IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 WP(C).No. 19887 of 2010(I) --------------------------------------- PETITIONER(S): ------------------------ P. MUSTAFA, AGED 39 YEARS, S/O.ABDUL RAHIMAN, AMBALIL HOUSE, PULIKKAL PO, MALAPPURAM. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): -------------------------- 1. THE SUB ENGINEER, KSEB, PULIKKAL SECTION, MALAPPURAM-676 505. 2. ASSISTANT ENGINEER, ELECTRICAL SECTION, PULIKKAL, KSEB, MANJERI-676 121. 3. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KSEB, MAJERI-676 121 (APPELLATE AUTHORITY UNDER SECTION 127 OF THE INDIAN ELECTRICITY ACT, 2003) 4. THE KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM-I, REPRESENTED BY ITS SECRETARY. 5. THE UNION OF INDIA, REPRESENTED BY UNDER SECRETARY TO GOVERNMENT, DEPARTMENT OF POWER, NEW DELHI-001. R1 TO R4 BY ADV. MR.P.P. THAJUDEEN, SC, KSEB. R5 BY ADV. SMT.JAYSREE MANOJ, CGC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.R.RAMACHANDRA MENON, J -------------------------------------------- WP(C) NO. 19887 OF 2010 -------------------------------------------- Dated this the 12th day of July, 2010 JUDGMENT The petitioner is challenging the correctness and sustainability of the bill raised by the respondent Board contending that the remedy provided under Section 127 (2) by way of appeal is not an effective remedy, in so far as unsustainable condition has been prescribed to avail the statutory remedy, whereby the consumer is to deposit 50% of the disputed amount. The constitutional validity of the said provision has also been challenged, seeking to place reliance on the decision rendered by the Apex Court in Mardia Chemicals Vs. Union of India [2004 (2) KLT 273]. 2. The learned standing counsel appearing for the respondent Board submits that, the constitutional validity of the above provision has already been considered and decided in favour of the Board, as per the judgment in WP(C) 16142/2009 and this being the position, absolutely no interference is stated as warranted. Reliance is also sought to be placed on the dictum in Government of Andhra Pradesh and others Vs. P.Laxmi Devi [2008 (4) SCC 720]. 3. The learned counsel for the petitioner submits that, as for the right of appeal is concerned, it is a substantive right; for which no condition 2 WP(C) No. 19887/2010 can be imposed under any circumstance. On going through the other similar provisions, particularly Section 17 D of the KGST Act, Sub Section 5 of the said Act stipulates that, before proceeding to the Tribunal by way of appeal, the entire tax liability is to be satisfied by the assessee. Constitutional validity of the said provision has been upheld by this Court as per the decision reported in Hindustan Petroleum Corporation Ltd. Vs. Assistant Commissioner, Commercial Taxes, Ernakulam and others [2009 (4) KHC 819]. Similar provisions exist under other statutes as well for example Section 30 of the Workmen’s Compensation Act, which makes it mandatory to deposit the entire amount, the statutory appeal is entertained; that too, only if there is substantial question of law. In so far as the present case is concerned, under Section 127 (2) of the Electricity Act, the requirement is only to satisfy 50% of disputed liability. This Court finds it difficult to accept the proposition of the petitioner that the said provision casts undue burden upon the consumers restricting them from availing the statutory remedy by way of appeal; more so in view of the law declared by this Court as per the judgment passed in WP(C) 16142/2009. Reference made by this Court to the verdict passed by the Apex Court reported in Ganga Bai Vs. Vijay Kumar [AIR 1974 SC 1126] and in Shyam Kishore and others Vs. Municipal Corporation of Delhi [AIR 1992 SC 2279] is 3 WP(C) No. 19887/2010 also very much relevant. 5. In the above circumstances, the Writ Petition fails. No interference is warranted and it is dismissed accordingly. However, taking note of the fact that the time stipulated in Ext.P11 to satisfy 50% of the disputed amount is already over, the petitioner is granted a further period of two weeks to satisfy the requirements; on which event, Ext.P10 appeal shall be considered by the 2nd respondent as a valid one and the same shall be finalized in accordance with law as expeditiously as possible, at any rate, within one month thereafter. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON JUDGE dnc