Chinmaya Mission Educational Cultural v. Kerala State Electricity Board And ORS.

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. 16726 of 2011 (M) ---------------------------- PETITIONER:

------------------- CHINMAYA MISSION EDUCATIONAL AND CULTURAL CENTRE, KANHANGAD REP.BY ITS PRESIDENT, V.KRISHNAN S/O.LATE KARTHAMBU, P.O.KANHANGAD, PIN-671315 BY ADVS.SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.K.S.BALAKRISHNAN RESPONDENTS:

----------------------------

1. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VYDHUTHI BHAVAN THIRUVANANTHAPURAM-695001

2. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, KANHANGAD - 671315.

3. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION MVAVUNGAL (VIA) ANANDASHRAM KASARAGOD DISTRICT-671315 R,R1 TO3 BY ADV. SRI.T.R.RAJAN,SC,K.S.E.B.

R BY SRI.P.P.THAJUDEEN, SC, K.S.E.B 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.16726/2011 APPENDIX PETITIONER'S EXTS:

EXT.P1:

COPY OF THE NOTICE DT.25.5.2011 OF THE 3RD RESPONDENT. EXT.P2:

COPY OF THE BILL DT.7.6.2011 ISSUED BY THE 3RD RESPONDENT.

//TRUE COPY// PA TO JUDGE

ANIL K.NARENDRAN, J.

---------------------------------- W.P.(C).No.16726 OF 2011 ---------------------------------- Dated this the 20th day of March, 2015

J U D G M E N T

~~~~~~~~~~~~ The petitioner is the President of Chinmaya Mission Educational and Cultural Centre, an educational institution affiliated to CBSE. The educational institution is having an electricity connection with Consumer No.2966-6 coming under the KSEB Electrical Section, Mavungal. 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.P1 and P2 demand notices dated 24.5.2011 and 7.6.2011 respectively. It is aggrieved by Schedule of Tariff and Terms and Conditions for Retail Supply by KSEB to the extent of classifying the selffinancing educational institutions under LT-VIIA tariff and for

other consequential reliefs the petitioner has approached this Court in this Writ Petition.

2.

By order dated 22.6.2011, this Court passed the following interim order:

"There will be an interim stay of recovery pursuant to Exts.P1 and P2. The petitioner shall however pay energy charges at the rates applicable to LT-VII A category."

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. District Collector, Malappuram (2009 (4) KLT 485). 4.

The further challenge in this Writ Petition is against Exts.P1 and P2 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 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.P1 and P2 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 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