K.P. Mohanan Kadavath Purayil v. Kerala State Electricity Board

WP(C) NO. 24285 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944** ## **WP(C) NO. 24285 OF 2011** ## **PETITIONER/S:** K.P.MOHANAN KADAVATH PURAYIL, P.O.PARIYARAM,, PROPRIETOR SREE KRISHNA BRICKS,, P.O.PARIYARAM, KANNUR DISTRICT. BY ADV SRI.P.M.PAREETH ## **RESPONDENT/S:** 1 K.S.E.B REPRESENTED BY ITS SECRETARY,, VIDYUTHI BHAVANAM, PATTOM.P.O.,, THIRUVANANTHAPURAM-695 001. 2 DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE,, SREEKANDAPURAM.P.O., KANNUR DISTRICT. 670 631. 3 EXECUTIVE ENGINEER ELECTRICAL DIVISION, KERALA STATE ELECTRICITY, BOARD, PAYANNUR.P.O., KANNUR DISTRICT.670 307. 4 ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD,, ELECTRICAL SUB DIVISION, TALIPARAMBA.P.O.-670141. 5 ASSISTANT ENGINEER ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, TALIPARAMBA.P.O-670141. 6 ASSISTANT ENGINEER ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, WP(C) NO. 24285 OF 2011 2 PARIYARAM.P.O., KANNUR DISTRICT-670 502. BY ADVS. SRI.N.RAPHY RAJ, SC, KERALA STATE ELECTRICITY BOARD LIMITED SRI.N.SATHEESH SMT.P.K.RADHIKA-KSEB ## **OTHER PRESENT:** SRI.JOSWIN THAMBI KUNNATH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 24285 OF 2011 3 **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C) No.24285 of 2011 -------------------------------------Dated this the 24[th] day of November, 2022** ## **JUDGMENT** The above writ petition is filed with following prayers : 1) “A writ of certiorari or other appropriate writ, direction or order calling for the records leading to Exts.P12, P13 and P14 and quash the same. 2) A writ of mandamus or other appropriate writ, direction or order commanding the second respondent to refund to the petitioner the excess amount of Rs.1,50,020/recovered from him together with admissible interest within a time frame.” [SIC] 2. The petitioner was the proprietor of Sreekrishna Bricks Pariyaram which is an SSI unit with electricity consumer number 18051 under the operative jurisdiction of the 6[th] respondent. It is the case of the petitioner that the electricity connection was dismantled. The electric connection was effected on 22.1.2001 and it was dismantled in May 2005. WP(C) NO. 24285 OF 2011 4 It is the further case of the petitioner that as evident by Ext.P3, the petitioner has paid all dues including February 2003 before dismantling. The defective electronic meter was changed on 24.3.2003. It is the case of the petitioner that because of the defective installation as evidenced by Ext.P2, the meter was burnt due to short circuit two days after its installation. It is further stated that there was no meter or connection for the period from March 2003 to September 2004. On 5.10.2004, the burnt meter was replaced by a new meter and reconnection was effected. The service was dismantled in May 2005. But, it is submitted that Ext.P5 notice was issued by the 4[th] respondent demanding an amount of Rs.1,02,724/- plus surcharges. The petitioner submitted Ext.P6 complaint before the statutory authority namely Consumer Grievance Redressal Forum which was made over to the 2[nd] respondent. When coercive steps were taken, the petitioner approached this Court and this Court as per Ext.P7 judgment directed the competent authority to pass orders on Ext.P6 on condition that the petitioner pays an amount of WP(C) NO. 24285 OF 2011 5 Rs.20,000/-. It is the case of the petitioner that he paid Rs.20,000/- on 5.12.2007. But, Ext.P6 was disposed of by the 2[nd] respondent by Ext.P8 upholding Ext.P5 demand. The petitioner again approached this Court challenging Ext.P8 when revenue recovery was initiated. This Court as per Ext.P9 order permitted the petitioner to remit the demand without prejudice to the right of the petitioner to agitate the same in the writ petition. Accordingly, the petitioner by Ext.P10, paid an amount of Rs.1,18,800/- in addition to the amount of Rs.20,000/- already paid. This was done, according to the petitioner, in order to facilitate a new connection in the adjacent premises. This Court vide Ext.P11 judgment quashed Ext.P8 and directed the 2[nd] respondent to reconsider the matter calling for all the materials including Ext.P3. The 2[nd] respondent disposed of the matter vide Ext.P12 directing to refund the amount of additional fixed charges and surcharge collected from the petitioner for the period from 4/03 to 5/04. Accordingly, Ext.P13 was issued by the 3[rd] respondent proposing to refund an amount of Rs.18,697/- to the petitioner. WP(C) NO. 24285 OF 2011 6 It is submitted that Ext.P14 shows that the 4[th] respondent has included demand for the period from 2/03 to 7/06 on the ground that the service was dismantled only on 3.8.2006. It is further stated that an amount for Rs.19,500/- is deducted towards repayment of cash deposit of Rs.19,500/- and no interest is credited to the CD account. It is the definite case of the petitioner that the licensee is not entitled to keep the disconnected service without dismantling for a period exceeding 6 months. Since no payment was made after 25.9.2004, the service ought to have been dismantled in 3/05 is the contention. Exts.P12, P13 and P14 are under challenge. The licensee is not entitled to collect any charges for the period when there was no connection or meter namely for the period from 3/03 to 9/04 is the contention. Hence, this writ petition. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 4. After arguing for some time, the learned counsel for the petitioner submitted that Ext.P12 order is passed by an WP(C) NO. 24285 OF 2011 7 officer of the Board itself. The counsel relied the judgment of this Court in **Mohammed Haji K. v. Asst. Engineer (Electrical Section), Kannur and others** [2014 (4) KHC 272]. It will be better to extract the relevant paragraph of the judgment in **Mohammed Haji's** case (supra). 12. The aforesaid provision of the Re - vesting Scheme, 2013 shows that as a result of the re - vesting, all the employees of the KSEB stand transferred and absorbed into the services of the KSEB Limited from the date of transfer namely, the date of publication of the scheme in the Official Gazette, vide Clause 2(d) of the scheme. This, therefore, means that irrespective of the Constitution of the strategic business units, like every other permanent employees of the KSEB, the Deputy Chief Engineers, who are now designated as the Appellate Authority continue to be related to the affairs of the licencee or supplier, which is none other than the Kerala State Electricity Board Limited. In other words, irrespective of the whole exercise of transfer and vesting, the officers designated as Appellate Authority continue to be directly related to the company and consequently do not satisfy the requirements of R.3 of the Appellate Authority Rules that none of them shall be directly related to be affairs of the territorial jurisdiction of the licencee or supplier of the electricity. 13. Such being the case, the appointment of the Deputy Chief Engineers now effected by GO (P) No. 20/2014 / PD dated WP(C) NO. 24285 OF 2011 8 28/05/2014, cannot be upheld and the Government will have to make a fresh appointment satisfying the requirements of S.127 of the Appellate Authority Rules. Insofar as the order in RP No. 217 of 2012 relied on by the State is concerned, a reading of the order shows that R.3 of the Appellate Authority Rules was noticed by this Court when this order was passed. Therefore, the order being per incuriam, cannot be relied to sustain the designation of Deputy Chief Engineers as the Appellate Authority. Therefore, these writ petitions are disposed of with the following directions: 1. The Government of Kerala shall appoint the Appellate Authority as contemplated under S.127 of the Electricity Act, 2003 and the Appeal to the Appellate Authority Rules, 2004. This shall be done as expeditiously as possible at any rate within six weeks from the date of receipt of a copy of this judgment. 2. Once the Appellate Authority is so constituted, the appeals that are already filed by the writ petitioners and which are pending before the Deputy Chief Engineers, who were appointed by virtue of GO (P) No. 27/2012, shall be transferred to the Appellate Authority and the Appellate Authority shall consider and decide those appeals on merits. 3. Such of the writ petitioners who have not filed appeals against the orders of assessment under S.126 of the Act, shall file appeals as provided under S.127 of the Electricity Act within one month of constitution of the Appellate Authority as directed above and if such appeals are filed, the same shall be dealt with on merits and disposed of accordingly. 4. Except in the case of the writ petitioners in WP (C) No. WP(C) NO. 24285 OF 2011 9 15560 of 2013, the remittances made by the other writ petitioners in compliance of the order passed by this Court will be given credit towards the requirement of S.127(2) of the Act and if there is any short fall in 50% required to be made good, the differential amount shall be remitted by the petitioners. Insofar as WP (C) No. 15560 of 2013 is concerned, his appeal will be entertained without insisting on any condition of pre - deposit. We clarify that we have not dealt with the merits of the contentions raised by the respective parties which are to be agitated and decided by the Appellate Authority and therefore, those contentions are left open.” 5. In the light of the same, I think Exts.P12, P13 and P14 can be set aside and there can be a direction to refer the matter to the appellate authority constituted as per Sec.127 of the Electricity Act, 2003. Therefore, this writ petition is disposed of with the following directions : - 1) Exts.P12, P13 and P14 are quashed. - 2) Ext.P6 shall be referred to the appellate authority constituted under Sec. 127 of the Electricity Act and the appellate authority will consider the same and pass WP(C) NO. 24285 OF 2011 10 appropriate orders in accordance to law, after affording an opportunity of hearing to the petitioner. **SD/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 24285 OF 2011 11 ## **APPENDIX** **PETITIONER'S EXHIBITS :** **EXT.P1 TRUE PHOTOCOPY OF THE DEMAND FOR DECEMBER 2001 EXT.P2 TRUE PHOTOGRAPH OF THE BURNT METER** **EXT.P3 TRUE PHOTOCOPY OF THE REPORT DATED 29.7.04 SUBMITTED BY THE FIFTH RESPONDENT TO THE THIRD RESPONDENT** **EXT.P4 TRUE PHOTOCOPY OF THE ORDER NO. DB3/0405/TPBA/03/AEE/TPBA DATED 25.9.04** **EXT.P5 TRUE PHTOOCOPY OF THE NOTICE DATED 28.6.2007 ISSUED BY THE FIFTH RESPONDENT** **EXT.P6 TRUE PHOTOCOPY OF THE COMPLAINT DATED 5.11.2007 SUBMITTED BEFORE THE CONSUMER GRIEVANCE REDRESSAL FORUM** **EXT.P7 TRUE PHOTOCOPY OF THE JUDGMENT DATED 15.11.2007 IN WPC NO 33704/2007** **EXT.P8 TRUE PHOTOCOPY OF THE ORDER DATED 8.7.08 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER EXT.P9 TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 14.10.2008 IN WPC NO. 17929/08** **EXT.P10 TRUE PHOTOCOPY OF THE RECEIPT DATED 13.2.2009 ISSUED BY THE VILLAGE OFFICER, KADANNAPALLI VILLAGE** **EXT.P11 TRUE PHOTOCOPY OF THE JUDGMENT DATED 5.10.10 IN WPC NO 17929/08** **EXT.P12 TRUE PHOTOCOPY OF THE ORDER DATED 3.3.11 ISSUED BY THE THIRD RESPONDENT** **EXT.P13 TRUE PHOTOCOPY OF THE ORDER DATED 12.5.11 ISSUED BY THE THIRD RESPONDENT.** **EXT.P14 TRUE PHOTOCOPY OF THE CALCULATION STATEMENT ISUEED BY THE FOURTH RESPONDENT.** WP(C) NO. 24285 OF 2011 12 ## **RESPONDENT'S EXHIBITS** **:** **EXT.R1(A) A TRUE COPY OF THE DETAILED CLACULATION FOR THE PERIOD FROM 2/2003-7/2005** **EXT.R1(B) A TRUE COPY OF THE STATEMENT OF REFUNDABLE AMOUNT TO THE PETITIONER**