W.P.(C) Nos. 30812 of 2011 (and 34886 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934** ## **WP(C).No. 30812 of 2011 (B) ---------------------------** ## **PETITIONER(S):** **1. JOSEPH THOMAS, S/O. THOMAS, 72 YEARS, CONSUMER NO.5372, 5370 VELLAPATT HOUSE KOTTAKKAD, PALAKKAD DISTRICT.** **2. PREMKUMAR, S/O.GOVINDAN, CONSUMER NO.5368, 7259, ARANGOTTUKUNNABU KOTTAKKAD, PALAKKAD.** **3. P.K.ASOKAN, S/O.P.V.KANNAPPAN, AGED 44 YEARS, CONSUMER NO.5446, VIJAYA RICE MILL EDATHARA, PALAKKAD.** **4. ASHOK KUMAR, S/O.GOVINDAN, CONSUMER NO.5373, ARANGOTTUKUNNABU, KOTTAKKAD PALAKKAD.** **5. M.K.SIVAKUMAR, S/O.KRISHNANKUTTY, CHEMENKADU HOUSE, CONSUMER NO.5367, KOTTAKKAD PALAKKAD.** **BY ADVS.SRI.SAJITH KUMAR V. SMT.PRIYANKA PRASAD** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT OF KERALA TRIVANDRUM - 695001.** **2. THE DISTRICT COLLECTOR, COLLECTORATE, PALAKKAD - 678001.** **3. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, (KSEB) MARUTHAROAD, PALAKKAD - 678001. KERALA STATE ELECTRICITY BOARD.** **4. THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KALLEPPULLY, PALAKKAD DISTRICT - 678005.** **5. THE AGRICULTURAL OFFICER, KRISHI BHAVAN, MALAMPUZHA, PALAKKAD DISTRICT - 678651.** **R3 BY ADV. SMT.P.K.RADHIKA-KSEB R1,2,4 & 5 BY SENIOR GOVERNMENT PLEADER, SRI. V.VIJULAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-10-2012, ALONG WITH WPC. 34886/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 30812 of 2011 (B)** **---------------------------** **APPENDIX** ## **PETITIONER(S) EXHIBITS** |**EXT.P-1**|**A TRUE COPY OF THE ORDER NO.M.S.30/99/AGRI.DATED**| |---|---| ||**04.02.1999 ISSUED BY THE 1ST RESPONDENT AND TYPED COPY.**| |**EXT.P-2**|**A TRUE COPY OF THE B.O.NO.499/99 DATED 25.02.1999**| ||**ISSUED BY THE KERALA STATE ELECTRICITY BOARD.**| |**EXT.P-3**|**A TRUE COPY OF THE DEMAND NOTICES DATED 05.12.2005 ISSUED**| ||**BY THE 3RD RESPONDENT.**| |**EXT.P-4**|**A TRUE COPY OF THE JUDGEMENT DATED 11.07.2008 IN WPC**| ||**NO.36312/2005 OF THE HONOURABLE HIGH COURT.**| |**EXT.P-5**|**A TRUE COPY OF THE PETITION DATED NIL SUBMITTED BY SOME**| ||**FARMERS TO THE 2ND RESPONDENT.**| |**EXT.P-6**|**A TRUE COPY OF THE REPRESENTATION DATED 20.08.2008**| ||**SUBMITTED BY THE PETITIONERS AND PREVIOUS OWNERS OF THE**| ||**PROPERTY.**| |**EXT.P7(a)**|**A TRUE COPY OF THE DEMAND NOTICE DATED 05.11.2011 ISSUED**| ||**TO CONSUMER NO.5370 OWNED BY THE 1ST PETITIONER.**| |**EXT.P7(b)**|**A TRUE COPY OF THE DEMAND NOTICE DATED 05.11.2011 ISSUED**| ||**TO CONSUMER NO.5368 OWNED BY THE 1ST PETITIONER.**| |**EXT.P7(c)**|**A TRUE COPY OF THE DEMAND NOTICE DATED 05.11.2011 ISSUED**| ||**TO CONSUMER NO.5378 OWNED BY THE 2ND PETITIONER.**| |**EXT.P7(d)**|**A TRUE COPY OF THE DEMAND NOTICE DATED 05.11.2011 ISSUED**| ||**TO CONSUMER NO.5446 OWNED BY THE 3RD PETITIONER.**| |**EXT.P7(e)**|**A TRUE COPY OF THE DEMAND NOTICE DATED 05.11.2011 ISSUED**| ||**TO CONSUMER NO.5373 OWNED BY THE 4TH PETITIONER.**| |**EXT.P7(f)**|**A TRUE COPY OF THE DEMAND NOTICE DATED 05.11.2011 ISSUED**| ||**TO CONSUMER NO.5367 OWNED BY THE 5TH PETITIONER.**| |**RESPONDENTS' EXHIBITS**<br>**:**<br>**NIL**|| **//TRUE COPY//** **P.A TO JUDGE** **ss/** ## **C.K. ABDUL REHIM, J.** ------------------------------------------------- ## **W.P.(c) Nos. 30812 & 34886 OF 2011-L** ------------------------------------------------DATED THIS THE 16[th] DAY OF OCTOBER, 2012 ## **J U D G M E N T** The petitioners in both these writ petitions claim that they are farmers having small holdings of agricultural land entitled to get exemption from payment of electricity charges by virtue of Ext.P1 Government Order, which is adopted by the Kerala State Electricity Board (KSEB) through Ext.P2. According to the petitioners, they were enjoying the benefits under Exts.P1 and P2 till the year 2005. But respondents 4 and 5 defaulted in reimbursing electricity charges payable by the petitioners on the agricultural connections, and consequently and Ext.P3 demands were issued against the petitioners claiming payment of charges due for various periods from 2000 onwards. Challenging such demands the petitioners have approached this Court earlier in W.P.(C). No.36312 of 2005. In Ext.P4 judgment this Court observed that if the petitioners have any grievance they can approach the second respondent, in which case the second respondent was directed to look into the matter with notice to the petitioners and the authorities of the Electricity Board and to take an appropriate decision in accordance with law, within three months from the date of receipt of such request. It is contended W.P.(c) Nos. 30812 & 34886 OF 2011-L 2 that, even though the petitioners submitted repeated requests before the second respondent no action was taken. Now the petitioners were issued with Ext.P7 series demands for exorbitant amount of arrears, which is under challenge in these writ petitions. 2. Contention of the petitioners is that, they were enjoying the benefit of free electricity till Ext.P3 series bills were issued in the year 2005. According to them no bills or demands were issued till Ext.P3 at any point of time, nor they were intimated at any time about stoppage of the concession. They were not provided with any opportunity to establish their entitlement for free electricity. Hence Ext.P3 series bills issued ignoring such eligibility cannot be sustained, is the contention. 3. In the counter affidavit of 5[th] respondent in W.P.(C) No.30812 of 2011 it is contended that, by virtue of a Government Order, dated 31.8.1995 all paddy farmers in the State were exempted from payment of electricity charges with respect to consumption for agricultural purposes, with effect from 1.8.1995 onwards. All the farmers seeking benefits under the said Government Order had to apply for enrollment under the scheme. W.P.(c) Nos. 30812 & 34886 OF 2011-L 3 Later, by another Government Order dated 1.3.1997 the scheme was modified, limiting benefits to paddy farmers and farmers cultivating other agricultural crops only up to a holding of one Hector. The revised scheme was given effect from 1.3.1997 onwards. Subsequently, by virtue of yet another Government Order dated 31.10.1998, the limit of one Hector for other agricultural crops were enhanced to two Hectors. In implementation of the schemes, the Agricultural Department of the State Government was paying the electricity charges of farmers enrolled under the scheme, directly to the KSEB, up to 25.3.1998. But the scheme was discontinued with effect from 1.4.1998 by virtue of GO(MS)30/97/PD dated 25.8.1997 and an alternate arrangement was introduced directing all eligible farmers to pay the electricity charges directly to KSEB and to claim reimbursement by producing receipts at the 'Krishi Bhavans' of the Agricultural Departments. It was insisted that the farmers had to submit fresh applications for availing benefits under the revised scheme. But thereafter Ext.P1 Government Order was introduced bringing yet another new scheme in which the Agricultural Department was directed to pay electricity W.P.(c) Nos. 30812 & 34886 OF 2011-L 4 charges of eligible farmers to the KSEB based on 6 months consumption. According to the fifth respondent, fresh applications were collected from farmers for deciding their eligibility on the basis of the new scheme. The last date stipulated for submitting such applications was extended up to 31.12.2000 as per circular issued by the Director of Agriculture. Later by virtue of Government Order dated 24.3.2001 the date was again extended up to 20.5.2001. Further on the basis of a common judgment of this Court dated 26.7.2002 in **Ammini Gopalakrishnan v. State of Kerala (2002 (3) KLT 553)** the Director of Agriculture had issued yet another circular dated 29.4.2005 directing all the Agricultural Officers in the State to accept applications if any received from eligible farmers, subject to the condition that they will be eligible for the concession only from the date of such applications. On the facts of these cases it is contended that, neither the petitioners nor the previous owners of the land in question had ever applied for availing benefits under any of the schemes. The allegation that they were enjoying benefit of free electricity is stoutly denied. A counter affidavit with identical contentions was also filed by the fifth respondent in W.P.(c) Nos. 30812 & 34886 OF 2011-L 5 W.P.(C) No.34886 of 2011. 4. The third respondent in both these cases have filed counter affidavits contending that, the concession was given only on the basis of eligibility determined by officers of the Agricultural Department. The exempted electricity charges were being paid to the KSEB under the schemes by the Krishi Bbhavans concerned. The Agricultural Officers used to prepare list of eligible consumers for granting such exemption. The service connections of the petitioners were never included in any such eligibility lists prepared and submitted to the KSEB. The 3[rd] respondent also denied that the petitioners were enjoying electricity concession. The respondents 4 and 5 had never paid any sum to KSEB with respect to electricity charges payable by the petitioners. Unless the Agricultural Officer include a consumer in the eligibility list he will not be exempted from payment of current charges. The Board cannot give benefit to any agricultural consumers unless the Agricultural Department certifies his eligibility, based on the eligibility criteria imposed through various Government Orders. Since the petitioners were never certified as eligible, the impugned demands are sustainable W.P.(c) Nos. 30812 & 34886 OF 2011-L 6 and the petitioners are liable to make payment of the amounts demanded, is the contention. 5. In the reply affidavit the petitioners contended that they have applied for free electricity and there is no practice of issuing any acknowledgement for receipt of such applications. It is alleged that the respondents 4 and 5 had failed in forwarding the applications to the Electricity Board. 6. Heard; counsel appearing for the petitioners, Standing counsel for the third respondent and Government Pleader appearing for the official respondents. 7. Learned counsel for the petitioners placed heavy reliance on the decision of this Court in **Ammini Gopalakrishnan's** case (cited supra). On the facts, the petitioners in those cases claimed that they have submitted applications in the prescribed form to the local Agricultural Officers and those applications were forwarded to KSEB. But the KSEB had denied receipt of applications in some of the cases, even though they conceded receipt of applications in certain cases. It was contended that in cases where no applications were received in KSEB, the consumers are not eligible. But this Court observed that, the W.P.(c) Nos. 30812 & 34886 OF 2011-L 7 KSEB had failed in issuing periodical regular bills, but claimed the arrears only at a later stage. Referring to Ext.P1 Government Order, it was observed that, there is no cut-off date prescribed for submitting applications for availing the exemption. Therefore it was observed that fixation of a cut-off date through the circular relied upon by the respondents cannot be sustained. Hence this Court observed that it is left open to the Agricultural Officers and field staff of the KSEB to inspect the agricultural farms and to verify eligibility. The Agricultural Officers concerned were directed to conduct inspections and if necessary to conduct survey of the lands in order to fix the eligibility on the basis of the limitations prescribed in Ext.P1 and to decide question of eligibility of the petitioners in those cases. It is made clear that if the petitioners were found not eligible in any case, the KSEB will be free to recover the arrears, subject to the question of limitation if any prescribed. 8. It is evident from the facts that there was changes introduced in the eligibility criteria as well in the method for availing the concession, from time to time. Going by all the schemes introduced by the Government, it is evident that the W.P.(c) Nos. 30812 & 34886 OF 2011-L 8 concession was not granted by way of a common declaration that all the farmers within the state having agricultural connections are eligible for concession. On the other hand, the concession was made available only to those farmers whose eligibility is declared by the Agricultural Officers concerned. Apart from the vague allegation made regarding submission of applications, nothing is produced by the petitioners to show that any of the petitioners had ever approached the Agricultural Officer or that they were included in the eligibility list at any point of time. There is no specific contention with respect to the date on which the alleged applications were submitted. Even after **Ammini Gopalakrishnan's** case (Cited supra) decided in the year 2002, the petitioners have not taken any steps till the earlier writ petition was filed in the year 2005. I am of the considered opinion that the benefit granted by this Court in **Ammini Gopalakrishnan's** case (cited supra) cannot be extended to the petitioners in these cases. The said judgment was rendered on the finding that no cut-off date was prescribed in Ext.P1 Government Order. It is evident that, even after the said judgment, the Director of Agriculture, State of Kerala had issued W.P.(c) Nos. 30812 & 34886 OF 2011-L 9 various circulars providing opportunities to those who were not already applied for the benefits, but the petitioners have not availed any such opportunity. Therefore, I am of the view that the petitioners cannot challenge the demand for payment of electricity made through Ext.P3 and Ext.P7 series bills. However, it is only just and proper to permit them to approach the Agricultural Officers concerned for reimbursement of amounts after payment by submitting proper applications, if such reimbursement is permissible on the basis of any Government Order in force. 9. Yet another aspect of challenge against Exts.P3 and P7 series bills is on the question of limitation. It is contended that the third respondent had issued the demands for the first time only in the year 2005. The arrears pertains to various periods from the year 2000 onwards. Nothing is mentioned in the counter affidavit of the third respondent to explain the delay occurred in raising the bills all along during the five years from 2000 to 2005. Learned counsel for petitioner contended that the demand is barred by limitation because the amounts were not continuously shown as arrears in the periodic bills. He placed W.P.(c) Nos. 30812 & 34886 OF 2011-L 10 reliance on certain provisions in the Electricity Act 2003 and the Regulations framed thereunder. Prima facie I am of the view that the question need be examined based on the factual situations and materials available on record. Therefore an adjudication based on factual aspects is necessary in the matter. Under such circumstances, I am of the opinion that the petitioners can be afforded with a chance to dispute correctness of the bills by approaching the immediate higher authority of the third respondent. If the petitioners approaches any such authority disputing correctness and sustainability of the demands raised, the same shall be considered and appropriate decision shall be taken by such authority. Therefore the writ petitions are disposed of on the following terms:- (i) The petitioners will be entitled to claim reimbursement of electricity charges if any paid if they are eligible for the concession and if such reimbursement will be permissible by virtue of the Government Orders which is in force at present. For the said purpose the petitioners will be at liberty to W.P.(c) Nos. 30812 & 34886 OF 2011-L 11 approach the Agricultural Officers concerned. (ii) If the petitioners approaches the next higher authority of the 3[rd] respondent by submitting any written objection against Ext.P3 and P7 series bills/demands disputing correctness and sustainability of those demands, within 15 days of receipt of a copy of this judgment, such authority shall adjudicate and decide such objections, after affording an opportunity of personal hearing to the petitioners, at the earliest, at any rate within two months from the date of receipt of such objections. (iii) If the petitioners submit objections against the bills as directed above, within the time stipulated, all steps for recovery of the amounts covered under Ext.P3 and P4 series bills shall be kept in abeyance till a decision is taken on the objections in accordance with the directions issued above. ## **C.K. ABDUL REHIM JUDGE** MNS W.P.(c) Nos. 30812 & 34886 OF 2011-L 12