Kerala High Court
Jawahar Public School vs The State Of Kerala on 12 December, 2014
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 12TH DAY OF DECEMBER 2014/21ST AGRAHAYANA, 1936
WP(C).No.11107 of 2010 (K)
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PETITIONER :
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JAWAHAR PUBLIC SCHOOL,
EDAVA,
REPRESENTED BY THE MANAGER, REV.FR.BINO PATTARKALAM CMI,
S/O.LATE P.H.XAVIER
RESIDING AT CHAVARA CMI BHAVAN, VARKALA,
THIRUVANANTHAPURAM.
BY ADVS.SRI.C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENTS :
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1. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF POWER,
SECRETARIAT, TRIVANDRUM.
2. THE KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY THE SECRETARY, VYDHYUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM.
3. THE KERALA STATE ELECTRICITY REGULATORY COMMISSION,
REPRESENTED BY THE SECRETARY,
TRIVANDRUM.
4. THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL DIVISION, VARKALA, TRIVANDRUM.
R3 BY ADV. SRI.S.SREEKUMAR,SC,KSERC
R2 & R4 BY SRI.T.R.RAJAN, SC, K.S.E.B.
R3 BY ADV. SRI.ANEESH JAMES,SC,KSEB REGULATORY COM
R3 BY ADV. SRI.S.SUJIN, SC, ELECTRICITY REGULATORY COMMISSION
BY SRI.P.P.THAJUDEEN, SC, K.S.E.B
BY SRI.P.NANDAKUMAR, SC, KSEB REGULATORY COM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 11107 of 2010 (K)
APPENDIX
PETITIONER'S EXHIBITS :-
EXT.P1 : COPY OF THE AFFILIATION OF THE SCHOOL
DTD.4/8/2003.
EXT.P2 : COPY OF THE ORDER ISSUED FROM KERALA STATE
ELECTIRICITY REGULATORY COMMISSION,
THIRUVANANTHAPURAM.
EXT.P3 : COPY OF THE CIRCULAR DTD.12/2/2007 ISSUED
BY K.S.E.B.
EXT.P4 : COPY OF THE ELECTIRICITY BILL DTD.4/3/2010
ISSUED TO THE CONSUMER No.8279.
RESPONDENTS' EXHIBITS:-
EXT.R(2)(a) : COPY OF THE ORDER DTD.25/1/2010 OF THE
HON'BLE SUPREME COURT OF INDIA IN SPECIAL
LEAVE PETITION (CIVIL)Nos.1822-1836/2010.
EXT.R(2)(b) : COPY OF THE ORDER DTD.28/5/2010 OF THIS
COURT IN W.A.No.650/2010.
True copy
P.A to Judge
ANIL K.NARENDRAN, J.
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W.P.(C).No.11107 of 2010
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Dated this the 12th day of December, 2014
JUDGMENT
The petitioner is Jawahar Public School, an educational institution affiliated to the CBSE. The School is having an electricity connection with Consumer No.8279 coming under the 4th respondent, KSEB, Electrical Section, Varkala in Thiruvananthapuram District. On implementation of Ext.P2 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 Ext.P4 demand notice dated 4/3/2010. It is aggrieved by Ext.P2 to the extent of classifying the self-financing educational institutions under LT- VIIA tariff and for other consequential reliefs the petitioner has approached this Court in this Writ Petition. W.P.(C).No.11107 of 2010 2
2. On 31/03/2010, this Court passed the following interim order :-
"All further proceedings shall be kept in abeyance subject to the condition that the petitioner remits electricity charges under LT VI A category on provisional basis."
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 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. W.P.(C).No.11107 of 2010 3 District Collector, Malappuram (2009 (4) KLT 485).
4. The further challenge in this Writ Petition is against Ext.P4 demand notice 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 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 W.P.(C).No.11107 of 2010 4 demanded under Ext.P4 notice 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 change of tariff is ultimately upheld by the Apex Court.
This Writ Petition is disposed of as above. No order as to costs.
ANIL K.NARENDRAN, JUDGE skj