Kerala High Court
M/S.Liscom Solutions And Services ... vs State Of Kerala on 25 March, 2010
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936
WP(C).No. 8902 of 2013 (K)
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PETITIONER(S) :
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1. M/S.LISCOM SOLUTIONS AND SERVICES PVT.LTD.,
ANJIKKATT ARCADE, SEAPORT AIRPORT ROAD, KALAMASSERY
ERNAKULAM, PIN 682 021
REPRESENTED BY IT'S MANAGING DIRECTOR NOBY.
2. NOBY
MANAGING DIRECTOR
M/S.LISCOM SOLUTIONS AND SERVICES PVT. LTD, ANJIKKATT ARCADE
SEAPORT AIRPORT ROAD, KALAMASSERY, ERNAKULAM
PIN 682 021.
BY ADVS.SRI.G.KRISHNAKUMAR
SMT.P.M.NASEEMA
SRI.K.A.ANI JOSEPH
RESPONDENT(S) :
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1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.
2. THE SECRETARY TO GOVERNMENT
INFORMATION TECHNOLOGY DEPARTMENT
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM.
3. KERALA STATE ELECTRICITY BOARD
VYDYUTHI BAHVAN, PATTOM, THIRUVANANTHAPURAM 695 004
REPRESENTED BY ITS CHAIRMAN.
4. THE ASSISTANT EXECUTIVE ENGINEER
ELECTRICAL SUB DIVISION
KERALA STATE ELECTRICITY BOARD, KALAMASSERY
ERNAKULAM.
5. KERALA STATE ELECTRICITY REGULATORY COMMISSION
KPFC BHAVAN, C.V RAMAN PILLAI ROAD
THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN.
R1 & R2 BY GOVT. PLEADER SRI. P.V. ELIAS
R3 & R4 BY ADVS. SRI.JAICE JACOB, SC
R5 BY ADV. SRI.S.SUJIN, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-09-2014,
THE COURT ON 24-09-2014 DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 8902 of 2013 (K)
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APPENDIX
PETITIONERS' EXHIBITS :
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EXHIBIT P1. TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT
INDUSTRIAL CENTRE TO THE PETITIONERS.
EXHIBIT P2. TRUE COPY OF THE IT POLICY 2001 OF THE FIRST
RESPONDENT.
EXHIBIT P3. TRUE COPY OF THE SITE MAHAZAR PREPARED BY THE SUB
ENGINEER DATED 25.3.2010.
EXHIBIT P4. TRUE COPY OF THE NOTICE ISSUED BY THE 4TH
RESPONDENT DATED 25.3.2010.
EXHIBIT P4(a). TRUE COPY OF THE SHORT ASSESSMENT BILL DATED
26.3.2010 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P5. TRUE COPY OF THE OBJECTION DATED 31.3.2010 BEFORE THE
4TH RESPONDENT.
EXHIBIT P6. TRUE COPY OF THE CLARIFICATION DATED 5.6.2010 FILED
BEFORE THE EXECUTIVE ENGINEER, ALUVA.
EXHIBIT P7. TRUE COPY OF THE ORDER DATED 2.8.2010 OF THE
EXECUTIVE ENGINEER, KSEB, ALUVA.
EXHIBIT P8. TRUE COPY OF THE COMPLAINT FILED BEFORE THE
CONSUMER GRIEVANCE REDRESSAL FORUM DATED 4.9.2010.
EXHIBIT P9. TRUE COPY OF THE ORDER DATED 17.3.2011 OF THE
CONSUMER GRIEVANCE REDRESSAL FORUM.
EXHIBIT P10. TRUE COPY OF THE LETTER DATED 23.4.2011 BY THE STATE
PUBLIC INFORMATION OFFICER, DEPARTMENT OF
INFORMATION TECHNOLOGY.
EXHIBIT P11. TRUE COPY OF THE IT POLICY 2007 OF THE FIRST
RESPONDENT.
EXHIBIT P11(a). TRUE COPY OF THE GO(P)NO.10/2007/ITD DATED 14.6.2007.
EXHIBIT P12. TRUE COPY OF THE GOVERNMENT ORDER
NO.GO(MS) 31/07/ITD DATED 4.12.2007.
EXHIBIT P13. TRUE COPY OF THE FISCAL INCENTIVE FOR IT UNITS.
EXHIBIT P14. TRUE COPY OF THE REPLY LETTER DTD. 5.1.2011 ISSUED
FROM INFOPARK.
EXHIBIT P15. TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE
THE OMBUDSMAN DATED 30.4.2011.
(Contd...)
WP(C).No. 8902 of 2013 (K)
EXHIBIT P16. TRUE COPY OF THE ORDER DATED 4.2.2013 OF THE KERALA STATE
ELECTRICITY OMBUDSMAN.
EXHIBIT P17. TRUE COPY OF THE TARIFF FIXATION ORDER 2007 ISSUED BY THE
5TH RESPONDENT.
EXHIBIT P18. TRUE COPY OF THE TARIFF FIXTURE ORDER 2010 AND ISSUED BY
5TH RESPONDENT.
EXHIBIT P19. TRUE COPY OF THE TARIFF FIXTURE ORDER 2012 ISSUED BY 5TH
RESPONDENT.
EXHIBIT P20. TRUE COPY OF THE IT POLICY 2012 OF IST RESPONDENT.
EXHIBIT P21. TRUE COPY OF THE IT POLICY OF GOVT. OF ANDHRA PRADESH.
EXHIBIT P22. TRUE COPY OF THE IT POLICY OF THE GOVT. OF KARNATAKA.
EXHIBIT P23. TRUE COPY OF THE BILL DATED 1.3.2013 ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P23(a)TRUE COPY OF THE BILL DATED 1.3.2013 ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P23(b). TRUE COPY OF THE COVERING LETTER DATED 2.3.2013 ISSUED BY
THE 4TH RESPONDENT.
EXHIBIT P24. TRUE COPY OF THE BILL DATED 4.3.2013 ISSUED BY THE 4TH
RESPONDENT.
EXHIBIT P25 COPY OF THE RELEVANT PAGES OF MEMORANDUM OF ASSOCIATION
OF THE FIRST PETITIONER.
EXHIBIT P26 COPY OF THE LICENCE ISSUED BY THE KALAMASSERY
MUNICIPALITY.
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
Mn
C.K. ABDUL REHIM, J.
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W.P.(C)No.8902 of 2013
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Dated this the 24th day of September, 2014
JUDGMENT
The 2nd petitioner is the Managing Director of the 1st petitioner Company which is registered as an industrial unit, engaged in activities connected with Information Technology and offering Information Technology Enabled Services (ITES). An electric connection is provided to the unit under LTIV Tariff. Pursuant to an inspection conducted at the premises by the authorities of the 3rd respondent on 25/03/2010, Ext.P4 and P4(a) Notice and short assessment bill were issued against the petitioner charging the consumption under LT VII (A) Tariff, for the period from 12/2008 to 2/2010. The difference in the electricity charges for the said period between LT VII (A) and LT IV Tariff was demanded. Objection raised by the petitioner against Ext.P4 and P4 (a) before the authority who had issued the bill was not considered. Hence the petitioner approached the Executive Engineer of the Electrical Division W.P.(C)No.8902 of 2013 2 concerned. Ext.P7 order was issued declining interference observing that, 'Telecalling Services' (Call Centres) are treated under commercial category as per the schedule of Tariff issued by the Kerala State Electricity Regulatory Commission (KSERC). Hence it is held that the petitioner was liable to be billed under LT VII (A) Tariff, instead of LT IV. Aggrieved by Ext.P7 the petitioner approached the Consumer Grievance Redressal Forum (CGRF). The CGRF had dismissed the complaint through Ext.P9 order holding that the change of Tariff is in order. It is observed that, the petitioner had applied for registration of the unit by including the activity of 'Call Centre', and hence, the unit was not eligible to be included in LT IV Tariff. Eventhough an appeal was preferred against Ext.P9 order before the Electricity Ombudsman, interference was declined through Ext.P16 order finding that as long as there is a specific tariff classification in the Tariff Rules including 'Call Centre' under LT VII (A) (commercial), there is no need for further verification to hold that the tariff applicable to the petitioner is LT VII(A). It is aggrieved by Exts.P4 and P4(a) which was W.P.(C)No.8902 of 2013 3 confirmed in Exts.P7, P9 and P16 and the consequent demands issued as per Exts. P23, P23(a) and P24, this writ petition is filed. Inter alia, the petitioner is challenging Exts.P17 to P19 Tariff Orders to the extent it included 'Call Centres' under LT VII (A) Tariff.
2. Challenge against Exts.P17 to P19 Tariff Orders is mainly on the ground that inclusion of 'Call Centres' under LT VII(A) tariff is against the declared IT Policy of the State Government and is contrary to the incentives declared by the State Government for IT services and ITES. The petitioners have produced Exts.P2, P11, P12, P13 and P20 which are documents pertaining to declaration of IT Policy of the State Government. The policy documents as well as the Scheme for incentives specifically provides that, electricity tariff applicable for companies offering IT and ITES is LT IV. In Ext.P11 which is the IT policy of the State Government for the year 2007 it is categorically stated in clause 13.2.1 that, IT industry units, Government IT parks, certified IT parks and Akshaya e-centres are entitled to power tariff under 'HDI' (industrial) and 'LT IV' (industrial) depending on the W.P.(C)No.8902 of 2013 4 supply and connected load to the IT industry. The petitioner contended that, despite rendering the service of 'Call Centre', the unit is an IT industry, since it renders ITES. In Ext.P20 which is the IT policy for the year 2012, in clause 11.2.1 it is mentioned that IT/ITES units are entitled to power tariff under HT-1 or LT IV Tariff as applicable. It is pointed out that in Ext.P13 manual of incentives for IT units formulated by the State Government it is mentioned that definition of IT units will takes in IT Enabled Services also. In the same order ITES is defined as any product or service that is delivered or provided using the resources of ICT (Information Communication Technology). In Ext.P2 also it is declared that IT industry includes IT Enabled Services.
3. Based on the documents referred above, it is contended that Exts.P17 to P19 Tariff Orders are contrary to the policy formulated and declared by the Government, to the extent it categorised 'Call Centres' under LT VII (A) Tariff. Hence the same is challenged as unsustainable.
4. The petitioner contended that inclusion of 'Call Centres' under LT VII (A) Tariff will be offending principles of W.P.(C)No.8902 of 2013 5 promissory estoppel. It is contended that the petitioner had set up the industry based on promise made by the Government, which was repeated on categoric terms in consecutive policies and incentives declared by the Government. It is contended that the Government cannot turn around and deny such benefits, after inducing the petitioner to set up the industry based on such promises. Learned counsel for the petitioner had placed reliance on various decisions of the honourable Supreme Court in support of the above legal proposition. In M/s. Motilal Padampat Sugar Mills Co. Ltd. V. State of Uttar Pradesh and Others [1979 (2) SCC 409], it is held that the Government is bound on principles of promissory estoppel to make good the representations made by it. In order to invoke the doctrine of promissory estoppel it is enough to show that there existed a promise and acting in reliance on the promise any person had altered his position based on the belief induced by such representation. In Union of India and Others V. Godfrey Philips India Ltd. [1985 (4) SCC 369] the apex court held that, principle of W.P.(C)No.8902 of 2013 6 promissory estoppel will apply to any executive order of the Government. In a case where the Government or any other authority represents within its competence and the assessee is acting upon such representation, the Government or such other authorities are bound by promissory estoppel to grant the exemption declared until it is revoked. In a still recent decision in State of Punjab V. Nestle India Ltd. and Another [2004 (6) SCC 465] it is held that a citizen can compel the Government to do in accordance with the representation made, if factors necessary for founding a plea of promissory estoppel is established.
5. In the case at hand, challenge is against the Tariff Orders approved by the KSERC. Section 62 of the Electricity Act, 2003 provides power on the commission to determine the tariff in accordance with provisions of the Act. It is contended that under Section 62 (b) the commission is bound to fix the tariff considering the nature of supply and the purpose for which the supply is required. When the nature and purpose with respect to usage of energy is one and the same to all IT services and IT Enabled Services, W.P.(C)No.8902 of 2013 7 there cannot be any discrimination with respect to 'Call Centres', is the contention. It is further pointed out that under Section 108 the KSERC will be guided by directions issued by the State Government in the matters of policy involving public interest, as given in writing by the State Government. Sub Section (2) of Section 108 provides that if any question arises as to whether such direction involves matter of policy involving public interest, the decision of the State Government will be final.
6. Question arises as to whether the Government is bound by the promise made repeatedly through the declared policies and incentives. On a prima facie evaluation it is to be held that the Government is bound by the promise. The Government will be estopped from denying or declining such benefits on the principles of promissory estoppel, based on the repeated representations made. In fact the Government have not denied or taken away any such benefits till date, as is evident from Ext.P20 IT Policy declared with respect to the year 2012. But despite such promises and representations made by the Government, the KSERC had included the IT W.P.(C)No.8902 of 2013 8 Enabled Service of 'Call Centres' in a higher tariff. It cannot be contended that the promise made by the Government is not applicable with respect to the Electricity Board, it being a statutory authority under the Government. However, there is no evidence forthcoming as to whether the Government have issued any directions to the KSERC with respect to the policy, invoking the powers under Section 108 of the Electricity Act 2003. In other words, it is also not discernible as to whether KSERC had taken note of the declared policy of the Government, while fixing the tariff applicable to the 'Call Centres'.
7. If the petitioner could succeed in establishing that the Government is estopped from altering the incentives declared, necessarily it is for the Government to direct rectification of the Tariff Orders to the extent denies the benefits represented through the declarations. Under such circumstances, this Court is of the considered opinion that, the matter can be relegated for the decision of the Government. The petitioner can be given liberty to approach the Government in appropriate representation seeking W.P.(C)No.8902 of 2013 9 directions to the KSERC with respect to modification of the Tariff Orders, to the extent in tune with the declared IT Policy and the incentives scheme.
8. Hence this writ petition is disposed of by directing the petitioner to approach the Government in a proper representation as mentioned above within two weeks from the date of receipt of copy of this judgment. The Government shall consider such representation if any received and shall pass appropriate orders, after affording opportunity of personal hearing to the petitioner at the earliest possible, at any rate, within a period of three months from the date of receipt of such representation.
9. Liability of the petitioner to pay the impugned 'Back Assessment Bill' as well as the liability for payment of electricity charges at the enhanced tariff for any subsequent periods will depend upon the outcome of the decision which will be taken by the Government in accordance with the direction contained herein above. Till such time a decision is taken in the matter by the Government as per the directions contained herein above, realisation of the balance W.P.(C)No.8902 of 2013 10 amount covered under Exts.P23, P23 (a) and P24 shall be kept in abeyance, provided the petitioner submits the representation as directed within the time stipulated. The petitioner shall also be permitted to continue payment of electricity charges at the rate at which he is issued with the monthly bills at present, till such decision. Needless to observe that the petitioners will be entitled to get refund of amounts if any already paid at the enhanced tariff, in case the Government takes a decision favourable to them.
Sd/-C.K. ABDUL REHIM JUDGE MJL