IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 30th day of September, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 107/2019 (filed on 08-07-2019)
Petitioner : St. Mary’s Jacobite Syrian
Cathedral, Manarcadu P.O.
Kottayam.
Rep. by its Trustee
C.P. Philip
S/o. Philipose,
Chemmath House,
Manarcadu P.O. Kottayam.
(Adv. Siju K. Issac and
Adv. Bobby JohnK.A.)
Vs.
Opposite Party : Assistant Executive Engineer,
Kerala Water Authority,
P.H. Sub Division,
Kottayam.
O R D E R
Smt. Bindhu R. Member
The complainant is St. Mary’s Jacobite Syrian Cathedral, Manarcadu, Kottayam represented by its trustee C.P. Philip. During the year 1994, the complainant decided to avail a water connection to the chapel owned by them at Manganam under the name St. Mary’s Chapel, Anathanam, Vadavathoor P.O. The connection was allotted in the name of the then trustee of the complainant P. Mathew vide consumer number VPM/1481/N. During the year 1999 – 2000 the managing committee of the complainant decided to disconnect the water connection and applied for the disconnection. As such the amount due till then was paid and the opposite party disconnected the connection and taken the meter back in the year 1999 itself. Thereafter on 14.5.2018 the opposite party issued a demand cum disconnection notice to the complainant demanding an amount of Rs.356945/-. On 11.6.18 the complainant filed an application under the right to information regarding the status of the consumer number VPM/1481/N and got a reply that the water connection was disconnected on 16-02-06 due to non-payment of water charges and an amount of Rs.3,56,945/- was due to the opposite party.
The complainant personally approached the opposite party and requested them to verify the records and recall the demand cum disconnection notice dated
14.5.18.While so another demand cum disconnection notice dated 14.5.2018 was
also issued. The complainant submitted several petitions before the opposite party and before the MLA. The MLA forwarded the letter to the concerned minister and from there to the Managing Director of the opposite party and assured the complainant that appropriate steps would be taken immediately. Thereafter there was no response till 14.6.19 from the opposite party. On 14.6.19 the opposite party issued a letter to remit an amount of Rs.3, 86,369/-on or before 30-6-19. Otherwise the matter would be referred to the district collector for initiating revenue recovery proceedings. In the said letter it is shown as the connection was disconnected on 16-2-2016 due to the non-payment of water charges amounting to Rs.19,333/- up to the period 1/06.The opposite party admitted that the dues up to 1/06 was only Rs.19333/- and the disconnection was on 16-02-06.
Thereafter there was no water consumption by the complainant. The bill was issued without any basis and the complainant is not liable to pay any amount
towards the water charges as per their records. The act of the opposite party amounts to deficiency in service and unfair trade practice which is to be compensated and the bills dated 14.5.2018 for Rs.3,56,945/- and Rs.3,86,369/-
are liable to be set aside. Hence this complaint.
Upon notice the opposite party appeared and filed version before this
commission.
The opposite party resisted the allegations in the complaint as that the water
connection having consumer no VPM/1481/N was given to Sri.Sunil P Mathew.
The consumer had not applied for the disconnection of the above water connection. From the date of connection itself, KWA had been demanding only
minimum charge of water charges from the consumer. Bills were issued to the
consumer in regular intervals and the complainant never turned up for the payment of such arrear bills. The consumer has not applied for disconnecting the
water connection and not made any payment of water charges till date. Due to
non-payment of the charges, the water connection was disconnected on 16/02/06.Now the arrear amount of the consumer is 4,18,218/- as on 09/19. Even after repeated demands and requests, the consumer did not pay the arrear amount and the amount cumulated to Rs.19,333/- at the time of disconnection on 16/02/06. Thereafter no water charges were demanded from the consumer.
Due to non-payment of the said amount, after the elapse of 13 years, the arrear
amount arrived at Rs.4,18,218/- including the fine amount as on 09/19. The consumer is legally bound to pay the minimum water charges as per the Kerala
Water authority (water supply) Regulation 1991.There is no deficiency of service
and unfair trade practice on the part of the opposite party in issuing bills and act
accordingly on non-payment.
The complainant adduced evidence vide proof affidavit and Exhibit A1 to A3 and the opposite party adduced evidence through proof affidavit and Exhibit B1. On perusal of the above pleadings and evidence, we are of the view that the point to be considered is whether the opposite party has committed any compensable deficiency in service by issuing the bills to the complainant and whether they are liable to be set aside ?
1. The case of the complainant is that though the water connection to their chapel was disconnected early in 1999 on their request, the opposite party has initiated revenue recovery proceedings improperly to which the opposite party raised the contention that the connection was disconnected in 2006.
2. The disconnection date according to the complainant is in 1999 but according to the opposite party the disconnection date is 16-02-06. Though the opposite party alleges that the complainant was a constant defaulter, they had not produced any unpaid bill issued to the complainant before 14.05.18. On this date the opposite party issued the Exhibit A1 demand cum disconnection notice for the payment of an amount of Rs.3,56,945/-. Though the complainant requested to verify the records and recall the notice, again on 15.10.18 another demand notice Exbt A2 was issued by the opposite party for Rs.3,56,945 /-. Again on 14.06.19 the opposite party again issued Exhibit A3 notice in which the opposite party has given notice that the dues was 3,86,369/- and the same was to be sent to the District collector for initiating Revenue recovery proceedings if it was not paid.
3. The alleged disconnection of the water supply to the complainant was on 16-02-06 according to the opposite party. In the version they contend that the amount due from the consumer is Rs.4,18,218/-.Here the point to be looked into is whether the opposite party has followed the procedure from the beginning. They allege that the complainant was a constant defaulter from the very 1 st billing cycle. Due to the severe non-payment, the opposite party had to disconnect the connection in 2006.
4. S.45(a) of Kerala water supply and sewerage Act (1) The authority may cut
off the water supply from any premises –(a) If any tax, fee, rental cost of water or any charge or other sum due under this Act, is not paid within a period of thirty days after service of a bill for the same…As per Regulation 14 also if the charges are not paid within 30 days, the Executive engineer shall have the power to cut off water supply from any premises without any notice.
5. Here the water connection was taken by the complainant in 1994.If the version of the opposite party that the complainant was not paying the bill amount from the very inception of the connection, the opposite party ought to have taken steps for realizing that amount at the earliest.
According to the complainant they had decided to disconnect the connection for some reason in 1999-2000 . But the opposite party states that they disconnected the connection in 2006 for non-payment of bills.
This itself is irregular as the disconnection could have effected after 30 days of non-payment. All these years, the opposite party was silent on the arrears of the complainant.
6. S.36 of the Kerala water supply and sewerage Act (1) Any sum due to the Authority on account of any tax, fee, cost of water, cost of collection and disposal of waste water, meter rent, penalty, damage or surcharge under this Act shall be recoverable as arrears of land revenue.
7. Now the matter to be considered is whether the Exhibit A3, notice of initiation of revenue recovery proceedings is validly enforceable or not. Answering this question we have to consider whether the complainant owes a valid and legally enforceable debt towards the opposite party?
When the pleadings of the complainant and the opposite party are read together we understand that the bill issued by the opposite party fell in arrears in 1994. Due to this arrears the opposite party disconnected the water connection of the complainant in 2006.After the elapse of 12 years. According to the opposite party, they had disconnected in 2006 and only after 12 years, they sent a disconnection notice A1 dtd.14-05-2018 and A2 on 15-10-2018.Again the recovery proceedings had started in 2019 only which was initiated by issuing the notice dated 14-06-2019 i.e. after 25 years.
8. As per the provisions of the Act, no doubt the opposite party is entitled to recover the amounts due to them by way of arrears of water charge along with fine through the proceedings of Revenue recovery.
S.36. Recovery of taxes, fees and other sums due.-( 1) Any sum due to the Authority on account of any tax, fee, cost of water, cost of collection and exposal of waste water metered, penalty, damage or surcharge under this Act shall be recoverable as arrears of land revenue. (2) Nothing in sub-section (1) shall affect the power of the Authority to cut off in accordance with the regulations the connection of water supply in the event of non-payment of by the consumer of any dues referred to in that sub-section.
9. But if the debt to be recovered is time barred, limitation act would apply and no amount can be recovered after three years from the date on which the amount became due. In Mohammed Moosa Kadathanath Paramb Vs. Kerala water authority and others (2017 SCC online Ker10214). It cannot be said that as the demand for the amount due after 14 years issued by the respondents in accordance with law and as provided under the Limitation Act 1963.
10. Further in 1999(2) KLT146(SC) State of Kerala Vs Y.R.Kalyanikkutty, the Hon’ble Supreme Court has discussed the sustainability of a time barred debt and the eligibility of the institution to recover the same.
“Looking in to the object of Section 71 we have to examine whether time-barred
claims of the State Financial Corporation and the banks can be recovered under it. Is the object only speed of recovery or is it also enlargement of the right to recover? The respondent-institutions rely on the words “amount due” in Section
71 as encompassing time-barred claims also. Now, what is meant by the words “amounts due” used in Section 71 of the Kerala Revenue Recovery Act as also in
the notifications issued under Section 71? Do these words refer to the amounts
repayable under the terms of the loan agreements executed between the debtor and the creditor irrespective of whether the claim of the creditor has become time-barred or not? Or do these words refer only to those claims of the creditor which are legally recoverable? An amount “due” normally refers to an amount which the creditor has a right to recover.
In the premises under Section 71 of the Kerala Revenue Recovery Act claims
which are time-barred on the date when a requisition is issued under Section 69(2) of the said Act are not “amounts” under Section 71 and cannot be recovered under the said Act. Our conclusion is based on the interpretation of Section 71 in the light of the provisions of the Kerala Revenue Recovery Act.”
Here in the case on hand, the opposite party themselves state that they had disconnected the connection of the complainant in 2006 itself for non-payment of bills but they had issued the demand cum disconnection notice only on 14.05.2018 and on 15.10.18 after the elapse of 12 years. The opposite party has
not proved beyond doubt that they had given timely intimation to the complainant about the amounts due or about the disconnection earlier. They have not produced any cogent evidence to prove that their demands for the arrears are not time barred.
Hence considering the evidence on record and the settled legal scenario, we are inclined to allow the complaint by setting aside A1, A2, and A3 notices. The opposite party is further directed to pay compensation of Rs.5, 000/- to the
complainant as compensation.
Order shall be complied with within a period of 30 days from the date of receipt of Order.
Pronounced in the Open Commission on this the 30th day of September, 2021
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1- Copy of demand and disconnection notice dtd.14-05-18 issued by
opposite party
A2- Copy of demand and disconnection notice dtd.15-10-18 issued by
opposite party
A3 – Letter dtd.14-06-19 issued by opposite party to petitioner
Exhibits marked from the side of opposite party
B1 – Copy of consumer personal ledger (consumer no.VPM/1481/N) by opposite party
By Order
Senior Superintendent
