T.K. Subrahmanian and others v. Kerala State Electricity Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 29TH DAY OF JUNE 2018 / 8TH ASHADHA, 1940 WA.No. 636 of 2017 IN WPC. 28928/2003** **AGAINST THE ORDER/JUDGMENT IN WP(C) 28928/2003 of HIGH COURT OF KERALA DATED 13-12-2016** **APPELLANT(S)/PETITIONERS 1,2,3,9,10&16** **1 T.K.SUBRAHMANIAN** **S/O. KUTTAPPAN, THAZHCHAPARAMBIL HOUSE, P.O.KUDIYANMALA, (VIA) NADUVIL, KANNUR DISTRICT.** ## **2 PAUL** **S/O. JOHN, MANIHAPPALLY HOUSE, P.O.POTTANPLAVU (VIA) NADUVIL, KANNUR DISTRICT.** ## **3 MARAYANAN** **S/O. AYYAPPAN, PUTHANKANDATHIL HOUSE, P.O.KUDIYANMALA, (VIA) NADUVIL, KANNUR DISTRICT.** ## **4 BENNU** **S/O. CHACKO, KAVIYIL HOUSE, P.O.POTTANPLAVU (VIA) NADUVIL, KANNUR DISTRICT.** ## **5 SAJU** **S/O. LATE CHERIYAN, CHEERANKUZHIYIL, P.O.POTTANPALVU VIA, NADUVIL, KANNUR DISTRICT.** ## **6 SASIKUMAR** **S/O. BALAN, KUDIYATTIVALAPPIL HOUSE, P.O.POTTANPLAVU (VIA) NADUVIL, KANNUR DISTRICT.** **BY ADV.SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENT(S)/RESPONDENTS:** **1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY THE SECRETARY, VIDYUTH BHAVAN, THIRUVANANTHAPURAM, PIN - 695 001.** **WA 636/2017** **2. ASSISTANT ENGINEER ELECTRICAL MAJOR SECTION, SREEKANDAPURAM, KANNUR DISTRICT, PIN - 670 631.** **3. ASSISTANT EXECUTIVE ENGINEER ELECTRICAL MAJOR SECTION, SREEKANDAPURAM, KANNUR DISTRICT, PIN - 670 631.** **4. THE EXECUTIVE ENGINEER ELECTRICAL DIVISION, PAYYANNUR, PIN - 670 307.** **R1-R4 BY ADV. SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE ELECTRICITY BOARD** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2018, ALONG WITH WA NO.638, 675, 731 AND 971/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** jg-10/7 K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------W.A.Nos.636, 638, 675, 731 and 971 of 2017 ------------------------------------------Dated this the 29[th] day of June, 2018 ## J U D G M E N T Ashok Menon, J. Aggrieved by the common judgment of the learned Single Judge dated 13.12.2016, the petitioners in WP(C) Nos.28928/2003, 12172/2004 and 33401/2003 OP Nos.32396/2002 and 13040/2003 are before us in these Writ Appeals. Petitioners in WP(C) No.35135/2003, WP(C) No.6326/2005 and 15693/2006 which too were disposed vide the impugned common judgment, did not prefer to appeal. In view of the common issues that arose for consideration in all these matters, they were heard and decided together. 2. Could the Kerala State Electricity Board (‘Board’, for brevity) enhance the rate of minimum guarantee charges agreed to between the agriculturists and the Board on change of circumstances, is the question to be decided. The facts in brief are that the petitioners, who claim to be agriculturists and marginal farmers, along with 237 others entered into a Minimum Guarantee Agreement on 16.11.1990 with the KSEB WA Nos.636, 638, 675, 731 and 971/2017 **==> picture [7 x 9] intentionally omitted <==** for extension of electricity to their properties in Pottamplavu in Eruvessy Panchayat, Kannur District. The capital cost of work at that point in time was estimated at Rs.6,56,000/-. The guaranteed amount was to be paid for over a period of 10 years at the rate of Rs.38.05 per month per consumer. Tenders were invited in 1996. However, the work could no be allotted. Subsequently, when the work was ultimately taken up, estimate had to be worked out again, and was revised to Rs.31,86,989/-. The consumers were informed as per Ext.P2 letter dated 19.6.2000 (produced in OP No.32396/2002) that instead of Rs.38.05 per month, they would have to pay a bi-monthly minimum guarantee amount of Rs.408.57. The work got completed in June 2001 and demand by way of Ext.P3 was raised. Exts.P4 & P5 (produced in OP No.32396/2002) are such bills which contain the revised amount. The petitioners would contend that the Board was under obligation to stick to Ext.P1 minimum guarantee agreement (produced in OP No.32396/2002) and that they could not have claimed more than Rs.38.05 per month towards the guaranteed amount. The petitioners would also contend that the Original Petition filed earlier as OP No.23193/2000 was WA Nos.636, 638, 675, 731 and 971/2017 3 disposed of making the interim order in CMP.No.39093/2000 dated 11.8.2000 permitting them to pay an amount of only Rs.180/-, absolute. The petitioners contend that the petitioners are similarly placed and that the benefit should be extended to them as well. 3. In the counter affidavit filed by the Board in OP No.13040/2003, it is stated that minimum guarantee agreement was executed on 26.6.1993 between the Board and 237 consumers. Tender was called in 1996. Thereafter, when the work commenced, a group of 124 minimum guarantors of Pothenplavu requested for alternation in the alignment of the electricity line. This resulted in the delay in execution of the work. Based on the request made by those consumers, a revised estimate had to be prepared on the newly suggested route and based on the cost data of 1999-2000, the estimate came to Rs.31,86,986/-. The Board would point out that clause 2 of minimum guarantee agreement stipulates that the minimum guarantors are liable to pay the actual cost of work including 10% establishment charges for a period of 10 years or such other period as the Board may fix, and therefore WA Nos.636, 638, 675, 731 and 971/2017 **==> picture [7 x 9] intentionally omitted <==** consequent to completion of the work, in accordance with the revised estimate, the minimum guarantors are liable to pay a monthly amount of Rs.204.29 instead of Rs.38.05 as agreed earlier. 4. Before the learned Single Judge, the learned counsel for the petitioners relied on two decisions of the Honourable Supreme Court, namely AIR 1975 SC 1967 [Indian Aluminium Company v. Kerala State Electricity Board] and (1990) 1 SCC 731 [Bihar State Electricity Board, Patna and Others v. M/s.Green Rubber Industries and Others] and the learned Single Judge, after discussing the applicability of those decisions, held that the statute does not permit the Board to enhance the rates unilaterally in derogation of the contractual provision, and that the liability to pay minimum guaranteed charges continued till determination of the contract and that the terms of the contract was not unreasonable. 5. Extracting clauses 2 to 4 of Ext.P1 agreement produced in OP No.32396/2002, the learned Single Judge held that in the Schedule annexed to the agreement, the amounts specified in item 5 is shown as “the amount guaranteed shown in column 5 is liable to variation if WA Nos.636, 638, 675, 731 and 971/2017 **==> picture [7 x 9] intentionally omitted <==** the actual cost of work exceeds the estimated cost”. As per the agreement, the Board is entitled to collect the estimated capital cost or the actual cost of the work including 10% of the establishment charges in terms of clause 2 and as per clause 4, it is further agreed to make up any amount that falls or may fall short of 25% return on the capitalised cost of work. 6. The fact is that it was on request made by 124 minimum guarantors out of the total of 237 minimum guarantors that the work was delayed for the purpose of realignment. Consequent to the realignment, the estimate also escalated and as per Ext.P1 agreement produced in OP No.32396/2002, the minimum guarantors are liable to pay the actual cost incurred for the work. The learned Single Judge was perfectly justified in not accepting the argument of the learned counsel for the petitioners relying upon the judgment in OP No.23193/2000 to contend that the petitioners in that matter were permitted to pay the minimum guarantee at the rate of Rs.180/- per month. The said OP was not decided on merits and it was by way of mutual agreement that the parties consented to pay at the rate of Rs.180/- per month. There is no such agreement in WA Nos.636, 638, 675, 731 and 971/2017 **==> picture [7 x 9] intentionally omitted <==** this case. The parties have mutually consented to be governed by the provisions of Ext.P1 agreement. The argument of the learned counsel for the appellants that as the escalation in the cost is not due to the fault on the part of the petitioners and therefore cannot be put on their shoulders, is unacceptable. In view of the fact that they had agreed to share the actual cost involved in drawing the line for providing electricity to them, we find no reason at all to interfere with the judgment of the learned Single Judge in disallowing the Petitions and therefore, these Writ Appeals too are dismissed for the reason that there is absolutely no merits, which require to be considered and are sufficient for upsetting the findings of the learned single Judge. These Writ Appeals fail and they are, accordingly, dismissed. No costs. Sd/JUDGE Sd/ASHOK MENON JUDGE jg