IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 OP.No. 19756 of 1998(B) ----------------------- PETITIONER: ------------ C.V.PURUSHOTHAMAN, S/O.P.VASUDEAVAN, RESIDING AT 308/31, “POORNIMA”, PUSHPAGIRI ROAD, PUKUNNAM, TRICHUR, CHIEF MANAGER, WEST FORT HOSPITAL, TRICHUR. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT: ------------- THE MUNICIPALITY OFTRICHUR, TRICHUR, REP. BY ITS COMMISSIONER. BY ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO FOR R1 SRI.LELLULAL T.G.THUNDATHIL FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.19756/98. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE REPLY DTD.12.5.98. P2. COPY OF THE REPLY DTD.15.5.98 BY THE RESPONDENT. P3. COPY OF THE JUDGMENT IN O.P.NO.9332/98 OF THIS COURT. P4. COPY OF THE REPRESENTATION DTD.25.6.98 P5. COPY OF THE COMPLAINT DTD.1.7.98. P6. COPY OF THE GOVT. ORDER DTD.2.2.96. P7. COPY OF THE REPLY BY THE RESPONDENT DTD.10.9.98. RESPONDENT' EXHIBITS: R1(A) COPY OF THE ORDER IN RP.NO.290/98 IN O.P.NO.9332/08 OF THIS COURT. R1(B) COPY OF THE STATEMENT FILED BY THE MUNICIPALITY IN O.P.NO.9332/98. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.19756 of 1998 ================== Dated this the 17th day of September, 2008 J U D G M E N T The dispute in this writ petition relates to demand for arrears of electricity charges from the petitioner for the period from October 1994 to February 1998. The petitioner is a hospital. By a letter dated 6.4.1998 the petitioner was directed to pay an amount of Rs.23,00,552.70 towards arrears of electricity charges for the period from October, 1994 to February 1998. The petitioner had earlier approached this Court and obtained a judgment. Against the demand, the petitioner had filed Ext.P1 objections in which he made three contentions. One was that details of the demand may be communicated to the petitioner. The second was the necessity to compute electricity charges in accordance with the judgment in O.P.No.949/1995. The third was that as per the said judgment, it was held that the hospitals are liable to pay charges only under LT-VI tariff till February 1998. Thereafter, the petitioner was served with Ext.P2 letter enclosing a statement of details regarding the demand. The petitioner challenged that statement by filing O.P.No.9332/1998, in which o.p.19756/98 2 Ext.P3 judgment was passed as follows: “When the matter came up for hearing, I heard learned counsel for the petitioner as well as the learned counsel appearing for the Municipality. Counsel for the petitioner brought to my notice an interim order passed by this Court in C.M.P.No.1649 of 1995 in O.P.No.949 of 1995, wherein this court granted stay of collection of amount in excess of LT-VI rates, pending disposal of the original petition. 2. Counsel for the Municipality submitted that the petitioner has been remitting only an amount of Rs.61,081/- which, according to counsel for the Municipality, is not LT-VI tariff. He further submitted that the amount under LT-VI tariff the petitioner is bound to pay. The amount shown in column 3 of Ext.P3 is LT-VI tariff. It is seen that it was on a mistake that the Municipality did not collect the amount shown in column 3 of Ext.P3. 3. Counsel for the petitioner submitted that the Municipality has no power to collect penal interest. Counsel for the Municipality submitted that penal interest is not included in Ext.P3. Considering the facts and circumstances of the case it is just and proper that the petitioner is given some time for payment of the amount mentioned in Ext.P3. Petitioner is permitted to pay the amount in ten equal instalments starting from 1.7.1998. Regarding the penal interest, counsel for the Municipality submitted that the same will be considered by them, provided a representation is made by the petitioner. If the petitioner makes the payment, the first respondent will not disconnect the supply. It is further made clear that if there is any default in payment as mentioned above, it is open to the Municipality to proceed with further steps. The Original Petition is disposed of as above.” Pursuant to Ext.P3 judgment, the petitioner filed Exts.P4 and P5 representations in the matter, in which he also challenged the correctness of the statement of accounts again. Against the judgment, the petitioner filed a review petition, in which Ext.R1 (a) order was passed as follows: “When the matter came up for hearing, I heard counsel for the Review Petitioner and counsel appearing for the Municipality. I do not find any reason to review the judgment. Counsel for the petitioner, o.p.19756/98 3 however, referred to paragraph 3(a) of the Review Petition and annexures 2 and 3 representations filed before the Municipality. It is for the Municipality to consider Annexures 2 and 3 and pass orders in accordance with law. I am not expressing any opinion with regard to those representations. Final orders will be passed by the Municipality within a period of two months from the date of receipt of a copy of this order.” Thereafter Ext.P7 order was communicated to the petitioner, whereby the earlier statement of accounts, which is Ext.P2 herein, has been confirmed. The petitioner is challenging Ext.P7 order in this original petition. 2. The petitioner contends that although it would prima facie appear from Ext.P3 judgment that his contentions on merits against the quantification of the demand have been repelled, in view of the direction in Ext.R1(a) order directing consideration of the representations, which are Exts.P4 and P5 herein, the issue was still at large and therefore, there was necessity to reconsider the validity of the demand itself afresh. The petitioner would further submit that the very same Judge who passed Ext.P3 judgment and Ext.R1(a) order in review had admitted this original petition and granted an interim stay. He also points out that another learned Judge of this Court had heard the entire original petition and passed an order on 22.2.2002 upholding the contentions of the petitioner substantially and directing the o.p.19756/98 4 respondent to recompute the petitioner's liability in accordance with the direction in that order. Therefore, according to the petitioner, the issue is still at large despite Ext.P3 judgment and therefore, the contention of the petitioner has to be considered on merits regarding the sustainability of Ext.P2 statement of accounts itself. 3. The contentions of the petitioner are refuted by the respondent, by filing a counter affidavit and a statement. 4. I have considered the rival contentions in detail. 5. Despite the persuasive arguments of the petitioner, I am an not persuaded myself to hold that Ext.P3 judgment does not cover the issue on merits. In Ext.P3 judgment, the challenge of the petitioner against the statement of accounts appended along with Ext.P2, has not been accepted by this Court. Instead, the petitioner was directed to pay the amount in 10 equal monthly instalments. Relief was granted only in relation to the demand for penal interest, which was directed to be considered on a representation to be made by the petitioner. That being so, I am of opinion that the issue on merits is finally concluded by Ext.P3 judgment in so far as the same has become final as the petitioner has not chosen to challenge the same in appeal. Of o.p.19756/98 5 course the petitioner would raise a contention that in view Ext.R1 (a) order in review, the issue is still at large, that also I am not inclined to countenance. In Ext.R1(a) order it is specifically stated that the learned Judge does not find any reason to review Ext.P3 judgment. It is further stated that in respect of annexures 2 and 3 representations the learned Judge has not expressed any opinion, although in that order there is a direction to pass final order within two months. I am of opinion that that can only be in respect of the penal interest which was directed to be considered as per Ext.P3 judgment. Therefore, even if the petitioner's contentions are valid on merits, it cannot now be reopened the validity of Ext.P2 having been upheld in Ext.P3 judgment. Ext.P3 judgment read with Ext.R1(a) order in review operates as resjudicata for the petitioner to challenge Ext.P3 on merit. Therefore, I do not find any merit in the original petition and accordingly the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.19756/98 6 S.SIRI JAGAN, J. ================ O.P.No.19756 of 1998-B ================ J U D G M E N T 17th September, 2008