SAJ Flight Services (Pvt) Ltd. v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940** ## **WP(C)No.22865 of 2016** ## **PETITIONERS:** **SAJ FLIGHT SERVICES (PVT) LTD., AIRPORT, TRIVANDRUM, REPRESENTED BY ITS DIRECTOR, REJI. K.VARGHESE.** **BY ADVS. SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENTS:** **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, TRIVANDRUM - 695004.** - **2 ASSISTANT ENGINEER ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, SREEVARAHAM, TRIVANDRUM-695008.** > ADDL. **3 CHAIRMAN AND MANAGING DIRECTOR KERALA STATE ELECTRICITY BOARD LTD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-4.** **Addl.R3 is impleaded as per order dated 08.03.2017 in I.A.No.394682017.** **SRI.SUDHEER GANESH KUMAR R., SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 22865 of 2016 2 ## **JUDGMENT** This writ petition today stands after a long drawn-out process of litigation, during the period of which, the factual circumstances have evolved and got modified through various stages. Therefore, I do not propose to state facts in detail, which, according to me, are now completely unnecessary, except that during this process of litigation, the parties agreed that the petitioner can be allowed to pay off the entire charges of electricity, which includes surcharge, penalties etc. through a One Time Settlement. 2. It transpires that under an applicable One Time Settlement Scheme; and also in obedience to the directions of this Court in W.P.(C) No.22805/2016, Ext.P26 was issued by the Kerala State Electricity Board Ltd. (for short, 'KSEB') to the petitioner, wherein an amount of Rs.18,18,711/- was shown as being due, making it clear therein that the revised amounts was, in fact, Rs.41,30,196/-, out of which, Rs.23,11,485/- had been remitted by the petitioner; thus, the balance being the aforementioned Rs.18,18,711/-. 3. Normally therefore, this writ petition should have found a closure upon the issuance of Ext.P26, but the petitioner produced Ext.P25 on record, which, according to them, is a calculation arrived at by the Executive Engineer of the KSEB, WP(C).No. 22865 of 2016 3 while determining the afore amount of Rs.18,18,711/- to be due from the petitioner and he asserts that the debit of interest of Rs.3,62,955/- and Rs.5,99,152/-, for the periods from 22.01.2001 to 22.10.2003 and from 23.10.2003 to 17.06.2008 respectively, is impermissible going by the judgment of the Hon'ble Supreme Court in **Kusumam Hotels Pvt. Ltd. v. Kerala State Electricity Board and others** [(2008) 13 SCC 213]. The petitioner further says that, as per the interim orders of this Court dated 16.05.2017 and 13.11.2018, they have paid off all the amounts except this and they say that the KSEB be directed not to insist on this payment, it being contrary to the directions of the Hon'ble Supreme Court. 4. In response to the above, Sri.Sudheer Ganesh Kumar, the learned standing counsel for the KSEB, submits that Ext.P25 is only an internal communication of the KSEB and that the petitioner cannot rely on the same in substantiation of his contentions. The learned standing counsel says that the petitioner will have to abide by Ext.P26 offer of One Time Settlement and that if they are not willing to do so, then they can reject it as a whole but that they cannot obtain the luxury of accepting the One Time Settlement in part and rejecting the rest. After saying so, the learned standing counsel then asserts that the allegation of the petitioner against the interest applied, WP(C).No. 22865 of 2016 4 while arriving at the figure of Rs.18,18,711/- in Ext.P26, is untenable and that it is not in violation of the judgment of the Hon'ble Supreme Court. 5. On a consideration of the above submissions, it becomes obvious that the disputes between the parties are now in a very small compass. All contentions, both on law and on facts, with respect to all other issues, except the interest charged while arriving at the figure in Ext.P26, are now irrelevant and accepted to be unnecessary for adjudication by both sides. 6. Hence, the sole surviving question is whether the calculation that led to the figure of Rs.18,18,711/- in Ext.P26 is correct or otherwise. Since the petitioner has already paid substantial amounts under that order and since they say that they are only aggrieved at the interest charged in the said calculation, I am certainly of the view that they can be given the liberty to approach the competent Authority seeking reconciliation of the figures and obtain any benefit that may be entitled to them, particularly taking note of the judgment of the Hon'ble Supreme Court in **Kusumam Hotels Pvt.Ltd.** (supra). 7. In fact, the learned standing counsel for the KSEB also says that he is not against this exercise but expresses his doubt whether the petitioner would get any benefit at all since, according to him, the figures in Ext.P26 have been arrived at WP(C).No. 22865 of 2016 5 strictly in compliance of the earlier directions of this Court as also the guidelines that are applicable in arriving at such figures. In the afore circumstances, I order this writ petition, granting liberty to the petitioner to approach the third respondent with a representation indicating their objections to the figures shown in Ext.P26, within a period of 10 days from the date of receipt of a copy of this judgment; in which event, the said Authority will consider the same, adverting to the contentions of the petitioner, recorded above and raised in this writ petition, but solely with respect to the interest portion and nothing else and thereafter take a decision thereon, also after affording an opportunity of being heard to the petitioner, as expeditiously as is possible but not later than two weeks thereafter. I clarify that while completing this exercise, the third respondent will specifically take note of the ratio in the judgment of the Hon'ble Supreme Court in **Kusumam Hotels Pvt. Ltd.** (supra). **Sd/- DEVAN RAMACHANDRAN** stu **JUDGE** WP(C).No. 22865 of 2016 6 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1: TRUE COPY OF THE ORDER NO.LA.V/2579/2007 DATED 17.3.2008 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P2: TRUE COPY OF THE MEMORANDUM OF R.P.NO.349/2010 IN W.A.NO.2232/2009.** - **EXHIBIT P3: TRUE COPY OF G.O. NO.B.O (DF) NO.636/2016 (KSEB/TRAC/SUPPLY CODE/R3/OTS/2015 DATED 25.2.2016 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF THE LETTER DATED 30.4.2016 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5: TRUE COPY OF THE REPLY DATED 4.5.2016 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P6: TRUE COPY OF ORDER DATED 20.5.2016 IN WPC NO.17825/2016 OF THIS HON'BLE COURT.** - **EXHIBIT P7: TRUE COPY OF LETTER BEARING NO.DB.AE/11/OTS/2016-17 DATED 6.6.2016 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P8: TRUE COPY OF COMMUNICATION BEARING NO.RB/SAJ FLIGHT/OTS/16-17 DATED 2.6.2016 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P9: TRUE COPY OF THE MEMO FILED ON BEHALF OF THE PETITIONER IN WPC 17825/2016.** - **EXHIBIT P10: TRUE COPY OF THE CALCULATION STATEMENT FILED BY RESPONDENTS 1 AND 2 IN WPC 17825/2016.** - **EXHIBTI P11: TRUE COY OF REPRESENTATION DATED 29.6.2016 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P12 TRUE COPY OF THE COVERING LETTER DATED 30/8/2016 AND PETITION DATED 29/8/2016 ALONG WITH ITS ENCLOSURES.** - **EXHIBIT P13 TRUE COPY OF THE COMMUNICATION NO. DCE/APTS/AV/3626/96/199 DATED 26/10/2016.** - **EXHIBIT P14 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 26/10/2016.** WP(C).No. 22865 of 2016 7 |**EXHIBIT P15**||**TRUE COPY OF THE JUDGMENT IN WPC 17825 OF**| |---|---|---| |||**2016**| |**EXHIBIT P16**||**TRUE COPY OF THE INVOICE ISSUED AFTER APTS**| |||**INSPECTION**| |**EXHIBIT P16**|**A**|**TRUE COPY OF THE NOTICE**| |**EXHIBIT P17**||**TRUE COPY OF THE BILL DATED 17/5/2008**| |**EXHIBIT P18**||**TRUE COPY OF THE ORDER DATED 4/6/2008**| |**EXHIBIT P19**||**TRUE COPY OF THE STATEMENT PREPARED BY THE**| |||**PETITIONER.**| |**EXHIBIT P20**||**TRUE COPY OF THE REPRESENTATION DATED**| |||**4/1/2017 ALONG WITH ITS ENCLOSURES.**| |**EXHIBIT P21**||**TRUE COPY OF THE ORDER NO. BO(CMD)**| |||**NO.858/2017/(LA.V/6890/2008), DATED**| |||**31/3/2017.**| |**EXHIBIT P22**||**TRUE COPY OF THE LETTER NO. BB/11/SAJ**| |||**FLIGHTS/2017-2018, DATED 20/4/2017**| |**EXHIBIT P23**||**TRUE COPY OF THE REPRESENTATION DATED**| |||**28/4/2017.**| |**EXHIBIT P24**||**TRUE COPY OF THE WRITTEN OBJECTION SUBMITTED**| |||**BY THE PETITIONER BEFORE THE 3RD RESPONDENT**| |||**DATED 21/6/2017**| |**EXHIBIT P25**||**TRUE COPY OF THE LETTER BEARING NO.GB/SAJ**| |||**FLIGHT/2017-2018 DATED 22/11/2017**| |**EXHIBIT P26**||**TRUE COPY OF THE ORDER BEARING NO.**| |||**LA.V/10702/2016 ISSUED BY THE 3RD RESPONDENT**| |||**AS PER THE DIRECTIONS OF THIS HONOURABLE**| |||**COURT DATED 1/1/2018.**| |**EXHIBIT P27**||**TRUE COPY OF THE LETTER BEARING NO.**| |||**KSEB/SVM/SAJ FLIGHTS/2017-18 DATED 15/1/2018**| |||**ISSUED BY THE 2ND RESPONDENT DIRECTING THE**| |||**PETITIONER TO REMIT THE AMOUNT.**| |**EXHIBIT P28**||**TRUE COPY OF THE REPRESENTATION SUBMITTED BY**| |||**THE PETITIONER BEFORE THE 3RD RESPONDENT**| |||**DATED 18/6/2008.**| |**EXHIBIT P29**||**TRUE COPY OF THE RECEIPT NO. A2145151700403,**| |||**DATED 30/11/2018.**| WP(C).No. 22865 of 2016 8 ## **RESPONDENT'S/S EXHIBITS:** ## **EXHIBIT R1** THE SITE MAHAZAR PREPARED AT THE TIME OF INSPECTION. //TRUE COPY// P.A TO JUDGE. WP(C).No. 22865 of 2016 9 WP(C).No. 22865 of 2016 10 WP(C).No. 22865 of 2016 11