IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 AS.No. 719 of 2000() ----------------------------- OS.556/1995 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT/PLAINTIFF: ----------------------------------- *1. PURUSHOTHAMAN, S/O.KAITHAKKADAN KONNAN, KUNNAPPILLY P.O., MELUR, MUKUNDAPURAM TALUK. *(DIED) *SUPPLEMENTAL APPELLANTS 2 AND 3 IMPLEADED 2. RATNAMMA, W/O.KAITHARATH PURUSHOTHAMAN, KUNNAPPILLY P.O., MELUR, MUKUNDAPURAM TALUK. 3. PRADEEP KUMAR, S/O. -DO- -DO- * SUPPLEMENTAL APPELLANTS 2 AND 3 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED FIRST APPELLANT, VIDE ORDER DATED 01/12/2010 IN I.A.4344/2010. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENTS/DEFENDANTS: --------------------------------------------- 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, KSEB MAJOR SECTION, KORATTY P.O., MUKUNDAPURAM TALUK. 3. THE DEPUTY TAHSILDAR (RR), MUKUNDAPURAM TALUK. 4. THE VILLAGE OFFICER, MELUR, MUKUNDAPURAM TALUK. AS.No. 719 of 2000 5. THE GOVERNMENT OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THRISSUR. R3 TO R5 BY GOVT. PLEADER R1 & R2 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB, SRI.N.D.PREMACHANDRAN, SC, KSEB. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 719 OF 2000 = = = = = = = = = = = = = = = Dated this the 7th day of December , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Irinjalakuda in O.S.556/95. The suit is one for a declaration and consequential injunction. The plaintiff is an unfortunate small scale unit 'S.M.Industries' which was started but had only a short span of life. On account of the labour problems and other difficulties repayment to the K.F.C. became an impossibility which resulted in taking possession of the assets of the firm by the Corporation and it led to the non-functioning of the unit. The Kerala State Electricity Board had sent a notice demanding Rs.40,052/- which according to them are the dues from the month of January, 1992 till 1994. It is also contended A.S. 719 OF 2000 -2- that there had been a subsequent dismantlement of connection and therefore the plaintiff prays for the declaratory relief that it cannot be directed to pay amount as it had not been functioning and as electricity connection has been disconnected. 2. Defendants 1 and 2 would contend that there was disconnection of electricity on 29.1.92 and dismantlement of electrical connection on 31.12.94. Irrespective of the question of disconnection the consumer is liable to pay the fixed charges and therefore the demand is in order and further as there is an alternate remedy the suit is not entertainable. The Revenue authorities had acted on the requisition of the K.S.E.B. and they would contend that the suit as filed against them is not maintainable. The learned trial judge on exhaustive consideration of the materials held A.S. 719 OF 2000 -3- that the plaintiff is not entitled to the declaration, found that the suit is not maintainable but ultimately granted a relief in the form of a direction to file an appeal or complaint to the Board and on condition that it deposits the amount in five monthly instalments. There was also a direction, in case of success for the plaintiff, to get back the amount with 12% interest from the K.S.E.B. but ultimately the suit had been dismissed. It is against that decision the plaintiff has come up in appeal. 3. The learned counsel for the appellant would submit before me that the learned Subordinate judge had lost sight of Rules 34(c) and (d) and thereby has committed grave error. As per Rule 34(c) of the conditions of supply of electric energy if the service remains disconnected for more than one month, energy charge will not be levied for that period. But A.S. 719 OF 2000 -4- there is a liability to pay fixed charge. Under Rule 34 clause (c) (ii) normally no service shall be kept disconnected for more than six months continuously at a time and under Rule 35 (d) “no service shall remain disconnected continuously for a period exceeding six months for non-payment of amount due to the Board. If the dues are not paid within the six months period of disconnection, the service shall be dismantled and agreement terminated immediately after the six months of disconnection after giving 15 days notice to the consumer.” 4. In this case admittedly disconnection has been done in the month of January, 1992 more specifically on 29.1.1992 and the dismantlement has been done only on 31.12.94. So it is really against the rules. I have just stated these things for the authority to consider it. A.S. 719 OF 2000 -5- 5. The trial court has non-suited the plaintiff in the light of the decision of the Hon'ble Supreme Court reported in Punjab State Electricity Board & another v. Ashwani Kumar (1997 (5) SCC 120). The learned counsel for the appellant wanted to distinguish that decision stating that it is only one for injunction whereas the suit is filed by the plaintiff is one for declaration. But the principle laid down by the Hon'ble Supreme Court is that when there is an alternate remedy provided under the statute itself by way of departmental appeal then it is desirable to exercise that and not to entertain a case by the civil Court. So in the light of the same I am also to hold that the civil suit need not be entertained but some remedy for a hearing is absolutely necessary for the plaintiff in the light of the rules extracted above. Therefore I close this appeal A.S. 719 OF 2000 -6- with a direction to the plaintiff to file an appeal or complaint as provided under Rules before appropriate authority and direct that authority to consider the case of the plaintiff especially with reference to Rules 34(c) and (d) of the conditions of supply of electrical energy. An open hearing may be provided to raise all contentions by the department as well as by the plaintiff and thereafter the matter may be decided in accordance with law. I also make it clear if at all there is any question regarding interest that also may have to be considered judiciously in the light of the Hon'ble Supreme Court's decisions and the matter be disposed of in accordance with law. 6. The legal representatives of the appellant are directed to prefer an appeal or complaint as the case may be within six weeks from today and it is further made clear till a A.S. 719 OF 2000 -7- final decision is taken in the matter coercive proceedings be averted to realise the amount demanded by the notice. Parties are directed to bear their respective costs. 7. It is made clear that any finding entered into by the trial Court shall not be the criteria for deciding the case and untrammeled by the observations thereunder, the matter can be heard and disposed of. M.N. KRISHNAN, JUDGE. ul/- A.S. 719 OF 2000 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 719 OF 2000 = = = = = = = = = = = J U D G M E N T 7th December, 2010.