IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 WP(C).No. 24932 of 2011(N) -------------------------- PETITIONER(S): --------------- N.A.KUTTICHAN, AGED 52, S/O.ANTONY, NJALLAMPUZHAYIL HOUSE, THEEKOY P.O., KOTTAYAM DISTRICT. BY ADV. SRI.JOHNSON MANAYANI SRI.BENHUR JOSEPH MANAYANI SRI.JEEVAN MATHEW MANAYANI RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM P.O., TRIVANDRUM REPRESENTED BY ITS SECRETARY-695004. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, ERATTUPETTA, KOTTAYAM DISTRICT 686121. 3. ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ERATTUPETTA, KOTTAYAM DISTRICT 686121. ADV. SMT.P.K.RADHIKA, SC KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 24932/2011 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1- TRUE COPY OF THE JUDGMENT DATED 29.4.2010 OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, TRIVANDRUM. EXHIBIT P2- TRUE COPY OF THE NOTICE DATED 13.8.2010 OF THE 2ND RESPONDENT. EXHIBIT P3- TRUE COPY OF THE DEMAND NOTICE AND THE PAYMENT OF RS.1200. EXHIBIT P4- TRUE COPY OF THE NOTICE DATED 4.4.2011 OF THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P5- TRUE COPY OF THE PAYMENT RECEIPT FOR PAYMENT OF RS.16800 BY THE PETITIONER. EXHIBIT P6- TRUE COPY OF THE NOTICE DATED 12.5.2011 DEMANDING THE PETITIONER TO REMIT RS.16800. EXHIBIT P7- TRUE COPY OF THE NOTICE DATED 26.7.2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P8- TRUE COPY OF THE LETTER DATED 15.8.2011 OF THE PETITIONER TO THE THIRD RESPONDENT. RESPONDENT'S EXHIBITS NIL /True Copy/ vps PA to Judge P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 24932 OF 2011 -------------------------- Dated this the 25th day of November, 2011 J U D G M E N T The petitioner is a consumer of electrical energy. When the premises to which electricity connection was given was inspected by the Anti Power Theft Squad of the Kerala State Electricity Board (hereinafter referred to as 'the Board' for short) on 4.6.2004, it was found that the petitioner was unauthorisedly using energy to operate a pump set to pump water from the nearby river by laying a pipeline across the PWD road. After inspection, a penal bill levying the sum of Rs.18,000/- as energy/penal charges was issued. The petitioner did not pay the bill. Instead he filed a complaint O.P.No.204 of 2004 in the Consumer Disputes Redressal Forum, Kottayam constituted under the Consumer Protection Act, 1986 challenging the bill. Though the said petition was allowed, on appeal filed by the Board, the order allowing the petition was set aside and the complaint was remitted back to the Consumer Disputes Redressal Forum, Kottayam for reconsideration. It was thereafter renumbered as C.C. No.217 of 2008. After remand, WPC No.24932/2011 2 the Consumer Disputes Redressal Forum once again allowed the complaint and set aside the disputed bill. The Board and its officers filed an appeal before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. By Ext.P1 judgment delivered on 29.4.2010 after notice to the petitioner, the State Commission allowed the appeal, set aside the order passed by the Consumer Disputes Redressal Forum and dismissed the complaint. The petitioner did not even thereafter remit the amount covered by the disputed bill. 2. While matters stood thus, the second respondent sent Ext.P2 letter dated 13.8.2010 to the petitioner wherein it was stated with reference to the inspection held on 4.6.2004 and Ext.P1 judgment of the Kerala State Consumer Disputes Redressal Commission that a revised bill for Rs.1,200/- is enclosed. The petitioner was directed to remit the amount covered by the said bill (Ext.P3) within 15 days from the date of receipt. In Ext.P3 bill it was stated that it is issued based on the judgment of the State Commission. The petitioner remitted the said amount on 26.8.2010. Shortly thereafter, by Ext.P4 letter WPC No.24932/2011 3 dated 4.4.2011, the second respondent called upon the petitioner to remit the balance amount of Rs.16,800/- after giving credit to the sum of Rs.1,200/- remitted on 26.8.2010. It was stated that the earlier demand for Rs.1,200/- was a mistake. When the petitioner did not pay the amount demanded therein, Ext.P6 letter dated 12.5.2011 was issued demanding payment of the balance amount due within 15 days from the date of receipt of the letter. The petitioner thereupon remitted the sum of Rs.16,800/- on 21.5.2011 and Ext.P5 receipt was issued. Shortly thereafter, by Ext.P7 letter dated 26.7.2011, the petitioner was called upon to remit the sum of Rs.25,848/- by way of interest calculated in terms of paragraph 36(5) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005. The petitioner thereupon sent Ext.P8 letter dated 15.8.2011 contending that he has remitted the entire amount due and therefore electricity connection should not be disconnected. The instant writ petition was thereafter filed on 19.9.2011 challenging Ext.P7 notice and seeking the following reliefs:- “(i) Issue a writ of certiorari or any other appropriate writs, directions or orders quashing and WPC No.24932/2011 4 setting aside Exhibit P7 notice. (ii) Issue a writ of mandamus or any other appropriate writs, directions or orders commanding the respondents to restore the power supply to the petitioner's house as per consumer No.8833 under the 2nd respondent forthwith.” It is contended that the interest claimed is excessive and incorrect, that the demand made is not permissible even on the terms of paragraph 36(5) of Kerala State Electricity Board Terms and Conditions of Supply, 2005, that Ext.P7 is a non-speaking order and therefore it is liable to be quashed. 3. A counter affidavit dated 25.10.2011 has been filed on behalf of the respondents. It is stated that Ext.P7 demand notice was issued demanding payment of surcharge (interest) only on 26.7.2011 since a clarification from the Board was required as to whether surcharge has to be levied from the date of issue of the bill till the date of remittance of the penal amount. It is also contended that in the inspection held on 4.6.2004, it was found that the petitioner had unauthorisedly used electrical energy to pump water across the PWD road to his residence and to the property of Sri.V.K.Thomas, the neighbouring land owner, that WPC No.24932/2011 5 the petitioner had unauthorisedly drawn an electricity line across the road to the river bank for connecting it to a 1.5 HP motor and that after inspection a penal bill for Rs.18,000/- was issued. The petitioner has filed a reply affidavit dated 4.11.2011 wherein it is contended that he had remitted the amount covered by the penal bill as soon as the demand was made and that the delay in enforcement was on the side of the respondents, and therefore he cannot be held liable to pay interest for belated payment. 4. I heard Sri.Johnson Manayani, learned counsel for the petitioner and Smt.P.K.Radhika, learned standing counsel appearing for the respondents. I have also gone through the pleadings and the materials on record. The fact that pursuant to an inspection conducted by the Anti Power Theft Squad of the Board on 4.6.2004 a penal bill demanding payment of the sum of Rs.18,000/- was issued for unauthorised use of electrical energy is not disputed by the petitioner. Though the petitioner successfully challenged the said bill by moving the Consumer Disputes Redressal Forum, Kottayam under the provisions of the Consumer Protection Act, 1986 the decision of the Consumer WPC No.24932/2011 6 Disputes Redressal Forum was set aside by the State Commission by Ext.P1 judgment dated 29.4.2010. The petitioner was therefore liable to pay the disputed bill. He did not however pay the disputed bill voluntarily. While matters stood thus, the second respondent sent Ext.P2 letter along with Ext.P3 demand notice demanding payment of the sum of Rs.1,200/- which was stated to be the amount due pursuant to the judgment of the State Commission. The petitioner remitted the said amount on 26.8.2010. When the respondents noticed that there was a short fall in the demand and the petitioner should have been called upon to pay the entire sum of Rs.18,000/-, Ext.P4 letter was sent on 4.4.2011 demanding payment of the balance sum of Rs.16,800/-. The petitioner remitted the said amount on 21.5.2011. Ext.P7 impugned notice was thereafter issued demanding payment of interest for the period during which the petitioner was in default. Though the petitioner challenges the demand for interest on the ground that the delay in remittance of the amount covered by the disputed bill was caused on account of the omission of the respondents, I am of the opinion that the WPC No.24932/2011 7 petitioner cannot be heard to put forward such a contention. The disputed bill was issued on 4.6.2004. The challenge to it was repelled on 29.4.2010. By virtue of the provisions contained in paragraph 36(5) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005, the petitioner is liable to pay interest on the amount covered by the disputed bill at the rates stipulated therein. With the passing of Ext.P1 judgment, the petitioner should have, to avoid being held liable for interest thereafter, voluntarily paid the amount covered by the disputed bill. Instead, taking advantage of a mistake committed by the respondents he remitted the sum of Rs.1,200/- as against the demand of Rs.18,000/-, which he had challenged before the Consumer Disputes Redressal Forum. The petitioner who did not remit the amount covered by the penal bill in time and instead chose to challenge it cannot, in my opinion, be heard to contend that he is entitled to take advantage of a mistake committed by the respondents. The liability to pay interest is statutory and the mere fact that there was some delay on the part of the officers of the Board in demanding payment pursuant to Ext.P1 judgment, WPC No.24932/2011 8 will not in my opinion absolve the petitioner of the liability to pay interest. He could have in order to avoid the liability to pay interest, remitted the amount covered by the disputed bill under protest, after obtaining orders in that regard from the Consumer Disputes Redressal Forum. Such being the situation, I find no merit or substance in the challenge to Ext.P7. The writ petition fails and is accordingly dismissed. However having regard to the fact that the petitioner has pursuant to the interim order passed by this Court deposited the sum of Rs. 5,000/- towards part payment of the interest, I am inclined to grant the petitioner two months time from today to deposit the balance amount payable towards interest. P.N.RAVINDRAN, (JUDGE) vps WPC No.24932/2011 9