High Court of KeralaSingle Judge2014-01-23Writ petition disposed of with directions

Pothanicad Grama Panchayat v. Kerala State Electricity Board

Case / Petition Number:WP(C).No. 36956 of 2010 (T)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. K. Abdul Rehim
Judgment Date: 2014-01-23
Court Decision / Holding: The writ petition is disposed of with directions. The court stayed further coercive steps of recovery, provided the petitioner files a representation within one week requesting relief. The Executive Engineer is directed to consider waivers of interest (surcharge) to the possible extent and to explore a one-time settlement, if any scheme is in force, after obtaining Board approval. Such decision should be communicated within two months from receipt of the representation, and the petitioner shall abide by the outcome.
Final Disposition: Writ petition disposed of with directions

Parties to the Case

Appellants / Petitioners

Pothanicad Grama Panchayat, Pothanicad P.O., Muvattupuzha via., Ernakulam District

Respondents

Kerala State Electricity Board
The Assistant Engineer, K.S.E.B., Electrical Section, Pothanicad, Pothanicad P.O., Muvattupuzha via, Ernakulam District
The Tahsildar, Revenue Recovery, Kothamangalam, Kothamangalam P.O., Ernakulam District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Babu Joseph Kuruvathazha
• Sri. K. I. Sageer

Counsels for Respondents

• Sri. Pulikool Abubacker, SC, KSEB
• Govt. Pleader Mr. Shyson P. Manguzha

Case Synopsis & Summary

This writ petition challenges a back assessment bill issued by the Kerala State Electricity Board (KSEB) for street lighting services provided to Pothanicad Grama Panchayat. The bill, amounting to Rs. 76,146, covers arrears for the period from 10/2002 to 11/2003 and was first demanded in 2009 (Ext.P1) along with Ext.P2, a bill, and Ext.P3 (28/10/2009) threatening revenue recovery. The Panchayat contends that there were no arrears and that the demand raised after a five-year gap is impermissible; it also argues that the undercharging arose because tariff revisions had not been implemented since October 2002. The respondents maintain that the demand is a legitimate back assessment arising from undercharging, and note that the Gram Panchayat was offered a one-time settlement scheme, which it did not accept. The court relies on Sundardas v. KSEB and another (2009 (1) KLT 945) to hold that Regulation 37(5) of the KSEB Terms and Conditions of Supply permits billing on the basis of a review, such that the amount becomes due when the demand is raised (2009). Consequently, the court directs the Executive Engineer to consider waivers of interest and a possible one-time settlement upon proper representation within a week, and stays further coercive steps until a decision is taken, within two months, if such representation is filed.

Provisions of Law Cited

Electricity Act, 2003 - Section 56(2)Kerala Revenue Recovery Act - Section 7KSEB Terms and Conditions of Supply - Regulation 37(1)KSEB Terms and Conditions of Supply - Regulation 37(5)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that there were no arrears owing for the street-light connection and that the demand, raised in 2009 for period 2002-2003, cannot be sustained under the time-bar provisions. It asserts that even if there was a short assessment, the period of limitation under Section 56(2) of the Electricity Act, 2003 would apply, and that the back/revised demand should have been raised within a reasonable time. The Panchayat also points out that the tariff revision had not been implemented since 2002, rendering the demand disputed and urging the Board to consider waivers of interest (surcharge) and any available one-time settlement scheme; it asks for stay of recovery pending such consideration and a proper remedy under Regulation 37.1 and 37.5 before coercive action.

Contentions of Respondents

The respondents argue that the amount arises from a genuine back assessment due to undercharging caused by tariff revisions not being applied since 2002. They maintain that the law permits such a demand and that the Panchayat was offered a one-time settlement; the failure to accept it does not defeat the recovery. They emphasize that revenue recovery steps were properly initiated under Section 7 of the Kerala Revenue Recovery Act and that the petition seeks to stall legitimate collection. They rely on Regulation 37(5) to justify issuance of the revised bill on the basis of a review, and submit that the demand became due when raised (in 2009), not in 2002. They urge dismissal of the petition or, at least, refusal of stay without the requested relief.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sundardas v. KSEB and another	2009 (1) KLT 945	Positive	The court cites this decision to affirm that Regulation 37(5) permits a bill issued on the basis of a review; thus, back or revised assessments become due upon issuance of the demand, not earlier, guiding the present case's interpretation of limitation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **THURSDAY, THE 23RD DAY OF JANUARY 2014/3RD MAGHA, 1935** ## **WP(C).No. 36956 of 2010 (T)** **----------------------------** **PETITIONER(S): -----------------------** **POTHANICAD GRAMA PANCHAYAT, POTHANICAD P.O., MUVATTUPUZHA VIA., ERNAKULAM DISTRICT, PIN - 686 671, REP. BY ITS SECRETARY P.P. RAJAN.** **BY ADVS.SRI.BABU JOSEPH KURUVATHAZHA, SRI.K.I.SAGEER.** ## **RESPONDENT(S):** **----------------------------** **1. KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 4, REP.BY ITS SECRETARY.** **2. THE ASSISTANT ENGINEER, K.S.E.B., ELECTRICAL SECTION, POTHANICAD, POTHANICAD P.O., MUVATTUPUZHA VIA, ERNAKULAM DISTRICT, PIN-686 671.** **3. THE TAHSILDAR, REVENUE RECOVERY, KOTHAMANGALAM, KOTHAMANGALAM P.O., ERNAKULAM DISTRICT, PIN - 686 691.** **R1 & R2 BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB. R3 BY GOVT. PLEADER MR.SHYSON P.MANGUZHA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 36956 of 2010 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE NOTICE BEARING NO.BB16/STREET LIGHT/2009-10/6/ 18-8-09 DATED 14/08/2009 ISSUED BY THE 2ND RESPONDENT. EXT.P2 COPY OF THE DEMAND NOTICE CUM DISCONNECTION NOTICE DATED 01/07/2004 ISSUED BY THE 2ND RESPONDENT. EXT.P3 COPY OF THE LETTER NO.BB16/STREET LIGHT/2009-10/4/29.10.09 DATED 28/10/2009 ISSUED BY THE 2ND RESPONDENT. EXT.P4 COPY OF THE LETTER NO.C1.1288/09 DATED 09/11/2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5 COPY OF THE LETTER NO.C2.3382/2010 DATED 30/06/2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P6 COPY OF THE REVENUE RECOVERY NOTICE DATED 01/12/2010 ISSUED BY THE 3RD RESPONDENT.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 36956 of 2010 --------------------------------Dated this the 23rd day of January, 2014 ## JUDGMENT A back assessment (short assessment) Bill issued demanding payment of Rs.76,146/-, due for the period from 10/2002 to 11/2003, is under challenge in this writ petition. The petitioner is a Grama Panchayat and the electricity bill pertains to the connection for street light provided by the 1[st] respondent Board. Demand for payment of the amount assessed was issued for the first time through Ext.P1 notice, dt. 14.8.2009 enclosing Ext.P2 bill. Thereafter a further notice was issued as per Ext.P3 dt. 28.10.2009 threatening recovery steps on failure to pay the amount. The petitioner Grama Panchayat objected the demand by submitting Exts.P4 and P5, in which it is contended that there was no arrears pending payment in the connection in question and that the demand issued after 5 years of the date on which the amount became due cannot be honoured. On failure to remit the amount, revenue recovery steps were initiated and the petitioner was served with Ext.P6 notice under section 7 of the WP(C). 36956 /2010 2 Kerala Revenue Recovery Act. It is aggrieved by the revenue recovery steps, this writ petition is filed. 2. In the counter affidavit filed on behalf of the respondents 1 and 2 it is mentioned that the service connection in question is provided for public lighting and there occurred a short assessment of electricity charges, because the tariff revision was not given effect since October, 2002 onwards. The amount remained under charged was demanded through the impugned bill. The petitioner was offered 'one time settlement' as per the scheme formulated for payment of the arrears of Government Departments and local bodies. But the petitioner failed to avail any such opportunity. Since the default continued, the revenue recovery steps was initiated, is the contention. 3. One of the main contention raised by the petitioner is that the amount cannot be recovered because of the bar of limitation. Presumably the petitioner is relying on Section 56 (2) of the Electricity Act 2003. But it is to be noticed that the demand pertains to the amount remained undercharged and bill was issued only as a back assessment. Therefore it is evident WP(C). 36956 /2010 3 that the amount became first due only when the demand was raised in the year 2009. It is evident that the demand was served in 2009 itself and the petitioner failed to make payment of the same. It is settled by this court in the decision in **Sundardas vs. KSEB and another(2009 (1) KLT 945)** that Regulation 37 (5) of the KSEB Terms and Conditions of Supply enables issuance of a bill either on the basis of a review or otherwise. Therefore in the case of any demand made on the basis of a review of the amount charged, it has to be presumed that such amount became due for the first time only when such review and the demand is raised. Therefore the period of two years stipulated under section 56(2) will not apply in the case of revised assessment or back assessment. 4. Going by provisions contained in the Regulation 37(1) of the KSEB Terms and Conditions of Supply, the petitioner has to approach the Executive Engineer concerned, if there is any dispute with respect to correctness of the bill and if they are seeking review or revision of the demand. In the case at hand it is evident that the revenue recovery steps was initiated for WP(C). 36956 /2010 4 realising a huge amount including surcharge. Having considered the fact that the petitioner is a local body and an instrumentality of the Government, this court is of the opinion that the petitioner can be given liberty to approach the concerned authority seeking waiver of interest (surcharge) to the possible extent and also seeking 'one time settlement', if any scheme to that effect is in force. 5. If the petitioner approaches the Executive Engineer concerned seeking relief as mentioned above through a proper representation, to be filed within one week from the date of receipt of a copy of this judgment, the Executive Engineer shall consider the same and shall take an appropriate decision if necessary after referring the matter for approval of the Board, within a period of two months from the date of receipt of such representation. The petitioner shall abide by such decision if any taken. 6. Till such decision is taken by the Executive Engineer concerned, further coercive steps of recovery shall be stayed, provided the petitioner submits representation within the time WP(C). 36956 /2010 5 stipulated as above. The writ petition is disposed of based on the above directions. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 36956 /2010 6