G.T.N. Textiles Ltd. v. Kerala State Electricity Board and Special Officer (Revenue), KSEB

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938** **WP(C).No. 19417 of 2009 (V) ----------------------------** **PETITIONER(S): -------------** **G.T.N. TEXTILES LTD., PB NO. 101, ALUVA, REP. BY CHIEF EXECUTIVE.** **BY ADVS.SRI.M.PATHROSE MATTHAI (SR.) SMT.MARIAM MATHAI SRI.SAJI VARGHESE SRI.P.THOMAS GEEVERGHESE** **RESPONDENT(S): --------------** **1. THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTAM, THIRUVANANTHAPURAM.** **2. THE SPECIAL OFFICER (REVENUE), KSEB, VYDYUTHI BHAVANAM,, PATTAM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.P.THAJUDEEN, SC, K.S.E.B SRI.T.R.RAJAN, SC, K.S.E.B. SRI.SUDHEER GANESH KUMAR R., SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 19417 of 2009 (V) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1 THE TRUE COPY OF THE REVISED ASSESSMENT ISSUED BY THE BOARD DTD.24.1.1994.** - **P2 THE TRUE COPY OF THE COMMUNICATION FROM THE BOARD DTD.9.2.1994 GRANTING INSTALLMENT FACILITY TO THE PETITIONER.** - **P2(a): TRUE COPY OF THE COMMUNICATION DTD.15.2.1994 FROM THE BOARD.** - **P3 TRUE COPY OF THE DEMAND DTD.14.10.2005 ISSUED BY THE RESPONDENT.** - **P3(a): TRUE COPY OF THE CALCULATION STATEMENT FOR THE PERIOD FROM 15.2.1994 TO 19.1.1995.** - **P4 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DTD.12.1.2009 BEFORE THE CGRF.** - **P5 TRUE COPY OF THE OBJECTION FILED BY THE BOARD.** - **P6 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT.** - **P6(a): TRUE COPY OF THE FAX MESSAGE FROM THE 2ND RESPONDENT.** - **P7 TRUE COPY OF THE AGREEMENT BETWEEN THE BOARD AND THE PETITIONER DTD.17.4.1991.** - **P8 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR REBATE OF THE AMOUNT DTD.20.11.1999.** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **P.V.ASHA J.** ## **--------------------------------------------** ## **W.P.(C).No.19417 of 2009** **---------------------------------------------** Dated this the 19[th] day of December, 2016 ## **J U D G M E N T** Petitioner is a private limited company engaged in manufacture and export of cotton yarn. It is aggrieved by Ext.P6 demand of respondent Board for a sum of Rs.38,07,683/- on the ground that while granting instalment facility was availed by it for payment as per Ext.P2. 2. The case of the petitioner is that the Current Transformer Potential Transformer (CTPT) installed by the respondent was defective from 01.08.1992 onwards. Despite repeated intimations the electricity board did not take any action to replace the defective CTPT. Therefore petitioner itself installed a CTPT in the year 1995 after getting permission from the board. The petitioner had been making payment of the electricity charges on the basis of the average of 3 previous months May, June and July, 1992. In the year 1994 the Board issued Ext.P1 invoice on 24.01.1994, revising the assessment and directing payment of a sum of Rs.36,41,857/-. In this letter it was stated that the invoice should have been on the basis of average consumption calculated for the energy consumption from February to April of 1992, instead of April to June of 1992 W.P.(C).No.19417 of 2009 2 and hence the charges based on average consumption was worked out as Rs.14,34,793/- and therefore the invoices from August 1992 to December 1993 were being revised. Along with Ext.P1, an invoice for a sum of Rs.Rs.36,41,857/- was issued. By Ext.P2 order dated 09.02.1994 as revised by Ext.P1(a) order 15.2.1994 the board granted instalment facility allowing the petitioner to remit the sum in 10 equal instalments starting from 15.04.1994 to 15.01.1995. In Ext.P2, it was stated that the petitioner would be allowed to remit the instalments along with monthly current charges before the due date fixed in each of the month and in the event of any default penal interest at the rate of 24% per annum would be realised and the instalment facility would also be cancelled. Petitioner submits that the entire payment based on Exts.P2 and P2(a) was made as on 15.01.1995. 3. In the year 2005 petitioner wanted to change the supply of electricity from 11KV to 110 KV. Respondent Board thereupon issued a notice Ext.P3 demanding a sum of Rs.52,38,095/- as a condition for the conversion to 110KV. Out of this Rs.52,38,095, a sum of Rs.4,74,375/- was demanded towards interest for the period during which the meter was faulty. This demand was made at a time when petitioner had W.P.(C).No.19417 of 2009 3 already made the entire payment on the basis of Exts.P2 and P2(a). Aggrieved by Ext.P3, petitioner approached the Consumer Grievance Redressal Forum, submitting Ext.P4 complaint. Board had submitted their objections as per Ext.P5. While matters stood posted for orders, after hearing both sides, the respondent issued Ext.P6 order on 15.06.2009 directing the petitioner to remit a sum of Rs.38,07,683/- on or before 15.07.2009, threatening disconnection in the event of nonpayment. 4. As per Ext.P6 the respondent Board has stated that under the provisions contained in clause 32(g) of the Conditions of Supply of Electrical Energy, in case the arrears of dues are permitted to be paid in instalments by competent authority, interest for arrears shall be paid in full along with first instalment. The order of priority for adjusting payment by the consumer is (i) interest on electricity duty arrears; (ii) electricity duty arrears (iii) interest on electricity charge arrears and (iv) current month dues. Petitioner was accordingly directed to remit a sum of Rs. 28,00,170/- towards interest for the period upto 31.05.2009. 5. Referring to clause 32(g) of the Conditions of Supply of Electrical Energy, it is stated that petitioner was permitted to W.P.(C).No.19417 of 2009 4 make the payment in instalments under One Time Settlement scheme. One of the conditions for the One Time Settlement was consumers should withdraw from all pending litigations filed against the Board. But the petitioner did not withdraw the litigations and therefore the Board withdrew the facility under the One Time Settlement scheme. Therefore, it was stated that the penal interest had been reduced by demanding only a sum of Rs.4,74,379/-. It was stated that the petitioner had remitted the arrears under the One Time Settlement Scheme but disputed it on the basis that it was time barred **.** One Time Settlement had become irrelevant since the petitioner did not accept the same. The Board therefore readjusted the remittances made by the petitioner in accordance with the conditions contained in clause 32(g) and demanded a sum of Rs.8,11,779/- towards balance electricity charges and a sum of Rs.28,00,170/- towards interest upto 31.05.2009. It was further stated that demand notice was issued to the petitioner in the year 1999, directing to remit a sum of Rs.43,67,504/- towards the electricity charges but the petitioner had remitted only a sum of Rs.41,71,770/-. The balance calculated by them to the tune of Rs.1,95,734/- was also included along with the balance due from the petitioner. Accordingly the petitioner was directed W.P.(C).No.19417 of 2009 5 to remit a sum of Rs.38,07,683/-. Petitioner points out that as per Ext.P8 order dated 20.11.1999 the Board had already granted a rebate of Rs.1,95,734/-, which was found admissible to petitioner in the month of September, 1999 from the Electricity charges for November, 1999, towards the lock out period. In Ext.P6, the respondent has demanded it . 6. The case of the petitioner is that there is absolutely no basis for the demand made in Ext.P6. The petitioner asserted that the instalment facility was not under any One Time Settlement Scheme and there is no basis for demanding interest for the amount which was already remitted as early as in January, 1995. The entire amount demanded in Ext.P6, as can be seen from the details given in Ext.P6(a) are towards the amount covered by Ext.P2 as well as the amount covered by Ext.P8. It is pointed out that as per clause 16(b) of Ext.P7 the petitioner is entitled to rebate for the period during which there was lock out, strike of employees, break down of machinery/plant etc. The petitioner has explained in Ext.P8 letter that there was a lock out in the factory for the period of 20[th] September to 3[rd] October, 1999 and therefore under clause 16(b) petitioner was entitled to the rebate of Rs.1,95,734/- That letter was submitted before the Board as early as on W.P.(C).No.19417 of 2009 6 20.11.1999. In Ext.P6 the respondent has claimed interest for the period upto 31.05.2009, as against the amount already paid by the petitioner on the ground that the petitioner was not eligible for the reduction of interest since the One Time Settlement facility was already withdrawn. 7. The respondents have not filed any counter affidavit, even though this writ petition was admitted as early as on 13.07.2009 and an interim order was passed staying the proceedings for recovery in that date. 8. I heard the learned Counsel for the petitioner and the learned Standing Counsel, who seriously opposed the contentions. 9. The demand for interest in Ext.P6 is made under Clause 32(g) of Conditions of Supply of Electrical Energy, 1990, which provides that interest shall not be charged for the arrears of energy charge, on account of delayed meter reading and consequential delay in issue of invoice. Clause 32(g) reads as follows: “If the arrears of dues are permitted to be paid in instalments by competent authority, the interest for the arrears shall be paid in full along with first instalment. Interest shall not be charged for the arrears of energy charge due to delayed meter reading and consequent delay in issue of invoice, provided the W.P.(C).No.19417 of 2009 7 consumer remits the amount on or before the due date fixed by the Board.” _(emphasis supplied)_ 10. In this case the meter was faulty from 1992 onwards and it continued in the same position till the petitioner itself installed CTPT at their expense in the year 1995. From Exts.P1 and P2 itself can be seen that the bill was issued only in the year 1994. The delay in issuing the bill was on account of the delayed meter reading i.e when the meter remained faulty. The respondents while referring to Clause 32(g) for demanding interest, shut their eyes to the second part of that provision, by which interest is exempted for the faulty meter period and goes on demanding the same illegally even upto 2009. The respondent Board does not have any right to realise interest, merely because instalment facility was allowed. Clause 32(g) does not provide for realisation/payment of interest in a case when meter is faulty, even if instalment facility is granted for paying the arrears on the basis of the bills issued in the year 1994, i.e., by Exts.P1 and P2. 11. The learned counsel for the respondents submitted that the Ext.P4 complaint filed by the petitioner against Ext.P3 has already been decided by the Consumer Grievance W.P.(C).No.19417 of 2009 8 Redressal Forum and orders passed in that complaint 27.07.2009 is produced as Ext.P3 in writ petition No.16793 of 2010. According to the learned counsel for the respondents when the Forum had already considered the matter, this Court cannot under Article 226 of the Constitution of India consider these issues especially when the petitioner had taken up the matter before the Ombudsman. It is pointed out that the Ombudsman had set aside the order passed by the Consumer Grievance Redressal Forum to the extent it related to the demand relating to a sum of Rs.4,74,375/- only because of the pendency of the writ petition. 12. The learned counsel for the respondents relying on the judgment of this Court in **Eminent Sea Foods (P) Ltd. v. Kerala State Electricity Board and others** [2008 (2) KHC 317] argued that when there is a statutory remedy available, issue cannot be decided under Article 226 of the Constitution of India. The judgment in **Abdul Nazer v. K.S.E.B** (2006 KHC 250) was also relied on in support of the contention that Section 56(2) of the Indian Electricity Act, 2003 is only having retrospective effect and it cannot be applied in the case of the petitioner when the matter relates to the period prior to 2003. 13. Regarding the applications of clause 32(g) of the W.P.(C).No.19417 of 2009 9 Conditions of Supply of Electrical Energy, it is argued that the said provision provides for interest when arrears of dues are permitted to be paid in instalments and interest shall be paid along with the first instalment itself. The subsequent provisions regarding the delayed meter reading and consequent delay in issue of invoice and exemption from payment of arrears energy in such circumstances, cannot be read separately according to the respondents. Contention is that in a case where instalment facilities allowed by the competent authority interest is liable to be paid along with the first instalment and provision in the subsequent part of clause (g) is not applicable in a case where instalment facilities allowed. 14. But I am unable to accept the said argument. In case interest was liable to be paid even in cases where there is delayed issue of invoice on account of delayed meter reading, there should not have been a provision as contained in clause (g) separately. First part of clause (g) can be operated only in a case where the delay in issue of invoice is not on account of delayed meter reading and in a case where the arrears became due for energy charges on account of the delayed meter reading, I have already found that there was delayed meter reading. The respondents cannot also raise any contention that W.P.(C).No.19417 of 2009 10 there was no delay. The meter was faulty and it was replaced by the petitioner himself after repeated request and the delay was caused on account of that. It is evident from Exts.P1 and P2 orders of respondent. 15. Further contention that this Court cannot go into this questions which involves technical matters cannot also be accepted since this Court is called upon to decide on the question of law only with respect to the interpretation of clause 32(g). The fact that the matter was pending before the Consumer Grievance Redressal Forum at the time when the writ petition was filed does not stand in the way of this Court in considering the issue. The petitioner approached this Court when coercive proceeding were initiated and orders were not passed by the Consumer Grievance Redressal Forum, after hearing was over and orders were reserved. Interim order was passed by this Court in the year 2009 itself in the above circumstances. Therefore availability of the statutory remedy cannot stand in the way of this Court in exercising its jurisdiction under Article 226 of the Constitution of India in such matters. 16. In this view of the matter, there is no basis for demanding interest from the petitioner as against the amount W.P.(C).No.19417 of 2009 11 demanded in Ext.P2, which the petitioner had already paid as early as in January, 1995. It is after a period of 10 years of the payment, that the respondents have come with a strange demand. Moreover petitioner has asserted that it has not availed any One Time Settlement scheme and the same is not disputed. As the petitioner has already made payment as per Ext.P2. In terms of clause 16(b) of Ext.P7 agreement the petitioner is entitled to rebate for the period during which the petitioner was under lock out. Therefore the demand for Rs.1,95,734/- in Ext.P6 is also not sustainable. In these circumstances, there is no basis for the demand in Ext.P6. Accordingly, Ext.P6 is set aside. The writ petition is allowed. Sd/- **P.V.ASHA, JUDGE.** AS