IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 3841 of 2009(G) ------------------------- PETITIONER(S): ------------------ THE MANJERI MUNICIPALITY, MANJERI, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.P.JACOB RESPONDENT(S): ------------------ 1. THE KERALA STATE ELECTRICITY BIOARD, ELECTRICAL SECTION, DIVISIONAL OFFICE, 2. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY. 3. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE, ERANAD, MALAPPURAM. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1-2 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 AND R2 GOVT.PLEADER SRI.K.S.MOHAMMED HASHIM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.3841/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE AGREEMENT EXECUTED BY PETITIOENR WITH THE BENEFICIARY COMMITTEE DT 27.3.98. EXT.P2: TRUE PHOTOCOPY OF THE CIRCULAR DT 1.10.2004 ISSUED BY GOVERNMENT. EXT.P3: TRUE PHOTOCOPY OF THE CIRCULAR DT 23.3.2006 ISSUED BY GOVERNMENT. EXT.P4: TRUE PHOTOCOPY OF THE NOTICE ISSUED BY FIRST RESPONDENT DTD 30.11.2007 TO THE PETITIONER. EXT.P5: TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE PETITIONER TO THE BENEFICIARY COMMITTEE CONVENER DT 10.12.2007. EXT.P6: TRUE PHOTOCOPY OF THE AGENDA OF THE COUNCIL MEETING PLACED BY PETITIOENR DATED NIL. EXT.P7: TRUE PHOTOCOPY OF THE DECISION OF THE COUNCIL OF the PETITIOENR DT 21.8.2008. EXT.P8: TRUE PHOTOCOPY OF THE LETTER ISSUED BY 3RD RESPONDENT DTD NIL. EXT.P9: TRUE PHOTOCOPY OF THE REPRESENTATION FILED BEFORE THE DISTRICT COLLECTOR BY THE PETITIOENR DT 28.11.2008. EXT.P10: TRUE PHOTOCOPY OF THE LETTER ISSUED BY 3RD RESPONDENT TO THE PETITIOENR DTD 23.12.2008. EXT.P11: TRUE PHOTOCOPY OF THE LETTER ISSUED BY PETITIOENR TO THE FIRST RESPODNENT DTD 17.1.2009. EXT.P12: TRUE PHOTOCOPY OF THE LETTER ISSUED BY PETITIONER TO THE CONVENER BENEFICIARY COMMITTEE DTD 7.9.08. EXT.P13: TRUE PHOTOCOPY OF THE INTERIM ORDER IN WPC 31091/07 DTD 19.10.2007. EXT.P14: TRUE PHOTOCOPY OF THE DEMAND NOTICE ISSUED BY 3RD RESPODNENT DTD. 22.10.2008. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 3841 OF 2009 (G) ===================== Dated this the 17th day of August, 2009 J U D G M E N T Manjeri Municipality is the petitioner herein. It is stated that they had constituted a beneficiary committee for supply of drinking water in Ward Nos. VI and VII of the Municipality. Ext.P1 is an agreement entered into between the petitioner and the beneficiary committee and in terms thereof the responsibility for the supply of drinking water is that of the beneficiary committee. It is the case of the petitioner that payment of electricity charges is also the responsibility of the said committee. 2. The Board issued Ext.P4 to the petitioner calling upon them to pay Rs.1,24,292/-, being the energy charges incurred for supply of drinking water for the period from September, 2002 onwards. On that basis, petitioner was called upon to pay the amount. It is stated that thereupon the petitioner addressed the beneficiary committee to pay the dues and that when payment was not made, they had resolved to recover it from the beneficiary committee. However nothing materialised and in the meanwhile revenue recovery steps were initiated by Ext.P8. WPC 3841/09 :2 : 3. Thereupon, representations were made, but however the liability remained undischarged and finally by Ext.P14, revenue recovery action was initiated. It is at that stage this writ petition was filed challenging the revenue recovery proceedings. 4. One of the contention raised by the counsel for the petitioner is that the petitioner is not liable for the energy charges incurred for supply of drinking water for the reason that as per Ext.P1 agreement, it was the beneficiary committee that was liable. This cannot be accepted. For the reason that admittedly petitioner is the consumer and that the consumer alone is liable for payment of energy charges. This is so, irrespective of whether by any private arrangement the consumer has contractually shifted its liability to somebody else or not. At any rate, the Board cannot be expected to be bound by such private arrangements. Therefore, the petitioner is liable and it cannot get itself absolved of this liability. 5. The other contention raised by the counsel for the petitioner is mainly relying on Section 56(2) of the Indian Electricity Act, 2003. Section 56(2) provides that no sum due from any consumer shall be recoverable after the period of two years WPC 3841/09 :3 : 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. Referring to Ext.P15, counsel for the petitioner contends that the supply was disconnected in October 2003 and therefore, the demand made by Ext.P4 was beyond two year time specified in Section 56(2) of the Electricity Act, 2003. 6. However, counsel for the Board contends that the Electricity Act, 2003 was implemented w.e.f. 10/12/2003. It is stated that the liability in question was incurred prior to the introduction of 2003 Act and that in the 1910 Act, there was no period of limitation. According to him, the liability having been incurred under the earlier Act, the Board is entitled to recover the dues by taking revenue recovery proceedings without any limitation. 7. This Court in Abdul Nazer v. K.S.E.B (2006(1) KLT 811), held that Section 56(2) would operate only prospectively and that the Board is entitled to recover its dues for the period prior to the coming into force of the Electricity Act, 2003, without any period of limitation. Subsequently, the Apex Court in the WPC 3841/09 :4 : judgment in Kusumam Hotels (P) Ltd, v. K.S.E.B and others (2008(2) KHC 792) held that unless the 2003 Act specifically introduced the bar of limitation as regards the liability of the consumer incurred prior to coming into force of the 2003 Act, the liability incurred by a consumer under the Electricity Act, 1910 continues, in view of the provisions contained in Section 6 of the General Clauses Act. Thus, the combined effect of these two judgments is that if the liability has been incurred by a consumer prior to 10/12/2003, when the 2003 Act was implemented, that liability will be governed by the provisions of the Electricity Act, 1910. If that be the position, in this case, supply of energy was disconnected in October 2003 and it so reflected in Ext.P15 produced by the petitioner. Therefore, the liability in question was incurred by the petitioner when the 1910 Act was prevailing, and if so, as held by the Division Bench of this Court, recovery can be effected without any period of limitation and without applying the limitation as provided under Section 56(2) of the 2003 Act. 8. However, there are two aspects, which require to be noticed. One is that going by Ext.P15 statement issued by the Board, though disconnection was effected in October 2003 and WPC 3841/09 :5 : consumption thereafter has been shown as nil, current charges have been levied on the petitioner. If as a matter of fact, there has not been any consumption subsequent to August, 2003, prima facie, current charges could not have been levied. Further, in terms of Clause 34(d) of the Conditions of Supply of Electrical Energy framed by the Board under Section 79(j) of the Electricity (Supply) Act, the service ought to have been dismantled if dues are not paid within six months of disconnection. In this case, disconnection is seen to have been effected in October 2003. The contention raised is that if dismantling was done as required under the Conditions of Supply, liability of the petitioner to have been levied charges could not have been for more than six months from October, 2003. 9. In view of the aforesaid contentions regarding Ext.P15 statement referred to above, I feel these two aspects require to be considered. This necessarily has to be examined by the 1st respondent. 10. It is therefore directed that on receipt of a copy of this judgment, the 1st respondent shall examine the aforesaid two aspects, and revise the demand already made, and thereafter, it WPC 3841/09 :6 : will be open to the 1st respondent to demand payment from the petitioner. 11. The interim order of stay granted by this Court in this writ petition will continue until the aforesaid process is completed and a fresh demand is issued. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp