Kerala High Court
Dr.P.A.Nair vs Kerala State Electricity Board on 20 March, 2015
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY,THE 20TH DAY OF MARCH 2015/29TH PHALGUNA, 1936
WP(C).No. 38239 of 2008 (B)
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PETITIONER:
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DR.P.A.NAIR, CHAIRMAN,
HOLY INDIA FOUNDATION SCHOOL, NORTH PARAVUR-683 513
ERNAKULAM DISTRICT.
BY ADV. SRI.WILSON URMESE
RESPONDENTS:
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1. KERALA STATE ELECTRICITY BOARD,
REP.BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM P.O.
THIRUVANANTHAPURAM-695 004.
2. THE ASST. ENGINEER,
ELECTRICAL SECTION, K.S.E.B., NORTH PARAVUR.
3. THE PRINCIPAL SECRETARY TO GOVT.,
POWER DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT
THIRUVANANTHAPURAM.
4. THE KERALA STATE ELECTRICITY
REGULATORY COMMISSION, REP.BY ITS SECRETARY
THIRUVANANTHAPURAM.
R,R1,2 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B
R BY SRI.T.K.KUNHABDULLA, SC FOR KSERC
SRI.T.R.RAJAN, SC.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) NO.38239/2008
APPENDIX
PETITIONER'S EXTS:
EXT.P1: COPY OF THE MONTHLY BILL ISSUED TO THE PETITIONER
CHARGING ELECTRICITY UNDER LT VI A TARIFF, DT.16.10.2008.
EXT.P2: COPY OF THE RELEVANT PAGES OF THE SCHEDULE OF TARIFF
AND TERMS AND CONDITIONS FOR RETAIL SUPPLY BY KSEB
WITH EFFECT FROM 01.12.2007, ISSUED BY THE K.S.E.
REGULATORY COMMISSION.
EXT.P3: COPY OF THE ARREAR BILL DT.19.12.2008 ISSUED BY THE 2ND
RESPONDENT.
EXT.P4: COPY OF THE INTERIM ORDER DT.30.01.2008 IN W.P.(C)
NO.3558/2008.
//TRUE COPY//
PA TO JUDGE
ANIL K.NARENDRAN, J.
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W.P.(C).No.38239 OF 2008
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Dated this the 20th day of March, 2015
J U D G M E N T
~~~~~~~~~~~~ The petitioner is the Chairman of Holy India Foundation School, an educational institution affiliated to the CBSE. The educational institution is having an electricity connection with Consumer No.20731 coming under the KSEB Electrical Section, North Paravur. On implementation of Schedule of Tariff and Terms and Conditions for Retail Supply by KSEB, issued by the Kerala State Electricity Regulatory Commission, which came into force with effect from 1/12/2007, the petitioner's educational institution was classified under LT- VIIA commercial tariff, from LT-VIA tariff and the petitioner was issued with Exts.P3 and P3(a) demand notices dated 19.12.2008 and 15.12.2008 respectively. It is aggrieved by Schedule of Tariff and Terms and Conditions for Retail Supply by KSEB to the extent of classifying the self-financing educational institutions under LT-VIIA tariff and for other W.P.(C).No.38239 of 2008 2 consequential reliefs the petitioner has approached this Court in this Writ Petition.
2. By order dated 30.12.2008, this Court passed the following interim order:
"There will be an interim order as prayed for, on condition that the petitioner continue to pay electricity charges under LT VI A tariff. It is also clarified that no further payments under LT VIIA tariff shall be insisted upon, until further orders. The petitioner's liability to pay under LT VIIA tariff would be subject to the result of this Writ Petition."
3. The question involved in this Writ Petition is as to whether private self-financing educational institutions are liable to be charged under LT-VIIA tariff, in distinction with private aided educational institutions, which are charged under LT-VIA tariff. The issue stands settled in favour of the petitioner, as per a Division Bench decision of this Court in Bro. Joseph Antony Vs. K.S.E.B (2009 (3) KLT 1022). It is brought to my notice that, the above decision is under W.P.(C).No.38239 of 2008 3 challenge before the Apex Court in various Special Leave Petitions filed by the KSEB, and the Apex Court had stayed operation of the said judgment. However, unless the legal position is reversed, this Court is bound to follow the decision in Bro. Joseph Antony's case (supra), in view of the principle laid down by this Court in Abdu Rehiman Vs. District Collector, Malappuram (2009 (4) KLT 485).
4. The further challenge in this Writ Petition is against Exts.P3 and P3(a) demand notices whereby the petitioner was requested to make payment of arrears of electricity charges at enhanced rate, i.e., under LT-VIIA tariff. The question regarding liability of the petitioner for payment at enhanced rate will depend upon outcome of the decision of the Apex Court. In view of the stay granted by the Apex Court, I am not inclined to restrain the respondent Board from charging the petitioner under the enhanced tariff. This is because of the fact that, if ultimately the Apex Court upholds the change of W.P.(C).No.38239 of 2008 4 tariff, the respondent Board will be put to prejudice. On the other hand, the petitioner can seek refund/adjustment if the decision is ultimately in favour of the consumers. But it is only just and proper to restrain the respondent Board from recovering the arrears on the basis of the enhanced tariff, till the matter is ultimately decided by the Apex Court.
5. Therefore this Writ Petition is disposed of directing the respondents to keep in abeyance recovery of arrears demanded under Exts.P3 and P3(a) notices till ultimate decision is rendered by the Apex Court in the SLPs referred above. It is made clear that the respondents are free to charge the petitioner under LT VIIA tariff for continued consumption of energy. It is made clear that payments made under the enhanced tariff will be liable to be refunded/adjusted in case the Apex Court upholds the judgment in Bro. Joseph Antony's case (supra). It is also made clear that the respondents will be entitled to recover the arrears, if the W.P.(C).No.38239 of 2008 5 change of tariff is ultimately upheld by the Apex Court.
This Writ Petition is disposed of as above. No order as to costs.
sd/-
ANIL K.NARENDRAN, JUDGE ps/24/3/2015