Kaithakuzhy Educational Association vs Kerala State Electricity Board and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` THURSDAY, THE 16[TH] DAY OF NOVEMBER 2023/25TH KARTHIKA, 1945 ``` ``` WA NO.1106 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT WP(C) 2376/2022 OF HIGH COURT OF ``` ``` KERALA ``` ## **`APPELLANT/PETITIONER:`** ``` KAITHAKUZHY EDUCATIONAL ASSOCIATION, VELICHIKALA.P.O, PIN – 691573, KOLLAM DISTRICT, REPRESENTED BY SECRETARY MR. VINOD A PHILIP, ``` ``` BY ADVS.JOSE ABRAHAM E.ADITHYAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY SECRETARY, VYDHYUTHI BHAVAN, PATTOM THIRUVANANTHAPURAM., PIN - 695004`** - **`2 KERALA STATE ELECTRICITY REGULATORY COMMISSION REPRESENTED BY SECRETARY, KPFC BHAVANAM, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695010`** - **`3 THE ASSISTANT EXECUTIVE ENGINEER ELECTRICAL SUB DIVISION CHATAHANNOOR P O, CHATAHANNOOR, KOLLAM, PIN - 691572`** - **`4 THE ASSISTANT ENGINEER ELECTRICAL SUB DIVISION CHATHANNOOR P.O, CHATAHANNOOR, KOLLAM, PIN - 691572`** - **`5 THE CHAIRPERSON CONSUMER GRIEVANCE REDRESSAL FORUM, VYDHYUTHI BHAVAN, KSE BOARD LTD, KOTTARAKKARA, PIN - 691506`** - **`6 THE STATE ELECTRICITY OMBUDSMAN CHARANGATTU BHAVAN, BUILDING NO.38/2829,`** 2 W.A.No.1106 of 2022 ``` MAMANGALAM - ANCHUMANA ROAD, EDAPPALLY,KOCHI, PIN - 682024 ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.A.No.1106 of 2022 ## **JUDGMENT** Anil K. Narendran, J. The appellant, who is a consumer of electricity under the Electrical Sub Division, Chathannoor of the 1[st] respondent Kerala State Electricity Board with consumer No.1145752012702, approached this Court in W.P.(C)No.2376 of 2022 seeking a writ of certiorari to quash Ext.P1 demand notice dated 27.10.2020 issued by the 4[th] respondent Assistant Engineer, Electrical Sub Division, Chathannoor, Ext.P2 order dated 16.04.2021 of the 5[th] respondent Consumer Grievance Redressal Forum, Kottarakkara in O.P.No.110 of 2020 and Ext.P3 order dated 16.12.2021 of the 6[th] respondent State Electricity Ombudsman in Appeal Petition No.P/056/2021; and a declaration that no amount as arrears of electricity dues can be demanded from the petitioner. The demand made by the 4[th] respondent in Ext.P1 demand notice was under challenge before the 5[th] respondent Consumer Grievance Redressal Forum in O.P.No.110 of 2020, which ended in dismissal by Ext.P2 order dated 16.04.2021. Challenging Ext.P2 order, the petitioner approached the 6[th] respondent State Electricity Ombudsman in Appeal Petition No.P/056/2021, which also ended in dismissal by Ext.P3 order dated 16.12.2021. Challenging Ext.P1 demand notice and Exts.P2 and P3 orders, 4 W.A.No.1106 of 2022 the appellant filed W.P.(C)No.2376 of 2022, which ended in dismissal, by the impugned judgment dated 26.05.2022 of the learned Single Judge. Feeling aggrieved, the appellant is before this Court in this writ appeal, invoking the provisions under Section 5 of the Kerala High Court Act, 1958. 2. Heard the learned counsel for the appellant and also the learned Standing Counsel for Kerala State Electricity Board for the respondents. 3. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the judgment of the learned Single Judge in W.P.(C)No.2376 of 2022, whereby the challenge made against Exts.P1, P2 and P3 stands repelled. 4. The reasoning of the learned Single Judge as contained in paragraphs 2 and 3 of the impugned judgment reads thus; “2. The controversy involved in the present case has already been put at rest by this Court and the Honourable Supreme Court where in the case of a self-financing educational institution being provided with a LT-VIF consumer with effect from 2007 revised the tariff to LTVIIA. The Single Bench of this Court dismissed the writ petition whereas the Division Bench reversed the findings. The matter was taken up in the Supreme Court and the Supreme Court in Kerala State Electricity Board through its 5 W.A.No.1106 of 2022 Special Officer (Revenue) and another V. MRF Limited [1996 KHC 1401] upheld the judgment of the Single Bench. In few of the cases, the consumer had got the payment adjusted towards the future bills but in the present case assessee had not paid the revised tariff. 3. The challenge against the demand cannot be entertained at this time as the judgment had validated the demand of the Electricity Board for changing the tariff of the self-financing educational institutions. The grievances of the petitioner that demand is _ex facie_ time barred in view of Regulation 136 of the Electricity Supply Code, 2014 or Section 56 of the Electricity Act, 2003 is not sustainable as the period for which demand was raised is prior to promulgation of the Kerala Electricity Supply Code and the matter was pending in the Court. It is only after the adjudication the demand could have been raised. The petitioner, in order to avoid liability at this stage, ought to have paid it with adjustment, but cannot raise the dispute of limitation at this stage of time.” 5. The learned counsel for the appellant would contend that the demand made in Ext.P1 was barred by limitation since the appellant was not a party to the proceedings before this Court in the decisions reported in **Sr.Annie and another v. Kerala State Electricity Board and others [2009 (2) KHC 554]** and in **Bro.Joseph Antony v. Kerala State Electricity Board and others [2009 (3) KHC 797]** and also in the decision of the Apex Court in **Kerala State Electricity Board** 6 W.A.No.1106 of 2022 **and another v. Principal, Sir Syed Institute for Technical Studies and others [(2021) 14 SCC 118]** and as such, the learned Single Judge ought to have interfered with Ext.P1 demand notice and also Exts.P2 and P3 orders of the Consumer Redressal Forum and the State Electricity Ombudsman, respectively. 6. On the other hand, the learned Standing Counsel for KSEB would submit that the challenge made before the learned Single Judge was against the tariff, which is applicable to all consumers of the Board, who are falling under that category. The learned Single Judge **Sr.Annie and another [2009 (2) KHC 554]** upheld the tariff. However, the Division Bench of this Court in **Bro.Joseph Antony [2009 (3) KHC 797]** allowed the appeals in favour of the consumers. The Board took up the matter before the Apex Court and the decision of the Apex Court in **Principal, Sir Syed Institute for Technical Studies and others [(2021) 14 SCC 118]** is in favour of the Board and as such, the Board is well within its powers to raise the demand in Ext.P1 demand notice, which the consumer is bound to pay. The demand made in Ext.P1 was sustained by the 5[th] respondent Consumer Disputes Redressal Forum in Ext.P2 order and by the 6[th] respondent State Electricity Ombudsman in Ext.P3 order, 7 W.A.No.1106 of 2022 which warrants no interference. 7. In the decision reported in **Sr.Annie and another [2009 (2) KHC 554]** a learned Single Judge of this Court held that repelled the challenge made in a batch of writ petitions filed by the consumers of the Kerala State Electricity Board against the tariff modification issued by the Kerala State Electricity Regulatory Commission in the matter of fixation of tariff for SelfFinancing Educational Institutions under Sections 62 and 86 of the Electricity Act, 2003. As per the new tariff notification, SelfFinancing Educational Institutions are classified under LT-VII(A) as commercial institutions and the notification was effective from 01.12.2007. The said decision of the learned Single Judge was reversed by the Division Bench in **Joseph Antony (Bro.) [2009** **(3) KHC 797]** . The Division Bench declared that inclusion of Self-Financing Educational Institutions under LT-VII(A) as a commercial consumer is bad in law insofar as such differentiation is not for any of the grounds specified under Section 62(3) of the Act. Accordingly, the Division Bench allowed all the writ appeals and the writ petitions and directed that such institutions will be treated like consumers falling under Tariff VI until any new notification is issued in accordance with law. All Self-Financing Educational Institutions were being paid at Tariff LT-VI during 8 W.A.No.1106 of 2022 the pendency of the writ petition. In the appeal, the Division Bench made a slight modification in the interim order and directed them to pay off at the current rate. Since the writ appeals are allowed, the Division Bench ordered that the amount paid by the appellants will be adjusted against the future dues. Instead of adjusting the entire amount in one month, the Division Bench directed that such excess amount shall be adjusted within a period of four months so that one-fourth of the excess amount be adjusted every month until the same is wiped off. ## 8. In **Principal, Sir Syed Institute for Technical Studies and others [(2021) 14 SCC 118]** the Apex Court held that no error was committed by the Kerala State Electricity Regulatory Commission in fixing a higher tariff for the SelfFinancing Educational Institutions categorising them as commercial entities. No undue preference has been given to the State-run and State-aided institutions in the tariff notification. The fact that Self-Financing Educational Institutions have been clubbed together with several commercial service providers wholly unrelated to education becomes insignificant once it is found that the purpose of Self-Financing Educational Institutions could be differentiated from Government-run and Government- 9 W.A.No.1106 of 2022 aided educational institutions. The Apex Court, by the judgment dated 20.02.2020 set aside the judgment dated 17.08.2009 of the Division Bench of this Court in **Joseph Antony (Bro.) [2009 (3) KHC 797]** and restored the judgment dated 06.04.2009 of the learned Single Judge Bench in **Sr.Annie and another [2009 (2) KHC 554]** . 9. In view of the law laid down by the Apex Court in **Principal, Sir Syed Institute for Technical Studies and others [(2021) 14 SCC 118]** , whereby the Apex Court set aside the judgment of the Division Bench in **Joseph Antony (Bro.) [2009 (3) KHC 797]** and restored the judgment of the learned Single Judge Bench in **Sr.Annie and another [2009** **(2) KHC 554]** . As per the new tariff notification, which was upheld by the learned Single Judge, Self-Financing Educational Institutions are classified under LT-VII(A) as commercial institutions with effect from 01.12.2007. Therefore, the appellant, a consumer falling under that category, is bound to pay the demand made by the 4[th] respondent in Ext.P1 demand notice, for the period from 12/2007 till 08/2011. The said demand made pursuant to the law laid down by the Apex Court in **Principal, Sir Syed Institute for Technical Studies and others [(2021) 14 SCC 118]** is not hit by the provisions of 10 W.A.No.1106 of 2022 Regulation 136(3) of the Kerala Electricity Supply Code, 2014 or Section 56(2) of the Electricity Act, 2003. The challenge made against that demand was repelled concurrently by the 5[th] respondent Consumer Grievance Redressal Forum in Ext.P2 order and by the 6[th] respondent State Electricity Ombudsman in Ext.P3 order. The appellant is also bound by the law laid down by the Apex Court in the said decision in the context of the tariff notification, whereby Self-Financing Educational Institutions are classified under LT-VII(A) as commercial institutions with effect from 01.12.2007. In such circumstances, we do not find any reason to interfere with the impugned judgment of the learned Single Judge, whereby interference was declined on the demand made in Ext.P1 demand notice, Ext.P2 order of the Consumer Disputes Redressal Forum and Ext.P3 order of the State Electricity Ombudsman. 10. In the result, this Writ Appeal fails and the same is accordingly dismissed. 11. The learned counsel for the appellant would submit that the appellant may be granted an opportunity to pay the dues in Ext.P1 demand notice in monthly instalments. 12. In case the appellant submits a representation for granting an opportunity to pay the dues in Ext.P1 demand notice 11 W.A.No.1106 of 2022 in monthly instalments, within a period of three weeks from the date of receipt of a certified copy of this judgment, the 3[rd] respondent Assistant Executive Engineer or the competent authority in the Board, shall consider the same and take an appropriate decision in the matter, taking note of the statutory provisions, as expeditiously as possible, at any rate, within a period of two weeks. In case there is any default on the part of the appellant in clearing the dues in Ext.P1 demand notice together with interest and other penal charges, if any, it would be open to the Board to initiate coercive steps against the appellant. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **G. GIRISH, JUDGE** AV