C. C. Samuel v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 ## **WP(C).No. 15146 of 2010(P)** **--------------------------** PETITIONER(S): --------------- C.C.SAMUEL, S/O.CHACKO, PYNUMMOOTTIL HOUSE, CHUMATHRA P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA RESPONDENTS: --------------- 1. THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VAIDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT ENGINEER, - KERALA STATE ELECTRICITY BOARD, VELANTHAVALAM, CHITTUR, PALAKKAD DISTRICT. 3. THE EXECUTIVE ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, CHITTUR, PALAKKAD DISTRICT. 4. THE TAHSILDAR (R.R.), CHITTUR, PALAKKAD. 5. THE DY. CHIEF ENGINEER, - KERALA STATE ELECTRICITY BOARD, PALAKKAD. BY ADV. MR. P.P. THAJUDEEN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2010, ALONG WITH RP NO. 415 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C) No. 15146 OF 2010 & R.P.No. 415 OF 2010** ......................................................................... **Dated this the 29[th] June, 2010** ## **J U D G M E N T** The petitioner in W.P.(C) No. 15416 OF 2010 is challenging the correctness and sustainability of the demand placed by the Electricity Board for a sum of Rs.7,83,472/- vide Ext. P5, so as to record satisfaction under the OTS Scheme. The petitioner has also preferred R.P. 415 of 2010 before this Court with respect to the judgment passed earlier in W.P.(C) 12647 of 2010, whereby the Writ Petition filed by the petitioner seeking for a direction to be issued to the first respondent to furnish details of the electricity charges in respect of the consumer No. 10166 of Velanthavalam section, was finalised. 2. The sequence of events is as follows: The petitioner purchased the property in public auction from the KFC, as per Ext.P1 in W.P.(C) 15146 of 2010, paying **2** ## **W.P.(C) No. 15146 OF 2010 & R.P.No. 415 OF 2010** the sale consideration, on becoming the successful bidder in the tender notified by the KFC. Ext.P1 is the sale deed dated 27.08.2008. Subsequently, as per Ext.P2 sale deed, the petitioner conveyed the property to another person for valuable sale consideration . However, the vendee therein chose to retain a sum of Rs.7,83,472/- without being paid to the petitioner, in view of the fact that there was some liability for the 'defaulter' who owned the property earlier, to be cleared to the Board, in respect of the power supply provided to the unit. The case of the petitioner was that, despite approaching the authorities of the Board, proper statement of accounts was not made available, which compelled the petitioner to approach this Court by filing W.P.(C) No. 12647 of 2010 with the following prayers: _“(i) Issue a writ of mandamus or any other appropriate writ commanding the 1[st] respondent to furnish the details of electricity charges due on consumer No. 10166 of Velanthavalam Section to the petitioner and to_ ## **W.P.(C) No. 15146 OF 2010 & R.P.No. 415 OF 2010** ## **3** _receive the arrears without insisting for payment through Revenue Recovery proceedings ; and_ _(ii) to pass such other orders or reliefs as this Hon'ble Court deems fit in the interest of justice. “_ After considering the limited nature of the relief prayed for, the said Writ Petition was disposed of by Ext.P4 judgment, whereby the first respondent was directed to inform the petitioner as to the balance amount due to the electricity Board within one week, on which event, the same was directed to be satisfied by the petitioner within a further period of one week; making it clear that, if any default was committed in paying the balance amount due to the Board, the respondents would be at liberty to proceed with further steps. 3. The learned Counsel for the petitioner submits that pursuant to Ext.P4 judgment, Ext.P5 proceedings have been pursued by the second respondent, whereby a sum of Rs. ## **W.P.(C) No. 15146 OF 2010 & R.P.No. 415 OF 2010** **4** 783472/- was demanded to be cleared by the petitioner, which according to the petitioner is per se wrong and illegal. The petitioner filed Ext.P6 and P7 before the 3rd respondent/the Executive Engineer and approached this Court by filing W.P.(C) No.15146 of 2010 seeking to quash Ext.P5 and for a diretion to be given to the 3[rd] and 5[th] respondents to consider Exts.P6 and P7 appeals and to finalise the same after hearing the petitioner, within a time frame. 4. The learned Counsel for the petitioner submits that the liability fixed in Ext.P5 is not correct or sustainable. The learned Counsel submits that the petitioner has also filed R.P.415 of 2010 seeking to review Ext.P4 judgment to the limited extent that the petitioner might be reserved with the liberty to challenge the 'quantum' fixed by the respondents, pursuant to the judgment passed as aforesaid. The liability now sought to be fixed as per Ext.P5 is stated as not at all correct or proper, in so far as the power was disconnected in the year 2002, while it was dismantled only in the year 2004 . Referriing ## **W.P.(C) No. 15146 OF 2010 & R.P.No. 415 OF 2010** ## **5** to the relevant statutory provisions, it is pointed out that, no disconnection shall be continued for more than 'six' months, on which event it has to be 'dismantled' . This being the position, the maximum liability could not be more than for a period of 'six' months after disconnection in the year 2002. Some other grounds are also raised wth regard to the actual liability. 5. The prayers in the writ Petition and in the R.P. are vehemently opposed by the learned Standing Counsel, who submits that the idea and understanding of the petitioner is quite wrong and misconceived. The learned Standing Counsel further points out that the petitioner did never have a challenge with regard to the 'quantum' involved, as discernible from paragraph 8 of the W.P.(C) 12647 of 2010, which is extracted below: _“the petitioner respectfully wishes to submit that the 1[st] respondent is not justified in trying to wriggle out from the enforcement of demand of arrears of elelctricity charges due under consumer No.10166 even after the successor in_ **6** ## **W.P.(C) No. 15146 OF 2010 & R.P.No. 415 OF 2010** _interest expresses his willingness to clear the arrears of electricity charges legitimately due by the predecessor in interest. Aggrieverd by the lethargic attitude of the 1st respondent in refusing to accept the payment of arrears of electicity charges the petitioner is highly aggrieved and left with no other efficacious or alternative remedy the petition is preferring this Writ Petition under Article 226 of the Constitution of India, on the following among other...”_ It is after taking note of the specitic contention that the amount/liability was never disputed, Ext.P4 judgment was passed by this Court, of course after hearing the Counsel (represented through another lawyer at that point of time ), directing the respondents to provide a statement of accounts enabling the petitioner to clear the liability within a further period of one week . This being the position, the petitioner is not justified in challenging the 'quantum' , submits the learned Counsel. 6. This Court finds considerable force in the said **7** ## **W.P.(C) No. 15146 OF 2010 & R.P.No. 415 OF 2010** submission. This Court finds that there is absolutely no error apparent on the face of the records, so as to call for any interference exercising the power of review. More so, in view of the law declared by the Apex Court in _**Meera Bhanja vs. Nirmala Kumari Choudhury**_ **(AIR 1995 SC 455 ),** holding that the Review Petition cannot be taken as a substiutute for appeal. That apart, it is more obviouis to note that the original defaulter did never have a case with regard to the liability to be satisfied to the Board. So also, the property was notified to be sold in 'public auction', which does not form the subject matter of challenge in the Writ Petition. It is also conceded that the property was purchased by the petitioner being the successful bidder, in response to the tender notified in the year 2004. After bidding the property 'in as is, where is condition' and after having approached this Court by filing the W.P(C)No.12647 of 2010, leading to Ext. P4 judgment, assuring and undertaking to satisfy the entire liability, it is no more open to take a 'U' turn and to seek to step into the shoes of the original defaulter to **8** ## **W.P.(C) No. 15146 OF 2010 & R.P.No. 415 OF 2010** challenge the correctness/sustainability of the liability to be cleared by the original defaulter. 7. In the above circumstances, this Court finds no merit either in the Writ Petition or in the R.P.. However, taking note of the persuasive submissions made by the petitioner that he may be permitted to clear the liability in a phased manner, this Court finds it fit and proper to have the liability satisfied by way of 'four' equal monthly installments ( since the amount was not quantified when the matter was finalised as per Ext.P4 judgment), with accrued interest if any. The first installment shall be satisfied on or before 30.07.2010, to be followed by similar installments to be effected on or before the 30[th] of the succeeding months. Subject to this, the recovery proceedings against the petitioner shall be kept in abeyance for the time being . If any default is made in clearing the due amount as above, it will be open for the respondents to proceed with further steps for realization of the entire amount in lump sum, by pursuing such steps from the stage where it stands now. **9** ## **W.P.(C) No. 15146 OF 2010 & R.P.No. 415 OF 2010** Interference is declined and both the Writ Petition and the Review Petition are dismissed, subject to the observations made above. **P.R. RAMACHANDRA MENON, JUDGE.** lk