Bombay High Court
Osho International Foundation vs Maharashtra Electricty Regulatory on 13 March, 2013
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
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rpa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11764 OF 2012
Osho International Foundation ... Petitioner
Versus
Maharashtra Electricty Regulatory
Commission & Anr. ... Respondents
ig ALONGWITH
WRIT PETITION NO.11765 OF 2012
Neo Sanyas Foundation ... Petitioner
Versus
Maharashtra Electricty Regulatory
Commission & Anr. ... Respondents
...
Mr. S.R. Nargolkar, Advocate for the Petitioner.
Ms. Shilpa Kapil, Advocate for Respondent No.1.
Mr. Kiran Gandhi i/b. M/s. Little & Co. for Respondent No.2.
...
CORAM : MOHIT S. SHAH C.J.&
ANOOP V. MOHTA, J.
DATED : MARCH 13, 2013.
P.C. Rule, returnable forthwith.
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2 Heard finally by consent of the parties.
3 The Petitioners herein claim to be Educational
Institution and/or Spiritual Institutions. Both the Petitioners had approached the Appellate Tribunal by filing Appeal Nos. 81 and 82 of 2010, alongwith the other Institutions like Hospitals and Educational Institutions contending that the respective Institutions should not be treated as "Commercial" for the purpose of the electricity tariff in their Judgment dated 20 October, 2011 the Appellant Tribunal held as under :
"57 Summary of Our Findings :
(i) The State Commission in the present case wrongly placed all the consumers including the Appellant who were neither domestic nor industrial nor filling under any of the categories under the Commercial Category.
The purpose for which the supply is required by the Appellants can not be equated at par with other consumers in the Commercial Category. The Appellants are seeking separate categorization on the basis of purpose for which the supply is required by the Appellants i.e. rendering essential services.
(ii) The real meaning of expression "purpose for which the supply is required" as used in Section 62(3) of the Act does not merely relate to the nature of the ::: Downloaded on - 09/06/2013 19:44:27 ::: 3/7 wp11764-11765-12 activity carried out by a consumer but has to be necessarily determined from the objects sought to be achieved thorugh such activity. The Railways and Delhi Metro Rail Corporation have been differentiated as separate category as they are providing essential services. The same would apply to the Appellants as well.
(iii) The application of mind should be on identifying the categories of the consumers who should be subjected to bear the excess tariff recoverable based on a valid reason and justification. The re-categorisation of Charitable Hospitals and Charitable Organisations and grouping them with the consumers of the category such as Shopping Malls, Multiplexes, Cinema Theatres, Hotels and other like commercial entities is patently wrong.
(iv) By the impugned order, the State Commission classified the members of the Appellants into 'Commercial' category following a mechanical approach. This has been done only because the Appellants cannot fall under either in the industrial or agricultural or residential category and therefore, the Appellant would automatically fall in the Commercial Category. This is not a proper approach. In case the ::: Downloaded on - 09/06/2013 19:44:27 ::: 4/7 wp11764-11765-12 State Commission felt that the Appellants are not falling under any particular existing category, then the State Commission ought to have applied its mind and provided for a new category and given them a competitive tariff having regard to the purpose for which the electricity is used by them.
(v) The State Commission may classify the hospitals, educational institutions and spiritual organisations which are service oriented and put them in a separate category for the purpose of determination of tariff.
(vi) We feel that the re-categorisation should be implemented by the State Commission in the next Tariff Order which is yet to be passed for the following reasons:
(i) FY 2008-09 and FY 2009-10 are already over and tariff has been collected by the Distribution Licensees as per the respective Tariff Orders.
(ii) The Hon'ble Supreme Court has granted stay on some of the Judgments issued by this Tribunal for the FY 2008-09 in similar matters.
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(iii) The tariff shock and increase in cross subsidy for FY 2009-10 for the above customer categories will depend on the outcome of the above Appeals pending before the Hon'ble Supreme Court for Tariff for FY 2008-09.
58. In view of our findings, we direct the Commission to take note of our observations in the above paragraphs and pass consequential orders in these matters."
4The learned counsel appearing for the Respondents submitted that the Petitioners have alternate remedy of approaching the forum for redressal of grievance set out under Section 43(5) of the Electricity Act 2003. The learned counsel also relied upon a decision of Supreme Court in the case of Maharashtra State Electricity Distribution Co. Ltd. V. Lloyds Steel Industries Ltd.1.
5 However, the aforesaid preliminary contention cannot be upheld. The forum for redressal can only redress a grievance in accordance with the category specified by the State Commission and the forum for redressal of grievance cannot direct the State Commission to amend the definition of "Public Services", which is a newly created category.
1 AIR 2008 SUPREME COURT 1042
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6 It is necessary to note that direction was that the State
Commission may classify the Hospitals, Educational Institutions and Spiritual Organisations which are service oriented and put them in a separate category for the purpose of determination of tariff. In view of the fact that these very Petitioners were before the Appellate Tribunal and the Tribunal held that the State Commission Respondent No.1 herein erred in classifying them into commercial category following mechanical approach and that the Tribunal further directed the State Commission to classify Hospitals, Educational Institutions and Spiritual Organizations which are service oriented separately and to put them in a separate category for determination of tariff, it necessarily required the State Commission to classify Spiritual Organizations also in a separate category along with the Hospitals and Educational Institutions. However, the category of "Public Service" provided for by Maharashtra Electricity Regulatory Commission Respondent No.1 herein reads as, "HT IX- Public Services" and has included the following Institutions in the definition "this tariff shall be applicable to the Educational Institutions, Hospitals, Dispensaries, Primary Health Care Centers, Pathology Laboratories,...."
7 In view of the order of the Appellate Tribunal requiring the State Commission to classify Spiritual Organizations which are service oriented also in a special category along with Hospitals and Educational Institutions as "Public Services", these Writ Petitions are allowed and Respondent No.1 is directed to include Spiritual ::: Downloaded on - 09/06/2013 19:44:27 ::: 7/7 wp11764-11765-12 Organisations which are service oriented as falling within the definition of the newly created category "HT IX-Public Services".
Thereafter, Respondent No.2 shall take the necessary steps in light of the amended definition of the public services. Since the Tariff order creates the new category of HT IX - Public Services with effect from 1 August, 2012, the amendment of the definition shall also be given effect from 1 August 2012.
8 Once the tariff is amended in compliance with the direction of the Appellate Tribunal for Electricity, thereafter Respondent No.2 will consider the applicability of the tariff to the case of each of the Petitioners herein.
9 The Writ Petitions are disposed of in the above terms.
(CHIEF JUSTICE) (ANOOP V. MOHTA, J.) ::: Downloaded on - 09/06/2013 19:44:27 :::