Jojo Kattikaran v. Kerala State Electricity Board

W.P(c).No.23822/2013 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** **WP(C).No. 23822 of 2013** ## **PETITIONER/S:** **JOJO KATTIKARAN AGED 42 YEARS S/O.ANTONY KATTIKARAN, KATTIKARAN HOUSE, KALATHIPARAMBIL ROAD, VADUTHALA, COCHIN-682 012.** **BY ADVS. SRI.M.P.RAMNATH SMT.S.SANDHYA SMT.UMA R.KAMATH SRI.P.RAJESH (KOTTAKKAL)** ## **RESPONDENT/S:** **KERALA STATE ELECTRICITY BOARD ELECTRICAL SECTION-CENTRAL, ERNAKULAM, KOCHI-682 018, REPRESENTED BY ASSISTANT ENGINEER.** **BY ADVS.** **SRI. SUDHEER GANESH KUMAR SC FOR KSEB,** **SRI.V.V.BINU, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.09.2018, THE COURT ON 31.10.2018 DELIVERED THE FOLLOWING:** W.P(c).No.23822/2013 2 ## _**P.V.ASHA, J.**_ -------------------------W.P(C) Nos.23822 of 2013-C ------------------------------------------- _Dated this 31[st] day of October, 2018_ ## _**JUDGMENT**_ The petitioner challenges Exts.P3 to P5 and Ext.P12 proceedings for realisation of a sum of Rs. Rs.3,99,981/- towards arrears of electricity charges which was found due from him on account of short assessment. 2. The petitioner was conducting a cold storage to which electricity supply connection was provided in his name with consumer no. 7355 of Ernakulam Central Section of the Kerala State Electricity Board Limited ('the Board'). The charges were levied under Industrial LT-IV tariff. He was running the business with due license and had been paying the electricity bills regularly. Whileso in an inspection conducted in the premises on 04.08.2012, it was found that the change in tariff applicable to cold storages from Industrial LT-IV to LT VIIA (commercial) brought into force from 01.02.2017 was not carried out in the case of the petitioner while issuing the bills. Thus short assessment was found for the period from 01.12.2007 to 01.07.2012. 3. Seeing the mistake in assessment, the Assistant Engineer, as per Ext.P3 letter informed the petitioner that the cold storage which was being billed under industrial tariff (LT IV) should have been billed under LT VIIA (Commercial), which was the tariff made applicable to cold storage as per order No.TP 23/2006 and TP W.P(c).No.23822/2013 3 30/2007 of the Kerala State Electricity Regulatory Commission ('the State Commission'). A short assessment bill for a sum of Rs.3,99,981/- was issued, being the difference between commercial and industrial tariffs for the period from 01.12.2007 to 01.07.2012. He was requested to make the payment within 30 days, failing which the supply to the premises would be disconnected without further notice. Along with Ext.P3 letter, Ext.P4 bill was issued under Section 37(5) of the KSEB Terms & Conditions of Supply 2005, demanding the arrears as per Ext.P5 calculation statement. 4. Aggrieved by this the petitioner approached the Permanent Lok Adalat filing O.P.199/2012. In Ext.P12 award, the Permanent Lok Adalat found that the petitioner, who was admittedly running a cold storage business, was liable to pay the charges under the LT VIIA Commercial category, as cold storages are included in that category as per order dated 27.11.2007 of the Commission with effect from 1.12.2007. Therefore, it was found that though he was wrongly assessed in LT IV category, the respondent Board was fully competent and justified in demanding the payment as per the short assessment bill. The petitioner challenges the demand for arrears of charges as well as the award of the Permanent Lok Adalath. 5. According to the petitioner, he had been paying all the bills regularly and has not committed any default. The further claim of the petitioner is that if at all there is any undercharging, the amount has to be claimed within a reasonable period and going by the provisions contained in the Limitation Act and Section 56(2) of the Electricity Act, 2003, no steps can be initiated for recovery of any amount towards W.P(c).No.23822/2013 4 electricity charges for a period prior to 2 years of the demand. According to him, limitation should start from the date of consumption and not from the date on which the bill was issued. 6. The respondent Board has filed a counter affidavit. It is stated that in the inspection conducted by the Sub Engineer, Electrical Section, Central, in the premises of the petitioner on 04.08.2012, it was found that the petitioner was being billed under LT IV; whereas the cold storages were brought under the tariff LT VIIA as per tariff notification dt.1.12.2007 of the Commission. When it was detected that the change in tariff was not incorporated in the billing software, due to oversight, Ext.P3 bill was issued for realisation of the difference in charges. It is stated that Regulation 37(5) of the KSEB Terms and Conditions of Supply, 2005 empowers the Board to recover the undercharged amount. Accordingly, Ext.P4 demand along with a calculation statement was issued to the petitioner. It is stated that the tariff has been changed by the Kerala State Electricity Regulatory Commission, which is notified in gazette notification dt.27.11.2007. The respondents relied on the judgment in _**Sunderdas P. v. Kerala State Electricity Board & anr:**_ . 2009 (1) KHC 945, in which this Court has held that limitation mentioned in Section 56(2) of the Electricity Act starts only from the date when the bill is issued and hence it is not applicable to demands under Regulation 37(5) of the KSEB (terms and Conditions of Supply), 2005, which is issued as and when the mistake is detected. According to the respondents, the petitioner ought to have approached the Consumer Grievance Redressal Forum, in case he had any dispute with respect to the demand instead of W.P(c).No.23822/2013 5 filing a writ petition. 7. The contention of the petitioner is that his complaint is not on account of any error in the bill but on the issuance of the bill after several years at a time when he is unable to realise the expense from the customers. The petitioner submits that he was doing the business of providing storage space to the small scale traders i.e to store small quantities of perishable articles like vegetables, meat etc. As the cold storage was very near to the Ernakulam market, the traders could store the perishable articles very often and it was being charged in tune with the expenditure which was being incurred by the petitioner. The net monthly income of the petitioner from the business was between Rs.7000/- to Rs.8000/-. He submits that in case the bill incorporating the change of tariff was issued in time, it would have been possible for him to enhance the charges in tune with the electricity charges. But in view of the lapse of time in detecting the mistake, he is disabled from realising the additional expenses from the customers, who already availed the services. Therefore, he points out that it is arbitrary to make any demand from him at this stage; he had been running the business, earning only the minimum profit in tune with the expenses he was incurring. According to him, the issuance of the bill after a period of 5 years disabled him to recover or realize the difference in charges from the customers. It is stated that he has already stopped the business and vacated the building and therefore he is not liable to make any payment towards such an arbitrary assessment. The petitioner challenges the demand on yet another ground that it is barred by the limitation prescribed under the general law as also the provisions W.P(c).No.23822/2013 6 contained in Section 56(2) of the Electricity Act, 2003. It is also his case that Regulation 37 cannot be invoked in this case since it relates to arithmetical mistake in the bill and not by way of a mistake in tariff and if at all it comes under the category of all other cases the revision should have been done only by the officers not below the rank of Executive Engineers. 8. Having heard the contentions on both sides, it is necessary to examine Regulation 37 of the KSEB Terms and Conditions of Supply, 2005, which reads as follows: _“37: Disputes in Bill_ _(1) Any complaint with regard to the accuracy of the electricity bill shall be made in writing to the officer who has issued them. Arithmetical mistakes on the face of the bill shall be corrected and revised demand issued by the officers who issued the bill. In all other cases, any correction or revision of demand shall be done only by the officers not below the rank of Executive Engineers in respect of L.T. Consumers and Deputy Chief Engineer in respect of HT/EHT consumers. The correction or revision of the demand shall be made only after ascertaining the bonafides of the complaint. However, the bill should be paid on or before the due date originally fixed, and adjustment, if any, will be made only in the subsequent bills. The amount so paid will be regarded as advance to the credit of the consumer's account until such time as the invoices in dispute are fully settled._ _(2) On a complaint by any consumer regarding the correctness of a bill, the Board will immediately carry out a review. The Board will issue a revised and appropriately adjust the bill amount, if the review establishes that the bill is incorrect. If in the review it was found that the consumer was overcharged, the excess amount shall be repaid within two months with interest at twice the bank rate._ _(3) While issuing a revised bill the Board will specify the amount to be recovered as a separate item in the consumer's next bill with details or as a separate bill with details for the amount._ _(4) While communicating the decision on the review of the bill, the Board will advise the consumer in writing his right to prefer an application against the decision of the Board to Consumer Grievances Redressal Forum (CGRF) and further to appeal to the Ombudsman if required._ _**(5) If the Board establishes that it has undercharged the consumer either by review or otherwise, the Board may recover the amount undercharged from the consumer by issuing a bill and in such cases at least 30 days shall be given for the consumer to make payment against the bill. While issuing the bill, the Board will specify the amount to be recovered as a separate item in the subsequent bill or as a separate bill with an explanation on this account.**_ W.P(c).No.23822/2013 7 _(6) If it is established that after payment of the bill, the Board has overcharged the consumer, the excess amount shall be repaid within two months with interest at twice the bank rate.”_ _(emphasis supplied)_ Regulation 37 deals with disputes in bill. Clause 1 thereof provides that any complaint with regard to the accuracy of electricity bill shall be made in writing to the officer who issued the bill. It further provides that the arithmetical mistakes in the bill shall be corrected and revised demand shall be issued by the officers who issued the bill. In all other cases it is provided that any correction or revision of demand shall be done only by the officers not below the rank of Executive Engineers in respect of L.T. Consumers and Deputy Chief Engineer in respect of HT/EHT consumers and the correction or revision of the demand shall be made only after ascertaining the bona fides of the complaint. Clause 2 provides for undertaking of a review by the board on receiving a complaint regarding the correctness of a bill. Clause 3 provides for issuance of revised bill. Clause 4 provides that while communicating the decision on the review of the bill, the Board will advise the consumer in writing his right to prefer an application before the Consumer Grievances Redressal Forum and further for an appeal to the Ombudsman. Clause 5 relates to cases where the consumer is undercharged either by review or otherwise. It provides that the Board may recover the amount undercharged from the consumer by issuing a bill and in such cases the consumer shall be given at least 30 days to make payment of the bill. In such cases the Board has to specify the amount to be recovered as a separate bill with an explanation on this account. In the event of any overcharge, the Board has to refund the amount to the consumer along with interest at twice the W.P(c).No.23822/2013 8 bank rate. Therefore, the case of the petitioner comes under clause 5 of Regulation 37 of the Conditions of Supply of Electricity, 2005 and the bill is issued when the undercharging was found. Therefore, the contention of the petitioner that it does not come under Regulation 37 is unsustainable. As long as the petitioner does not challenge the said Regulation, the contention that the action of the respondents in issuing the bill demanding the difference in the electricity charges in accordance with correct tariff is arbitrary, cannot be accepted. 9. The contention as to limitation cannot also be accepted in the light of the judgment in _**Sunderdas**_ ' case ( _supra_ ), which is already affirmed in the judgment in W.A. No.476/2009. Following the judgment of the Bombay High Court in a decision reported in 2007 (3) KLT SN 9 (C.No.11) it was held that the amount becomes first due only with the issuance of the bill and limitation will start only from the date of issuance of the bill. In that case the multiplication factor adopted was 20 instead of 40 and demand was made on detecting the undercharging. There the consumer wanted installment facility and this Court granted the same. 10. The learned Counsel for the Board relied on the judgment dt.27.11.2013 in W.P(c).No.26773/2013, where also demand was made towards short assessment. In that case the multiplication factor was wrongly adopted as 20 instead of 40. It was found that the respondents were entitled to recover any amount remained undercharged by virtue of Regulation 24(5) of the Electricity Supply Code, 2005 and permitted payment in installments. Contention as to limitation was held unsustainable in the light of the judgment in _**Sundardas' case**_ wherein it was held W.P(c).No.23822/2013 9 that the amount became due only when it was demanded for the first time. 11. The expression `due' occurring in a provision similar to Regulation 37(5) of the Conditions of Supply 2005 was considered by a Full Bench of the Guwahati High Court in the judgment in _**Assam State v. Mokalbari Kanoi Tea Estate (P) Ltd**_ : **2013 KHC 3690** where it was held that the charges become due only when a bill is raised. 12. In the light of the judgment of this Court in _**Sunderdas P. v. Kerala State Electricity Board and Anr**_ : 2009 (1) KHC 945, as affirmed in the judgment in W.A.No.476/2009, I am unable to accept the tenacious contentions advanced by Sri. M.P.Ramanath, the learned Counsel for the petitioner. Accordingly the writ petition fails and is dismissed. Sd/ _**(P.V.ASHA, JUDGE)**_ _rtr_ _**/**_ W.P(c).No.23822/2013 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE PHOTOSTAT COPY OF THE LAST D&O LICENCE**| |---|---| ||**FEES RECEIPT DATED 29/2/2012 FOR THE PERIOD**| ||**OF 2012-2013 ISSUED BY THE KOCHI CORPORATION**| ||**TO THE PETITIONER.**| |**EXHIBIT P2**|**TRUE PHOTOSTAT COPY OF THE SITE MAHASSER**| ||**DATED 4/8/2012 PREPARED BY THE 1ST**| ||**RESPONDENT.**| |**EXHIBIT P3**|**TRUE PHOTOSTAT COPY OF THE LETTER DATED**| ||**1/9/2012 ISSUED BY THE RESPONDENT TO THE**| ||**PETITIONER STATING THE SUBJECT AS SHORT**| ||**ASSESSMENT DUE TO WRONG APPLICATION OF**| ||**TARIFF.**| |**EXHIBIT P4**|**TRUE PHOTOSTAT COPY OF THE SHORT ASSESSMENT**| ||**BILL DATED 1/9/2012 ISSUED BY THE RESPONDENT**| ||**TO THE PETITIONER.**| |**EXHIBIT P5**|**TRUE PHOTOSTAT COPY OF THE CALCULATION**| ||**STATEMENT ISSUED BY THE 1ST RESPONDENT TO**| ||**THE PETITIONER.**| |**EXHIBIT P6**|**TRUE PHOTOSTAT COPY OF THE ELECTRICITY BILL**| ||**DATED 15/11/2007 ISSUED TO THE PETITIONER.**| |**EXHIBIT P7**|**TRUE PHOTOSTAT COPY OF THE ELECTRICITY BILL**| ||**DATED 15/12/2007 ISSUED TO THE PETITIONER**| |**EXHIBIT P8**|**TRUE PHOTOSTAT COPY OF THE ELECTRICITY BILL**| ||**DATED 1/8/2012 ISSUED TO THE PETITIONER.**| |**EXHIBIT P9**|**TRUE PHOTOSTAT COPY OF THE RECEIPT DATED**| ||**13/2/2006 ISSUED BY THE KOCHI CORPORATION**| ||**FOR PAYING HALF YEARLY PROFESSIONAL TAX FOR**| ||**AN AMOUNT OF RS.330/-.**| |**EXHIBIT P10**|**TRUE PHOTOSTAT COPY OF THE DEMAND NOTICE**| ||**DATED 4/10/2006 ISSUED BY THE KOCHI**| ||**CORPORATION TO PAY PROFESSIONAL TAX FOR THE**| ||**HALF YEARLY INCOME OF RS.44,000/- AND**| ||**DEMANDING TO PAY RS.300/-.**| |**EXHIBIT P11**|**TRUE PHOTOSTAT COPY OF THE RECEIPT DATED**| ||**23/2/2012 ISSUED BY THE KOCHI CORPORATION**| ||**FOR PAYING HALF YEARLY PROFESSIONAL TAX FOR**| ||**AN AMOUNT OF RS.450/-.**| |**EXHIBIT P12**|**TRUE PHOTOSTAT COPY OF THE AWARD DATED**| W.P(c).No.23822/2013 11 **5/7/2013 ISSUED BY THE PERMANENT LOK ADALAT IN OP NO.199/2012.**