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2002 DIGILAW 737 (KER)

KSEB v. State of Kerala

2002-11-13

CYRIAC JOSEPH, JAWAHAR LAL GUPTA

body2002
Judgment :- 1. The third respondent was the proprietor of a brick manufacturing unit in the Village Angamali. He had got an electric connection - Consumer No. 2174, for the Industrial unit. A minimum guarantee agreement was executed on May 12,1994. 2. The land and the factory premises were acquired for the Nedumbasseri International Airport. In January, 1997, the unit had to be closed. The electricity supply to the 3rd respondent was disconnected by the appellant-Board in May, 1997. The possession of the land was taken over by the State as per award No. 283/97 in LAC No. 198/95 on July 1, 1997. 3. On November 7,1998, the Kerala State Electricity Board (the present appellant), issued a demand for the deposit of Rs. 1,13,145/- to the writ petitioner. Out of this, an amount of Rs. 23,161/- had been demanded on account of the arrears for the period from January, 1997 to February, 1998. The remaining amount of Rs. 89,984/- was demanded on account of the dues under the minimum guarantee agreement for the period from March, 1998 to April, 2004. The consumer represented. No decision was communicated. However, a demand notice for an amount of Rs. 1,30,450/- was served on him. Aggrieved by the action, the proprietor of the unit filed O.P. No. 119/2000. He claimed that the demand as made by the Electricity Board was not tenable. Vide order dated January 7, 2002, the consumer's claim was allowed by the learned Single Judge. Aggrieved by the order, the Electricity Board has filed the present appeal. 4. Mr. Sudhi Vasudevan, learned counsel for the appellants, has contended that under the minimum guarantee agreement, the consumer, who is described as a guarantor, has to pay the minimum charges for the full period of ten years. The connection having been sanctioned on May 12,1994, the 3rd respondent was liable to pay the minimum charges for the period till May 11, 2004. Reliance in support of his claim has been placed on Clause.3 of the Minimum Guarantee Agreement. 5. It is apt to notice the clause. It reads as under: "3. The Guarantor, Guarantors shall register service connection after satisfying all formalities before the expiry of three months from the date on which he/she has received the notice of intimation that the Board is ready to supply electrical energy. 5. It is apt to notice the clause. It reads as under: "3. The Guarantor, Guarantors shall register service connection after satisfying all formalities before the expiry of three months from the date on which he/she has received the notice of intimation that the Board is ready to supply electrical energy. Should the guarantor/ any or all of the guarantor(s) fail to register the service within the period aforesaid or discontinue to receive the Supply before the expiry of the guarantee period, he/ they shall pay the minimum guaranteed amount vide clause (2) of the agreement plus interest at the ruling rate from the date of expiry of three months of receipt of such intimation regarding readiness for supply or from the date of discontinuance to receive supply as aforesaid as the case may be to the date on which the guarantor(s) registers service connection (or recommences to take supply) or to the date of expiry of the period of the minimum guarantee agreement as the case may be." 6. On a perusal of the above quoted condition in the agreement, it is clear that the guarantor is bound to pay the minimum charges if it seeks discontinuance of the supply of power. However, the supplier should be in a position to make the supply. In the present case, it is the admitted position that the respondent-writ petitioner had never asked for the disconnection of the supply. The Board had discontinued the supply in May, 1997. The Board having itself discontinued the supply, it cannot claim that the consumer is bound to pay. The Minimum Guarantee Agreement only makes the consumer liable to pay in a case where the Board is in a position to supply, but the consumer does not utilise the power. However, when the Board itself discontinues the supply, it can have no reason either in law or in equity to claim that the consumer is bound to pay. 7. In the present case, it is the admitted position that the land in which the writ petitioner's unit was functioning as also the land in the surrounding area, through which the Board had laid its cables or lines, had been acquired by the Government. On acquisition of the land, the poles etc., had to be removed. The supply of power had to be discontinued. On acquisition of the land, the poles etc., had to be removed. The supply of power had to be discontinued. In such a situation, the Board cannot enforce a minimum guarantee agreement against the consumer and say that it must pay for the full period of ten years. 8. Mr. Sudhi Vasudevan contends that the consumer can claim the charges from the Airport Authority for whose benefit the land has been acquired. In fact, even in the counter affidavit filed on behalf of the Board, the plea taken was in the following words: "The service was dismantled when the land was acquired for the International Airport. He would have received necessary compensation from the Airport Authorities. The stoppage or the dismantling of the brick manufacturing unit was not due to any fault on the part of the K.S.E. Board. Since the petitioner would have received adequate compensation from the Airport Authority including the amount payable by him under the Minimum Guarantee Agreement, he is bound to pay this amount. The dismantling of electric connection was not for any reason whatsoever which can be attributed to the K.S.E. Board. When the factory was totally demolished, there was no alternative but to dismantle electric connection." 9. There is nothing on record to suggest that the respondent had actually claimed any compensation from the Electricity Board on account of the liability to pay under the minimum guarantee agreement. In our view, the consumer could not have made such a claim. In any event, even according to the agreement, we find that the liability of the consumer can arise only when the supplier is in a position to provide power. The consumer cannot be held liable to pay even for the period when there is no generation of power or supply to the consumer. In the present case, the Board had admittedly dismantled the supply line. Yet, it claimed charges from the consumer. The claim is wholly untenable. In view of the above, we find no infirmity in the judgment of the learned Single Judge. This appeal is dismissed. The petition to condone the delay is also dismissed. However, we make no order as to costs.