IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).No. 11081 of 2010(I) -------------------------- PETITIONER: --------------- MOHANAN PILLAI,53 YEARS, S/O.VIKRAMAN PILLAI,PADMALAYAM, VILANGARA, WEST KALLADA VILLAGE, KUNNATHOOR, KOLLAM PROPRIETOR, JAYALAKSHMI WIRE CUT BRICKS. BY ADV. MR. V.SETHUNATH RESPONDENTS: --------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDYUDTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE DEPUTY CHIEF ENGINEER, K.S.E.B.,ELECTRICAL CIRCLE, KOLLAM, [APPELLATE AUTHORITY] 3. THE ASST.EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, SASTHAMKOTTA. * 4. SREEDEVI WIRE CUT BRICKS, REPRESENTED BY SREEDEVI,KALIYIL HOUSE,VILANGARA, WEST KALLADA VILLAGE,KANNATHOOR ,KOLLAM. *(respondent No.4 is deleted from the party array vide judgment) R1 TO R3 BY ADV. MR. P.P.THAJUDEEN, SC, K.S.E.B THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 11081 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 2nd day of July, 2010 JUDGMENT The petitioner has approached this Court with the following prayers: i. Issue an appropriate order, direction or writ to call for the entire records in Ext.P8 including the audit report. ii. Issue an appropriate order, direction or writ to quash Ext. P8 notice iii. To declare that the respondents 1 to 3 are not empowered to realized any amount under a mistake a fact. iv. Grand such other relief as this Honourable court deems fit and proper to grant in the facts and circumstances of the case. 2. The petitioner, along with another person by name Sheeja had executed Ext. P1 'Minimum Guarantee Agreement' with the third respondent, for availing industrial LT IV tariff connection, on 17.09.2010. From the line drawn, the respondent Board has provided connection to the 4th respondent as well. This being the position, the subsequent liability in respect of the amount covered by the minimum guarantee agreement, which escaped to be collected from the parties concerned, ought to have been distributed among the petitioner, said Sheeja and also the other beneficiary i.e. 4th respondent. The case of the petitioner is that, 1/3rd portion of the minimum guarantee is to be borne by the 4th respondent and that the respondent Board spared the W.P. (C) No. 11081 of 2010 : 2 : 4th respondent, but for collecting some paltry amount, which hence is sought to be challenged in the Writ Petition. 3. The learned counsel for the petitioner submits that, the 4th respondent is not a necessary. It is recorded and the said respondent is deleted from the party array. 4. The respondents 1 to 3 have filed a counter affidavit, stating that, the petitioner and Smt. Sheeja applied for electric connection to their wire cut brick factories situated in the adjacent properties and since it was not technically feasible to connect 50 HP load (25 HP each) in the existing transformer, the Board proposed to draw 340 metres of 11 KV overhead line, install one 100 KWA transformer and construct 140m LT 3 phase 4- wire overhead line under the minimum guarantee basis for small scale industries. It is further stated in paragraph 4 of the said affidavit that, as per Ext.P4 minimum guarantee agreement, the petitioner and the other beneficiaries were to remit a sum of Rs.35,525/- p.m. for the specified term. It is also brought to the notice of this Court that, as per the specific pleadings raised, the service connection to the industrial premises of the 4th respondent was effected on 10.11.00, as per application of one Mr. M.J. Thankachan, Pushpamangalam for 'Paulson Wire Cut Bricks', Vilanthara P.O. under minimum guarantee, with other two guarantors for running two other wire cut brick factories. W.P. (C) No. 11081 of 2010 : 3 : It is stated that, these industrial connections were effected from the newly installed 100 KVA Valiyapadam 'No. I' transformer under the minimum guarantee basis and all the guarantors are remitting the minimum guarantee amount as prescribed. It is the case of the petitioner, as pointed out in paragraph 5 of the statement filed by the respondents, that Valiyapadam 'No II' transformer has been installed under the minimum guarantee agreement with the petitioner and co- guarantor Ms. Sheeja. This being the position, the contention now raised as to the liability to have shared with the minimum guarantee amount of the 4th respondent is without any merit or bonafides. It is also asserted that, the minimum guarantee amount prescribed has been satisfied by all others including co-guarantor by name Sheeja. It is stated that while raising the regular necessary , the amount liable to be satisfied by the petitioner was actually omitted to be noted, which was brought to light only in the course of audit, leading to issuance of Ext. P3 demand notice. It is also conceded that, the petitioner has satisfied the condition imposed by this Court, remitting a portion of the liability. 5. The learned counsel for the petitioner submits that, as per interim order dated 3.3.2010, the petitioner has satisfied Rs. 1 lakh, by way of two installments. Considering the facts and circumstances, this W.P. (C) No. 11081 of 2010 : 4 : Court finds it fit and proper that, the balance liability of the petitioner due to the Board i.e Rs. 76,903/- (as per Ext. P8 the liability is Rs.1,76,903/- and since the petitioner has already satisfied a sum of Rs. 1,00,000/-, the balance will be Rs.76,903/-) shall be permitted to be cleared by way of 'three' equal monthly installments; the first of which shall be effected within one month from the date of receipt of a copy of the judgment, to be followed by similar installments to be effected in of the succeeding months with a maximum gap of 30 days in between. 6. The learned counsel for the petitioner submits that, the interest demanded to the tune of Rs. 80,637/- ought not to have been found place in Ext. P8, as the respondents are not justified in demanding the same by virtue of the stipulation under Regulation 24 (2) (b) of the Kerala State Electricity Supply Code, 2005, which says that no interest shall be charged on the amount 'under charged'. Obviously, no such pleadings have been raised in the Writ Petition and as such, the respondents did not get an opportunity to controvert the same by filing a proper counter affidavit. In any view of the matter, the petitioner is permitted to file a proper representation before the concerned Assistant Engineer, on which event the same shall be caused to be considered, in accordance with the relevant provisions of law, after giving an opportunity of hearing to the petitioner, or by W.P. (C) No. 11081 of 2010 : 5 : causing the matter to be considered and settled in 'adalath' as the case may be, within a reasonable time . The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd