IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 90 of 2009(I) ----------------------- PETITIONER(S): --------------- P.SUNDERDAS, AGED 62 YEARS S/O.P.KRISHNAN, MANAGING DIRECTOR, CANNANORE ROLLER FLOUR MILLS PRIVATE LTD KADACHIRA, KANNUR DISTRICT. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VUDYUTHI BHAVAN THIRUVANANTHAPURAM. 2. THE ASSISTANT ENGINEER ELECTRICAL SECTION, KADACHIRA, KANNUR DISTRICT. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF NOTICE ISSUED BY R2. P2 COPY OF ORDER ISSUED BY R2. P3 COPY OF CALCULATION STATEMENT ISSUED BY R2. // TRUE COPY // P.A. TO JUDGE K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 90 OF 2009 I ```````````````````````````````````````````````````` Dated this the 19th day of February, 2009 J U D G M E N T Petitioner is the Managing Director of a private limited company which has an electrical connection. It is the case of the petitioner that the petitioner has been correctly paying the electrical charges and there was no amount outstanding. There was an inspection at the premises of the petitioner on 29.11.2008 and he was called upon vide Ext.P1 to replace the capacitor which was complied with. He was called upon to pay Rs.9,04,629/-, it is stated, on the basis that the Electricity Board had been giving bills to the petitioner from September 2005 to October 2008 taking the multiplication factor as 20 instead of 40. It is stated that the petitioner requested the 2nd respondent to allow him to pay the current charges in 50 instalments as the amount was so huge. It is stated that the petitioner also requested in writing to grant a copy of the calculation of the assessment made. He was served with Ext.P2. Along with Ext.2, the petitioner has also been given the calculation statement. It is stated that it was only when WPC.90/09 : 2 : Ext.P3 was issued the petitioner came to know that the Board has imposed surcharge on the amounts which are allegedly due not because of any fault of the petitioner but due to a wrong calculation. The petitioner paid the amount under protest, it is stated, the amount which fell due on 15.12.2008. The total surcharge levied on the petitioner is Rs.1,56,050/-. 2. The prayers are to quash the imposition of surcharge in Ext.P3 and to declare that the 2nd respondent is not entitled to recover the amount under Ext.P3 in view of section 56(2) of the Electricity Act, 2003, or, in the alternative, to allow the petitioner to pay the amounts for consumption of electricity as shown in Ext.P2 granting 50 instalments excluding the surcharge. 3. Counter affidavit is filed wherein it is, inter alia, stated as follows. The APTS conducted an inspection where the multiplication factor was found as 20 instead of 40 since 30.8.2005. An invoice was issued. The petitioner was sanctioned 24 instalments. He has paid the first and second instalments. 4. I heard learned counsel for the petitioner WPC.90/09 : 3 : Mr.M.Ramesh Chander and learned standing counsel Mr.P.P.Thajudeen. Learned counsel for the petitioner raised two contentions before me. In the first place, he submitted that the imposition of surcharge in a case where the petitioner is not a defaulter is unsustainable. It is also contended that the fault was of the Board and that they did not rectify the error when it should have been done. It is the mistake of the Board. He referred to Regulation 24(3) and (5) of the Kerala Electricity Supply Code, 2005. They read as follows. “ 24(3). While issuing a revised bill the Licensee: (a) shall specify the amount to be recovered as a separate item in the consumer's next bill with details or as a separate bill with details for the amount; (b) shall not charge interest on the amount undercharged; (c) may allow instalment option. 24(5). If the Licensee establishes that it has undercharged the consumer either by review or otherwise, the Licensee may recover the amount undercharged from the consumer by issuing a bill and in such cases at least 30 days shall be given for the consumer to make payment WPC.90/09 : 4 : against the bill. While issuing the bill, the Licensee shall specify the amount to be recovered as a separate item in the subsequent bill or as a separate bill with an explanation on this account.” 5. It is pointed out that when a revised bill is issued, the Code does not contemplate charging of any interest. It is also contemplated granting of instalment option. He further submits that allowing the Board to charge interest will amount to unjust enrichment and the Board is a public body. The second contention raised is there is violation of section 56(2) of the Electricity Act. It reads as follows. “ 56(2). Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.” 6. It is pointed out that a perusal of Ext.P2 would show that the bill is issued for collecting charges for the period from 2005 to 2008 and, therefore, the amounts have become due from WPC.90/09 : 5 : 2005 onwards and the recovery is barred. 7. Per contra, learned standing counsel would point out that the petitioner has not been called upon to pay any surcharge for the earlier period. The multiplication factor is found to be in error and the error is corrected. He would submit that under law, the consumer is liable to pay surcharge for delayed payment. Surcharge is imposed only because the petitioner was sanctioned instalment facility. Further, he would contend that the contention based on section 56(2) is concerned, it is without any merit. It is for the reason, according to him, the word 'due' has relation with the issuance of the bill and it is only when the bill is issued the amount becomes due. In this context, he relied on the judgment of a learned Single Judge of Bombay High Court reported in Brihanmumbai Municipal Corporation Vs. Yatish Sharma [2007 (3) KLT SN 9]. 8. As far as the first question is concerned, namely, whether the petitioner is liable to pay surcharge in the facts of this case, I am of the firm view that there is no merit in the contention of the petitioner. The petitioner has been served with the bill for WPC.90/09 : 6 : payment of an amount which is assessed as due from him on the basis of the inspection conducted which revealed that the multiplication factor was being taken as 20 instead of 40 for the period from 2005 onwards. If the petitioner disputes liability to pay surcharge and is agreeable to pay the amount payable as demanded, then, certainly one would have to examine the question as to whether the petitioner can resist the payment of surcharge alone. The petitioner in this case sought for instalments to pay off the amounts because it was a huge amount and it related to a period earlier and, as pointed out by him, he was paying the bills regularly. A perusal of Exts.P2 and P3 would show that surcharge is levied only because the petitioner has sought for instalments. The first amount of surcharge is shown as payable at 15.1.2009. The amount of surcharge also progressively decreases. Thus, there is no case of the petitioner that the petitioner has been called upon to pay surcharge for the period from 2005 onwards. If the petitioner had paid the amount in one lumpsum, then, there was no question of imposition of surcharge. In this case, when the amount became due and he did WPC.90/09 : 7 : not want to pay it in lumpsum when it became payable in terms of the bill, there is delayed payment. Regulation 36(5) of the K.S.E. Board Terms and Conditions of Supply, 2005, provides that in the case of belated payments, interest at twice bank rate based on actual number of days of delay from due date shall be charged. Therefore, the demand for payment of surcharge cannot, by any stretch of imagination, be dubbed as illegal in the facts of this case. I do not think this is a case where it is unjust enrichment. The demand for surcharge is to be supported on the basis of a statutory provision. Demanding what the statute permits cannot be, any stretch of imagination, called unjust. Regulation 37(5) clearly permits the Board to recover an amount which is not charged on the basis of review or otherwise. Thus, demanding of the surcharge cannot be said to be illegal as such. 9. The further question to be considered whether considering section 56(2) of the Act, the petitioner can resist the payment of surcharge. Section 56(2), no doubt, brings about the period of limitation on the basis of a non obstante clause. The crucial words to be considered are the words “due” and the words WPC.90/09 : 8 : “first due”. Learned Judge of the Bombay High Court has taken the following view. “ The amount of charges would become due and payable only with the submission of the bill and not earlier. It is the bill which stipulates the period within which the charges are to be paid. The period which is provided is not less than 15 days after the receipt of the bill. If the word “due” in S.24 is to mean consumption of electricity, and if the argument of the learned counsel for the petitioner is correct, it would mean that electricity charges would become due and payable the moment electricity is consumed and if charges in respect thereof are not paid then even without a bill being issued a notice of disconnection would be liable to be issued under S.24. This certainly could not have been the intention of the Legislature. Section 24 gives a right to the licensee to issue not less than 7 days' notice if charges due to it are not paid. The word “due” in this context must mean due and payable after a valid bill has been sent to the consumer. It cannot mean 7 days' notice after consumption of the electricity and without submission of the bill. Even though the liability to pay may arise when the electricity is consumed by the petitioner, nevertheless it WPC.90/09 : 9 : becomes due and payable only when the liability is quantified and a bill is raised. Till after the issue and receipt of the bill the respondents have no power or jurisdiction to threaten disconnection of the electricity which has already been consumed but for which no bill has been sent. Clearly, therefore the Regulations demonstrate that a bill falls due for payment on the date mentioned in the bill which is not to be less than 21 days and 15 days respectively from the bill date in the case of residential and agricultural consumers on one hand and the other consumers on the other hand. The Ombudsman was therefore clearly in error in postulating that the claim was barred on the ground that the arrears for consumption became due immediately on the usage of energy. This finding is ex facie contrary to the provisions of sub-s.(2) of S.56. The provisions contained in the Regulation fortify this conclusion which independently emerges on a plain and grammatical interpretation of the provisions of S.56.” 10. Regulation 33 speaks about the reading of the meter and the preparation of the bills. Regulation 34 provides for reading of meter on request. Regulation 35 provides for the WPC.90/09 : 10 : contents of the electricity bill. Regulation 35(j) provides for the due date of payment. Regulation 36 provides for the bill amount shall be paid on or before the due date shown in the bill. The Board has to give 7 days time from the bill date for payment of the bill. Section 56(1) speaks about disconnection of supply. It is thereafter section 56(2) speaks about recovery when the amount is not paid. In my view, I think that there is merit in the contention of the Board that the word “due” should bear the meaning that it is upon issuance of the bill that the amount becomes due. Ordinarily the bills are prepared on either monthly or bimonthly basis. The scheme of the provisions contemplates the meter reading being taken on a monthly or bimonthly basis which means from the date of actual consumption to the date on which the bill is issued showing the due date, there cannot be much difference. The case at hand represents the exceptional case, namely, the meter reader who was taking the reading had not taken note of the fact that the correct multiplication factor is 40 and the bills were being issued on the basis that it is 20. Regulation 37(5) clearly enables the issuance of a bill either on the basis of the review or otherwise. WPC.90/09 : 11 : Here, there was an inspection and the mistake was discovered and the bill was issued. If the contentions advanced by the learned counsel for the petitioner were to be accepted, then, it may have the effect of rendering a reasonable resort to Regulation 37(5) within a reasonable time also as unwarranted. It will have the effect of the Board being disabled from collecting the amounts which the consumer should have paid. No doubt, I am not here considering the case where a bill is issued after an inordinate delay where probably it could be contended that it is arbitrary. I also need bear in mind the petitioner himself sought for payment in instalments. No doubt, the learned counsel for the petitioner says that there cannot be any estoppel. The meaning that the amount becomes due and first due in my view must be linked with the issuance of the bill. No doubt, I draw on the presumption that the official acts will be performed regularly and correctly. In such circumstances, I do not see any merit in the contentions of the learned counsel for the petitioner. The scheme of section 56(2) is that the amount becomes due when the bill is issued. I do not see any reason to grant any relief as sought by the petitioner. The writ WPC.90/09 : 12 : petition is liable to be dismissed. Learned counsel for the petitioner submits that he may be given some time to pay the third instalment. The petitioner is granted time till 26.2.2009 to pay the third instalment. Subject to the same, writ petition is dismissed. (K.M.JOSEPH, JUDGE) aks