IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WA.No. 623 of 2008 -------------------------- AGAINST THE JUDGEMENT IN WPC.22327/2005 Dated 28/06/2007 .................... APPELLANT(S): RESPONDENTS: ---------------------------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, KATTAKKADA, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, NEDUMANGAD. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S): PETITIONER: --------------------------------------------- WILFRED SATHYRAJ, S/O.SATHYRAJ, RESIDING AT THENOOR NILAYAM, POONAJAN CODE MURI, KATTAKKADA, PERUMKULAM VILLAGE, NEDUMANGAD TALUK. ADV. SRI.ABRAHAM MATHEW (VETTOOR) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.C.HARI RANI, JJ. ------------------------------------------------------ W.A.No.623 of 2008 ---------------------------------------------- Dated, this the 4th day of November, 2010 J U D G M E N T K.M.Joseph, J. Appellants are the respondents in the writ petition. The respondent herein filed the writ petition out of which this Writ Appeal arises, seeking the following reliefs :- “i. Issue a writ of certiorari or other appropriate writs orders or directions quashing Ext.P13. ii. Issue a writ of mandamus or other appropriate writs orders or directions commanding the respondents to reconnect the power supply under consumer No.2705 which has been assigned with new No.10555 forthwith. iii. Issue appropriate directions to the 3rd respondent to re-compute the fixed charge and current charges so far collected and the actual amount chargeable by him from the petitioner with reference to the category of connection and actual consumption and to refund the excess amounts so far collected to the petitioner. iv. Issue appropriate writs orders or directions commanding the respondents to dispose off Ext.P4, Ext.P13 and Ext.P15 representation made in respect of illegal disconnection and excessive charging.” WA No.623/2008 -2- 2. The case of the writ petitioner in brief is as follows :- He was conducting a workshop for which the 2nd appellant sanctioned power connection in consumer No.2705 with a connected power load of 7.76 kilo watts. In 1986, he made arrangements to start an automobile service station and he started it in 1989. Though the appellant had allotted a separate meter for the service station, the consumption in the Engineering Unit and the service station were clubbed without providing separate consumer number and accordingly has been issuing a single bill for each month. After few months, the appellant removed one meter and connected the entire load through the old meter No.2705 allotted to the Engineering Industry. Subsequently they issued a notice to disconnect the excess load of 9.24 kilo watts as if the petitioner connected the same to the old meter. Despite the disconnection notice, an additional bill dated 20.11.1999 was sent calling upon the petitioner to pay Rs.12,842/-. Appellants estimated the units consumed for the service station at 420 units. The petitioner requested the details and WA No.623/2008 -3- he filed a suit as O.S.No.792/1999 before the Munsiff's Court, Nedumangad for restraining the recovery of the disputed bill. From December, 1999 onwards, the respondents have been charging the entire consumption under LT VII category. Petitioner was served Ext.P2 additional bill. Petitioner filed writ petition for directing the respondents to restore the connection and also to provide separate meters for both the connections. As per Ext.P3 judgment, the respondents restored the power supply on receiving Rs.30,000/- and still they did not provide any separate meter as directed by this Court. Complying with the direction of this Court, the petitioner filed Ext.P4 appeal. In the year 2000, the fixed charge was at Rs.765/- (Ext.P5 bill). Thereafter various bills are produced as Exts.P6, P7 and P8. Aggrieved by above, the petitioner made Ext.P9 representation. He did not get full justice and he relies on Exts.P10 and P12 and he states that the amounts in the various bills are unreasonable and baseless. Petitioner made Ext.P14 representation followed by Ext.P15. 3. A counter affidavit is filed by the 2nd WA No.623/2008 -4- respondent. In the counter it is inter alia stated as follows:- “ It is respectfully submitted that the petitioner was running an automobile workshop and a vehicle service station simultaneously. As per the tariff orders automobile workshop comes under LT IV tariff and service station comes under LT VII A tariff. The workshop was started in the year 1974 under LT IV tariff with consumer No.2705 with a connected load of 7.76 KW. The automobile service station was started near the workshop by the petitioner in 1989 and at that time he was consuming power for the service station also from the above consumer number. Subsequently the service station was segregated from the above consumer number and a new connection with consumer No.2705A having a connected load 9.24 KW was assigned to the service station from April 1995 onwards. “ Earlier the consumer was paying energy charges for above two premises till April 1995 under LT IV tariff. But from May 1995 onwards the consumer No.2705A come under LT VII A tariff. The provisional invoice card system was introduced from 1995 at the rate of Rs.478 per month to the consumer No.2705. But the consumer refused to pay the amount at the higher tariff and consequently the supply to Consumer No.2705 A was disconnected on 10.6.1998. As on the date of disconnection the reading on the meter was 6214 and subsequently on inspection in the premises, on 27.9.1999 it was noticed that the reading was changed WA No.623/2008 -5- to 8926 which clearly indicates that the machinery in the service station were run by the petitioner by unauthorizedly reconnecting the disconnected supply. Therefore the petitioner was assessed for illegal abstraction of energy to consumer No.2705A from consumer No.2705. An arrear notice dated 16.7.1998 for Rs.22080/- was issued to the consumer. Challenging that notice the petitioner filed OS 494 of 1998 before the Munsiff Court, Nedumangad and that suit was dismissed on 31.8.2000. Subsequently the premises were inspected by the Assistant Executive Engineer on 25.10.1999 and a mahazar was prepared. A true copy of the said mahazar dated 25.10.1999 is produced herewith marked as Exhibit R2 (a). In Exhibit R2(a) it is clearly found that the petitioner was engaged in unauthorizedly connecting the supply from consumer No.2705 to 2705A and consumer No.2706. Consumer No.2706 is the disconnected domestic connection of the petitioner. So petitioner was found to be a habitual misuser of electricity. Thereafter as per registered notice dated 26.9.1999 he was directed to dismantle the unauthorized load to consumer No.2705A. On receipt of that notice, the petitioner filed O.S.No.792/1999 before the Munsiff court, Nedumangad challenging that demand. The above suit was withdrawn by the consumer on 7.12.2001. Misuse of energy from lower tariff to higher tariff was billed at penal rate for higher tariff as per rules.” WA No.623/2008 -6- 4. It is further stated that during the pendency of the suit petitioner filed OP before this Court challenging Ext.P2 demand and it was disposed of directing the Executive Engineer to consider the appeal to be filed by the petitioner and to pass orders thereon. Accordingly, the Executive Engineer issued Ext.R2(b) order. It is found that the appellant/writ petitioner is liable to pay current charges at the rate applicable to LT VIIA tariff and directed to recover the entire amount from the petitioner. The copy of the order was despatched to the petitioner as per No.25 at 15.11.2002. It appears that, the petitioner has not challenged the said order even after receipt of the same. 5. Petitioner filed reply affidavit producing Exts.P16 to P18f. It is inter alia stated as follows: Through one meter the respondents were reading the consumption for lighting purpose and through the other meter they were reading the energy used for the service station. No connection under No.2705A has been provided by way of segregation or otherwise. The officers under the respondents were ascertaining the consumption on reading both the meters WA No.623/2008 -7- and the current charges were determined on calculating charge under LT IV in respect of one meter and under LT VII in respect of the power meter. Such a course continued for several years. The consumption under both the meters have been separately noted in those invoices. Ext.P16 is produced as demand notice showing collection of Rs.765/- as fixed charges and collection charges of Rs.5 under LT VIIA for 144 units. The entire consumption is charged under LT VIIA. The further bills are produced as Ext.P17 and P18 series. He denies the allegation that after disconnection of supply to the service station he has been continuing with the service station by willfully connecting the service station load to the consumer No.2705 illegally. It is also contended that the appeal filed has not been disposed of and no communication to that effect has been issued by the Executive Engineer or by any other respondents. It is stated that if at all there is an order dated 15.11.2002, that can only be a fabricated one. LT IV connection with No.2705 is not sanctioned on 3.12.1987. The entire demand made under Exts.P2 and P13 are false and the amount of RS.30,000/- is liable to be refunded. When he WA No.623/2008 -8- proposed to start an auto service station he applied for additional power allocation for establishing service station. It was sanctioned as per Ext.P1. Subsequently, respondents installed a higher capacity meter for the motor connection on changing the old meter. He denies the allegation as false that on the basis of 1994 tariff revision order, the service station was classified under LT VIIA segregating the same from consumer No.2705 and numbered as 2705A with additional meter from May 1995. He has not defaulted any bills. Respondents have never issued separate monthly bills for the service station. 6. Learned Single Judge after referring to the facts finds as follows. The entire bills are raised at commercial tariff which is not justified because petitioner was admittedly running workshop which was his first business. And then the learned Judge proceeds to find that order calls for modification because 1/3rd of the demand is attributable to penal interest. Moreover, it is reported that petitioner has closed business and the Board itself allowed the petitioner to continue service station for three years without raising any WA No.623/2008 -9- bills or recovering any amount. Since the entire consumption was not under commercial tariff the learned Judge reduced the amount payable under the disputed bill to Rs.30,000/- which has already been paid by the petitioner. The writ petition was closed observing that if the petitioner is liable to pay any other amount under conditional orders, respondents are free to recover such amounts. It is feeling aggrieved by the said decision, the appellants are before us. 7. We heard Sri.C.K.Karunanakaran, learned counsel for the appellants and Sri.Abraham Mathew, learned counsel for the respondent. Learned counsel for the appellants would contend that Rs.30,000/- was paid only as a condition pursuant to the direction by the learned Single Judge in the earlier order of litigation. The petitioner has filed an appeal against Ext.P2 and that culminated in Ext.R2(b). The said order passed by the appellate authority has not been challenged by the petitioner and that has become final. In terms of the said order,the appellant remains liable to pay the amount demanded under the original demand. The appellant having paid Rs.30,000/- as directed by this Court, the WA No.623/2008 -10- authority has given due credit to the amount of Rs.30,000/- paid in the original demand of Rs.53518/- in Ext.P2. Appellants have only demanded the balance amount and interest payable as per law. The learned counsel for the appellants would further contend that inspection revealed that the petitioner was making use of the connection under No.2705 for the purpose of running service station for which Consumer No.2705A was sanctioned. He would submit that in such circumstances, particularly when the appellate order is not challenged the learned Single Judge ought not to have limited recovery of the amount to Rs.30,000/- which has already been paid. 8. Per contra, learned counsel for the respondent/petitioner would contend as follows: He would submit that as contended by him in the petition and in the reply affidavit though there is a direction to install separate meters there is no separate meter. The current was measured through a common meter and only a single bill was being issued to the respondent. He would further contend that actually Ext.R2(b) order cannot be relied on. He WA No.623/2008 -11- reiterates his contentions. He also submitted that as noted by the learned Single Judge the entire consumption is built under Chapter VIIA (commercial) even though good part of it would have been consumed for running the workshop which is to be charged under LT IV category. Learned Single Judge has taken an equitable decision and no interference is called for. He would reiterate the facts. 9. The writ petitioner/respondent was running a workshop under consumer No.2705 from the year 1974. Some time in the late 1980s he also decided to start a service station. After allocation he started the service station. The consumer No. was 2705A. He had also domestic consumer No.2706. Till 1995 it would appear both the work shop and service station were categories exigible to the same tariff. From 1995 the service stations were categorised under commercial category and came under LT VIIA. In other words, the tariff became higher for the service stations in comparison to the workshop. It would appear that, demands for payment of bills for the service station was sent on the basis of new tariff order of 1994. There was refusal to pay. WA No.623/2008 -12- Consequently, connection of service station was disconnected. Of course, the writ petitioner would contend that it was not disconnected. But, we see no reason why we should disbelieve the version of the appellant that it was disconnected. Subsequently there was an inspection. In the course of inspection it was found that the service station being run on the basis of power being taken from consumer No.2705 namely, the workshop. Of course, the case of the appellant is that it is also used for the domestic connection. This is a matter where the authorities have prepared a mahazar and it is on the basis of the mahazar they have decided to demand the amount demanded in Ext.P2. Petitioner filed civil suit and still later he filed a writ petition. In the writ petition on condition of deposit of Rs.30,000/- he was relegated to file statutory appeal. Reconnection was ordered on condition that he remitted Rs.30,000/- which undoubtedly he paid. But, this is only a conditional order to hold good till the appeal was finally disposed of. The appeal, according to the appellant came to be disposed of vide Ext.R2(b). The order is also communicated to him. It may be true that the petitioner WA No.623/2008 -13- has a case that it was a fabricated document not communicated to him. But the fact of the matter is that even after the appellate order is produced along with the counter affidavit, petitioner did not choose to amend the writ petition impugning the order. We see no reason why without impugning the order which is admittedly served on him how it will still open to the petitioner to impugn the correctness or validity of the order. This must be deemed to be served on him at the time when the counter affidavit is filed. In such circumstances, we must take it that Ext.P2 stands affirmed by Ext.R2(b). The present demand is essentially for the amount claimed by virtue of Ext.P2 being affirmed by the appellate authority in Ext.R2(b). Since the original order will merge in the appellate order and the appellate order is not challenged we do not think that it will be open to the appellant to raise a contention that Ext.R2(b) cannot be acted upon. A statutory authority has gone into the question and has found the contention of the petitioner as not tenable. There is an inspection. Mahazar was prepared. Statutory authorities have detected the use of electricity from one connection for WA No.623/2008 -14- running commercial establishment (service station) and accordingly the demands have been raised. In such circumstances, we do not think that the learned Single Judge was justified in limiting the amount to be paid to Rs.30,000/- which was only a conditional payment ordered by this Court at the time when the writ petitioner was relegated to prefer statutory appeal and subject to orders to be passed in the statutory appeal. Once a statutory appeal culminated in Ext.R2(b) order, we are not in a position to understand how the petitioner can absolve himself from the liability to honour the order passed against in the statutory appeal filed. However, we must also refer certain features in this case. Petitioner as already noticed is running a workshop. He was also apparently running a service station. There was misuse. We notice in the order passed by the appellate authority there is no reference to the appellant/petitioner being heard in the matter. In such circumstances, while we are inclined to accept the case of the appellants that the petitioner must indeed be called upon to pay Rs.23,528/-, in keeping with the stand taken by the apex Court which is brought to our notice WA No.623/2008 -15- by the learned counsel in the matter of interest as also by this Court, we feel that petitioner need not be mulcted with liability to pay interest at full statutory fixed rate of 24%. 10. We allow the appeal and set aside the judgment of the learned Single Judge and direct that the writ petitioner will be liable to pay a sum of Rs.23,528/- and interest at 18% from 7.10.2001 till 18.4.2005 with further interest at 12% from 19.4.2005 till the date of payment. Petitioner will be liable to pay a sum of Rs.23,528 +Rs.14,952 (being interest at 18% from 7.10.2001 to 18.4.2005) with further interest at 12% on Rs.23,528/- from 19.4.2005 till the date of payment. (K.M.JOSEPH) JUDGE. (M.C.HARI RANI) JUDGE. jvt/MS