IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 24393 of 2004(D) -------------------------- PETITIONER(S): --------------- ANEES, S/O.MOHAMMED HAJI, AGED 21 YEARS, MANAGING PARTNER, M/S.SHARJAH TOWERS, EAST NADA, GURUVAYOOR. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, TRIVANDRUM. 2. ASSISTANT ENGINEER, ELECTRICAL SECTION, GURUVAYOOR. 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, GURUVAYOOR. 4. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, TRICHUR. 5. THE SPECIAL OFFICER, REVENUE, KSEB, TRIVANDRUM. ADV. SRI.P.SANTHALINGAM, SC, KSEB FOR R2TO5 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).24393/04 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-TRUE COPY OF PARTNERSHIP DEED T.14.7.01 EXT.P2:-TRUE COPY OF LETTER DT.4.1.02 ISSUED BY R1 EXT.P3:-TRUE COPY OF DRAFT DT.9.1.02 EXT.P4:-TRUE COPY OF LETTER DT.28.1.02 EXT.P5:-TRUE COPY OF LETTER DT.18.7.02 EXT.P6:-TRUE COPY OF LETTER DT.31.7.02 EXT.P7:-TRUE COPY OF LETTER DT.31.1.03 EXT.P8:-TRUE COPY OF AGREEMENT DT.8.5.03 EXT.P9:-TRUE COPY OF COMMUNICATIO ISSUED BY R4 EXT.P10:-TRUE COPY OF ORDER GRANTING POWER ALLOCATION DT.13.5.03 EXT.P11:-TRUE COPY OF LETTER DT.NIL ISSUED BY RESPONDENTS CONFIRMING RECEIPT OF THE AMOUNTS. EXT.P12:-TRUE COPY OF LETTER DT.21.6.03 ISSUED BY R3 EXT.P13:-TRUE COPY OF LETTER DT.4.7.03. EXT.P13(A):-TRUE COPY OF POSTAL RECEIPTS INDICATING ISSUANCE OF EXT.P13 EXT.P14:-TRUE COPY OF LETTER DT.1.10.03 EXT.P15:-TRUE COPY OF LETTER DT.21.11.03 ISSUED TO THE RESPONDENT. EXT.P16:-TRUE COPY OF LETTER DT.26.11.03 ISSUED TO THE RESPONDENT. EXT.P17:-TRUE COPY OF LETTER DT.12.12.03 ISSUED BY R1 EXT.P18:-TRUE COPY OF LETTER DT.19.12.03 EXT.P19:-TRUE COPY OF COMPLAINT OP NO.99/04 EXT.P20:-TRUE COPY OF ORDER DT.23.3.04 DIRECTED GRANT OF SERVICE CONNECTION WITH IMMEDIATE EFFECT. RESPONDENT'S EXHIBITS:- EXT.R1(A):-TRUE COPY OF VERSION FILED BY 2ND OPPOSITE PARTY BEFORE CONSIMER DISPUTES REDRESSAL FORUM UNDER SECTION 13 OF THE CONSUMER PROTECTION ACT 1986, IN O.P. 99/04 EXT.R1(B):-TRUE COPY OF THE ORDER NO.B.O.(FM)834/04(DPCI/C 13-92/04 DT.1.4.04 ISSUED BY THE K.S.E.BOARD okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No.24393 OF 2004 ------------------------------ Dated this the 23rd day of June, 2009 J U D G M E N T ---------------------- 1. Petitioner is the Managing Partner of a registered partnership firm which constructed a multi storied commercial building complex, known as “M/s.Sharjah Towers”, at Guruvayur. Since the High Tension (HT) Electric connection applied to the building was not provided pursuant to dispute regarding liability for payment of un-connected minimum guaranteed amount, the petitioner had approached this Court seeking directions for getting the connection and also for quashing Exts.P15, P17 and P21 demands. The first part of the prayer does not survive for consideration since the petitioner had already got connection pursuant to an interim order of this Court. The sustainability of Exts.P15, P17 and P21 demands, need adjudication and decision. 2. The application for power allocation was submitted as early as on 27.2.2001, and it was granted for the first time as per Ext.P4 proceedings dt:28.1.2002. Clause (v) in Ext.P4 specified that validity of the power allocation is only for a period of six months. Clause (vii) of that proceedings stipulate that if power supply is not availed within six months from the date of the proceedings, the industry has to pay the prescribed minimum W.P.(C).24393/2004 2 charges. But on the request of the petitioner, through Ext.P6 letter dt.31.7.02, extension of the power allocation for a further period of six months from 22.7.02 was granted by the Executive Engineer, specifically mentioning that “Please note that no further extension of period will be granted under nay circumstances.” But still further, extension of the period for 2 months from 22.1.2003 was granted on the request of the petitioner, by the Deputy Chief Engineer (4th respondent) through Ext.P7, dt. 31.3.2003. Thereafter agreement in the form prescribed under the Regulations known as “Agreement for supply of HT connection” was executed between the petitioner and the Deputy Chief Engineer, on 8.5.2003. Clause (9)(a)(i) of the said agreement reads as follows:- “(9)(a)(i). This agreement shall be deemed to have come into force with effect from 8.5.2003 and the prior agreement if any is hereby repealed and abrogated by this agreement." With respect to the liability of the consumer for payment of minimum guaranteed amount, clause 25 of the said agreement provides as follows:- “25. Charges payable as minimum will have to be paid even if power is not availed of within 2 months from the date on which the readiness of the Board to supply power to the consumer is intimated.” 3. Prior to execution of Ext.P8 agreement the petitioner was requested to remit an amount of Rs.4,55,500/- towards W.P.(C).24393/2004 3 balance 'cash deposit', which the petitioner had remitted by way of Demand Draft, dated 7.5.2003, as evidenced by Ext.P11. After execution of Ext.P8 agreement, through Ext.P10 the 4th respondent issued a revised power allocation, dt:13.5.2003 which is styled as “Revised PA based on contract demand”. According to standing counsel for the respondents, this was necessitated in view of the revised demand reducing the power from 467 KVA to 200 KVA. After completing these formalities the 4th respondent issued Ext.P12 letter dt:21.6.2003 to the petitioner requesting to avail Electric connection at the earliest. The contents of Ext.P12 reads as follows; “An HT agreement is executed with you on 8.5.03 in order to give HT supply to M/s. Sharjah Towers, Guruvayur. But you have not turned up yet to remit the service connection charges and to avail electricity. Hence you are hereby directed to avail the electric connection at the earliest. You have to remit the minimum charges as per clause 10 of the agreement executed.” 4. Subsequent to this the petitioner remitted the service connection charges amounting to Rs.1,40,850/- on 1.10.2003. But inspite of completing all the above formalities the petitioner was not provided with the connection. During November 2003, the 4th respondent issued Ext.P15 dt: 21.11.2003, requesting the petitioner to remit an amount of Rs.6,46,800/- towards prescribed minimum charges along with Rs.19,790/- towards W.P.(C).24393/2004 4 penalty for belated payment of service connection charges. In the above said letter reference was seen made about an alleged letter of the Assistant Executive Engineer, Electrical Sub Division, Guruvayur, dt:24.10.2002 issued to the petitioner informing about readiness of KSEB to give electric supply. In the reference portion of Ext.P15, there is mention about the said letter, as “Letter No:DB/HT-7/01-02/219 dated 24.10.2002”. In reply to Ext.P15 the petitioner submitted that he is at a loss to understand why such a huge amount is demanded, and requested the respondents to furnish the month wise split-up of the amounts demanded. This was responded by the 4th respondent through Ext.P17 letter in which the split up was furnished, which revealed that minimum guaranteed charges is calculated from 24.12.2002 onwards, which is the date after expiry of 2 months from the date of the alleged letter informing the readiness. 5. Against the demands raised as above, the petitioner had approached the District Consumer Disputes Redressal Forum and that Forum had issued an interim order directing to give service connection. But the respondent preferred a Revision against the said order before the State Commission and obtained a stay. Even thereafter the respondent continued charging the petitioner with the unconnected minimum and a bill was issued by the 5th respondent on 7.1.2004, as evidenced by Ext.P21, W.P.(C).24393/2004 5 demanding a huge amount of Rs.6,43,548/-. 6. By an interim order dt:24.8.2004, this Court directed the respondent to provide connection to the petitioner, subject to condition of payment of Rs.2 lakhs towards the disputed un- connected minimum charges demanded, and it is reported that the connection was provided accordingly. Now the disputed question to be decided is regarding the date from which the petitioner is liable to be charged with the minimum guaranteed amount. 7. Heard Sri.R.S.Kalkura, learned counsel for the petitioner and Sri.C.K. Karunakaran, Standing Counsel for the respondents. The contention of the respondents is that, since the petitioner was informed about readiness of the Board for providing connection, through letter of the Asst:Exe:Engineer dt:24.10.2002, the petitioner is liable for payment of the minimum guaranteed amount from 2 months thereafter, i.e: from 24.12.2002 onwards. The petitioner is strongly disputing the genuineness of such a letter and he is refuting receipt of any such letter at any point of time. Ext.R1(c) is the copy of the alleged letter, produced along with counter affidavit of the 1st respondent. The contents of Ext.R1(c) is that, the petitioner was informed that the work for effecting connection has been completed and hence requested to submit proper papers for W.P.(C).24393/2004 6 effecting connection at the earliest. But nothing is stated in the counter affidavit about the mode in which the letter was served on the petitioner. The respondents are not in a position to produce any evidence which will conclusively prove that Ext.R1(c) letter was actually served on the petitioner. The counsel for petitioner on the other hand contended that, if such a letter was there, issued to the petitioner, the same would have been reflected in Ext.P12, the contents of which is extracted above. But Ext.P12 says only about liability to pay the minimum charges as per clause 10 of Ext.P8 agreement. 8. The further contention of the petitioner is that, dehors the terms and conditions contained in the repeated power allocation letters and the disputed Ext.R1(c) letter, the petitioner is governed only by the terms of Ext.P8 agreement and his liability for payment of un-connected minimum can be decided only based on the terms of the agreement. According to the counsel, it is clear and specific from clause 9 (a)(i) of Ext.P8 that, on execution of the said agreement all prior agreements will stand repealed and abrogated. On the contra, argument of the standing counsel is that liability if any already existing by virtue of the power allocation proceedings will not be abrogated. According to him as per clause (vii) of Ext.P4, if the power supply is not availed within six months from the date of the said W.P.(C).24393/2004 7 proceedings, there is liability on the petitioner to pay the prescribed minimum charges. He also relies on clause 25 of Ext.P8 agreement which says that, if power is not availed within 2 months from the date on which readiness of the Board to supply power to consumer is intimated, he is liable for payment of minimum charges therefrom. Hence the petitioner is liable for payment after expiry of 2 months from Ext.R1(c), is the contention. Yet another contention of the respondent is that, as per clause 9(a)(ii) of Ext.P8, nothing contained in that agreement will effect liability of the consumer to discharge the dues on account of supply of energy, as per prior agreement, if any, for the periods prior to execution of agreement in tune with the terms and conditions of supply, prevalent from time to time from the date of service connection. But clause 9(a)(ii) is not applicable in this case because there was no supply effected prior to Ext.P8. 9. On the basis of the rival contentions as above the point to be decided is as to whether any clause in the proceedings of power allocation issued prior to execution of the agreement will survive or not. Power allocation is a proceedings issued by the authorities of the Board on the application of a consumer. The stipulations therein will get extended if there are renewals of its validity. In this case in none of the subsequent W.P.(C).24393/2004 8 proceedings of extension, there is any mention about R1(c) letter, or about any liability already arisen or accrued for payment of any minimum charges. Therefore the terms of power allocation can only be construed as valid from the last date of its extension. Still further, the question arises as to whether any such stipulation if existed as binding as on the date of execution of the agreement will survive and continue after execution of the agreement in view of clause 9(a)(i) in the agreement. I have no hesitation to answer this question on the negative, as long as Ext.P8 does not mention anything about such an existing liability. In order to support the above view the learned counsel for the petitioner had also placed reliance on Section 62 of the Indian Contract Act 1872, which provides that if the purport of a contract agrees to substitute in that contract, for it, or to rescind or alter it, then the original contract need not be performed. In this case the only concluded contract is Ext.P8, all proceedings of power allocations issued earlier being unilateral issued by the authority concerned. So I hold that stipulations if any contained in any earlier proceedings to Ext.P8 agreement, stands repealed and abrogated and the liability of the petitioner will be solely based on the terms of Ext.P8. 10. Viewed on the basis of the conclusion arrived as above, Ext.R1(c) letter, even if it is assumed as served on the W.P.(C).24393/2004 9 petitioner, has no relevance after Ext.P8. This is more so because of the terms of clause 25 in Ext.P8 and the contents of Ext.P12 letter (which are extracted above). The standing counsel for respondent still made a feeble attempt relying on Regulation 15(g) of the 'Regulations relating to Conditions of Supply of Electrical Energy'. But the said Regulation contemplates only a situation wherein the consumer had utilized energy even without there being a formal contract. Further, clause 20 of Ext.P8 says that those Regulations which are not contradictory to the provisions made in the agreement alone is binding. Therefore it is unequivocally clear that the minimum guaranteed amount can be claimed only on the basis of clause 25 of Ext.P8 agreement and in view of the contents of Ext.P12 letter. The respondents are clearly estopped from claiming any amount for the period prior to Ext.P8. The liability of the petitioner for payment of the un-connected minimum guaranteed charges, need be re-worked based on clause 25 of Ext.P8 agreement dt:8.5.2003 based on the contents of Ext.P12 letter of the 4th respondent dt:21.6.2003. In the result Exts.P15, P17 and P21 are hereby quashed. The 5th respondent is directed to issue fresh demand after re- working the computation of un-connected minimum charges due from the petitioner based on the above findings, and considering Ext.R1(b) (BO(FM)No.834/04 (DPC1/C13-92/04) dt: 1.4.2004) by W.P.(C).24393/2004 10 which the petitioner is already exonerated from payment of surcharge. Needless to say that amount already paid by the petitioner should be given credit and if there is excess payment the same should be adjusted/refunded. A final decision in this regard should be taken as early as possible, at any rate within 2 months from the date of receipt of a copy of this Judgment. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb