High Court of KeralaSingle Judge2014-05-31Disposed of (Writ petition disposed of)

Director, Balanagar Technical Institute Association (ITC), Mookkannur P.O., Angamaly-683577, Ernakulam District v. Kerala State Electricity Board, The Assistant Engineer, Electrical Section, K.S.E.B., Karukutty, and The Kerala State Electricity Regulatory Commission

Case / Petition Number:WP(C).No. 9114 of 2010 (L)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.K. Abdul Rehim
Judgment Date: 2014-05-31
Court Decision / Holding: Writ petition disposed of. The respondents are directed to keep in abeyance recovery of arrears demanded under LT VIIA pending the decision of the Supreme Court in the pending SLP. They may continue to charge under LT VIIA for consumption. Any payments made at the enhanced tariff will be liable for refund/adjustment if the Supreme Court confirms the judgment in Bro. Joseph Antony. The respondents will be entitled to recover arrears if the change of tariff is ultimately upheld by the Supreme Court.
Final Disposition: Disposed of (Writ petition disposed of)

Parties to the Case

Appellants / Petitioners

Director, Balanagar Technical Institute Association (ITC), Mookkannur P.O., Angamaly-683577, Ernakulam District

Respondents

Kerala State Electricity Board, represented by its Secretary, Vydhuthi Bhavan, Pattom P.O., Thiruvananthapuram-695 004
The Assistant Engineer, Electrical Section, K.S.E.B., Karukutty
The Kerala State Electricity Regulatory Commission, represented by its Secretary, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Wilson Urmese
• Sri. Shipna Varghese

Counsels for Respondents

• Sri. T.R. Rajan, SC, K.S.E.B.
• Sri. P.P. Thajudeen, SC, K.S.E.B. Regulatory Commission
• Sri. Aneesh James, SC, KSEB Regulatory Commission
• Sri. S. Sujin, SC, KSEB Regulatory Commission
• Sri. P. Nandakumar, SC, KSEB Regulatory Commission
• Sri. S. Sreekumar, SC, KSERC

Case Synopsis & Summary

This writ petition challenges the Kerala State Electricity Board’s (KSEB) tariff change from LT VIA to LT VIIA, effecting private educational institutions through a tariff regime ordinarily applied to government-aided bodies. The petitioner contends that private educational institutions should not be treated on a par with government or aided institutions for tariff purposes. The court recognizes that the issue has been addressed, albeit conditionally, by a Division Bench in Bro. Joseph Antony v. KSEB (2009(3) KLT 1022), which the Supreme Court stayed in Special Leave Petitions filed by the Board. The court also notes the subsequent stance in Abdu Rehiman v. District Collector, Malappuram (2009(4) KLT 485), indicating a binding position unless reversed. Earlier, recovery of arrears under Exhibit P1 was stayed, and an interim direction required payment under LT VI A, later modified on 10.01.2012 to LT VIIA. The court observes that liability for payment at the enhanced tariff hinges on the Supreme Court’s decision, and that restraining the Board entirely could prejudice its position if the Supreme Court upholds the change, while refunds would be due if reversed. In sum, the petition is disposed of by keeping arrears under LT VIIA in abeyance pending the Supreme Court decision, while allowing continued LT VIIA charges and preserving refund/adjustment rights if the challenged change is ultimately reversed or upheld.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner challenges the tariff change from LT VIA to LT VIIA, arguing private educational institutions cannot be treated on par with government or aided institutions for tariff purposes. They seek to restrain recovery of arrears and advocate for refunds/adjustments if the Supreme Court reverses the impugned change; they emphasize the lack of parity with government/aided institutions and the stay on related judgments.

Contentions of Respondents

The Board and regulators argue that Bro. Joseph Antony v. KSEB (2009(3) KLT 1022) governs the issue, though its operation was stayed by the Supreme Court in SLPs. They contend that continuing to charge LT VIIA is permissible pending the Supreme Court decision, with refunds only if the Court reverses the change. They stress that the legal position must be resolved by the higher court before altering recoveries, and that any arrears should be recoverable if the alteration is ultimately upheld.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Bro. Joseph Antony vs. KSEB	2009(3) KLT 1022	Positive	The court states the issue is covered by this Division Bench decision, though its operation was stayed by the Supreme Court; it remains a controlling precedent to be followed, subject to higher court outcome.
Abdu Rehiman vs. District Collector, Malappuram	2009(4) KLT 485	Positive	The court cites this ruling to support following the Bro. Joseph Antony decision until reversed, as per the court’s own reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **SATURDAY, THE 31ST DAY OF MAY 2014/10TH JYAISHTA, 1936** ## **WP(C).No. 9114 of 2010 (L)** **---------------------------** **PETITIONER:** **--------------------------** **DIRECTOR, BALANAGAR TECHNICAL INSTITUTE ASSOCIATION (ITC), MOOKKANNUR P.O., ANGAMALY- 683 577, ERNAKULAM DISTRICT.** **BY ADVS.SRI.WILSON URMESE SMT.SHIPNA VARGHESE** **RESPONDENTS:** **----------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM-695 004.** **2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, K.S.E.B., KARUKUTTY.** **3. THE KERALA STATE ELECTRICITY REGULATORY COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. SRI.T.R.RAJAN,SC,K.S.E.B.** **SRI.P.P.THAJUDEEN, SC, K.S.E.B.** **R3 BY ADV. SRI.ANEESH JAMES,SC,KSEB REGULATORY COMMN. SRI.S.SUJIN, SC, KSEB REGULATORY COMMISSION SRI.P.NANDAKUMAR,SC,KSEB REGULATORY COMMN. SRI.S.SREEKUMAR,SC,KSERC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.9114/2010 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE 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 KERALA STATE ELECTRICITY REGULATORY COMMISSION.** **EXHIBIT P2: TRUE COPY OF THE JUDGMENT DATED 18/12/2009 IN WPC.NO.35402/09.** **EXHIBIT P3: TRUE COPYOF THE BILL DATED 05/03/2010 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF CON.NO.6782.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R(2)(A): TRUE COPY OF THE BY ORDER DATED 25/01/2010 OF THE HON'BLE SUPREME COURT OF INDIA IN SPECIAL LEAVE PETITION (CIVIL) NOS.1822-1836/2010.** **EXHIBIT R(2)(B): TRUE COPY OF THE ORDER DATED 28/05/2010 OF THIS HONOURABLE COURT IN WRIT APPEAL NO.650/2010.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 9114 of 2010 --------------------------------Dated this the 31st day of May, 2014 ## JUDGMENT The petitioner is challenging the change of tariff from LT VIA to LT VIIA on the premise that private educational institutions are not entitled to be included in par with Government and aided institutions. The issue now stands covered through a Division Bench decision of this court in **Bro. Joseph Antony vs. KSEB (2009(3) KLT 1022).** But the hon'ble Supreme Court had stayed operation of the above said judgment, in Special Leave Petitions filed by the Electricity Board. However, unless the legal position is reversed this court is bound to follow the above decision in view of the ruling of this court in **Abdu Rehiman vs. District Collector, Malappuram (2009(4) KLT 485).** 2. It is noticed that, recovery of amounts demanded under Ext. P1 was stayed by this court and the petitioner was permitted to continue payment under LT VI A tariff. Subsequently the interim order was modified on 10.1.2012 and WP(C). 9114 /2010 2 the petitioner was directed to go on payment of electricity charges under LT VII A tariff. This court takes note of the fact that question regarding liability for payment at the enhanced tariff will ultimately depend upon the outcome of the decision by the hon'ble Supreme Court. In view of the order staying operation of the judgment in **Brother Joseph Antony's case (cited supra)** this court is not inclined to restrain the Board from charging the petitioner under LT VII A. This is because of the fact that, in case the hon'ble Supreme Court uphold the change of tariff the respondents will be put to prejudice. On the other hand in a situation where the decision impugned is upheld, the petitioner can seek refund/adjustment. But at any rate it is only just and proper to restrain the respondent Board from recovering arrears if any due based on the enhanced tariff, till the matter is ultimately decided by the hon'ble Supreme Court. 3. Hence, this writ petition is disposed of by directing the respondents to keep in abeyance recovery of the arrears demanded, until the matter is decided by the hon'ble Supreme Court in the SLP pending. However it is made cleat that the WP(C). 9114 /2010 3 respondents will be free to charge the petitioner under LT VIIA tariff for continued consumption. It is further made clear that payment if made at the enhanced tariff will be liable for refund/adjustment, in case the hon'ble Supreme Court confirms the judgment in **Brother Joseph Antony's case (cited 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 hon'ble Supreme Court. C.K.ABDUL REHIM, JUDGE pmn/ WP(C). 9114 /2010 4 WP(C). 9114 /2010 5 WP(C). 9114 /2010 6