Smt. Ambika v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 23RD DAY OF SEPTEMBER 2016/1ST ASWINA, 1938** **WP(C).No. 19788 of 2006 (E) ---------------------------** **PETITIONER(S): -------------** **SMT.S.AMBIKA, W/O. P.SURENDRAN, TC.12/582, "SUKANYA BHAWAN", KUNNUKUZHY P.O., TRIVANDRUM.** **BY ADV. SRI.K.P.DANDAPANI (SR.)** **RESPONDENT(S): --------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVANAM, PATTOM, TRIVANDRUM-695004.** **2. EXECUTIVE ENGINEER, K.S.E.B., ELECTRICAL DIVISION, TRIVANDRUM (WEST). 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.B., CHAKKA, TRIVANDRUM.** **BY ADV. SRI.P.SANTHALINGAM (SR.)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 19788 of 2006 (E) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS ---------------------** - **P1: COPY OF THE JUDGMENT DATED 18/10/2005 OF THIS HONOURABLE COURT IN WPC.2924/2005D** - **P2: COPY OF THE ORDER DATED 24/12/2005 ISSUED BY THE R2 TO THE PETITIONER** - **P3: COPY OF THE IDENTITY CARD ISSUED IN DECEMBER 1998 BY SREE NARAYANA TRUSTS, QUILON TO THE PETITIONER** - **P4: COPY OF THE CERTIFICATE DATED 2/3/05 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, TRIVANDRUM TO THE PETITIONER** - **P5: COPY OF THE RESIDENTIAL CERTIFICATE DATED 24/2/20-06 ISSUED BY THE REVENUE OFFICER, CORPORATION OF TRIVANDRUM TO THE PETITIONER** - **P6: COPY OF THE CERTIFICATE DATED 6/10/98 ISSUED BY THE REVENUE OFFICER, TRIVANDRUM CORPORATION TO THE PETITIONER** - **P7: COPY OF THE CERTIFICATE DATED 25/2/2006 ISSUED BY THE CIRCLE INSPECTOR OF EXCISE, TRIVANDRUM TO THE PETITIONER** - **P8: COPY OF NOTICE DATED 14/11/2003 ISSUED BY THE RESPONDENT** - **P9: COPY OF NOTICE DATED 20/7/20O4 ISSUED BY THE RESPONDENT** - **P10: COPY OF NOTICE DATED 20/9/2004 ISSUED BY THE RESPONDENT** - **P11: COPY OF THE ORDER ISSUED BY THE SECRETARY OF THE ELECTRICITY BOARD DATED 1/6/2009** - **P12: COPY OF THE ORDER ISSUED BY THE SECRETARY OF THE ELECTRICITY BOARD DATED 17/6/2009** ## **RESPONDDENTS' EXHIBITS** ## **----------------------** **NIL.** ## **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **P.V.ASHA J.** ## **--------------------------------------------** ## **W.P.(C) No.19788 of 2006** **---------------------------------------------** Dated this the 23[rd] day of September, 2016 ## **J U D G M E N T** The petitioner who is a consumer of electricity with consumer No.12342 of Electrical Section, Pettah, Thiruvananthapuram is challenging Ext.P2 order to the extent it effected change of tariff from LT VII (a) to LT I(a) from 18.05.2004 only and not from 29.10.1998 as requested by her and for consequential directions. 2. The case of the petitioner in the writ petition is that she was residing in House No.12/582 for which she had applied for electrical connection and she had taken the electrical connection only for residential purpose, which was given to her on 29.10.1998. But the Electricity Board realised the charges from her at the rate applicable to commercial tariff LT VIIa. Petitioner submits that she came to know about the tariff under which the charges were realized only when she received notice dated 14.11.2003 by which a sum of Rs.17,990/- was demanded towards charges. Thereupon, she approached this Court in W.P.(C) No.19788 of 2006 2 W.P.(C).No.29224 of 2005, and this Court by Ext.P1 judgment directed the Electricity Board to take a decision on the representation which was produced in that writ petition. In Ext P2 order the Assistant Executive Engineer after hearing her, found that she stopped her commercial activities in her building only after 18.05.2004 and her application for change of Tariff was on 18.05.2004. Accordingly, Ext P2 order was issued changing the tariff applicable to the electrical connection from LT Ia to LT VIIa with effect from 18.05.2004, which is the date of her application and directed that the amount collected from her in excess, for the period from 18.05.2004 shall be adjusted. 3. According to the petitioner, she is not liable to pay charges at the rate applicable to LT VIIa tariff since she was only a domestic consumer and the connection was only for residential purpose. In support of her contention she produced an identity card issued from Sree Narayana Trust, Kollam with the address TC 12/582, Vadayakkadu, Kunnukuzhi, which was issued in December, 1988. Ext.P4 is the certificate issued by the W.P.(C) No.19788 of 2006 3 Assistant Executive Engineer, Kerala Water Authority, according to which she was given water connection under the domestic category from the date of connection i.e., 19.12.1988 and Residential Certificate was issued by the Thiruvananthapuram Corporation on 24.02.2006, certifying that she had been residing in the address given in the writ petition. Ext.P6 certificate issued by the Thiruvananthapuram Corporation to the effect that the building in question is under the ownership of the petitioner, Ext.P7 certificate issued by the Circle Inspector of Excise on 25.02.2006 to the effect that the petitioner has been residing in the address as per their records are also produced by the petitioner. Therefore, the petitioner claims that change of the tariff should have been effected with effect from the original date of connection, i.e., 29.10.1998 instead of 18.05.2004. 4. The respondents have filed a statement in the year 2006 in which they have stated that electrical connection was given to the petitioner on 20.10.1998 under commercial tariff as per agreement executed by her with the K.S.E.B and bills were being issued accordingly. W.P.(C) No.19788 of 2006 4 On 14.11.2003 a sum of Rs.17,990/- was demanded from her towards additional cash deposit on the basis of the energy consumption which is usually collected in case the deposit collected is less compared to the monthly energy charges. It is further stated that the officials inspected the premises of petitioner at the time of service connection application and fixed the tariff according to the purpose for which energy is to be used and only on getting an application from the consumer reduction from higher tariff to lower tariff is considered. The Board stated that the petitioner did not have any complaint till May, 2004 as against the tariff. The Board also stated that the documents produced by the petitioner cannot be relied on for the purpose of change in tariff. According to the Board, change in tariff cannot be given with retrospective effect. 5. Counter affidavit was filed by respondents 1 to 3. Counter affidavit is filed in tune with the statement already filed. In the counter affidavit it is stated that tariff change cannot be effected on the basis of Exts.P3 to P7 and that petitioner has executed an agreement on the W.P.(C) No.19788 of 2006 5 basis of which payment of charges was made under LT VIIa which is applicable for commercial purposes. 6. Heard the learned Senior counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents. 7. According to the petitioner, since she submitted application for connection for domestic purposes the KSEB could not have realised charges as applicable under the LT VIIa tariff. But the stand of the Standing Counsel is that the tariff was changed only on the basis of the application submitted by her which they received only on 18.05.2004. It is relevant to note that in Ext.P2, the respondents have found that petitioner has ceased the commercial activities in her house only after 18.05.2004 and she did not have any complaints about the tariff or bills until 18.05.2004, even though there is substantial variation in respect of the domestic charges and commercial tariff. It is further stated that even though petitioner had remitted a sum of Rs.24,500/- as OYEC and Rs.4,500/- as SCC which is applicable for commercial tariff and executed the agreement after remitting the same, in W.P.(C) No.19788 of 2006 6 all the complaints submitted by her and even in the writ petition filed by her before this Court she revealed only payment of sum of Rs.12,500/- as OYEC and Rs.2,400/- as SCC and that it was willfully done in order to suit her contention that it was for residential purposes. The relevant portion in Ext.P2 reads as follows: “..She has remitted Rs.24,500/- as OYEC and Rs.4,500/- as SCC, which is meant for Commercial tariff and after agreeing this she has remitted the same. But in all her complaints submitted, even before the Hon'ble High Court of Kerala, she has revealed only the payment of Rs.12,500/- as OYEC and Rs.2,400/- as SCC. This was done wilfully, in order to establish the connection in LT Ia instead of LT VIIa.” 8. The petitioner has not stated anything in the writ petition regarding the above statement in Ext.P2. That shows that petitioner has not come to this court with clean hands. 9. The learned Senior counsel submitted that the petitioner being a woman, she would have executed an agreement which was furnished to her by the respondents and for that reason she should not be penalised by fastening on her the liability to pay charges which are W.P.(C) No.19788 of 2006 7 applicable for connection for commercial purposes as against her application for residential connection. The learned Senior counsel relied on the judgments of this Court in **Gopinathan v. Kerala State Electricity Board** (2013 [4] KLT 455) and **New Delhi Muncipal Council v. Sohan Lal Sachdev** (2000 [2] SCC 494). In **Gopinathan v. Kerala State Electricity Board** (supra), this Court was considering the challenge as against the change in tariff effected for a connection which was originally under LT 1 category which was changed to LT VII A category on the ground that the petitioner was engaged in Hotel business. It was as against such change effected that this Court held that providing accommodation or facility for stay to own workers cannot be termed as a hostel or private hostel attracting commercial tariff and that domestic tariff alone was to be applied in that case. The judgment of the Apex Court in **New Delhi Muncipal Council v. Sohan Lal Sachdev** (2000 [2] SCC 494) considered the distinction between commercial and domestic purpose and held that what is relevant is the character of the purpose of the user of the premises by W.P.(C) No.19788 of 2006 8 the owner or landlord and not the character of the place of user. 10. But in this case, the petitioner executed agreement for connection for commercial purposes and was paying the bills which charged at the rates admissible for commercial purposes. She came forward with a plea against the tariff made applicable to her, after a period of 5 years of the date of supplying connection in the year 2004 only, claiming that she is a domestic consumer, after executing agreement for commercial connection and after making payment at the rates applicable for the same. The claim of the petitioner in the year 2004 is not raised on account of any change of tariff effected by the respondents. The respondents have considered the purpose and nature of user of the connection when they received the application from petitioner in the year 2004. 11. What is to be decided is whether the petitioner is entitled to get the rate of tariff applicable to her changed with effect from 29.10.1998 and whether she was a domestic consumer or commercial consumer from the date of granting connection. The claim of the W.P.(C) No.19788 of 2006 9 petitioner is to be decided with reference to the factual circumstances existed between 1998 and 18.05.2004. When, the Electricity Board has arrived at a decision in Ext.P2 and thereafter in Exts.P10 and P11 orders that a change of tariff can be effected only from 18.05.2004, and when Ext.P2 itself says that the petitioner ceased her commercial activities only after 18.05.2004, this Court under Article 226 cannot direct that the petitioner shall be treated as a domestic consumer on the basis of Exts.P3 to P7 produced by her. Under the above circumstances, the writ petition is dismissed. Sd/- ## **P.V.ASHA, JUDGE.** AS