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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Shaji P.Chaly, J.
Jaisy Chacko – Petitioner
Versus
Kerala State Electricity Board And Ors. – Respondents
WP(C). No. 22416 OF 2012(B)
Decided On : 09-04-2021
Limitation Act – Article 62 – Kerala Electricity Supply Code, 2005 – Regulations 12, 7, 19, 30 – Constitution of India, 1950 – Article 226 – Limitation – Change in the name of consumer – Writ petition is filed by petitioner, who was having a 3 phase electricity connection with consumer No. 14167 under Assistant Executive Engineer, Electrical Section, Thengana, Changanacherry, Kottayam District, the third respondent – case where the petitioner transferred the property in favour of a third person; but the power supply was never disconnected by the Board before the transfer. However, the Board, on subsequent inspection, realised that the amounts were due from the petitioner and it was accordingly that revenue recovery action was initiated. It is also an admitted fact that the revenue recovery action was initiated not only after two years, but nearly after 5 years. Therefore, the sole question to be considered is, can the recovery be permitted resorting to Exts.P6 recovery notices issued under Sections 7 and 34 of the Act, 1968.
Finding of the Court:
It is clear that it is a continuing liability charged on the assets of the consumer, guided by Section 62 of the Act, 1963, at least for a period of 12 years – Petitioner has not made out any case of arbitrariness or illegality, liable to be interfered with by this Court exercising the power of judicial review under Article 226 of the Constitution of India. – Moreover, Section 69(2) of the Act, 1968 makes it clear that the proceedings under the Act starts, when a requisition is made. – This is a case where the requisition was made in the year 2012 and action was initiated by virtue of Section 7 demand against the movable article and Section 34 demand against the immovable properties. – Board is at liberty to proceed to recover the amount from the petitioner. – Since the subject matter was pending consideration before this Court for more than 8 years and a stay of recovery is in force, court is of the considered view that a reasonable time can be granted to the petitioner to participate in the proceedings initiated under the Act, 1968. – Petitioner is granted 15 days' time from the date of receipt of a copy of this judgment to file objections to Ext. P6 recovery demand notices, and if filed the authority under the Act, 1968 is granted a month's time thereafter to adjudicate the issue in accordance with law and the findings and observations contained above, and till such time, the coercive action pursuant to Ext P6 demand notices issued under the Act, 1968 shall be kept in abeyance. –
Result: Writ Petition Declined
JUDGMENT :
This writ petition is filed by the petitioner, who was having a 3 phase electricity connection with consumer No. 14167 under the Assistant Executive Engineer, Electrical Section, Thengana, Changanacherry, Kottayam District, the third respondent. The connection was given on 10.06.2004 under the Minimum Guarantee Scheme. While so, the petitioner sold the property, including the electricity connection to respondents 6 and 7 on 30.04.2007, which according to the petitioner, was duly intimated to the third respondent. It is further submitted that the Assistant Executive Engineer has not taken any steps to change the name of the Consumer. However, Ext.P6 recovery notices dated 08.08.2012 under Sections 7 and 34 of the Kerala Revenue Recovery Act, 1968 (Act, 1968) had been issued against the petitioner claiming an amount of Rs.1,43,396/-. Aggrieved by the same, this writ petition is filed.
2. The basic contention advanced by the petitioner is that the amount is barred by limitation, since as per Section 56 of the Electricity Act, 2003 (Act, 2003), the alleged due is to be recovered within a period of 2 years and therefore, the action of the respondent Board is illegal and arbitrary, liable to be interfered with by this Court. It is also submitted that the connection was dismantled on 21.03.2009; but, no notice has been given till issuance of Ext.P3 statutory demand for recovery of alleged arrears. Therefore, according to the petitioner, if interference is not made, it will cause serious prejudice to the petitioner.
3. The Board has filed a counter affidavit justifying its stand and contending inter alia that the petitioner has secured a connection from the Board under a Minimum Guarantee Scheme and that the period of the same was 7 years and the petitioner had to pay Rs.3200/-each per month as minimum guarantee charges. It was also stated that the petitioner never approached the Board for change of ownership and the minimum guarantee scheme with required documents. It is the statutory obligation to be carried out by the petitioner to transfer the ownership of the service connection to the new owner/occupier immediately on transfer of the property to which the service connection is provided, after complying with all the statutory formalities in that regard. It is further contended that by virtue of the charge created on the consumer as per Regulation 19(4) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005, all dues to the Board from a consumer shall be the first charge on the assets of the consumer and all dues, including interest, shall be realised as public revenue due on land. Therefore, according to the respondent Board, the Board is at liberty to recover the amount from the consumer, since the amount due is charged on the assets of the consumer, irrespective of the property where the connection was given by the Board. Further, by virtue of Article 62 of the Limitation Act, 1963 (‘Act, 1963’), the Board would get 12 years to recover the amount from the petitioner.
4. I have heard the learned counsel for the petitioner Sri. K. N. Radhakrishnan and the learned Standing Counsel for the Kerala State Electricity Board Sri. Sudheer Ganesh Kumar, and perused the pleadings and documents on record.
5. The discussion made above would make it clear that the paramount contention advanced by the petitioner is relying upon Section 56 of the Act, 2003. Sub-Section (1) thereto specifies that where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days’ notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any elect
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