Kerala High CourtK.R.Prakash vs Kerala State Electricity Board on 4 May, 2000IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

                THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

           MONDAY, THE 28TH DAY OF MAY 2012/7TH JYAISHTA 1934

                      WP(C).No. 31023 of 2011 (C)
                      ---------------------------

PETITIONERS:
-----------

     1.  K.R.PRAKASH, S/O.RAGHAVAN,
         KAVUMPERAYIL HOUSE, CHITHIRAPURAM P.O.
         IDUKKI DISTRICT, PIN 685 565.

     2.  ARUN K.PRAKASH, S/O.K.R.PRAKASH,
         KAVUMPERAYIL HOUSE, CHITHIRAPURAM P.O.
         IDUKKI DISTRICT, PIN 685 565.

     3.  SHIJO K.PRAKASH, S/O.K.R.PRAKASH,
         KAVUMPERAYIL HOUSE, CHITHIRAPURAM P.O.
         IDUKKI DISTRICT, PIN 685 565.

         BY ADVS.SRI.S.VINOD BHAT
                 SRI.LEGITH T.KOTTAKKAL

RESPONDENT(S):
--------------

     1.  KERALA STATE ELECTRICITY BOARD,
         VIDYUTHI BHAVAN, PATTOM P.O.
         THIRUVANANTHAPURAM- 695 004.

     2.  THE ASSISTANT EXECUTIVE ENGINEER,
         ELECTRICAL MAJOR SECTION
         KERALA STATE ELECTRICITY BOARD, ADIMALI P.O.
         PIN 685 561.

     3.  THE KERALA FINANCIAL CORPORATION,
         HEAD OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM
         REPRESENTED BY ITS, MANAGING DIRECTOR, PIN 695 033.

     4.  DEPUTY TAHSILDAR (R.R),
         KERALA FINANCIAL CORPORATION, KATTAPPANA-685 508.


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WP(C).No. 31023 of 2011 (C)
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     ADDL.R5 IMPLEADED
     -----------------

     ADDL.R5. K.P.WILSON, KUDIYIRICKAL HOUSE, MACHIPLAVU,
               ADIMALI, IDUKKI DISTRICT 685561,
        ADDL.R5 IS MPLEDED VIDE ORDER DT. 8.2.12 IN IA.N0.1686/12.




         R1, 2 BY SRI.K.M.SATHYANATHA MENON,SC,KSEB
                  SRI.T.R.RAJAN,SC,K.S.E.B.
         R3   BY ADV. SRI.M.M.SAYED MUHAMMED, SC, KFC
                      SRI.T.V.GEORGE, SC, KFC
         BY ADV. SRI.K.S.ROCKEY
         ADDL.R5 BY ADV. SRI.AUGUSTINE JOSEPH

       THIS WRIT PETITION (CIVIL)   HAVING BEEN FINALLY HEARD
ON  28-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 31023 of 2011 (C)
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                              APPENDIX
                             ---------

PETITIONER(S) EXHIBITS
-----------------------

EXHIBIT-P1. COPY OF THE SANCTION LETTER DATED 4.5.2000.

EXHIBIT-P2. COPY OF THE LOAN SANCTION LETTER DATED 16.11.2001.

EXHIBIT-P3. COPY OF PROVISIONAL STATEMENT OF ACCOUNTS.

EXHIBIT-P4. COPY OF THE NOTICE DATED 28.11.2006 ISSUED BY GENERAL
            MANAGER, KFC.

EXHIBIT-P5. COPY OF THE LETTER NO.040189010/1177/06 DATED 29.11.2006
            ISSUED BY BRANCH MANAGER,KFC.

EXHIBIT-P6. COPY OF THE ORDER DATED 4.4.2008 IN IA 16/2007 IN CC 35/2007
            OF CONSUMER DISPUTES REDRESSAL RORUM, IDUKKI.

EXHIBIT-P7. COPY OF THE RECIPT DATED 25.6.2008 ISSUED BY KERALA
            FINANCIAL CORPORATION.

EXHIBIT-P8. COPY OF THE LOAN AGREEMENT DATED 11.8.2008 BETWEEN
            PETITIONERS AND KERALA FINANCIAL CORPORATION.

EXHIBIT-P9. COPY OF THE LETTER NO.L/2120/2008/L.DIS DATED 9.7.2008
            ISSUED BY DISTRICT INDUSTRIES CENTRE, IDUKKI.

EXHIBIT-P10.COPY OF THE LETTER DATED 19.7.2008 ISSUED BY THE 1ST
            PETITIONER.

EXHIBIT-P11.COPY OF THE LETTER DATED 22.8.2008 ISSUED BY THE 1ST
            PETITIONER.

EXHIBIT-P12.COPY OF THE LETTER DATED 22.8.2008 ISSUED BY THE 1ST
            PETITIONER.

EXHIBIT-P13.COPY OF THE ORDER DATED 22.8.2009 IN C.C.49/2009 OF
            CONSUMER REDRESSAL FORUM, IDUKKI.

EXHIBIT-P14.COPY OF THE LETER NO.DB9/08-09/PA/22-8-2008 ISSUED BY KSEB.

EXHIBIT-P15.COPY OF THE LETTER NO.B/3/RIA/08-09/96/12-08-09 ISSUED BY
            KSEB.

EXHIBIT-P16.COPY OF RECEIPT DATED 29.8.2008.

EXHIBIT-P17.COPY OF NOTICE OF SALE OF IMMOVABLE PROPERTY NO.I.69/11
            DATED 7.10.2011 ISSUED BY THE 4TH RESPONDENT.

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WP(C).No. 31023 of 2011 (C)
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RESPONDENTS' EXHIBITS :
---------------------

EXT.R1 (A). COPY OF THE NOTICE DATED 9.5.2007 ISSUED BY THE ASSISTANT
ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD,,ADIMALY

EXT.R1(B). COPY OF THE REGISTERED NOTICE DATED 28.5.2007 ISSUED BY THE
ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD,
ADIMALY.

EXT.R1(C0. COPY OF TE POSTAL ACKNOWLEDGING RECEIPT EVIDENCING RECEIPT OF
EXHIBIT R1(B).

EXT.R1(D). COPY OF TE LETTER DATED 26.7.2008 SENT BY ASSISTANT ENGINEER,
ELECTRICAL SECTION, KERAA STATE ELECTRICITY BOARD, ADIMALY.

EXT.R1(E) COPY OF THE COMMUNICATION DATED 26.7.2008 ISSUED BY THE
PETITIONER TO THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE
ELECTRICTY BOARD, ADIMALY.


                                                    / TRUE COPY /


VK                                                  P.A. TO JUDGE



                          P.N.RAVINDRAN,J.
                      -------------------------------
                        W.P.(C) No.31023 of 2011
                    --------------------------------------
                  Dated this the 28th day of May, 2012



                                JUDGMENTThe first petitioner availed two loans from the Kerala Financial

Corporation (hereinafter referred to as 'the KFC' for short) to establish

a small scale industrial unit for manufacturing interlocking-bricks. The

second and third petitioners are guarantors to the loan availed by the

first petitioner. The first petitioner defaulted repayment of the loan.

The KFC thereupon took over possession of the industrial unit on

28.11.2006 invoking its power undersection 29of the State Financial

Corporations Act. On the next day, the KFC sent Ext.P5 letter to the

second respondent requesting him to disconnect and dismantle the

electricity supply to the first petitioner's industrial unit. In accordance

with the said request, electricity connection to the first petitioner's

industrial unit was disconnected on 29.11.2006 and dismantled on

24.7.2007.2. After the KFC took over the unit, the first petitioner moved

the Consumer Disputes Redressal Forum, Idukki by filing C.C.No.35 of

2007. In that complaint, the KFC filed a memo to the effect that it has

no objection to the first petitioner re-opening the unit upon payment ofW.P.(C) No.31023 of 20112the sum of Rs.1,00,000/-. Taking note of that memo, the Consumer

Disputes Redressal Forum passed Ext.P6 order dated 4.4.2008 directing

the opposite party to permit the first petitioner to open the industrial

unit on payment of the sum of Rs.1,00,000/-.         The first petitioner

accordingly remitted the sum of Rs.1,00,000/- on 25.6.2008, as can be

seen from Ext.P7 receipt. Thereupon, possession of the industrial unit

was handed over to the first petitioner on 17.8.2008 for a period of six

months after the petitioners and the KFC entered into Ext.P8 loan

agreement dated 11.8.2008.        In that agreement, the petitioners

admitted and agreed that as on 1.7.2008 the overdue amount is

Rs.23,74,886/- and the balance outstanding in the loan account is

Rs.24,62,986/- and that the KFC will be at liberty to take steps either

under the provisions of theState Financial Corporations Actor theKerala Revenue Recovery Actor any other provisions of law if the

petitioners fail to comply with the terms and conditions of the

agreement.    Even before Ext.P8 agreement was entered into, the

General Manager of the District Industries Centre had sent Ext.P9 letter

dated 9.7.2008 to the Executive Engineer of the Kerala State Electricity

Board requesting him to personally look into the matter and to take

step to restore electricity connection to the first petitioner's industrial

unit. The first petitioner also took steps to have the electricity supplyW.P.(C) No.31023 of 20113restored by sending Ext.P11 letter dated 22.8.2008.3. The Assistant Engineer, Electrical Section, Adimaly had in the

meanwhile sent Ext.R1(d) letter dated 26.7.2008 to the first petitioner

calling upon him to remit the sum of Rs.20,528/- for restoration of the

dismantled electricity supply. The first petitioner thereupon sent Ext.R1(e) letter dated 26.7.2008 to the Assistant Engineer, Kerala State

Electricity Board, Electrical Section, Adimaly informing him that on

account of paucity of funds he is not in a position to deposit the sum of

Rs.20,528/-and therefore, further steps on the application may be kept

in abeyance. He thereafter filed C.C.No.49 of 2009 in the Consumer

Disputes Redressal Forum, Idukki, joining, besides the Branch Manager

and the Managing Director of the Kerala Financial Corporation, the

Assistant Engineer, Kerala State Electricity Board, Electrical Section,

Adimali, the Assistant Executive Engineer, Electrical Sub Division,

Chithirapuram and the Secretary of the Kerala State Electricity Board as

parties.   In that complaint his main grievance was that the Board

should not have disconnected the supply on a request made by the KFC

and therefore, the Board should restore the power supply. When that

complaint was taken up for consideration on 22.8.2009, the opposite

parties submitted that they will give electricity connection to the first

petitioner's industrial unit if no amount is due from him and if heW.P.(C) No.31023 of 20114complies with all the formalities, within 15 days. Pursuant thereto, the

first petitioner was informed that no amount is due from him by way of

arrears of energy charges.4.     The electricity connection that was dismantled on 24.7.2007

pursuant to Ext.P5 letter was however not restored. It appears the

petitioner had in the meanwhile applied for a fresh service connection

to the same building and a new service connection was given on

10.9.2008 with a connected load of 6728 watts. The said connection

bears consumer No.17411 of Electrical Major Section, Adimali. While

matters stood thus, the KFC issued Ext.P17 notice dated 7.10.2011

proposing to sell 6.07 ares of land situated in Sy.No.419/5 of

Mannamkandam Village, Devikulam Taluk, Idukki District by public

auction on 25.11.2011 under the provisions ofKerala Revenue

Recovery Act, 1968. The instant writ petition was thereupon filed on

21.11.2011 challenging Ext.P17 notice and seeking the following reliefs:"i) To issue a writ of mandamus or such direction directing

        the 1st and 2nd respondents to restore the power supply to

        the Industrial concern set up by the 1st petitioner which is

        the subject matter of mortgage (item No.1 in Ext.P2);ii) To issue a writ of certiorari or such other writ or order

        quashing Ext.P17;iii)  To issue a writ of mandamus or such other order

        directing the 3rd respondent not to initiate proceedings toW.P.(C) No.31023 of 20115recover the dues from the petitioners for a period of one

        year from date when the 1st and 2nd respondents restore

        supply of power to the Unit set up by the 1st petitioner."5.    When the writ petition came up for admission hearing on

25.11.2011, a learned single judge of this Court passed the following

order:"Admit.The learned Standing Counsel takes notice on behalf

       of respondents 1 and 2. The learned Standing Counsel

       takes notice on behalf of respondents 3 and 4.Sale can go on, but shall not be confirmed without

       getting orders from this Court.The respondents shall file their counter affidavit

       within two weeks. Post after two weeks."In terms of the said order, the property belonging to the first petitioner

was sold in public auction on 25.11.2011 and it was purchased by the

additional fifth respondent.     The respondents thereupon moved this

Court for vacating the interim order passed by this Court on

25.11.2011. Taking note of the fact that the demand in Ext.P17 notice

was for Rs.37,88,980/-, a learned single judge of this Court directed

that the order of stay earlier granted by this Court will continue to

operate only in the event of the petitioners remitting the sum of

Rs.25,00,000/- within two weeks. Aggrieved thereby, the petitioners

filed W.A.No.856 of 2012. By judgment delivered on 27.4.2012, aW.P.(C) No.31023 of 20116Division Bench of this Court allowed the appeal and directed that the

interim order earlier granted by this Court shall continue in the event of

the petitioners remitting the sum of Rs.10,00,000/- within ten days.

The Division Bench also directed that if the sum of Rs.10,00,000/- is

not paid, the interim order shall cease to operate. It is not in dispute

that pursuant to the said judgment the petitioners remitted the sum of

Rs.10,00,000/- on 3.5.2012.6.      Respondents 1 and 2 have filed a counter affidavit dated

9.12.2011 wherein it is stated that though the officers of the Board had

taken steps to restore the electricity connection which was dismantled

on 24.7.2007 upon the first petitioner paying the sum of Rs.20,528/-,

the first petitioner did not pursue the application on the ground that he

does not have the requisite funds to pay the said amount. It is stated

that even earlier on the first petitioner's application, a fresh service

connection was given on 10.9.2008 with a connected load of 6728

watts.   It is also stated that as the first petitioner has an existing

connection which was given on 10.9.2008, another service connection

cannot be given to the very same premises.        When the writ petition

came up for hearing today, Sri.T.R.Rajan, learned standing counsel

appearing for the Kerala State Electricity Board submitted that if what

the petitioner needs is additional connected load, the officers of theW.P.(C) No.31023 of 20117Board will consider the same if an appropriate application in that regard

is filed before the Assistant Executive Engineer concerned.7.    The third respondent has filed a counter affidavit dated

9.12.2011 justifying the action taken by the KFC. It is stated that

during the past 11 years the petitioners have remitted only

Rs.3,64,000/- including the sum of Rs.1,00,000/- remitted pursuant to

Ext.P6 order passed by the Consumer Disputes Redressal Forum, Idukki

and since the petitioners did not take steps to clear the arrears, the

KFC was constrained to initiate revenue recovery proceedings to

recover the amount due from them. It is also stated that though as on

1.11.2011 the sum of Rs.40,36,031/- was due from the petitioners, in

the sale held on 25.11.2011, the property was purchased by the

additional fifth respondent for Rs.23,52,000/-, that on the same day he

remitted Rs.3,52,800/- being 15% of the bid amount, but in view of the

interim order passed by this Court the confirmation of sale was delayed.

The additional fifth respondent has in I.A.No.5672 of 2012 filed by him

to vacate the interim order of stay passed by this Court stated that he

remitted the sum of Rs.3,52,800/- on 25.11.2011 itself and the balance

sum of Rs.19,99,200/- on 23.12.2011 and has thus paid the purchase

price in full.   The third respondent has filed an additional counter

affidavit dated 23.3.2012, contending inter alia that in view of theW.P.(C) No.31023 of 20118deposit of the entire sale price by the additional fifth respondent, if

confirmation of the sale is further delayed, it will seriously prejudice the

rights of the third respondent and the auction purchaser.8.     I heard Sri.S.Vinod Bhat, learned counsel appearing for the

petitioners, Sri.T.V.George, learned standing counsel appearing for the

KFC, Sri.T.R.Rajan, learned standing counsel appearing for the Board

and Sri.Augustine Joseph, learned counsel appearing for the additional

fifth respondent.    I have also gone through the pleadings and the

materials on record. The petitioners have in the instant writ petition

sought two reliefs. One is for an order directing respondents 1 and 2 to

restore power supply to the first petitioner's industrial unit. The other is

in relation to the sale held on 25.11.2011. As regards the first relief

sought, I am of the opinion that the first petitioner who has already

obtained a fresh service connection to the very same premises on

10.9.2008 with consumer No.17411 of Electrical Major Section, Adimaly,

cannot have any subsisting grievance. The electricity connection that

was initially given to his establishment was disconnected on 29.11.2006

and it was dismantled on 24.7.2007, after the maximum permissible

period of six months. Thereafter, though the first petitioner applied for

restoration of the electricity connection and the Board had agreed to

restore the connection on the first petitioner remitting the sum ofW.P.(C) No.31023 of 20119Rs.20,528/-, he responded by sending Ext.R1(e) letter dated 26.7.2008,

expressing inability to pay the said amount due to paucity of funds. He

even requested the Assistant Engineer to defer consideration of the

application for restoration of electricity connection. It was thereafter

that he applied for and obtained a fresh electricity connection on

10.9.2008 with Consumer No.17411. From the pleadings and the

materials on record and the submissions made at the Bar, the grievance

of the first petitioner appears to be that with the existing connected load

he cannot carry on his business and that he requires at least a

connected load of 20KVA to properly run his business. In my opinion,

as he is already having a fresh electricity connection his grievance can

be redressed by directing that in the event of the first petitioner

applying to the competent authority for additional connected load in

accordance with the provisions contained in theElectricity Act, 2003and

the regulations made thereunder, the competent authority shall

consider the same and take an appropriate decision thereon within one

month from the date on which a request in that regard is received from

the first petitioner. Needless to say, the first petitioner should comply

with the statutory formalities prescribed for the purpose.9.     The only other issue that remains to be considered is

whether Ext.P17 notice is liable to be interfered with at the instance ofW.P.(C) No.31023 of 201110the petitioners. It is not in dispute that challenging the sale held on

25.11.2011, the first petitioner has moved the Deputy Collector

(Revenue Recovery), Kerala Financial Corporation, Thiruvananthapuram

by filing an application undersection 53of Kerala Revenue Recovery

Act, 1968. It is however not in dispute that the said application was

filed only on 8.5.2012, after the instant writ petition was admitted and

an interim order staying the confirmation of the sale was passed. In my

opinion, as the sale had not been confirmed as on 8.5.2012 and the

petitioners have pursuant to the judgment of the Division Bench of this

Court in W.A.No.856 of 2012 deposited the sum of Rs.10,00,000/- with

the Kerala Financial Corporation on 3.5.2012, the fourth respondent

should consider the said application and take an appropriate decision on

the merits with notice to the petitioners and respondents 3 and 5 and

take an appropriate decision thereon before confirming the sale.I accordingly dispose of the writ petition with a direction to the

Deputy Collector (Revenue Recovery), Kerala Financial Corporation,

Thiruvananthapuram to consider the petition dated 8.5.2012 filed by

the first petitioner undersection 53of Kerala Revenue Recovery Act,

1968 challenging the sale held on 25.11.2011, with notice to the

petitioner, the Kerala Financial Corporation and the additional fifth

respondent and take an appropriate decision thereon expeditiously andW.P.(C) No.31023 of 201111in any event within two months from the date on which either of the

parties produces a certified copy of this judgment before him. It will be

open to all the parties to file written representations before the District

Collector, who shall after affording the parties an opportunity of being

heard, pass an order giving reasons in support of his findings and

conclusions. The contentions of both sides on the merits are kept open.

Until such time as the Deputy Collector (Revenue Recovery), Kerala

Financial Corporation passes orders as directed above, confirmation of

the sale held on 25.11.2011 shall be kept in abeyance.Sd/-P.N.RAVINDRAN
                                                       JUDGE

                                                /TRUE COPY/




                                                P.A. To JUDGE

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