T. Ramachandran and others v The Kerala State Electricity Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930** **OP.No. 12854 of 2001(E)** - **-----------------------------** ## **PETITIONER(S):** - **----------------** ## **T. RAMACHANDRAN, PROPRIETOR, SARADA SERVICE STATION, CHIRAKKARA, THALASSERY 4,** ## **ADDL. PETITIONERS 2 TO 5** ## **-----------------------------------** **2. PRABHA RAMACHANDRAN, W/O. LATE. T. RAMACHANDRAN, CHIRAKKARA, THALASSERY, KANNUR DISTRICT.** **3. SANTHOSH RAMACHANDRAN, S/O. T. RAMACHANDRAN, CHIRAKKARA, THALASSERY, KANNUR DISTRICT.** **4. MRS. GEETHA ARUN, S/O. T. RAMACHANDRAN, CHIRAKKARA, THALASSERY, KANNUR DISTRICT.** **5. SUDHIR RAMACHANDRAN, S/O. T. RAMACHANDRAN, CHIRAKKARA, THALASSERY, KANNUR DISTRICT.** - **(ADDL. PETITIONERS 2 TO 5 IMPLEADED AS PER ORDER DATED 6.6.2008 IN I.A.6108/08)** ## **BY ADV. SRI.E.V. NAYANAR SRI. SURESH SUKUMAR** **RESPONDENT(S):** - **--------------------** **1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM.** ## **OP.No. 12854 of 2001** ## **2. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, K.S.E.B. THALASSERY.** **3. THE ASST. EXECUTIVE ENGINEER, K.S.E.B. ELECTRICAL MAJOR SECTION, THALASSERY, DT. KANNUR.** **ADV. SRI.A.SUDHI VASUDEVAN, SC, KSEB FOR R1 TO R3 SRI.A.SUDHI VASUDEVAN, SC, KSEB FOR R1TO3 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO 3** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03 /10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 12854 of 2001** ## **ORDER ON C.M.P.NO.,20354 OF 2001 IN O.P.NO.12854 OF 2001 DISMISSED** **3.10.2008 SD/ S. SIRI JAGAN, JUDGE.** **APPENDIX EXT.P1: COPY OF CERTIFICATE OF PERMANENT REGISTRATION NO.09/02/05723/PMT/SSE/TINY DATED 29.10.1987 ISSUED BY THE GENERAL MANAGER, DIST. INDUSTRIES CENTRE, KANNUR. EXT.P2: COPY OF INVOICE NO.MA NO.49256 DATED 16.9.2000 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. EXT.P3: COPY OF BILL NO.76222 DTD 20.10.2000 BY SPOT BILLER TO THE PETITIONER. EXT.P4: COPY OF INVOICE NO.MA NO.60396 DTD 16/12/2000 ISSUED TO THE PETITIONER BY R3. EXT.P5: COPY OF JUDGMENT DTD 16.1.2001 OF THIS HON'BLE COURT IN O.P.NO.1493/2001. EXT.P6: COPY OF APPEAL PETITION SUBMITTED BY THE PETITIONER TO R2. EXT.P7: COPY OF ORDER NO.GBI/OP/493/2001/266 DTD 26.3.2001 OF R2.** TRUE COPY PA TO JUDGE. ## **S. SIRI JAGAN, J.** **-----------------------------------O.P.No.12854 OF 2001 ----------------------------------------** Dated this the 3[rd] day of October, 2008 ## **JUDGMENT** This original petition was originally filed by the proprietor of M/s. Sarada Service Station challenging electricity bills demanding arrears of electricity charges. During the pendency of the original petition, the proprietor died and his legal heirs have come on record as additional petitioners 2 to 5 to prosecute the original petition. The Service Station had an electric connection. Till the month of September 2000 electricity bills were issued classifying the Service Station under LT IV Tariff applicable to industrial units. The 1[st] petitioner was paying electricity charges accordingly. However, later on, the 1[st] petitioner was served with Ext.P3 electricity bill demanding current charges as applicable to industrial units under LT VIIA Tariff instead of LT IV Tariff. Initially since the amount was small, 1[st] petitioner paid the same under protest. However, the 1[st] petitioner was again served with another bill namely, Ext.P4 demanding arrears of electricity charges amounting to Rs.67,940/- on the ground that the Service O.P.No.12854/2001 2 Station was paying electricity charges wrongly under LT IV Tariff classification, whereas they were actually liable to pay electricity charges under LT VIIA Tariff. The proprietor (the 1[st] petitioner) of the Service Station challenged Exts.P3 and P4 bills in O.P.No.1493/2001 before this Court in which he was relegated to the remedy by way of appeal. The 1[st] petitioner filed Ext.P6 appeal petition before the 2[nd] respondent accordingly. However, the same was also rejected by Ext.P7. The petitioners are challenging Exts.P3, P4 and P7 in this original petition. 2. The petitioners' contention is that after having assessed to electricity charges under LT IV Tariff, without a notice and hearing no electricity charges could have been demanded from the petitioners under LT VIIA Tariff. They would further contend that in any event, although the establishment is named as a Service Station, it is not a full fledged Service Station, the only activity there being cleaning and lubrication. Therefore, according to the petitioners, the unit is not liable to be classified under LT VIIA Tariff. The petitioners therefore seek the following reliefs: “i. Call for the records leading to P3, P4 & P7 and quash the same by the issue of a writ in the nature O.P.No.12854/2001 3 of certiorari, ii. Declare that the Board order published in the extraordinary gazette notification of the Govt. of Kerala dated 29.1.97 whereby service stations of vehicles are included to be under the purview of LT VIIA tariff is illegal void and inoperative, iii. Issue a writ in the nature of mandamus directing the respondents to continue to charge the petitioner at the rate of tariff LT IV and not under LT VIIA as hitherto, iv. Issue such other and further writ order or direction which this Hon. Court may deem fit and proper to issue in the facts and circumstances of the case, v. Issue an interim stay of all further proceedings including disconnection of the electric connection of the petitioner pursuant to Ext.P4 and P7 until the above O.P. is disposed of, and vi. Award the petitioner his cost in the proceedings from the contesting respondents”. 2. Learned counsel appearing for the Kerala State Electricity Board opposes the original petition. According to the learned Counsel, a notification, classifying Service Station under LT VIIA Tariff, was issued as early as in 1997, from which date the Service Station of the petitioners was liable to pay the electricity charges at that tariff. The fact that mistakenly the Service Station was classified under LT IV Tariff does not make the petitioners eligible to continue to pay under that Tariff after the publication of the notification. According to the learned counsel, it was a duty of the petitioners to point out the defect and to pay the charges under the correct rate O.P.No.12854/2001 4 since they are expected to be in the know of the Gazette notification regarding change of classification. The learned counsel would also argue that even otherwise the Electricity Board is entitled to recover the arrears of charges legally due from the petitioners to the Electricity Board. The learned counsel relies on the decision of a Single Judge of this Court in O.P.No.1695/1996 and that of the Division Bench decision in W.A. No.2076/2004 in support of the above contentions. 3. I have considered the rival contentions in detail. The question as to whether the Service Stations are to be classified under LT VIIA is no longer res integra in so far as an appropriate notification has been issued by the Electricity Board classifying Service Stations under LT VIIA. The petitioners contention that the establishment of the petitioners is not exactly a Service Station also does not find favour with me. Admittedly, the unit is engaged in lubrication and cleaning of motor vehicles, which are services rendered by Service Stations. That being so, the petitioners' establishment is clearly a Service Station coming under LT VIIA Tariff. Therefore, there cannot be any doubt that the petitioners are liable to pay electricity charges at the rate applicable to industries under LT VIIA Tariff from the date of the said O.P.No.12854/2001 5 notification namely, 29.1.1997. 4. Of course, the petitioners now contend that it is arbitrary to recover the arrears from them in so far as they had arranged their business on the basis that they are liable to pay electricity charges only under LT IV Tariff and if suddenly they are made to pay increased charges retrospectively under LT VIIA, that would be arbitrary and discriminatory. I am not able to countenance that contention also. The petitioners are expected to know the law relating to their classification. Once the notification was issued, that notification becomes applicable to all Service Stations including the petitioners' Service Station from the date of the notification. The Electricity Board cannot have two different tariffs for the same type of establishments, which has been held by this Court in O.P.No.1695/1996. The question as to whether the petitioners can be mulcted with the liability to pay increased charges retrospectively is also covered by the Division Bench decision in W.A.No.2076/2004, wherein it has been held thus: “............................. Public interest shall not suffer in view of the mistake committed by the Board. Board shall have power of rectifying the mistake and bills issued after rectifying the mistake have to be honoured. Law of limitation will not apply since the default is a continuing one and the amount due to the Board was not claimed in time due O.P.No.12854/2001 6 to the negligence of the Board. Consumer is liable to pay the said amount on rectification of the mistake”. That being so, the petitioners are liable to pay arrears of electricity charges also. In the above circumstances, I do not find any merit in this original petition and accordingly the same is dismissed. However, the respondents shall allow the petitioners to pay the amount demanded as per Exts.P3 and P4 in ten equal monthly instalments starting from 1.1.2009. Every subsequent instalments shall be paid on the first working day of every succeeding month. If the petitioners pay the instalments on the due dates without default, coercive recovery proceedings shall be kept in abeyance. However, if the petitioners commit default in payment of any one instalment it would be open to the respondents to recover the entire amount in a lump sum by resort to such coercive steps as authorised by law. ## **S. SIRI JAGAN, JUDGE** Acd O.P.No.12854/2001 7