Santosh Wilson v. Kerala State Electricity Board (W.A. No. 1644 of 2017)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` # **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ``` & ``` ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 5[TH] DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945 ``` ## **`WA NO. 1644 OF 2017`** ``` AGAINST THE JUDGMENT DATED 08.02.2017 IN WP(C)NO.26415/2008 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` SANTHOSH WILSON, ADVOCATE, T.C.2/3240, KULANGARA LANE, PATTAM, THIRUVANANTHAPURAM. ``` ``` ADVS.SRI.JOBY JACOB PULICKEKUDY, SRI.ANIL GEORGE, SRI.T.ANCY, SMT.NIVYA VALSAN, SRI.K.S.SUMEESH ``` ## **`RESPONDENTS/RESPONDENTS AND ADDL.5[TH] RESPONDENT:`** - **`1 KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.`** - **`2 EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KAZHAKUTTOM.`** - **`3 ASSISTANT EXECUTIVE ENGINEER, KESAVADASAPURAM MAJOR DIVISION, PATTAM, THIRUVANANTHAPURAM.`** - **`4 ASSISTANT ENGINEER, KESAVADASAPURAM, MAJOR DIVISION, PATTAM, THIRUVANANTHAPURAM.`** - **`5 RAGHUNATHAN PILLAI, S/O.M.JANARDANAN PILLAI,'APSARA', CHNNILODE, POTHUJANAM LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.`** 2 W.A.No.1644 of 2017 ``` ADV.SRI. B PREMOD, SC, KSEB, SMT. RASMI K.M.,SR. GP ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.A.No.1644 of 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant filed W.P.(C)No.26415 of 2008 before this Court, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order dated 31.07.2008 of the 2[nd] respondent Executive Engineer, Electrical Division, Kazhakuttom; and for a declaration that he is not liable to pay the arrears of current charges in respect of Consumer No.353 of Electrical Section, Kesavadasapuram, under the 4[th] respondent Assistant Engineer. That writ petition ended in dismissal by the judgment of the learned Single Judge dated 08.02.2017, holding that the 1[st] respondent Kerala State Electricity Board (KSEB) is entitled to recover the amount due in respect of Consumer No.353 of Electrical Section, Kesavadasapuram, and any interest statutorily falling due, by enforcing the Bank guarantee or by proceeding against the property of the appellant and also to recover. Feeling aggrieved, the appellant is before this Court in this writ appeal, invoking the provisions under Section 5 of the Kerala High Court Act, 1958. 2. This appeal was filed along with C.M.Appl.No.986 of 4 W.A.No.1644 of 2017 2017 for condonation of a delay of 124 days, which was condoned by the order dated 03.07.2018. 3. On 17.07.2018, when this writ appeal came up for admission, this Court admitted the matter on file. The learned Standing Counsel for KSEB took notice for respondents 1 to 4. The appellant was required to furnish the correct address of the 5[th] respondent to serve notice. On 17.07.2018, this Court ordered that _status quo_ as on that date shall be maintained for a period of one month. 4. Heard the learned counsel for the appellant and also the learned Standing Counsel for KSEB for respondents 1 to 4. 5. The issue that arises for consideration in this writ appeal is as to whether any interference is warranted in the judgment of the learned Single Judge dated 08.02.2017, whereby W.P.(C)No.26415 of 2008 stands dismissed for the reasons stated therein. 6. The reasoning of the learned Single Judge as contained in paragraphs 9 to 14 of the judgment dated 08.02.2017 reads thus; “9. The learned Standing Counsel appearing for the 5 W.A.No.1644 of 2017 respondent Board submits that without the change of ownership, no action could have been taken on the representations made by the petitioner. It is also submitted that the petitioner had given up the challenge against the arrears of electrical charges before the Lok Ayuktha which in any event could not have considered the same for want of jurisdiction. Recovery of loss from the officials of the Board as directed by the Upa Lok Ayuktha could arise only if, the Board fails to recover the amounts from the consumer or the subsequent holder of the property; if need be by proceeding against the property. 10. As has been submitted by the Standing Counsel for the Board, the petitioner cannot rely on the order of the Upa Lok Ayuktha to contend that there could be no recovery of arrears from the petitioner or by proceedings against the property. The petitioner, as is seen from Ext.P2 order had given up the challenge against the arrears of electricity charges, in respect of consumer No.353 and had been reserved liberty to challenge the same in appropriate proceedings before the appropriate forum. The petitioner had elected to approach this Court with a writ petition and this Court had directed consideration of the representation by the Executive Engineer, which consideration is impugned herein. 11. The contention of various communications having been made, is of no consequence. The definite contention of the Board taken before the Upa Lok Ayuktha was that the change of ownership has to be intimated under clause 15(c) of the Regulations Relting to Conditions of Supply of Electrical Energy 6 W.A.No.1644 of 2017 brought out by the Kerala State Electricity Board. Admittedly, the petitioner's name did not appear as the owner of the property enjoying the power connection in the subject consumer number. The petitioner's contention, that the various communications addressed to the Board by Certificate of Posting and under Registered Post ought to have been enquired into, cannot be countenanced especially, since the petitioner who claims devolution of the property on him; on the death of his grandfather, had not taken any steps for change of ownership as per the Regulations of the Board. 12. Further, it is seen from Ext. P4, that the tenant had paid current charges regularly upto January, 1999. Thereafter, on default having occurred, the supply was disconnected on 02.03.2000. Subsequently, the consumer was allowed to remit the current charges in instalments and the supply was restored after the payment of the 1[st] instalment. Again, default was committed and the service connection was finally dismantled on 02.12.2000. It was after that, the petitioner herein applied for a new connection in his newly constructed building in the same premises when the demand was raised against the dues in the earlier consumer No.353. The petitioner had furnished the Bank Guarantee as directed by this Court and obtained the new service connection, which he is enjoying even now. 13. The next contention raised by the petitioner is that the petitioner is absolved from the liability, insofar as the loss having been directed to be recovered from the officials of the KSEB. No such contention can be taken, unless the KSEB is 7 W.A.No.1644 of 2017 prevented from making recovery against the petitioner. Only, if the recovery is not made from the consumer or by proceeding against the property of the consumer, could there be a loss said to have been occasioned to the Board. The said stage has not occurred till now. The Lok Ayuktha did not consider the sustainability of the demand against the property, which has been sustained only now by the impugned order. The petitioner, as per the directions of this Court has furnished a Bank Guarantee, which is said to be still in force. The recovery of loss and the disciplinary enquiry are interrelated only in so far as the recovery of loss being permissible only if there is a finding of guilt entered by the disciplinary authority. Even then, the recovery of loss would depend on the actual loss being occasioned for reason of the recovery not being possible against the consumer; for whatever reason. 14. In such circumstances, if recovery is made then there would be no question of any loss being occasioned to the Board. However, the disciplinary action would continue as directed by the Upa Lok Ayuktha and the issue of punishment imposed would be left to the discretion of the disciplinary authority. This Court is of the opinion, that there is absolutely no ground to interfere with the orders passed at Ext.P4.” 7. Admittedly, the supply of electricity to Consumer No.353 of Kesavadasapuram Major Section was governed by the provisions under the Electricity (Supply) Act, 1948 and the Regulations Relating to Conditions of Supply of Electrical Energy, 8 W.A.No.1644 of 2017 1997 made by KSEB, in exercise of the powers under Section 79(j) of the Electricity (Supply) Act and notified in Kerala Gazette Extraordinary No.1126 dated 15.12.1989. 8. Regulation 15 of the Conditions of Supply of Electrical Energy deals with agreement for service connection. As per clause (a) of Regulation 15, along with remittance of the security deposit as mentioned in para 14, the consumer should execute the service connection agreement in Form No.7 annexed. The premises will not be connected up unless and until the agreement is executed. Thereafter, the service will be effected strictly in the order of priority. The consumer will be intimated the date and time at which the Board is intending to effect the service, when the consumer and the wiring contractor or his authorised agent should be present at the premises. Simply because an agreement has been executed, the consumer is not entitled to get immediate connection and the Board will in no way be liable for the delay caused in giving connections according to priority or due to causes beyond its control, subject to the provisions under Schedule VI of Indian Electricity Act. As per clause (b) of Regulation 15, the service connection agreement executed by an authorised allottee 9 W.A.No.1644 of 2017 within the premises owned by a Central/State Government/Public Sector Undertaking/Co-operative Societies/Local bodies shall be co-guaranteed by the authority effecting such allotment, failing which the procedure applicable to the service connection applied for by the occupier/tenant shall be followed. 9. As per clause (c) of Regulation 15, when there is transfer of ownership or right of occupancy of the premises the registered consumer shall intimate the transfer of right of occupancy of the premises within 7 days to the Assistant Engineer/ Assistant Executive Engineer concerned. On such intimation having been received the service shall be disconnected. If the transferee desires to enjoy service connection, he shall pay off the dues to the Board and apply for transfer of ownership of service connection within 15 days and execute a fresh agreement and furnish additional security. A new consumer number shall be allotted in such cases cancelling the previous number. Clause (d) of Regulation 15 makes it explicitly clear that all dues to the Board from a consumer shall be the first charge on the assets of the consumer. All dues including penalty shall be realised as public revenue due on land. As per clause (e) of Regulation 15, 10 W.A.No.1644 of 2017 reconnection or new connection shall not be given to any premises where there are arrears on any account due to the Board pending payment, unless the arrears including penalty, if any, are cleared in advance. If the new owner/occupier/allottee remits the amount due from the previous consumer, the Board shall provide reconnection or new connection depending on whether the service remains disconnected/dismantled, as the case may be. The amount so remitted will be adjusted against the dues from the previous consumer. If the Board gets the full dues from the previous consumer through R.R. action or other legal proceedings the amount remitted by the new owner/occupier to whom connection has been effected shall be refunded. But the amount already remitted by him/her shall not bear any interest. 10. In **Suraj K.R. v. KSEB and another [2005 (3) KLT 865]** , a Full Bench of this Court held that, when electricity supply to a consumer is disconnected due to non-payment of electricity charges by the previous owner, a new connection shall not be given to that premise where there are arrears on any account due to the Board pending payment, unless the arrears, including penalty, if any, are cleared in advance. 11 W.A.No.1644 of 2017 11. The effect of a statutory charge, in the context of the provisions under the Conditions of Supply of Electrical Energy, was considered by this Court in **Abdul Wahab v. KSEB [2015 (4) KHC 57]** , wherein it was held that a statutory charge is created on the property of the consumer, the moment the electricity charges fall due under the Electricity (Supply) Act, in the light of the Regulations. That the charge being statutory gets clamped on the property of the consumer whether or not an independent agreement is entered into by the consumer with the KSEB. 12. In **K.C. Ninan v. Kerala State Electricity Board [2023 (3) KLT 646 (SC)]** the Apex Court, after taking note of the law laid down by a Full Bench of this Court in **Suraj K.R. v. KSEB and another [2005 (3) KLT 865]** , held that the High Court was correct in upholding the validity of Clause (e) of Regulation 15. Regulation 15 of the Conditions of Supply of the Electrical Energy, which is statutory in character, unequivocally provides that the Board is not obligated to give reconnection or a new connection in the premises where there are any arrears of electricity charges from a previous consumer, unless the arrears including penalty are cleared by the new owner/occupier/allottee. 12 W.A.No.1644 of 2017 13. The law is well settled that a writ of certiorari can be issued if an error of law is apparent on the face of the record. In **Central Council for Research in Ayurvedic Sciences v. Bikartan Das [2023 SCC OnLine SC 996 : 2023 (5) KHC SN** **8]** the Apex Court reiterated that a writ of certiorari, being a high prerogative writ, should not be issued on mere asking. For the issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. 14. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that the learned Single Judge went wrong in dismissing the writ petition, declining interference on Ext.P4 order dated 31.07.2008 of the 2[nd] respondent Executive Engineer, Electrical Division, Kazhakuttom. In the result, this writ appeal fails and the same is accordingly dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **VIJU ABRAHAM, JUDGE** **yd**