Writ Appeal No. 378 of 2013 (D) in WP(C).4231/2010, S. Shajahan (Partner, Premier Marine Foods) v. Kerala State Electricity Board and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2014/7TH PHALGUNA, 1935** **WA.No. 378 of 2013 (D) IN WP(C).4231/2010 -------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 4231/2010 of HIGH COURT OF KERALA DATED 04-06-2012** ## **APPELLANT/PETITIONER:** **---------------------------------------** **S.SHAJAHAN PARTNER, PREMIER MARINE FOODS, VII/141 CHANDIROOR, ALAPPUZHA DISTRICT REP BY ITS PARTNER S SHAJAHAN** **BY ADVS.SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------------------------------** **1. KERALA STATE ELECTRICITY BOARD VYDHYUTHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM REP BY ITS SECRETARY** **2. THE OMBUDSMAN FOR ELECTRICITY THANATH BUILDING, CLUB JUNCTION, POOKATTUPADY ROAD EDAPPALY TOLL, ERNAKULAM DIST** **3. THE CONSUMER GRIEVANCE REDRESSAL FORUM, KERALA STATE ELECTRICITY BOARD, POWER HOUSE ROAD ERNAKULAM** **4. THE ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD ELECTRICL SUB DIVISIN, POOCHAKAL, ALAPPUZHA DIST** **5. THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICL SECTION AROOR, ALAPPUZHA DIST** **BY SR GOVERNMENT PLEADER SRI.S.JAMAL BY SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB SRI.P.SANTHALINGAM (SR) SC, KSEB** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. ============================== Writ Appeal No. 378 of 2013 ====================** ## **Dated this the 26[th] day of February, 2014** ## **J U D G M E N T** ## Antony Dominic, J. We heard the learned counsel for the appellant and also the learned senior counsel appearing for the respondents. 2. Briefly stated, the case of the appellant was that a sea food processing unit, which was availing of supply of electrical energy from the respondents, was purchased by the appellant as per Ext.P1 sale deed dated 13/11/2006. Subsequently, Ext.P2 demand notice was served on him for short assessment for the period from 17/11/2001 to 22/3/2008. This, according to the appellant, was on account of the adoption of 20 instead of 40 as the multiple factor. The appellant objected to Ext.P2 by filing Ext.P3. However, Ext.P4 final order was issued confirming Ext.P2. 3. Thereupon, the appellant filed Ext.P5 complaint to the Consumer Grievance Redressal Forum, which was rejected by Ext.P6 order. He moved the Ombudsman by filing Ext.P7 complaint, which also was turned down by Ext.P8 order. Thereafter, Ext.P9 demand was issued to the appellant and on an ## **W.A.No.378/13** ## **: 2 :** application filed by him, the assessing officer issued Ext.P10 order allowing the appellant to pay the amount due from him in 24 instalments. 4. Although the appellant says that he has paid the amount due under Ext.P9, according to him, in the accounts of the respondent, they are realizing interest from him for the amount due under Ext.P9 for the period covered by Ext.P10 order. It is in this background, he filed this writ petition raising the contention that the demand evidenced by Ext.P9 itself is barred by limitation and that at any rate, he cannot be made liable for interest for the period covered by Ext.P10 order. 5. In so far as the issue of limitation is concerned, although the learned counsel for the appellant reiterated his submissions, having regard to the fact that the issue is covered against the appellant by virtue of a Division Bench judgment of this Court in _**Principal, Thangal Kunju Musaliar College of Engineering v. KSEB and others**_ (2013 KHC 2767), we do not think that the argument raised by the learned counsel for the appellant detain us any longer. Therefore, the contention raised ## **W.A.No.378/13** **: 3 :** by the appellant on the question of limitation has to be rejected and we do so. 6. What survives is the contention of the appellant that he cannot be made liable for interest for the period covered by Ext.P10. This contention is raised mainly on the ground that the huge amount became due to the Board not on account of the fault of the appellant or his predecessor, but on account of the wrong multiple factor adopted by the officers of the Board itself. Therefore, according to the counsel, the delay in payment is not attributable to the consumer, which should be a good reason for exonerating him from the liability for interest. He also contended that in view of the provisions contained in Regulation 24 of the Kerala Electricity Supply Code framed by the Board, the appellant cannot be saddled with the liability. 7. On the other hand, the contention raised by the learned senior counsel appearing for the respondents was not only that the provisions of the Kerala Electricity Supply Code are inapplicable to the appellant and that instead what is applicable ## **W.A.No.378/13** **: 4 :** to a situation of this nature is Regulation 36 of the Terms and Conditions of Supply. 8. We have considered the submissions made by both sides. 9. As far as the Kerala Electricity Supply Code relied on by the appellant is concerned, as is evident from Regulation 1(4) of the Code, the Code will apply to persons engaged in the business of distributing electricity as covered under Section 14 of Electricity Act, 2003 and therefore would certainly govern the 1[st] respondent Board. Chapter V of the Kerala Electricity Supply Code deals with the recovery of electricity charges and Regulation 22 thereof deals with the payment of electricity bill. Regulation 23 of the Kerala Electricity Supply Code provides that in the case of belated payments, default interest @12% per annum based on actual number of days of delay from the due date up to a period of 30 days and thereafter at the rate of 18% per annum for the entire period of default from the due date charged by the licensee. Therefore, this provision recognised the entitlement of **W.A.No.378/13** ## **: 5 :** the licensee to realise interest for belated payment and also the obligation of the consumer to pay such interest. 10. Regulation 24 of the Kerala Electricity Supply Code deals with disputes in bill. Sub Clause (1) of this provision enables the consumer to raise the dispute with regard to the accuracy of the bill in writing to the designated officer of the licensee. Sub clause (2) states that on such a complaint being made by the consumer regarding the correctness of a bill, immediately review shall be carried out and revised bill is to be issued. It is also directed that if in the review it is found that the consumer was overcharged, the amount overcharged along with interest at twice the bank rate may be adjusted in subsequent bill. Sub clause (3) provides that while issuing a revised bill, the licensee shall also specify the amount due to be recovered as a separate item and that interest shall not be charged on the amount so undercharged. This provision also authorizes the licensee to allow instalment option to the consumer. Sub clause (5) of this provision also states that if the licensee establishes that it has undercharged the consumer either by review or otherwise, the **W.A.No.378/13** ## **: 6 :** licensee may recover the amount undercharged from the consumer by issuing a bill and in such cases at least 30 days shall be given for the consumer to make payment against the bill. 11. The contention raised by the learned counsel for the appellant is that though the bill issued to the appellant is under sub clause (5) referred to above, such cases are also covered by sub clause (3) of the Kerala Electricity Supply Code which expressly provides that no interest shall be charged on the amount undercharged and that the instalment option may also be given to the consumer. Therefore, according to the counsel, the appellant cannot be made liable for interest for the amount undercharged by the Board. 12. However, we are unable to accept this argument of the learned counsel for the appellant for the reason that, in our view, situations covered by sub clauses 2 and 3 referred to above are different from the situation that is referred to in sub clause 5. Sub clauses 2 and 3 of Regulation 24 deals with cases where bill is issued and a dispute is raised by the consumer and on such a dispute, a review is undertaken and in the review it is found that **W.A.No.378/13** ## **: 7 :** either the consumer is overcharged or the amount is due to be recovered from the consumer. 13. The case of the appellant is not such a case and in fact it is a case where on account of the adoption of a wrong multiple factor, there was undercharging and in such cases regulation only provides for 30 days' time for payment without any further provision for waiver of interest or instalment facility. In such a case, if there is delay in paying the amount beyond the time specified for payment, necessarily Regulation 23 of the Kerala Electricity Supply Code providing for levy of interest would be attracted and the consumer would be liable for payment of interest. This situation would not be different even in a case where at the request of the consumer, an instalment facility is allowed to him and necessarily for that period also, the liability for interest will be attracted. 14. This position is further clear from Regulation 36(7) of the KSEB Terms and Conditions of Supply, 2005, which reads thus; _“(7) If the arrears of dues are permitted to be paid in instalments by competent authority, the interest_ **W.A.No.378/13** ## **: 8 :** _for the arrears shall be paid with the instalments. Interest shall not be charged for the arrears of energy charge due to delayed meter reading and consequent delay in issue of invoice, provided the consumer remits the amount on or before the due date fixed by the Board.”_ Although this provision deals with payment of electricity bill which necessarily must be the regular bill, still Regulation 36(7) shows that even in such a case where instalment facility is allowed, that consumer will have the liability for payment of interest. 15. In such circumstances, we do not find any merit in the arguments raised by the learned counsel for the appellant. Writ appeal fails and is dismissed. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **JUDGE** **ANIL K. NARENDRAN** Rp **//True Copy//** **PA TO JUDGE**