Davy Anto Chirakekkaren v. Thrissur Municipal Corporation and Kerala State Electricity Regulatory Commission

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944 ``` ## **`WP(C) NO. 9353 OF 2022`** ## **`PETITIONER:`** ``` DAVY ANTO CHIRAKEKKAREN AGED 71 YEARS, S/O C.V.ANTONY, NOW RESIDING AT CHIRAKEKKAREN HOUSE, FLAT NO.3A, MULBERRY TOWER, MUNDUPALAM JUNCTION, KURIACHIRA. P.O. THRISSUR-680006, PIN – 680006 ``` ``` BY ADVS. P.B.SAHASRANAMAN T.S.HARIKUMAR G.N.DEEPA ``` ## **`RESPONDENTS:`** ``` 11. THRISSUR MUNICIPAL CORPORATION, REPRESENTED BY ITS ASSISTANT SECRETARY ELECTRICITY DEPARTMENT, THRISSUR CORPORATION BUILDINGS, THRISSUR-686 001, PIN – 686001 ``` ``` 2KERALA STATE ELECTRICITY REGULATORY COMMISSION - KPFC BHAVANAM, C.V. RAMAN PILLAI ROAD, VELLAYAMBALAM, THIRUVANANTHAPURAM 695 010., PIN – 695010 REPRESENTED BY ITS SECRETARY, EMAIL:KSERC@ERCKERALA.ORG ``` ``` BY ADV SHRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 9353 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Challenge has been laid to the communication dated 09.03.2022 Ext.P1 issued by the Thrissur Municipal Corporation Electricity Department licensee to the petitioner, the owner of the building bearing No.13/549 for payment of arrears of electricity charges in respect of a electricity connection No.1/1760 LT-IV issued in the name of erstwhile consumer, a tenant Sri.P.Lonappan. 2. The grievance of the petitioner in brief is that he is the owner of the building aforementioned and had let out to a tenant referred above who had, with his consent, obtained a connection but was defaulter in payment of the charges and had even left the premises. Thrissur Municipal Corporation licensee had initiated the proceedings of recovery through the Consumer Dispute Redressal Commission in O.P.No.585/04 whereby the amount alleged to have been due from the tenant was reduced to Rs.7,70,923/- to be paid within a prescribed period 30 days, ``` WP(C) NO. 9353 OF 2022 ``` ``` 3 ``` failing which, would incur 12% interest. Though the said erstwhile consumer had not, despite receipt of the notice, paid the arrears but insisted the petitioner owner of the building to pay the arrears for entertaining the application for a new connection by taking the aid of regulation 40 of Kerala Electricity Supply Code, 2014. 3. Learned counsel appearing on behalf of the petitioner submits that Clause 40(3) and the proviso read in conjunction leads to a very analogous situation whereby for obtaining a fresh connection by either the lessee or an occupier, the default/arrears of an erstwhile consumer are required to be paid which would after expiry of three years be returned. Such provision in the clause is not backed by any logic for occupier or lessee would have to run from pillar to post for recovery of the amount in case of any inaction on the part of the licensee. In support of the aforementioned contentions, reliance has been laid to a Full Bench judgment of Gujarat High Court in _**Sanjay Balvantrai Desai and Others**_ v. **Dakshin Gujarat Viji** ``` WP(C) NO. 9353 OF 2022 ``` ``` 4 ``` **Company Ltd. and Others** [2013 KHC 2616] whereby the demand of the licensee to clear the arrears for the purpose of obtaining new collection was negated. 4. On the other hand, learned counsel appearing on behalf of the contesting respondent relies upon the provisions of the Clause to be sacrosanct and also the judgment of the Single Bench of this Court dated 31.10.2018 rendered in W.P. (C).No.23707/2013 & Connected cases wherein regulation 40(3) of the Electricity Supply Code was under challenge. The challenge to the regulation 40(3) was rejected and the consumer therein was directed to comply with the conditions contained in the regulation for obtaining a new connection and thus urged this Court for dismissal of the writ petition. 4. I have heard the learned counsel for the parties and appraised the paper book. 5. It would be expedient to extract the provisions of regulation 40 of the Kerala Electricity Supply Code, 2014: “40. Recovery of arrears relating to the previous consumer.- (1) The arrears of electricity charges and other liabilities if any, ``` WP(C) NO. 9353 OF 2022 ``` ``` 5 ``` in the accounts of the previous consumer of any premises shall be recovered from such previous consumer of the premises, with whom the licensee has executed the service connection agreement, and not from the purchaser or lessee or occupier of the premises. (2) The licensee shall, on disconnection of supply and dismantling of the service connection on account of arrears of electricity charges, determine the agreement with such consumer and shall forthwith initiate legal proceedings for recovery of arrears of electricity charges and other liabilities from such consumer and shall obtain necessary interim or final orders from the appropriate legal forum forum: Provided that the amount of arrears of electricity charges and other liabilities finally recoverable from the consumer and the modus of recovery shall be in accordance with such interim or final orders of the appropriate legal forum. (3) If a purchaser or lessee or occupier of such premises requires a new connection, as the earlier connection given to the previous consumer in that premises has already been disconnected and dismantled on the ground of outstanding dues of the previous consumer, a new connection shall not be denied to such purchaser or lessee or occupier of the premises provided he furnishes a deposit which shall be equal to the arrears of electricity charges and other liabilities if any. excluding interest thereon, till the licensee obtains from the appropriate legal forum an order on the recovery of arrears and other liabilities or till the licensee settles the arrears and ``` WP(C) NO. 9353 OF 2022 ``` ``` 6 ``` liabilities with the previous consumer or till completion of three years whichever is less: Provided that on obtaining an order from the appropriate legal forum on the recovery of such arrears of electricity charges and other liabilities, or on settlement of the arrears and liabilities by the licensee with the previous consumer or on completion of three years as aforesaid, the licensee shall release the entire amount of deposit furnished by such owner or lessee or occupier of the premises, along with interest at bank rate as on the date of furnishing such deposit.” 6. The licensee is relying upon the provisions of sub section 3 of regulation 40 as well as the proviso where certain situations have been envisaged in as much as that in case an application is submitted by consumer or a licensee or an occupier or owner for obtaining a new electricity connection and the erstwhile consumer who had already obtained the connection was in arrears/default, the liability for a period of three years, till the licensee initiated legal steps to recover the amount, has been fastened upon the consumer seeking new electric connection. This is what precisely is the import of the communication Ext.P1 which is under challenge. The judgment ``` WP(C) NO. 9353 OF 2022 ``` ``` 7 ``` of Gujarat High Court would not be applicable in the present case as the provisions of the Electricity Supply Code pertaining to Gujarat are not pari materia. In order to obviate the apprehension expressed by the petitioner or any applicants for blocking their money lying in the account or required as a capital for running the business or for any other purpose, actual exchange of transfer of money and the return thereof after a period of three years, in my considered view, defies the logic as there can be an element of some respite either by way of a bank guarantee or some other condition which would protect the interest of both the parties. 7. In the aforesaid circumstances, writ petition is disposed directing that instead of seeking the actual transfer of money, the petitioner a fresh applicant would furnish a bank guarantee for a period of two years as period of one year had already elapsed, of the amount of arrears pending/due against the erstwhile consumer and on furnishing the bank guarantee within a period of 15 days new connection would be issued by ``` WP(C) NO. 9353 OF 2022 ``` ``` 8 ``` the respondents licensee forthwith. It is made clear that the licensee shall be at liberty to recover the outstanding amount against the erstwhile consumer in accordance with law. **Sd/AMIT RAWAL JUDGE** nak ``` 9 ``` ## **`WP(C) NO. 9353 OF 2022`** ## **`APPENDIX OF WP(C) 9353/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit.P.1.TRUE COPY OF THE COMMUNICATION SENT BY THE 1ST RESPONDENT DATED 9-3-2022 IS PRODUCED HEREWITH ExhibitP.1. ENGLISH TRANSLATION OF EXHIBIT.P.1. ```