MAMMU P.C. v. Kerala State Electricity Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938** ## **WP(C).No. 14426 of 2007 (P)** **---------------------------------------** ## **PETITIONER(S):** ## **----------------------** **MAMMU P.C., S/O.MOIDEEN HAJI, PICHAN CHEERATH HOUSE, KODUR WEST, PERINTHALMANNA, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT(S):** **-------------------------** **1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, VYDHYUTHI BHAVAN, TRIVANDRUM.** **2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SECTION, KSEB, MALAPPURAM, MALAPPURAM DISTRICT.** **3. THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KODUR, MALAPPURAM DISTRICT.** **4. THE STATE OF KERALA REPRESENTED BY THE THE SECRETARY, DEPARTMENT OF AGRICULTURE, GOVERNMENT SECRETRIAT, TRIVANDRUM.** **R1 & 2 BY ADV. SRI.T.R.RAJAN,SC R3 & 4 BY GOVERNMENT PLEADER SRI.BOBBY JOHN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 14426 of 2007 (P)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **-----------------------------------** - **P1: COPY OF THE GOVERNMENT ORDER NO.G.O.(MS)73/97/AD DATED 1/3/97** - **P2: COPY OF THE GOVERNMENT ORDER NO.G.O.(MS)NO.235/98/AD DATED 31/10/98** - **P3: COPY OF THE GOVERNMENT ORDER NO.G.O.(MS)NO.30/1999/AGRICULTURE DATED 4/2/99** - **P4: COPY OF THE DEMAND NOTICE DATED 7/3/2007 ISSUED BY THE R2 TO THE PETITIONER DEMANDING AN AMOUNT OF RS.6,317/-** - **P5: COPY OF THE DEMAND NOTICE DATED 7.3.2007 ISSUED BY THE R2 TO THE PETITIONER DEMANDING AN AMOUNT OF RS.5,254/-** ## **RESPONDENTS' EXHIBITS** **--------------------------------------** **R1(A): COPY OF THE LIST FURNISHED BY THE R3 TO THE R2 DATED 28/5/2002.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.14426 of 2007 ---------------------------------------Dated this the 30[th] day of June 2016 ## **J U D G M E N T** Petitioners challenges Exts.P4 and P5 notices issued by the Kerala State Electricity Board (hereinafter referred to as 'the Board') calling upon the petitioner to remit an amount of Rs.6,317/- and Rs.5,254/- respectively as arrears of power charges. 2. The short facts involved in the writ petition would disclose that the petitioner, claiming to be an Agriculturist, was not being charged with energy charges since, according to him, he was using power for agricultural purposes, namely for paddy cultivation. However, petitioner relies upon the Government Order dated 31/10/1998 which is a scheme promulgated by the Government for the purpose of providing free power to farmers. It was observed that the expenditure on the scheme will be met by the Government under the Free Supply of Electricity to small and marginal Paddy growers (WP). According to the petitioner, he proceeded on the basis that he is eligible for the benefit of the Government Order. Reference is also made to another W.P.C.No.14426/2007 2 Government Order dated 04/02/1999 which also gives similar benefits. Therefore, the contention is that, ignoring such Government Orders, the Board has issued Exts.P4 and P5 bills, which the petitioner has no obligation to pay. 3. Counter affidavit has been filed on behalf of the respondents inter alia stating that though, under the Scheme, paddy growers are entitled for certain benefits by which the Government had agreed to pay the power charges from the list given by the Agricultural Officer, the name of the petitioner has not been included as a paddy grower and therefore, the petitioner was not entitled for the said benefit. The bills were not issued over a period of time since they were proceeding on the basis that the petitioner will be entitled to get the benefit of subsidy. But the aforesaid fact came to the notice of the Board only at a later stage when the petitioner continuously did not pay the amount, as per the invoice card. Having known about it, Exts.P4 and P5 had been issued, which the petitioner is liable to pay. 4. The petitioner died during the pendency of the writ petition and the legal heirs are impleaded as additional petitioners. Learned counsel for the petitioners placed reliance W.P.C.No.14426/2007 3 upon the judgment of this Court in **Ammini Gopalakrishnan v. State of Kerala** _[2002(3) KLT 553]_ wherein this Court had occasion to consider the scheme under which the benefit was extended to agriculturists. That was a case in which the materials indicated that the name of the petitioner was not figuring in the list provided by the Agricultural Officer and it was observed that no application was seen filed. In such circumstances, this Court held at paragraphs 5 and 6 as under: _“5. The petitioners will approach the local Agricultural Officer, who will visit thefarm of the petitioners and conduct an investigation and shall certify the petitioners' eligibility within a period of one month from the date of receipt of a copy of this judgment, which will be produced by the petitioner. Since the Electricity Board is interested in the matter, they are free to co-ordinate in the matter with the Agricultural Officer and can be a party to the proceedings of the Agricultural Officer. If the Agricultural Officer finds that any claimant was ineligible for the exemption, and wrongly claimed the same, it is for the Electricity Board to demand power charges for back periods also, subject to Rules. On the other hand, if farmers with exclusive agricultural connections are found eligible, then of course the Board cannot collect the arrears as well ever since the_ W.P.C.No.14426/2007 4 _notification came into force merely because they were not registered by the Agricultural Officer or their applications not forwarded to K.S.E.B. before 20.5.2001. The petitioners will be allowed to participate in measuring the land and if any petitioner is found ineligible, then the Agricultural Officer will issue notice, hear the petitioner and pass orders. Thereafter the K.S.E.B. is free to raise bills on such agriculturists._ _6. In view of the findings above, I declare that any agriculturist who has not availed of exemption is also free to get the benefit of notification, provided he satisfies the conditions, as explained above. All the bills produced in the Original Petitions stand quashed with liberty to the Board to issue fresh bills in cases exemption is declined by the agricultural officer, after inspecting the farms and after hearing the petitioners. However, the Board is free to collect minimum guarantee charges subject to the ceiling stated in the notification dated 4.2.1999. It is made clear that if power bills relate to any period prior to the period of exemption granted under the notifications to the petitioners, then of course, the Board is free to recover the same subject to limitation, if any. The petitioners are free to challenge such bills on any other reason, including limitation in appeal and the appellate authority will hear the petitioners and dispose of the appeals within two months from the date of receipt of the appeals. It is also open to the_ W.P.C.No.14426/2007 5 _Agricultural Officer as well as the Board to examine whether the connection is used for any purpose other than irrigation and related agricultural purposes and if there is any violation, they are free to disallow the exemption in part or in full. In O.P. No. 10099 of 2002 this Court ordered reconnection under the interim orders. However, reconnection is not given for the reason that connection was dismantled. Since disconnection is admittedly for nonpayment of arrears, in respect of agricultural connection, and the petitioners claim exemption on the basis of certificate obtained from the Agricultural Officer, there will be a direction to the respondents to restore power connection subject to the observations made above and after the petitioners produce an eligibility certificate from the Agricultural Officer who is directed to issue the same after inspection of the farm within two weeks from the date of request from the petitioners. If the petitioner is found ineligible, the Board is free to recover the arrears. In cases where disconnection is effected on account of arrears and if such persons do not want reconnection, then it is for the Agricultural Officer and Electricity Board officials to examine whether the petitioners were entitled to exemption for the period for which the arrears relate. The Agricultural Officer and the Electricity Board officials are free to call for documents, measure the land and consider eligibility. What is important is not documents of title but physical holding of the land and_ W.P.C.No.14426/2007 6 _proof of cultivation, that are to be reckoned for the purpose of granting exemption. If such agriculturists are found to have excess holding making them ineligible for exemption, or if power was used for nonagricultural purposes, the K.S.E.B. is free to raise bill after issuing an order in this regard on request from the Agricultural Officer. I make it clear that field staff of K.S.E.B. can always inspect any farm and disallow exemption if found ineligible or take appropriate action if there is misuse of energy.”_ 5. The learned Government Pleader also submits that the benefit will be available only to those persons who had actually applied and will be considered to be paddy grower entitled to the said benefit. In so far as petitioner's name does not figure in the list given by the Agricultural Officer, petitioner cannot claim the said benefit. It was for the petitioner to approach the Agricultural Officer and seek necessary clarification. Having regard to the aforesaid submissions, I am of the view that one more opportunity should be granted to the additional petitioners to ventilate their grievance. Accordingly, this writ petition is disposed of as under: i) Petitioners or one among them shall approach the Agricultural Officer, who has jurisdiction in the matter, and submit W.P.C.No.14426/2007 7 necessary representation claiming eligibility for exemption from payment of power charges with reference to Exts.P4 and P5 bills, that is from April 1997 to January 2007. ii) If the Agricultural Officer is of the opinion that the petitioners are entitled for the benefit of the scheme, necessary intimation in that regard shall be given to the petitioners as well as to the Board, in which event, the petitioners will not be liable to pay the amount covered by Exts.P4 and P5. Iii) However, if the Agricultural Officer is of a different opinion and rejects the application of the petitioners, petitioners will become liable to pay the amount covered by Exts.P4 and P5, which shall be payable within a further period of two months from the date of receipt of such intimation. iv) Necessary adjustment shall be made towards the payment, if any, made by the petitioners during the pendency of the writ petition, in accordance with law. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr