W.P.(C).No.23707/2013 & c/cases

W.P((c).No.23707/2013 & c/cases 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 6TH ASWINA, 1940** ## **WP(C).No. 23707 of 2013** ## **PETITIONER/S:** **1 B.PARASMAL S/O. BHALARAMJI, DOOR NO. 4767, MUSLIM STREET (NEAR NEW ARISTO LODGE), ERNAKULAM, KOCHI-682035. 2 VAJA RAM AGED 30 YEARS S/O. HAKMA RAM, DOOR NO. 4767, MUSLIM STREET, (NEAR NEW ARISTO LODGE), ERNAKULAM, KOCHI-682035. BY ADVS. SRI.VARGHESE PARAMBIL SRI.ALBERT JOSEPH** ## **RESPONDENT/S:** |**1**|**KERALA STATE ELECTIRICTY BOARD**| |---|---| ||**VYTHUTHIBAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS**| ||**SECRETARY.**| |**2**|**THE ASSISTANT ENGINEER**| ||**OFFICE OF THE ASSISTANT ENGINEER, ELECTRICAL SECTION,**| ||**CENTRAL KERALA STATE ELECTRICITY BOARD, POWER HOUSE**| ||**ROAD, ERNAKULAM NORTH, KOCHI-682018.**| |**3**|**JOJO KATTIKARAN**| ||**AGED 42 YEARS**| ||**S/O. ANTONY KATTIKARAN, KATTIKARAN HOUSE,**| ||**KALATHIPARAMBIL ROAD, VADUTHALA, ERNAKULAM, COCHIN-**| ||**682023.**| |**4**|**LAL A. KATTIKARAN**| ||**AGED 42 YEARS**| ||**S/O. ANTONY KATTIKARAN, KATTIKARAN HOUSE, CHITTOOR**| ||**ROAD, ERNAKULAM NORTH, COCHIN-682018.**| W.P((c).No.23707/2013 & c/cases 2 **5 KERALA STATE ELECTRICITY REGULATORY COMMISSION REPRESENTED BY ITS SECRETARY THIRUVANANTHAPURAM. (ADDL.R5 IMPLEADED AS PER ORDER DT.31.10.2018 IN I.A.NO.4636/2017)** **BY ADVS. SRI.V.V.BINU, SC FOR KSEB SRI VIPIN P.VARGHESE, SC, ELECTRICITY REGULATORY COMMISSION SRI.BLAZE K.JOSE SRI.M.P.RAMNATH SMT.S.SANDHYA SMT.UMA R.KAMATH SRI.JAGAN MATHEW SRI.RAHUL SASI SRI.RAJAN THOMAS SRI.SUDHEER GANESH KUMAR SC FOR KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2018, ALONG WITH WP(C).21325/2018, WP(C).37530/2017, WP(C).37524/2017, WP(C).31307/2016, WP(C).22985/2016, WP(C).22959/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P((c).No.23707/2013 & c/cases 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 6TH ASWINA, 1940** ## **WP(C).No. 21325 of 2018** ## **PETITIONER/S:** **SHEMEER K.A. S/O. ABDUL KALAM, AGED 42 YEARS,KALLEPURAM HOUSE, EDAPPALLY-682024.** **BY ADV. SRI.VARGHESE PARAMBIL** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTRICITY BOARD VYTHUTHIBHAVAN, THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY.** - **2 THE ASSISTANT ENGINEER OFFICE OF THE ASSISTANT ENGINEER,ELECTRICAL SECTION, COLLEGE,KERALA STATE ELECTRICITY BOARD,LAYAM ROAD, ERNAKULAM,KOCHI-682011.** - **3 KERALA STATE ELECTRICITY REGULATION COMMISSION REPRESENTED BY ITS SECRETARY,THIRUVANANTHAPURAM.** **SRI SUDHEER GANESH KUMAR, SC, KSEB SRI VIPIN P.VARGHESE, SC, KSE REGULATORY COMMISSION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P((c).No.23707/2013 & c/cases 4 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 6TH ASWINA, 1940** **WP(C).No. 37530 of 2017** ## **PETITIONER/S:** **KOTTARATHIL VARGHESE GEORGE S/O.VARGHESE, AGED 63, BUILDING NO.40/1653/A12, [NEW NO.67/8759] ESPLANADE SHOPPING COMPLEX, CONVENT JUNCTION, ERNAKULAM.** **BY ADV. SRI.VARGHESE PARAMBIL ADV. SRI ALBERT JOSEPH ADV. SRI JOSE JOSEPH ARAYAKUNNEL** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTRICITY BOARD VYTHUTHIBAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.** - **2 THE ASSISTANT ENGINEER OFFICE OF THE ASSISTANT ENGINEER, ELECTRICAL SECTION, COLLEGE, KERALA STATE ELECTRICITY BOARD, LAYAM ROAD, ERNAKULAM, KOCHI-682011.** - **3 KERALA STATE ELECTRICITY REGULATION COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. BY ADVS. SRI.ARUNKUMAR A., SC, KSEB SRI VIPIN P.VARGHESE, SC, KSERC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P((c).No.23707/2013 & c/cases 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 6TH ASWINA, 1940** **WP(C).No. 37524 of 2017** ## **PETITIONER/S:** **MINI ASHARAF W/O M.S.ASHARAF, AGED 49, ESPLANADE SHOPPING COMPLEX, BUILDING NO.67/8762A,CONVENT JUNCTION, ERNAKULAM, KOCHI.682 011.** **BY ADV. SRI.VARGHESE PARAMBIL** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTRICITY BOARD VYTHUTHI BHAVAN, THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY.695 001.** - **2 THE ASSISTANT ENGINEER OFFICE OF THE ASSISTANT ENGINEER,ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD,LAYAM ROAD, ERNAKULAM, KOCHI-682 011.** - **3 KERALA STATE ELECTRICITY REGULATION COMMISSION REPRESENTED BY ITS SECRETARY,THIRUVANANTHAPURAM.695 001. BY ADVS. SRI.ARUNKUMAR A., SC, KSEB SRI.VIPIN P.VARGHESE, SC, KSERC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P((c).No.23707/2013 & c/cases 6 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 6TH ASWINA, 1940** ## **WP(C).No. 31307 of 2016** ## **PETITIONER/S:** ## **M.S. ASHRAF** **AGED 57, S/O. M.A.SULTAN, BUSINESS, 48/1668, AISWARYA LANE, ELAMAKKARA, KOCHI-682 026.** **BY ADV. SRI.ALBERT JOSEPH** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTRICITY BOARD VYDHUTHIBHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.** - **2 THE ASSISTANT EXECUTIVE ENGINEER OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, LAYAM ROAD, ERNAKULAM, KOCHI-682 011.** - **3 THE ASSISTANT ENGINEER OFFICE OF THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, LAYAM ROAD, ERNAKULAM, KOCHI-682 011.** - **4 KERALA STATE ELECTRICITY REGULATORY COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM695001. (ADDL.R4 IS IMPLEADED AS PER ORDER DT.13.3.2017 IN I.A.NO.4234 OF 2017)** **BY ADVS. SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE ELECTRICITY BOARD LIMITED SRI.VIPIN P.VARGHESE, SC, KSERC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P((c).No.23707/2013 & c/cases 7 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 6TH ASWINA, 1940** ## **WP(C).No. 22985 of 2016** ## **PETITIONER/S:** **AFAD.N AGED 29, ROSE VILLA, K.S.PURAM PO, PUTHIYAKAVU, KARUNAGAPILLY TALUK, PIN -690 544.** **BY ADV. SRI.VARGHESE PARAMBIL** ## **RESPONDENT/S:** **1 KERALA STATE ELECTRICITY BOARD VYTHUTHIBAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2 THE ASSISTANT EXECUTIVE ENGINEER OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SECTION, COLLEGE, KERALA STATE ELECTRICITY BOARD, LAYAM ROAD, ERNAKULAM, KOCHI-682 011. 3 THE ASSISTANT ENGINEER OFFICE OF THE ASSISTANT ENGINEER, ELECTRICAL SECTION, COLLEGE, KERALA STATE ELECTRICITY BOARD, LAYAM ROAD, ERNAKULAM, KOCHI-682 011. 4 KERALA STATE ELECTRICITY REGULATORY COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. (ADDL.R4 IS IMPLEADED AS PER ORDER DT.13.3.17 IN I.A.NO.4232/2017)** **BY ADVS. SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB SRI VIPIN P.VARGHESE, SC, KSERC SRI.SUDHEER GANESH KUMAR SC KERALA STATE ELECTRICITY BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P((c).No.23707/2013 & c/cases 8 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 6TH ASWINA, 1940** ## **WP(C).No. 22959 of 2016** ## **PETITIONER/S:** **ABDUL SALAM K S S/O.SAIDU, AGED 53, CC 44/2172A, CHETTIPARAMB, KALOOR, KOCHI-682017.** **BY ADV. SRI.VARGHESE PARAMBIL** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTRICITY BOARD VYTHUTHIBAVAN, THIRUVANANTHAPURAM,REPRESENTED BY ITS SECRETARY.** **2 THE ASSISTANT EXECUTIVE ENGINEER OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER,ELECTRICAL SECTION, COLLEGE,KERALA STATE ELECTRICITY BOARD, LAYAM ROAD,ERNAKULAM, KOCHI-682011.** **3 THE ASSISTANT ENGINEER OFFICE OF THE ASSISTANT ENGINEER,ELECTRICAL SECTION, COLLEGE,KERALA STATE ELECTRICITY BOARD, LAYAM ROAD,ERNAKULAM, KOCHI-682011. 4 KERALA STATE ELECTRICITY REGULATORY COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM.** **(ADDL.R4 IS IMPLEADED AS PER ORDER DT.13.3.2017 VIDE I.A.4233/17)** **BY ADVS. SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE ELECTRICITY BOARD LIMITED SRI.SUDHEER GANESH KUMAR SC KERALA STATE ELECTRICITY BOARD** ## **OTHER PRESENT:** **SRI.VIPIN.P.VARGHESE,SC,KSERC SRI.SUDHEER GANESH KUMAR,SC,KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P((c).No.23707/2013 & c/cases 9 ## _**P.V.ASHA, J.**_ -------------------------- W.P(C) Nos.23707 of 2013-K, 22959 of 2016-T, 22985 of 2016-W, 31307 of 2016-K, 37524 of 2017-M, 37530 of 2017-M and W.P(c).No.21325 of 2018-M ------------------------------------------- _Dated this the 31[st] day of October, 2018_ ## _**JUDGMENT**_ The question arising in these cases is whether it is necessary to clear the arrears of electricity charges due from the previous occupier of the premises, in order to provide a fresh connection to the purchaser of the same premises and whether the provisions contained in Regulation 12(2) of the Kerala Electricity Supply Code 2005 to the extent it provides for realisation of the said amount from a purchaser of the property/premises as a condition precedent for a fresh connection is contrary to the provisions in the Electricity Act, 2003 or framed beyond the competence of the Electricity Regulatory Commission. Regulation 40(3) of the Kerala Electricity Code, 2014 is also under challenge. 2. As the issue involved is common, all these writ petitions are disposed of by this common judgment. The parties and documents referred to in this judgment are as described in W.P(c).No.23707 of 2013, unless otherwise specified. 3. The petitioners purchased a property along with a building in 1.517 ares of land in Ernakulam Village from the 4[th] respondent as per sale deed dated 11.01.2013. They are aggrieved by the refusal on the part of respondents 1 and 2 in granting electricity supply connection to their building on the ground that arrears are due towards electricity charges from the 3[rd] respondent, who was the tenant of 4[th] W.P((c).No.23707/2013 & c/cases 10 respondent and the previous consumer in respect of the connection which was granted to the building purchased by the petitioners. Producing Exts.P1 and P1(a) receipts issued by the Electricity Board the petitioners submit that up-to-date payment was already made to the Electricity Board. However, the petitioners received Ext.P2 bill dated 26.8.2013 claiming a sum of Rs.3,99,981/- issued to the 3[rd] respondent, who was a tenant of the 4[th] respondent, having a service connection to the building therein with consumer No.7354-1 and 7355-1. The 3[rd] respondent had approached the Permanent Lok Adalath with a complaint against the charges demanded from him and it was dismissed. As per Ext.P3 letter, the Assistant Engineer directed the 3[rd] respondent to remit the amount as per Ext.P2 bill, pointing out the dismissal of his complaint before it. Though the petitioners caused a lawyer notice to be issued demanding electricity connection stating that they are not liable to make any payment towards the bill, the respondents did not provide them electricity supply connection. By Ext.P6 letter the 1[st] petitioner was informed that service connection can be given only after remittance of all the dues towards KSEB and that a new service connection would be given in case he deposits the pending arrears, in view of the amendment effected in the Kerala Electricity Supply Code, 2005. The Kerala Electricity Supply Code, 2005 (`Supply Code, 2005' for short) was amended incorporating sub clause 2 in clause 12 which provides that a purchaser shall deposit an amount equivalent to such arrears excluding interest with the licencee which shall be reimbursed as and when realised from the previous owner/occupier. Originally the arrear amount could be realised only from the previous owner/occupier and the new W.P((c).No.23707/2013 & c/cases 11 purchaser was eligible to get his connection even if there was huge arrears from the previous consumer. In the explanatory note it is stated that the amendment was effected in tune with the judgment of a Division Bench of this Court in W.A.No.2114/2009. 4. The petitioners are challenging Clause 12(2) of the Supply Code 2005 on the ground that it is contrary to provisions contained in Section 43 of the Electricity Act and Regulation 12(1) of the Supply Code, 2005 and that it is also inconsistent with the provisions contained in the Electricity Act and that the Regulatory Commission does not have any authority to prescribe such provisions and therefore it is ultravires Sections 43, 50 and 181 of the Electricity Act, 2003. 5. The 3[rd] respondent, who was having the electricity supply connection to the building, has filed a counter affidavit stating that he is an unnecessary party to the writ petition. He had vacated the premises even before the petitioner purchased the building from the 4[th] respondent. He was only a tenant of the 4[th] respondent. It is further stated that the respondent Board has illegally demanded a sum of Rs.3,99,981/-, from consumer No.7355-1, for the period during which his grandfather was the consumer and the demand itself is under challenge in W.P(C).No.23822 of 2013. 6. The 4[th] respondent is the owner of the properties from whom the petitioners purchased the property. The 4[th] respondent had originally leased out the building to the 3[rd] respondent and the petitioner purchased the property after he vacated the building. W.P((c).No.23707/2013 & c/cases 12 7. The petitioners in W.P(c).Nos.22959/2016, 22985/2016, 31307/2016, 37524/2017 and 37530/2017, who purchased shop rooms in a multistoried building complex, claim that there was no electricity connection in their shop room; whereas the respondents take the stand that arrears of charges due towards the common area of the building disable them to provide electricity connection except after payment of the arrears, as provided in clause 40(3) of the Kerala Electricity Code, 2014. 8. The learned counsel for the petitioners relied on the judgments of the Full Bench of the Gujarat High Court in _**Sanjay Balvantrai Desai & Ors. v. Dakshin Gujarat Vij Company Ltd.**_ **[** AIR 2013 Gujarat 167] **,** _**Tamil Nadu Electricity Board v. Jayanthi Sundhar**_ [AIR 2015 Madras 197], _**M.K.Acharya v. CMD., W.B.S.E.Distribution Co. Ltd.**_ [AIR 2008 Calcutta 47] **,** etc. 9. At the same time, the learned Standing Counsel for the Electricity Regulatory Commission relied on the judgment of the Apex Court in _**Haryana State Electricity Board v. M/s.Hanuman Rice Mills & Ors.**_ [(2010) 9 SCC 145], _**Hyderabad Vanaspathi Ltd. v. Andhra Pradesh State Electricity Board & Ors.**_ [1998 2 SCR 620 : (1998) 4 SCC 470], etc. and argued that the provision for deposit is a safeguard to ensure realisation of dues from the consumers and to caution the purchasers and the amount is to be remitted as a deposit which would be returned on completion of 3 years. 10. Having considered the pleadings and contentions on both sides, it is to be examined whether clause 12(2) of the Kerala Electricity Supply Code 2005 and Clause 40(3) of the Kerala Electricity Supply Code 2014 are contrary to the W.P((c).No.23707/2013 & c/cases 13 provisions contained in the Electricity Act, specifically Sections 43 as well as 50 and whether the power to make regulations conferred under Section 181 of the Electricity Act, 2003 (the Act) have exceeded in specifying those provisions. It is therefore necessary to examine the relevant provisions contained in the Act. Sec.43 of the Act reads as follows: _“_ _**43. Duty to supply on request** .— (1) Save as otherwise provided in this Act, every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply:_ _Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission:_ _Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area._ _Explanation.—For the purposes of this sub-section, “application” means the application complete in all respects in the appropriate form, as required by the distribution licensee, along with documents showing payment of necessary charges and other compliances._ _(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1):_ _Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission._ _If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default._ Thus as per Section 43 of the Act, the distribution licensee is duty bound to supply electricity connection to an applicant who submitted application complete in all respects in the appropriate form along with all documents showing payment of necessary charges and other compliances. Failure to supply electricity, within the time limit will invite penalty not exceeding one thousand rupees for each day of default. 11. In this case the KSEBL has not filed any counter affidavit. Hence it has W.P((c).No.23707/2013 & c/cases 14 to be presumed that the application of the petitioner was complete in all respects. 12. Yet another provision pointed out by the petitioner is Section 50 which read as follows: _**“50.The Electricity Supply Code** .—The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the matter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters.”_ Thus the Commission is empowered to specify an Electricity Supply Code, which can provide for recovery of electricity charges, disconnection of supply for non-payment, restoration of supply, etc. Under Section 2(24), `Electricity Supply Code' means Electricity Supply Code specified under Section 50 of the Act. As defined under Section 2 (62), 'specified' means specified by Regulations made by the appropriate Commission or authority. The Regulation making power is provided in Section 181 of the Act, relevant portion of which reads as follows: _**181. Powers of State Commissions to make regulations** .— (1) The State Commissions may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act. (2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of the following matters, namely:—_ _xxxx xxxxxx_ - _(t) the period to be specified by the State Commission for the purposes specified under sub-section (1) of Section 43;_ _(u) methods and principles by which charges for electricity shall be fixed under sub-section (2) of Section 45;_ _(v) reasonable security payable to the distribution licensee under sub-section (1) of Section 47;_ _(w) payment of interest on security under sub-section (4) of Section 47;_ _(x) electricity supply code under Section 50.”_ Thus under Section 181 of the Act, 2003, State Commission is conferred with the power to make regulations which are not inconsistent with the Act and Rules, in W.P((c).No.23707/2013 & c/cases 15 order to carry out the provisions in the Act and in particular with respect to those specified in Clause (a) to (zp) of Subsection (2) of Section 181. Those specific powers would include matters with respect to demanding of security from the person who requires supply under Section 47(1); payment of interest on the security under Section 47(4) and recovery of charges as per Electricity Supply Code under Section 50. Section 47 empowers a distribution licensee to require reasonable security, as determined by regulations, from any person who requires supply of electricity under Section 43 of the Act, in respect of the electricity supplied to such person; or in respect of any electric line or plant or meter; and also to refuse to give the supply of electricity in the event of failure to furnish such security. Subsection 4 makes the licensee liable for payment of interest on such security. Section 50 read with Section 181(2)(t) enables the Board to specify provisions for recovery of electricity charges, disconnection of supply for non-payment, restoration of supply, etc. and such other matters. 13. The petitioners in W.P.(C).No.23707 of 2013 claims that they submitted application for service connection on 06.09.2013 and Ext.P5 receipt was issued by the Board. Ext.P6 letter of the Assistant Engineer of the Board also shows the receipt of the application from the 1[st] petitioner. The service connection to the premises was already dismantled for non-payment of charges. He was denied connection on the ground that as per the amendment effected to the Supply Code 2005 in the year 2012, as per notification dated 30.05.2012, the service connection can be provided only if the arrears due from the previous owner/occupier of the premises is remitted. At the W.P((c).No.23707/2013 & c/cases 16 time when the petitioners purchased the property in 2011, there was no provision in the Supply Code insisting payment of arrears due from the previous occupier. Regulation 12 as it existed then was as follows: _“12. Dues of previous consumer:- If a purchaser of a premise requires to have a new connection, as the earlier connection has already dismantled after disconnection, the arrear, if any, shall be realized from the previous owner/occupier of the premises and not from the purchaser.”_ But by amendment effected in May, 2012, the purchaser is made liable to make a deposit of an amount equal to the arrears till it is realised from the previous owner. Sub clause 2 added to Clause 12 read as follows: _“(2). Notwithstanding anything contained in sub clause (1), the purchaser referred to therein shall deposit an amount equivalent to such arrears excluding interest with the licensee, which shall be reimbursed as and when realised from the previous owner/occupier: provided that an auction purchaser who obtains property by auction by a court of law or other authorities duly constituted by law or an allottee of Government land shall not deposit any such amount.”_ Subsection (3) of Section 181 of the Act provides that all the Regulations made under that Section shall be subject to previous publication. Rule 4 of the Electricity (Procedure for Previous Publication) Rules, 2005, provides that publication in the official gazette after previous publication would be conclusive proof that the Regulations are duly made. 14. It is stated that the amendment to Regulation 12 is effected on the basis of the judgment of this Court in W.A.No. 2114 of 2009, whereby the Commission was directed to consider amending this clause since licensees find it difficult to realise the arrears from the previous owner as they may not have any assets for recovery. 15. However when the Supply Code 2014, came into force, though Clause W.P((c).No.23707/2013 & c/cases 17 40 provides for deposit from the purchaser of an amount equivalent to arrears from the previous owner/occupier, that has to be refunded on completion of three years or on realisation from the previous owner whichever is earlier. Clause 40 of the Electricity Supply Code 2014 Reads as follows: _“Recovery of arrears relating to the previous consumer:-_ _(1) The arrears of electricity charges and other liabilities if any in the accounts of the previous consumer of any premises shall be recovered from such previous consumer of the premises, with whom the licensee has executed the service connection agreement, and not from the purchaser or lessee or occupier of the premises._ _(2) The licensee shall, on disconnection of supply and dismantling of the service connection on account of arrears of electricity charges, determine the agreement with such consumer and shall forthwith initiate legal proceedings for recovery of arrears of electricity charges and other liabilities from such consumer and shall obtain necessary interim or final orders from the appropriate legal forum:_ _Provided that the amount of arrears of electricity charges and other liabilities finally recoverable from the consumer and the modus of recovery shall be in accordance with the such interim or final orders of the appropriate legal forum._ _(3) If a purchaser or lessee or occupier of such premises requires a new connection, as the earlier connection given to the previous consumer in that premises has already been disconnected and dismantled on the ground of outstanding dues of the previous consumer, new connection shall not be denied to such purchaser or lessee or occupier of the premises provided he furnishes a deposit which shall be equal to the arrears of electricity charges and other liabilities if any, excluding interest thereon, till the licensee obtains from the appropriate legal forum an order on the recovery of arrears and other liabilities or till the licensee settles the arrears and liabilities with the previous consumer or till completion of three years whichever is less:_ _Provided that on obtaining order from the appropriate legal forum on the recovery of such arrears of electricity charges and other liabilities, or on settlement of the arrears and liabilities by the licensee with previous consumer or on completion of three years as aforesaid, the licensee shall release the entire amount of deposit furnished by such owner or lessee or occupier of the premises, along with interest at bank rate as on the date of furnishing such deposit.”_ It can be seen from clause 3 of Regulation 40 that a purchaser would be granted a new connection to the premises where the earlier connection given to the previous consumer was disconnected and dismantled on account of outstanding dues from the previous consumer, if the purchaser deposits an amount equal to the outstanding arrears of electricity charges due from the previous consumer excluding interest. Thus under the 2014 Code, the deposit is liable to be released on completion of 3 W.P((c).No.23707/2013 & c/cases 18 years or when the arrears are settled whichever is earlier, as provided in clause 3 of Regulation 40. 16. In the Full Bench judgment of the High Court of Gujarat, relied on by the learned Counsel for the petitioner, it was held that a provision for realisation of arrears of electricity charges from a purchaser is contrary to the provisions in the Act and beyond the rule making power of the Electricity Regulatory Commission. It was found that there was no provision in the Act permitting recovery of electricity charges from the purchaser or a third party and that it can only be from the consumer. 17. But it is pertinent to note that the sub clause (2) was added to Clause 12 of the 2005 Code, on the basis of the judgment of a Division Bench of this Court in W.A.No.2114 of 2009. That judgment was rendered in a case where the Electricity Board approached this Court against the rejection of its petition by the State Commission, to effect amendment in the Supply Code, 2005, as contained in sub clause 2 when the Division Bench found that such a provision was necessary to check the sale of the properties without paying electricity charges, It was after taking note of the provisions contained in Sections 50, 56 as well as Section 181 of the Electricity Act and the observations of the Apex Court in _**Isha Marbles**_ case ( _supra_ ) that this Court directed the Commission to take action to incorporate the provisions as requested by the Board. In paragraph 10 of the judgment, the Division Bench observed as follows:- > _“ It is worth while noticing that in the decisions of the Hon'ble Supreme Court reported in Isha Marbles V Bihar State Electricity Board (1995) 2 SCC 648, Ahmedabad Electricity Company V Gujrat Inns P.Ltd: (2004) 3 SCC 587 and Hyderabad Vanaspathy Ltd: Andhra Pradesh State Electricity Board &_ W.P((c).No.23707/2013 & c/cases 19 _Others: AIR 1998 SC 1715 and in the decisions above referred Supreme Court held that the electricity dues should not be recovered from the purchaser of the defaulted property unless there is a statutory provision authorising it.”_ In that judgment it was observed that the realisation of dues was not possible only due to the absence of a provision for recovery of such amount from the purchaser of the property. Thus the requirement of such a provision as claimed by the Board before the Commission was found justified by a Division Bench of this court. 18. In this context it is also pertinent to note that Clause 15(e) of the Conditions of Supply of Electricity, which insisted clearance of the arrears of electricity charges due from the previous consumer/occupier of the premises, as a condition precedent for supply of a new connection to the purchaser of a property, was upheld by the Full Bench of this Court in _**Suraj v. K.S.E.B.: 2005 (3) KLT 865**_ _**(F.B.)**_ **.** Clause 15(e) which came up for consideration before the Full Bench read as follows: _“(e) Reconnection or new connection shall not be given into 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."_ 19. After analysing the 3 Division Bench judgments in _**Seena B.Kumar v.**_ _**Asst. Executive Engineer:**_ 2003 (3) KLT 987, _**Ramachandran v. K.S.E.B:**_ 2000 (2) KLT 694, _**K.J.Dennis & etc. v. Official Liquidator and Ors:**_ 2001 (2) KLJ 266, which upheld the proceedings for recovery from the purchaser, the judgments in _**Souriyar Luka v. Kerala State Electricity Board:**_ 1959 KLT 14, _**Isha Marbles v.**_ W.P((c).No.23707/2013 & c/cases 20 _**Bihar State Electricity Board: (**_ 1995) 2 SCC 648, etc., in which recovery was not permitted from a third party, the Full Bench held that the Board was right in insisting payment, when it is provided for under statutory provisions. It considered the impact of clause 15(e) of the conditions of supply of electrical energy framed under Section 79 (j) of the Electricity Supply Act. In _**Isha Marbles**_ case, the Apex Court, had no occasion to consider any statutory provision like clause 15(e). Even after realisation from the purchaser, the Board has to take steps to recover the amount from the real defaulter. The Full Bench has confirmed that position. 20. The judgment in _**Haryana State Electricity Board v. M/s.Hanuman Rice Mills & Ors.**_ [(2010) 9 SCC 145], was in a case where the auction purchaser challenged the proceedings for disconnection of supply to his premises and the proceedings for recovery of the arrears of electricity charges due from the erstwhile owner of the property. The Board issued demand notice for the arrears of electricity charges due from the erstwhile owner, and disconnected the supply, 3 years after the auction-purchaser was given a fresh connection in his name. In that case, the Board did not rely on any statutory provision for recovery from a purchaser, as was the position in _**Isha Marbles**_ ' case ( _supra_ ) and held that where the statutory rules or terms and conditions of supply which are statutory in character, authorise the supplier of electricity to demand from the purchaser of a property claiming reconnection or fresh connection of electricity, the supplier can recover the arrears due by the previous owner/occupier in regard to supply of electricity to such premises from a purchaser. 21. In _**Hyderabad Vanaspathi Ltd. v. Andhra Pradesh State Electricity**_ W.P((c).No.23707/2013 & c/cases 21 _**Board & Ors:**_ : (1998) 4 SCC 470], the Apex Court held that the terms and conditions of supply of electricity and the terms of the agreement entered into by the Board with each consumer are enforceable and it cannot be treated as a mere contract and that a condition for recovery from a transferee of the undertaking cannot be said to be unauthorised or unreasonable. 22. In _**Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. v. DVS Steels and Alloys Pvt. Ltd. & Ors.**_ [(2009) 1 SCC 210] the Apex Court observed that if any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of requirements of such rules and regulations and so long as such rules and regulations or terms and conditions are not arbitrary and unreasonable, the courts will not interfere with them. It was further held that a stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary and that in the absence of such a stipulation there is every likelihood of commission of default whereby the distributor may not be in a position to recover the dues and such provisions are necessary to safeguard the interest of the distributor. 23. In the judgment in _**M.K.Acharya v. CMD., W.B.S.E.Districution Co. Ltd.**_ [AIR 2008 Calcutta 47], a learned Single Judge held that under Section 43 of the Electricity Act, 2003 the licensee has the duty to supply the electricity on an application made either by the owner or the occupier within one month from the date of receipt of such application. It was held that the petitioner therein had right to have W.P((c).No.23707/2013 & c/cases 22 electricity so long as he remained in possession of the property in question. It was held that right to electricity is also a right to life and liberty in terms of Article 21 of the Constitution of India. The High Court directed to grant electricity connection to the applicant in that case. The petitioner therein was denied electricity connection since he could not produce a no objection certificate from the owner of the premises, because of a family dispute. The High Court directed to provide connection of supply without insisting a no objection certificate. 24. In the judgment _**Tamil Nadu Electricity Board v. Jayanthi Sundhar:**_ **[** AIR 2015 Madras 197] a Division Bench of Madras High Court held that grant of electricity connection is a basic amenity and without insisting upon completion certificate it has to be provided. 25. In _**Melath Abdul Kareem v. KSEB**_ [2013 (1) KHC 150] this Court held that a purchaser can be insisted upon to deposit any amount under the provisions contained in Regulation 12 only if an earlier connection existed in the property and the same was dismantled due to non payment of arrears by the previous owner. In that case it was found that arrears had fallen due only subsequent to the transfer of the property and therefore as on the date on which the amount became due there was no arrears in respect of the property purchased by the petitioner. Now the petitioners herein do have a case that the arrears due from the previous owner for the premises or in respect of the common area became due only after the purchase. 26. In the light of the Full Bench judgment in _**Suraj**_ 's case ( _supra_ ) and the judgment of the Division Bench in W.A.No.2411 of 2009, I am unable to accept the W.P((c).No.23707/2013 & c/cases 23 contentions of the petitioners. The judgment of the Gujarat High Court is contrary to the aforesaid judgments. Though under Regulation 8 of the Kerala Electricity Supply Code 2005, the licensee shall provide the electricity connection within one month of application in accordance with clause 5 in cases where no extension of distributing main is required, Regulation 5 (2) provides that the application shall be accompanied by all necessary documents including the agreements, completion reports, etc., as required by the licensee as per the approved terms and conditions of the supply of the licensee. Clause 3 provides that the applicant shall make sure that the application is complete in all respects and as per the terms and conditions of the approved licensee. The petitioner in W.P(c).No.23707 of 2013 submitted an application for a single phase connection on 6.9.2013 after insertion of clause 2 in Regulation 12, by way of Ext.P6 notification, according to which, the purchaser was bound to deposit an amount equal to the arrears excluding interest with the licensee, which shall be reimbursed as and when it is realised from the previous owner/occupier. When the said amendment was effected pursuant to the judgment of this Court in W.A.No.2114/2009 and that amendment has been effected in exercise of the powers conferred under Section 181(1) (t) of the Electricity Act, 2003 read with Section 50 of the Act, it cannot be said that it is contrary to the provisions contained in the Act. Similar is the case with respect to Clause (3) of Regulation 40 of the 2014 Code also. 27. It is seen that all the petitioners in all these cases except the petitioners in W.P.(C).No.23707 of 2013 are already granted service connection based on interim W.P((c).No.23707/2013 & c/cases 24 orders. It is seen that the arrears are yet to be recovered from the erstwhile consumer, even after the expiry of more than 5 years of the demand. In view of Clause 40(3), the deposit is required only for three years. Therefore, it will be open to the petitioners in W.P(C).No.23707 of 2013 to approach the respondent Board either for installment facility or for exemption and the respondent Board shall consider the same and pass orders taking into consideration of all these aspects within one month of its receipt and to provide service connection to the petitioners in accordance with the decision to be taken on it. 28. Hence I find that Clause 12(2) of the Kerala Electricity Supply Code, 2005 or Clause 40(3) of the Kerala Electricity Supply Code 2014 does not suffer from any inconsistency with the provisions of the Act 2003 or any illegality, as alleged by the petitioners. The writ petitions are disposed of with the above directions. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P((c).No.23707/2013 & c/cases 25 ## APPENDIX OF WP(C) 23707/2013 ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**EXHIBIT P1- TRUE COPY OF THE RECEIPT NO.**| |---|---| ||**682317 DATED 31-12-2012 ISSUED BY THE KSEB,**| ||**WHICH HANDED OVER BY THE 4TH RESPONDENT TO**| ||**THE PETITIOENRS.**| |**EXHIBIT P2**|**EXHIBIT P1(A)- TRUE COPY OF THE RECEIPT NO.**| ||**68127 DATED 5-1-2013 ISSUED BY THE KSEB.**| |**EXHIBIT P3**|**EXHIBIT P2- A PHOTOCOPY OF THE FINAL BILL**| ||**FOR 3,99,981/- DATED 26-8-2013 ISSUED BY THE**| ||**KSEB.**| |**EXHIBIT P4**|**EXHIBIT P3- A PHOTOCOPY OF THE LETTER ISSUED**| ||**BY THE K S E B ADDRESSED TO THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P5**|**EXHIBIT P4- COPY OF REPLY NOTICE ( LAWYER**| ||**NOTICE) DATED 2-9-2013 ISSUED TO THE KSEB BY**| ||**PETITIONERS.**| |**EXHIBIT P6**|**EXHIBIT P5- PHOTOCOPY OF RECEIPT NO. 9450768**| ||**DATED 6-9-2013 ISSUED BY THE KSEB TO THE**| ||**PETITIONER FOR THE APPLICATION SUBMITTED FOR**| ||**SINGLE PHASE CONNECTION.**| |**EXHIBIT P7**|**EXHIBIT P6- PHOTOCOPY OF THE LETTER**| ||**DIRECTING THE PETITIONERS TO DEPOSIT ARREARS**| ||**OF RS. 4,65,469/- DATED 6-9-2013 ISSUED BY**| ||**THE KSEB.**| W.P((c).No.23707/2013 & c/cases 26 ## **APPENDIX OF WP(C) 21325/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE PHOTOCOPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE MUNICIPAL CORPORATION, KOCHI DATED 10-4-2018.** **EXHIBIT P2 THE APPLICATION DATED 24-4-2018 FOR NEW ELECTRIC CONNECTION SUBMITTED TO THE 2ND RESPONDENT.** **EXHIBIT P3 THE REPLY DATED 24-4-2018 ISSUED BY THE 2ND RESPONDENT.** W.P((c).No.23707/2013 & c/cases 27 ## **APPENDIX OF WP(C) 37530/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE SALE CERTIFICATE NO.666/2017 OF SRO ERNAKULAM DATED 18-22017. EXHIBIT P2 REPLY DATED 1-11-2017 ISSUED BY THE 2ND RESPONDENT.** W.P((c).No.23707/2013 & c/cases 28 ## APPENDIX OF WP(C) 37524/2017 ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A PHOTO COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE CORPORATION OF KOCHI DATED 12.10.2017.** **EXHIBIT P2** **REPLY DATED 26.10.2017 ISSUED BY THE 2ND RESPONDENT.** W.P((c).No.23707/2013 & c/cases 29 ## **APPENDIX OF WP(C) 31307/2016** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF LEASE DEED NO.3313/2002 OF SRO, ERNAKULAM, DATED 12.12.2014. EXHIBIT P2 COPY OF REPLY DATED 19.2.2015 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 A COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 25.5.2016.** W.P((c).No.23707/2013 & c/cases 30 ## **APPENDIX OF WP(C) 22985/2016** ## **PETITIONER'S/S EXHIBITS:** |**P1**|**PHOTOCOPY OF SALE DEED NO.5225/2014 OF SRO**| |---|---| ||**ERNAKULAM DATED 12.12.2014.**| |**P2**|**REPLY DATED 19.02.2015 ISSUED BY THE THIRD**| ||**RESPONDENT.**| |**P3**|**A PHOTOCOPY OF APPLICATION SUBMITTED BY THE**| ||**PETITIONER TO THE 2ND RESPONDENT DATED**| ||**25.05.2016**| |**P4**|**PHOTOCPY OF THE ORDER OF THE EXECUTIVE**| ||**ENGINEER VIDE ORDER NO.G BI/ESPLANADE –**| ||**COLLEGE/2016-17/1978 DT.6.9.2016**| |**RESPONDENTS' EXHIBITS**|| |**ANNEXURE-R2(a)**|**TRUE COPY OF THE FORWARDING LETTER.**| |**ANNEXURE-R2(b)**|**TRUE COPY OF THE LETTER NO.DB-**| ||**20/CLG/ESPLANADE/2016-17/23 DATED 8.6.2016.**| W.P((c).No.23707/2013 & c/cases 31 ## **APPENDIX OF WP(C) 22959/2016** ## **PETITIONER'S/S EXHIBITS:** **P1:** **PHOTOCOPY OF SALE DEED NO.5225/2014 OF SRO ERNAKULAM DATED 12/12/2014.** **P2:** **REPLY DATED 19.02.2015 ISSUED BY THE THIRD RESPONDENT.** **P3:** **A PHOTOCOPY OF APPLICATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 22.05.2016.**