KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL. 177/2007 JUDGMENT DATED: 29.8.09 Appeal filed against the order passed by CDRF, Thrissur in CC 1124/06 PRESENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER 1. Assistant Secretary, : APPELLANTS Electrical Sections, Thrissur Corporation. 2. Thrissur Corporation, Rep.by its Secretary. (By Adv.B.Vasudevan Nair) Vs. 1. T.A.Pappu, : RESPONDENTS Thiruthara House, Kanipayyur.P.O., (Via) Kunnamkulam, Thrissur-680517. (By Adv.Jijo Paul counsel for R1) 2. Accounts Officer, Thrissur Corporation, M.G.Road, Thrissur-1. JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is directed against the order dated 7th March 2007 of the CDRF, Thrissur in CC 1124/06. The complaint in the aforesaid consumer complaint was preferred by the 1st respondent herein as complainant against the appellants and the 2nd respondents as opposite party 1 to 3 respectively. The said complaint was filed to get the P1 demand notice dated 1.12.06 issued by the opposite party Thrissur Corporation cancelled and to prevent the opposite parties from taking any coercive steps against the complainant to realize the arrears of electricity charges claimed in Ext.P1 demand notice. The complainant has also alleged deficiency in service on the part of the opposite parties in issuing the P1 demand notice. It is further alleged that the said claim is barred by limitation and that the complainant has not consumed any electrical energy with respect to the consumer No.7626-C with effect from 14.2.03. The opposite parties entered appearance and filed written version contending that the arrears of electricity charges claimed is not barred by limitation; that the P1 demand notice was issued for the electrical energy actually consumed by the complainant as consumer and there was no deficiency in service on the part of the opposite parties in issuing P1 demand notice. 2. Before the Forum below no evidence was adduced from either side other than marking of P1 demand notice dated 1.12.06. On an appreciation of the facts and circumstance of the case, the Forum below passed the impugned order directing the opposite parties to cancel impugned demand notice dated 1.12.06. The opposite parties are also restrained from taking any coercive steps against the complainant for realization of the amount covered by P1 demand notice with a further direction to dismantle the connection with respect to consumer No.7626-C. The complainant is also allowed cost of Rs.2000/-. Aggrieved by the impugned order passed by the Forum below, the present appeal is preferred by the opposite parties 1 and 2 in CC.1124/06. 3. When this appeal was taken up for final hearing, there was no representation for the 1st respondent/complainant and the 2nd respondent/3rd opposite party. We heard the learned counsel for the appellants/opposite parties 1 and 2. He advanced his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the arrears of electricity charges claimed is not barred by limitation and that Section 56(2) of the Electricity Act 2003 has no application in the present case and that the amount due by way electricity charges is a continuing liability. He also relied on the decision rendered by Hon’ble High Court of Kerala reported in Abdul Nazar Vs. KSEB reported in 2006 (1)KLJ 440 and submitted that the Forum below has gone wrong in holding that the arrears claimed is barred by limitation. It is also submitted that the opposite parties were not given sufficient opportunity to substantiate their contentions in the written version. Thus, the appellants requested for setting aside the impugned order passed by the Forum below. 4. The points that arise for consideration are:- 1) Whether the Forum below can be justified in finding that the arrears of electricity charges covered by P1 demand notice dated 1.12.06 is hit by Section 56(2) of the Electricity Act.,2003? 2) Is there any sustainable ground to interfere with the impugned order dated 7.3.07 passed by CDRF, Thrissur in CC.1124/06? 5. Points 1 and 2:- For the sake of convenience, we will refer the parties to this appeal according to their rank and status before the Forum below in CC.1124/06. 6. There is no dispute that the complainant is a consumer under the Thrissur Corporation with consumer No.7626-C. Admittedly the complainant was served with P1 demand notice dated 1.12.06. As per the said demand notice the opposite parties have claimed the sum of Rs.7997/- by way of arrears of electricity charges for the period from 2001 to 2006. The complainant has also alleged that the said claim for arrears of electricity charges is barred by limitation. The opposite parties vehemently disputed the allegation that the claim is barred by limitation. The Forum below considered the question regarding limitation and found that the amount claimed as arrears of electricity charges is hit by Section 56(2) of the electricity Act., 2003. 7. Ext.P1 demand notice is dated 1.12.06. As per the said demand a sum of Rs.719/- is claimed as arrears of electricity charges for the period upto March 2001; Rs.305/- is demanded as arrears for the period 2001-2002 and a sum of Rs.4725/- is demanded by way of arrears of electricity charges for the period from 2002 to 2006. Incluidng the other charges the total amount would come to Rs.7997/- There can be no dispute that the provisions of Section 56(2) of the Electricity Act, 2003 cAme into force with effect from 10.6.03. This would show that the major portion of the amount claimed by way of arrear of electricity charges was due from the complainant as consumer to the opposite party Thrissur Corporation as licensee, prior to the commencement of the Electricity Act, 2003. It is to be noted that Section 56(2) of the Electricity Act, 2003 stipulates that no amount shall be recovered after the lapse 2 years from the date on which the amount became first due. It is further to be noted that the provisions of Section 56(2) of the Electricity Act, 2003 have no retrospective operation, but the said provisions are prospective in effect. It has been held by the Hon’ble High Court of Kerala in Abdul Nazar Vs. KSEB reported in 2006 (1)KLJ 440 that the provisions of Section 56(2) of the Electricity Act 2003 have application only with respect to the amounts due after the commencement of the said Act. It has been held in categoric terms that the Electricity Act, 2003 has no retrospective effect; but only prospective in nature. But unfortunately, the Forum below distinguished the aforesaid decision (supra) rendered by the Hon’ble High Court. But no reasonable and acceptable explanation is given for making the said provisions as retrospective. On the other hand, a reading of the entire Electricity Act, 2003 would not give any indication that the provisions of the said Act are retrospective in effect. It would show that the said Act is only prospective in operation. So, the finding of the Forum below that the demand made by Ext.P1 notice is hit be Section 56(2) of the Electricity Act is liable to be quashed. Hence we do so. 8. The opposite party Thrissur Corporation has also got a case that the amount due to the Thrissur Corporation by way of arrears of electricity charges is a continuing liability and therefore, there can not be any limitation in demanding and levying the arrears of electricity charges due to the opposite party Thrissur Corporation. But the Forum below was of the view that by reason of Section 56(2) of the Electricity Act, 2003, the liability to pay electrical energy charges is no more a continuing liability and that Section 56(2) of the said Act extinguishes the right and remedy to recover any sum due as electricity charges after the lapses of 2 years from the date of the such sum became first due. Section 56(2) of the Electricity Act, 2003 reads as follows:- “Not withstanding anything contained in any other Law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of 2 years from the date of the such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity” The above cited underlined portion of the said recitals in Section 56(2) of the Act would make it clear that if the arrear of electricity charges is due as a continuing liability, then there will be no bar of limitation in recovering the said arrear of electricity charges. The Forum below has also gone wrong in holding that after the introduction of the provisions of Section 56(2) of the Electricity Act, there cannot be any continuing liability with respect to the arrears of electricity charges. The said finding is liable to be set aside. Hence we do so. 9. The Forum below has not gone into the merits of the case in CC.1124/06. The complainant therein has a case that he has not consumed any electrical energy after 14.2.03 as he demolished the building with the consumer No.7626-C. It is also averred in the complaint that the complainant informed the opposite parties by a letter dated 14.2.03 regarding the alleged demolition of the building. The opposite party Thrissur Corporation vehemently opposed the aforesaid allegations and averments in the complaint. It is also contended by the opposite party Thrissur Corporation that the arrears claimed is a continuing liability. So, those aspects have to be considered on merits. The parties to the complaint in CC.1124/06 have also to be given sufficient opportunity to adduce evidence in support of their respective pleadings. We are of the view that this is a fit case to be remitted back to the Forum below for fresh consideration and disposal of the same on merits. So. the impugned order passed by the Forum below is to be set aside and the matter is to be remitted back to the Forum below for disposal of the same in accordance with law. These points are answered accordingly. 10. In the result the appeal is allowed and the impugned order dated 7.3.07 passed by CDRF, Thrissur in Cc.1124/06 is set aside. The matter is remanded to the Forum below for fresh disposal of the same in accordance with law. Both the parties will be at liberty to adduce evidence in support of their respective pleadings. There will be no order as to costs. The parties directed to appear before the Forum below on 12.10.09. SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER ps
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