IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 16338 of 2010(N) -------------------------- PETITIONER: --------------- TOMY FRANCIS,AGED 39 YEARS, S/O.P.J.FRANCIS,PORIYATH HOUSE,CHOONDACHERRY PO, PALA, KOTTAYAM DISTRICT. BY ADV. SRI.JOBI JOSE KONDODY RESPONDENTS: --------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER(DC), KERALA STATE ELECTRICITY BOARD,DH ROAD, ERNAKULAM. 3. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, PALA, KOTTAYAM DISTRICT. 4. THE ASSISTANT ENGINEER, KSEB ELECTRICAL SECTION, PAIKA, PALA, KOTTAYAM DISTRICT 5. THE DISTRICT COLLECTOR, KOTTAYAM. 6. THE DEPUTY TAHSILDAR(REVENUE RECOVERY), PALA TALUK OFFICE, KOTTAYAM DISTRICT. PUBLIC PROSECUTOR SRI.THAJUDEEN-SC KSEB ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16338 of 2010(N) APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: Judgment dated 6/6/2007 in W.P.(C)No.23928/2006. EXHIBIT P2: Minimum guarantee agreement dtd. 15/2/2006. EXHIBIT P3: Proceedings of the Executive Engineer, Electrical Division, Pala dtd.15/2/2006. EXHIBIT P4: Representation dtd. 24/6/2008 filed by the petitioner before the 4th respondent. EXHIBIT P5: Demand Notice dtd.6/1/2010 issued by the 6th respondent to the petitioner. EXHIBIT P6: Report along with the letter dtd.6/3/2010 issued by the 3rd respondent to the 2nd respondent. RESPONDENT'S EXHIBITS:- EXHIBIT R3(a): Notice dtd.18/9/08 issued to the petitioner. EXHIBIT R3(b): Postal Acknowledgment Card. EXHIBIT R3(c): Board Order dtd.5/1/2009 regarding the Vydyuthi Adalath. EXHIBIT R3(d): Application submitted by the petitioner. EXHIBIT R3(e): Decision taken in the Vydyuthi Adalath. True copy P.A. to Judge P.R.RAMACHANDRA MENON, J. ------------------------------------------------ W.P.(C)No.16338 of 2010 -------------------------------------------------- Dated this the 5th day of July, 2010 JUDGMENT The petitioner set up an Industrial unit in the year 2004 after securing necessary licence in this regard and electricity connection was also obtained based on a minimum guarantee agreement executed by the petitioner vide Ext.P2. However, the unit could not be run by the petitioner due to the obstruction from the local public, inspite of obtaining favourable orders from this Court. 2. The learned counsel for the petitioner submits that, on approaching this Court, in view of the obstruction from the local public alleging pollution, a trial run was ordered to be conducted. But the so-called objectors chose to take the law into their hands and inspite of the above direction given by this Court vide Ext.P1, stipulating the further follow-up action, the objectors did not permit even to have the trial run. The case of the petitioner is that the petitioner could not operate the unit availing benefit of the W.P.(C).No.16338/2010 : 2 : power supply and as such, based on the request by the petitioner, the connection was dismantled. It was thereafter, Ext.P5 demand notice was issued under the R.R.Act seeking to realise a sum of Rs.2,23,481/- with 12% and 5% collection charges, which is under challenge in this writ petition. The learned counsel submits that there is no violation at all on the part of the petitioner in satisfying the ‘minimum guarantee agreement’, but for the compelling circumstances, under which the petitioner was forcefully prevented from running the unit even for a day. 3. The learned Standing Counsel for the K.S.E. Board submits that rights and liabilities of the parties concerned are flowing from Ext.P2 ‘minimum guarantee agreement’ and that there is no challenge against the said agreement, while the petitioner is only seeking to challenge Ext.P5 R.R. Notice. The learned counsel for the petitioner submits that the grievance of the petitioner W.P.(C).No.16338/2010 : 3 : projected in the writ petition against Ext.P5 is only in view of the fact that the liability is still to be finalized, more so since the issue has already been referred to the ‘Board’ for consideration, as conveyed by Ext.P6. The learned counsel further submits that the contention raised by the Board in the counter affidavit referring to the proceedings in the ‘Adalat’, so as to sustain Ext.P5, is not correct or proper, in so far as the decision taken in the ‘Adalat’ as borne by Ext.R3(a), was to have the matter to be referred to the decision of the Board and it is accordingly, that the matter has been referred to the Board, as evidenced by Ext.P6. As it stands so, there is no executable liability as on date and as such, issuance of Ext.P5 R.R.Notice before finalisation of the proceedings by the ‘Board’ is not correct or sustainable, which hence is sought to be challenged. 4. Taking note of the rival contentions the first respondent is directed to consider the matter and finalise W.P.(C).No.16338/2010 : 4 : the proceedings referred to in Ext.P6, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate within a period of ‘six’ weeks from the date of receipt of a copy of this judgment. Implementation of Ext.P5 shall be kept in abeyance till final orders are passed by the first respondent as above. This writ petition is disposed of as above. P.R.RAMACHANDRA MENON, JUDGE skj