IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WP(C).No. 3358 of 2007(Y) --------------------------------------- PETITIONER: -------------------- PIOUS GEORGE, S/O. P.A.GEORGE, AGED 41 YEARS, RESIDING AT POKKATH HOUSE, CHOONDY, ERUMATHALA, ALUVA. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) SMT.A.A.GEETHA RESPONDENTS: ------------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. 2. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICITY MAJOR SECTION, ALUVA. 3. THE ASST.ENGINEER, K.S.E.B. ELECTRICAL SECTION, ATHANI. 4. PADMANABHA PILLAI, S/O.GOPALA PILLAI, PADMASAROVARAM, V.I.P. NAGAR, THOTTAKKATTUKARA, ALUVA. BY ADV. SRI.JOSE J.MATHEIKEL, SC, KSEB R1 TO R3 BY SRI. P.P.THAJUDEEN, SC, KSEB R4 BY ADV. SRI.RAJIV NAMBISAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.3358/2007 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LEASE DEED EXECUTED BY THE 4TH RESPONDENT IN FAVOUR OF THE PETITIONER. EXT.P2: COPY OF THE DEMAND NOTICE CUM DISCONNECTION NOTICE ISSUED TO THE PETITIONER DTD. 18/01/2003. EXT.P3: COPY OF THE DEMAND NOTICE ISSUED BY THE 3RD RESPONDENT DTD. 21/01/2003. EXT.P4: COPY OF THE DEMAND CUM DISCONNECTION NOTICE DTD. 15/02/2003. EXT.P5: COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN O.P.NO.3474 OF 2003 DTD. 3/03/2003. EXT.P6: COPY OF THE APPLICATION FOR REGULARIZATION MADE BY THE OWNER OF THE BUILDING DTD. 18/02/2003. EXT.P7: COPY OF THE BILL ISSUED BY THE BOARD DTD. 15/03/2003. EXT.P8: COPY OF THE PROCEEDINGS NO.GP/OPNO.3474/03 CASES/ 1079 BY THE 2ND RESPONDENT DTD. 3/04/2003. EXT.P9: COPY OF THE DEMAND CUM DISCONNECTION NOTICE DTD. 15/04/2003. EXT.P10: COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT DTD. 19/04/2003. EXT.P11: COPY OF THE COMMON JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C) NO.14407 OF 2003 ALONG WITH WP(C) NO.7949 OF 2004 DTD. 15/06/2004. EXT.P12: COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DTD. 10/09/2004. EXT.P13: COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE 3RD RESPONDENT DTD. 24/09/2004. EXT.P14: COPY OF THE JUDGMENT IN WP9C) NO.28940 OF 2004 PASSED BY THIS HON'BLE COURT DTD. 12/10/2004. EXT.P15: COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DTD. 28/12/2006. Kss ..2/- ...2.... WPC.NO.3358/2007 Y EXT.P16: COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO MR. K.M.GEORGE DTD. 13/06/2006. EXT.P17: COPY OF THE NOTICE UNDER SECTION 7 OF THE R.R.ACT ISSUED BY THE DEPUTY TAHASILDAR, REVENUE RECOVERY, ALUVA TO THE PETITIONER DTD. 1/2008. EXT.P18: COPY OF NOTICE UNDER SECTION 34 OF THE R.R.ACT ISSUED BY THE DEPUTY TAHASILDAR, REVENUE RECOVERY, ALUVA TO THE PETITIONER DTD. 1/2008. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.3358 OF 2007 ------------------------------------------- Dated this the 7th day of March, 2008 JUDGMENT Petitioner took a premises on rent from the 4th respondent. That was an equipped automobile body building unit. During the currency of the tenancy, Anti Power Theft Squad inspection was conducted, resulting in the statutory authorities concluding that the premises has unauthorised additional connected load. This led to action on that count and demand for electricity charges and penalty. Monthly bills for energy charges from 2/03 to 9/03 were also raised. In the interregnum, the petitioner moved this Court and obtained Ext.P5 judgment, touching the issue regarding the APTS inspection. He was relegated to the departmental officials on certain conditions. Thereafter, he filed O.P.No.14407/03 and obtained interim orders when faced with demand for monthly charges also. In view of the protective interim orders, though conditional, the K.S.E.Board moved for recovery against the landlord of the premises, viz. the 4th respondent, who, in turn, made a representation to the officials WPC.3358/07 2 asserting that even until September, 2003, the petitioner was liable to pay, he being the occupier of the premises. With such assertion before the departmental officials, the 4th respondent filed W.P(C).7949/04, which, along with O.P.14407/03, was disposed of as per Ext.P11 judgment, holding that the writ petitioner herein was liable to pay charges on the basis of the APTS inspection, since, he was the occupier. It was directed that the landlord cannot be fastened with any liability. Thereafter, the petitioner filed yet another writ petition and obtained Ext.P14 judgment. The K.S.E.Board took for itself the opportunity to decide as to whether it was the writ petitioner or the 4th respondent who ought to pay the charges as demanded. In the wake of the offer of the K.S.E.Board officials to consider that issue, Ext.P14 judgment was issued relegating the parties to the Board officials. The impugned Ext.P15 has been issued by the Assistant Engineer of the Board holding that the tenant had not proved the date of his quitting the premises, thereby disproving the assertion of the landlord that the tenant continued in occupation till September, 2003. This led to WPC.3358/07 3 revenue recovery proceedings and the petitioner has not satisfied even the conditions imposed as per the interim order granted in this case at the stage of admission. It was a protective order against further recovery proceedings. 2. Ext.P1 is the lease agreement between the petitioner and the 4th respondent. It is shown to be only for a period of 11 months. A close reading of that document would show that the commencement of tenancy was to be from a later date. The rights and liabilities of the parties in that agreement cannot survive Ext.P11 judgment in so far as the liability for electricity charges is concerned. The issue in hand, therefore, narrows down to the question as to whether the petitioner had quit the premises from 21.4.2003 as attempted to be pointed out on his behalf. 3. I called for the records of O.P.14407/03 and W.P(C). 7949/04. Ext.P4 in W.P(C).7949/04 filed by the 4th respondent contains his assertion at an earliest point of time, that is, on WPC.3358/07 4 20.1.2004, that the petitioner herein, the tenant, was liable to pay the electricity charges even up to September, 2003. O.P.14407/03 filed by the petitioner herein, though filed on 29.4.2003, does not contain any averment that he had quit the premises on 20.4.2003, as is now attempted to be projected by him. He asserts in that writ petition that he is the proprietor and is running the unit in question. With these materials on record, it can be noticed that it was only in Ext.P13 dated 24.9.2004, that the petitioner, for the first time, asserted that he surrendered possession by 20.4.2003. The reason attributed by him for such action, going by Ext.P13, is that the lease was not extended. As already noticed, as on 29.4.2003, that is within a fortnight from 20.4.2003, the date of his alleged quiting, he did not plead before this Court in O.P.14407/03 that he had quit the premises. Such a plea appears to have surfaced, for the first time, only after Ext.P11 judgment and Ext.P12 communication from the Assistant Engineer along with the split up details showing the balance amount following APTS inspection and the current charges from 1/03 to 9/03. WPC.3358/07 5 4. The common course of human conduct essentially is a rule of common sense, which finds embodied among the permissive presumptions enumerated in Section 114 of the Evidence Act. If the petitioner did not assert on 29.4.2003 that he had quit the premises on 20.4.2003, it is unreasonable to assume, infer or presume against the version of the landlord as made in Ext.P4 in W.P(C).7949/04 and the version of the Assistant Engineer in the impugned Ext.P15 that the tenant has not shown that he had quit the premises on any day prior to 9/03, as pleaded by the landlord. No other conclusion appears to be possible, even going by the facts available on record in this writ petition as also in the two writ petitions which have been disposed of as per Ext.P11 judgment, records of which have already been called for and perused by me. 5. For the aforesaid reasons, the conclusion arrived at in Ext.P15 cannot be found fault with and the same stands. The petitioner is liable to pay the current charges up to 9/03 for the premises in question. WPC.3358/07 6 6. This leaves for consideration two other arguments on behalf of the petitioner. It was argued that the rate of interest charged is 24% and that would be on the high side. It was also argued that once proceedings have been initiated for revenue recovery, statutory interest would be only 12% and not beyond. The rate of interest that would apply after initiation of revenue recovery, though debatable, is not of much assistance because all that would be required is only the issuance of a fresh requisitioning and issuance of demand under Section 7 for the differential surcharge and interest due to the Board under the Electricity Act. But, as regards the levy of 24% interest under the electricity laws, authorities in the Board are empowered to slash the interest rate, on a case to case basis, on being satisfied that grounds exist to extend such indulgence. The writ petitioner is now virtually in financial doldrums. Having run an automobile body building unit, his attempt now is to save himself from the clutches of being arrested under the Revenue Recovery Act. He stays in a rented house. The Board has also written to WPC.3358/07 7 the landlord of his residential premises that even he would be proceeded against for recovery of the dues, though it is wholly impermissible. Regarding the APTS demand, it cannot also be taken that neither the landlord, nor the Electricity Board authorities has a case that the additional unauthorised connected load was the result of the petitioner connecting equipments over and above those installed by the landlord. It also appears that even after the APTS inspection, the landlord had co-operated with the writ petitioner, which apparently shows that the tenant, writ petitioner, had not done anything that went against the terms of Ext.P1 lease. Therefore, it appears to be a predominantly fit case for exercise of discretion by the competent officer in the Electricity Board, by slashing the rate of interest leviable to the extent possible, having regard to the peculiar facts and circumstances of the case. It is so directed. 8. Petitioner has also a case that necessary credits have not been given for remittances made. This shall also be taken care of by the competent officer in the Board. It is so directed. WPC.3358/07 8 Subject to the aforesaid directions, all other reliefs are refused and the writ petition stands ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.