page numbers parties acted on mutual faith and on representations made by each other. 5. In so far as the settlement arrived at between the parties in the Lok Adalath is concerned, all essential ingredients of consensus ad idem and uberrmae fedi are attracted. Absolute good faith and identity of the subject matter, the decision and the terms are necessary. Obviously, in a suit in which the entitlement of the Board for certain amounts was in dispute, it was impermissible for the private parties to that litigation to conclude it on consensus, without the junction of the Board. That apart, the foundation of Ext.P3 settlement between the writ petitioner and third respondent during the course of O.S.32/06 is one that has now been clearly demonstrated to be without any consensus on the subject matter and on the petitioner acting on the representation of the third respondent of having liquidated the outstanding to the Board, which representation has now turned out to be wrong. The utmost good faith that the writ petitioner would have reposed on the third respondent to accept WPC.13167/07 Page numbers his settlement as to discharge of liabilities to the Board thus fails. Ext.P3 settlement and the resultant Ext.P4 award of the Lok Adalath have, therefore, to go. For the aforesaid reasons, this writ petition is disposed of ordering as hereunder: (i) The entitlement of the Board to collect the amounts covered by the demands following the APTS inspection and all other amounts towards regular payments and other incidental charges are beyond dispute and the liability of the Board is only to consider the question of restoration of power supply on payment of such amounts and accruals. (ii) Ext.P4 award of the Lok Adalath is hereby set aside in exercise of authority under Articles 226 and 227 of the Constitution of India and the parties are relegated to the Munsiff's Court, Vadakara, before which court, O.S.32/06 would stand restored by the force of this judgment. That court is WPC.13167/07 Page numbers directed to take up the matter and adjudicate thereon, permitting the parties also to file further pleadings. The writ petitioner would have the liberty to move that court for adjudication of his entitlement to return of the amount paid to the third respondent as evidenced by Exts.P3 and P4, however, that any settlement of such amounts will depend on the rights that may be established by the parties during the course of trial. It is clarified that such suit shall be decided untrammeled by anything stated in this judgment. (iii) No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.