Indian Maritime University Cochin Campus v. Cochin Port Trust, Kerala State Electricity Board and Kerala State Electricity Regulatory Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY ,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** ## **WP(C).No. 8810 of 2015** ## **PETITIONER/S:** **INDIAN MARITIME UNIVERSITY COCHIN CAMPUS, SOUTH END RECLAMATION AREA, NH 47A, NEAR ALEXANDER PARAMBITHARA BRIDGE, MATSYAPURI P.O, W/ISLAND, KOCHI-682029, REP BY ITS DIRECTOR** **BY ADVS. SRI.V.B.HARI NARAYANAN SRI. VIJU ABRAHAM SRI. ROSHNI MANUEL** ## **RESPONDENT/S:** - **1 COCHIN PORT TRUST WILLINGTON ISLAND, COCHIN-682009, REP BY ITS SECRETARY** - **2 KERALA STATE ELECTRICITY BOARD, VAIDHUTHI BHAVAN, THIRUVANANTHAPURAM, REP BY ITS SECRETARY** - **3 KERALA STATE ELECTRICITY REGULATORY COMMISSION VELLAYMBALAM, THIRUVANANTHAPURAM-695010, REP BY ITS SECRETARY** **SRI.ABRAHAM JOSEPH MARKOS (SC,COCHIN PORT TRUST) SRI.SUDHEER GANESH KUMAR,SC,KSEB SRI.S.SUJIN, SC FOR R3** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 8810 of 2015** **2** ## **JUDGMENT** **The Indian Maritime University, which is a central university, which runs a campus in the land/building leased out from the Cochin Port Trust in Willington Island, where Cochin Port Trust is the licensee for distribution of electricity, is aggrieved by the action of re-classifying it under L.T.VIIA tariff, whereby the electricity charges are levied at a rate higher than that applicable to educational institutions.** **2. Petitioner University set up a campus at Kochi in the land and building allotted by the 1[st] respondent in Willington Island, on lease, as per Ext.P1 order dated 30.11.2009, for running academic courses. The first respondent provided two service connections to the campus-one to the training institute and the other to the hostel complex. As per Ext.P2 letter dated 07.02.2011, the first respondent had informed the petitioner University that the electricity installations would be billed at L.T.IVC tariff as applicable to educational** **WP(C).No. 8810 of 2015** **3** **institutions. Bills were being issued and petitioner had been paying the bills accordingly. In January 2013, petitioner received bills leving charges under L.T.VIIA tariff, applicable to commercial institutions. Though petitioner submitted a complaint against it, the first respondent rejected it as per Ext.P7 letter dated 08.03.2013, stating that re-categorisation was made according to activities of each consumer and accordingly the tariff category of petitioner University was changed to L.T.VIIA, the Tariff applicable to self financing educational institutions with the approval of the competent authorities. Petitioner thereupon informed the Deputy Chief Engineer of first respondent that it is not a self financing institution and that it was formulated under a Central Act under the Ministry of Shipping, Government of India. Petitioner requested to restore it to tariff L.T.IVC as applicable to educational institutions. Then the first respondent directed the petitioner to approach the Consumer Grievance Redressal Forum (CGRF). Petitioner thereupon approached CGRF, which rejected** **WP(C).No. 8810 of 2015** **4** **its petition, as per Ext.P11 letter dated 09.10.2014, stating that petitioner was functioning as a self financing institution. However since all such self financing institutions were brought under L.T.VI General F, tariff, the first respondent was directed to re-assign the tariff under L.T.VIF. Petitioner challenges Exts.P7 and P11 orders and seeks a direction to respondents to levy charges only at the rates as prescribed for educational institutions. Petitioner is aggrieved by the categorisation of the University under L.T.VIIA tariff from the year 2012-13 onwards.** **3. The case of the petitioner is that the first respondent revised the tariff unilaterally without giving an opportunity of hearing. Petitioner also alleged that the Consumer Grievance Redressal Forum does not have jurisdiction to deal with complaints on classification or categorisation for fixing tariff, in the light of the judgment in** _**Assistant Executive Engineer, KSEB V Principal Agricultural Officer**_ **: 2015(1) KLT 526. It is also the case of the petitioner that there is no basis** **WP(C).No. 8810 of 2015** **5** **for classifying it as a self financing institution, when both petitioner and the first respondent are entities functioning under the same Ministry of Shipping.** **4. The 1[st] respondent has filed a counter affidavit stating that the tariff is fixed by the 3[rd] respondent - the Kerala State Electricity Regulatory Commission; petitioner was categorised under L.T.VIIA in accordance with Ext.R1(b) order dated 05.12.2012 of the 3[rd] respondent, where the schedule of tariff for first respondent was provided for the period from 01.07.2012 to 31.03.2013 and based on the categorisation given therein in the year 20122013, tariff applicable to petitioner was L.T.VIIA. According to the respondents, the petitioner had been operating on the lines of autonomous and self financing institution and the categorisation was correct.** **5. Eventhough the respondents had stated that the writ petition was filed without resorting to the statutory remedy available before the Ombudsman, against the order of the Grivance Redressal Forum,** **WP(C).No. 8810 of 2015** **6** **it is conceded that the CGRF does not have any jurisdiction on complaints with respect to tariff. It is pointed out that it was in 2013 that the educational institutions were bifurcated for the purpose fixing tariff and educational institutions were classified under L.T.IVC revised as L.T.VIA and self financing institutions under L.T.VIIA.** **6. The tariff is determined by the Kerala State Regulatory Commission based on the applications submitted by the licensee. In 2013, the tariff with a higher rate applicable to self financing institutions was fixed for petitioner University which is functioning under the Central Government with budget allocation from the Government of India, Ministry of Shipping.** **7. The learned Counsel on both sides submit that the petitioner has since been classified under L.T.VIA as in the case of educational institutions. The tariff applicable to petitioner has been changed** **as per order dated 16.01.2016 from L.T.VIIA to L.T.VIA with effect from 26.12.2015, which is the tariff category applicable to Government/aided** **WP(C).No. 8810 of 2015** **7** **educational institutions. Therefore the subsisting grievance of the petitioner is, only as against the collection of excess payment based on the change in classification for the period from 2012-13 to 25.12.2015.** **8. The learned counsel for the petitioner submits that it is on the basis of the classification made by the first respondent that the 3[rd] respondent changed the tariff and therefore the first respondent has to compensate the petitioner. The mistake committed by the Port Trust in classifying it as self financing institution prejudicially affected the petitioner when the 3[rd] respondent approved its application for such classification.** **9. On the other hand, the contention of the learned Standing Counsel is that the petitioner should have availed its remedy under Section 64 of the Indian Electricity Act, 2003.** **10. I have considered the contentions advanced by both sides.** **11. Admittedly petitioner University was** **WP(C).No. 8810 of 2015** **8** **categorised among educational institutions under tariff L.T.IVC from 2008-09 to 2012-13. Though it was categorised under tariff L.T.VIIA from 2012-13 onwards, it is again brought back among educational institutions from 26.12.2015 onwards. That would show that the contention of the petitioner has been accepted at least in 2015. The restoration is done in 2015, when the nature of activities of the petitioner university continued to be the same. Therefore the very basis for its categorisation in L.T.VIIA that it was functioning as self financing institution is found erroneous and unsustainable, by the respondents themselves.** **12. Though it is true that tariff is fixed by the 3[rd] respondent, it could have been done only on the basis of the application submitted by first respondent including the petitioner among self financing institutions for the purpose of fixing tariff. Therefore the 1[st] respondent cannot be absolved from its liability to make good the loss caused to the petitioner on account of the mistake or illegality committed by them.** **WP(C).No. 8810 of 2015** **9** **13. The learned Standing Counsel for the 1[st] respondent, relying on the judgment in** _**Board of Trustees of Cochin Port Trust v. Kerala State Electricity Board Ltd. :**_ **2017 (4) KLT 960, argued that petitioner ought to have raised its objections before the 3[rd] respondent, during the course of the proceedings under Section 64 of the Electricity Act, 2003. I find that such a contention is taken only because of the findings in that judgment rendered much after 2012-13. The first respondent did not have any such case when petitioner's representation was rejected as per Ext.P7 or in Ext.P10 objection raised by them before CGRF. While issuing Ext.P7 letter, the first respondent directed the petitioner to approach the CGRF, which has since been found to have no jurisdiction to deal with such cases. On the other hand the stand of the first respondent was that petitioner had been functioning as self financing institution. Therefore though sub section 2 of Section 64 provides that every applicant shall publish their suggestions for determination of tariff under Section 62, in the prescribed form** **WP(C).No. 8810 of 2015** **10** **specified by the Commission, the fact whether the first respondent has actually published such suggestion or whether the petitioner could have sufficient knowledge about it are not available in the pleadings, apparently because such a contention is advanced in tune with the judgment rendered in 2017. It is pertinent to note that when petitioner was asked to approach CGRF in 2013, the first respondent did not have any such case that the responsibility was only on the 3[rd] respondent or that it has to approach the 3[rd] respondent.** **14. Therefore the contention that** **petitioner ought to have raised objection when the suggestions in the application were published is absolutely unsustainable. If at all the suggestions were published, as required in subsection 3, the 1[st] respondent ought to have issued a notice at least to those in whose cases change in Tariff is proposed. Otherwise the very purpose of publication of suggestions would be defeated. It was upto the first respondent to see that the suggestions to be made in the applications before 3[rd] respondent, were made** **WP(C).No. 8810 of 2015** **11** **known to those who were likely to be affected. Therefore though objections could have been submitted before the 3[rd] respondent against the suggestions in the application, in the event of such notice or publication, and the 3[rd] respondent was bound to consider such suggestions and objections under Subsection (3) of section 64, before issuing a tariff order under Section 62, pleadings do not refer to any of these facts. Therefore I am unable to accept the contention of the learned Standing Counsel. The fact that the original categorisation has been restored treating the petitioner as educational institution would show that the respondents have rectified the mistake committed by them.** **15. In the judgment in** _**Board of Trustees of Cochin Port Trust (Supra)**_ **there was no reclassification or restoration as occurred in the present case. There the FACT wanted a change in categorisation for fixing a different tariff for it, which was never made applicable to it. In that case they were directed to avail the opportunity in the** **WP(C).No. 8810 of 2015** **12** **next fixation proceedings before the 3[rd] respondent. But in view of the revision of tariff already made in the case of petitioner from 26.12.2015 onwards, petitioner will never get an opportunity for submitting any objection for the past period. The petitioner cannot be compelled to suffer the loss caused to it on account of incorrect and illegal categorisation resulting in alteration of tariff. It is also pertinent to note that the University as well as the 1[st] respondent comes under the very same Ministry and there is budgetary allocation from the Ministry for the functioning of University. Even then the University was treated as a self financing institution. Therefore I find that the factual circumstances arising in the present case and those leading to the judgment in** _**Board of Trustees of Cochin Port Trust's (Supra),**_ **are entirely different.** **16. In the above view of the matter it is declared that the categorisation of petitioner under L.T.VIIA from 2012-13 upto 25.12.2015 was illegal and that petitioner was entitled to be categorised among educational institutions all along.** **WP(C).No. 8810 of 2015** **13** **The petitioner would be entitled to get refund of the difference in charges realised from it under L.T.VIIA tariff. Therefore there shall be a direction to the 1[st] respondent to see that the excess payment collected from the petitioner from 2012-13 onwards by way of bills issued under L.T.VIIA tariff is refunded to it within a period of three months from the date of receipt of a copy of this judgment.** **This writ petition is allowed accordingly.** **Sd/-** **P.V.ASHA JUDGE** WW ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A COPY OF THE ORDER DTD 30/11/2009 ISSUED BY THE IST RESPONDENT** **EXHIBIT P2** **A COPY OF THE LETTER DTD 17/2/2011 ISSUED BY THE IST RESPONDENT** **EXHIBIT P3 A COPY OF THE ELECTRICITY BILL EXHIBIT P4 A COPY FO THE RELEVANT PAGE OF TARIFF ORDER FOR THE YEAR 2008-2009** **EXHIBIT P5** **A COPY OF THE RELEVANT PAGE OF TARIFF ORDER** **WP(C).No. 8810 of 2015** **14** ## **FOR THE YEAR 2012-13** **EXHIBIT P6 A COPY OF THE REQUEST DTD 10/1/2013 SUBMITTED BY PETITIONER** **EXHIBIT P7 A COPY OF THE LETTER DTD 8/3/2013 ISSUED BY THE IST RESPONDENT** **EXHIBIT P8 A COPY OF LETTER DTD 20/6/2013 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT EXHIBIT P9 A COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE CONSUMER GRIEVANCE FORUM** **EXHIBIT P10 A COPY OF THE OBJECTION FILED BY THE PETITIONER** **EXHIBIT P11 P11:-A COPY OF THE ORDER DTD 9/10/2014** **RESPONDENTS(S) EXHIBITS :** **EXHIBIT R1(a) TRUE COPY OF RELEVANT PAGES OF THE ORDER DATED 08-04-2008 PASSED BY THE 3RD RESPONDENT.** **EXHIBIT R1(b) TRUE COPY OF RELEVANT PAGES OF THE ORDER DATED 05-12-2012 PASSED BY THE 3RD RESPONDENT. EXHIBIT R1(c) TRUE COPY OF REJOINDER DATED 12-03-2014 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.**