T.C. Noushad v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH FRIDAY, THE 10TH DAY OF JULY 2015/19TH ASHADHA, 1937 WP(C).No. 26436 of 2011 (D) ---------------------------- PETITIONER: - ------------------ T.C. NOUSHAD, ROYAL FOOD COURT, A.M.ROAD, PERUMBAVOOR - 683 542. BY ADV. SMT.SARITHA DAVID CHUNKATH RESPONDENTS: ----------------------- 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY VYDYUTHI BHAVAN, PATTOM THIRUVANANTHAPURAM-695004. 2. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, PERUMBAVUR-683542. 3. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, PERUMBAVOOR-683542. R1-R3 BY ADV. SMT.P.K.RADHIKA-KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 26436/2011 ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** EXT.P1 TRUE COPY OF SITE MAHAZAR DATED 27-7-2011. EXT.P2 TRUE COPY OF SHORT ASSESSMENT ORDER AND BILL DATED 12-8-2011 ISSUED BY 3RD RESPONDENT. EXT.P3 TRUE COPY OF OBJECTION FILED BY PETITIONER DATED 24-8-2011. EXT.P4 TRUE COPY OF ASSESSMENT ORDER DATED 13-09-2011 ISSUED BY 3RD RESPONDENT. EXT.P5 TRUE COPY OF APPEAL FILED BEFORE 2ND RESPONDENT DATED 30-09-2011. ## RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE. **“C.R.”** ## **V. CHITAMBARESH, J** ## **-------------------------------WP(C) NO. 26436 OF 2011 ------------------------------------** Dated this the 10[th] day of July, 2015 ## **JUDGMENT** Two shop rooms on the ground floor of a three storied building with separate electricity connections are being utilised by the petitioner allegedly for conducting a bakery within Perumbavoor Municipality. The electricity connections to the two rooms lying adjacent bearing consumer Nos. 22696 and 22747 are on LT VII tariff and LT IV tariff and the entirety of the first floor is admittedly used as a restaurant. The Anti Power Theft Squad found on inspection that the room having electricity connection on LT IV tariff was in fact not confined to the business of bakery. Ext.P1 site mahazar prepared at that juncture revealed the existence of ice cream freezer, cold storage freezer, juice mixer, collector, grinder, mixy, freezer among other apparatus. The third respondent Assistant Engineer thereupon issued Ext.P2 provisional bill imposing penalty to the tune of `5,26,845/- (Rupees Five lakhs twenty six 2 WP(C) No. 26436/2011 thousand eight hundred and forty five only). The petitioner filed Ext.P3 objection thereto contending that he is using the premises for bakery business only and that penalty if at all could only be on LT IV tariff. The second respondent however confirmed the provisional bill by Ext.P4 order in terms of Section 126 of the Electricity Act, 2003 (herein after referred to as 'the Act' only). The petitioner though filed Ext.P5 appeal under Section 127 of the Act to the second respondent did not prosecute the same allegedly being unable to make the statutory deposit of one half of the amount assessed. It is under these circumstances has the present writ petition been filed seeking to quash Ext.P4 order and for a declaration that penalty if any could only be on LT IV tariff as applicable then. The Kerala State Electricity Board (KSEB for short) disputes the very maintainability of the writ petition contending inter alia that the petitioner has to pursue the appellate remedy. 2. I heard Mrs. Saritha David Chunkath, Advocate on behalf of the petitioner and Mrs. P.K. Radhika, Standing Counsel on behalf of the KSEB. 3 WP(C) No. 26436/2011 3. The site inspection was on 27.07.2011 at a time when the schedule of tariff and terms and conditions for retail supply by KSEB with effect from 01.01.2010 issued by the Kerala State Electricity Regulatory Commission was in vogue. Low Tension - IV (LT -IV) - industry tariff would certainly apply in respect of 'bakeries where manufacturing process and sales are carried out in the same premises'. Bakery in common parlance means a bake house or a place where baked items are sold and the meaning of bake is to dry, harden or cook in an oven or a fire of a particular variety of eatables. Ice creams or juices are certainly not baked items and the premises used for the same cannot be termed as a bakery in order to apply LT IV tariff as claimed by the petitioner. It will be reasonable to apply Low Tension -VII (LT VII) commercial tariff in such circumstances as if the area is a commercial premises, hotel or restaurant as contended by the KSEB. I am of the definite opinion that any shop where eatables other than baked items are sold or manufactured cannot be termed as a bakery entitling the benefit of LT IV tariff. 4 WP(C) No. 26436/2011 4. A Division Bench of this Court in **Basheer v. State of Kerala** [1993 (2) KLT 174] has explained the term 'bakery products' ofcourse in the context of the General Sales Tax Act, 1963 as follows:- “Persons accustomed with bakery and purchasing its products would only understand the words to mean 'only those goods which are ordinarily baked in a bakery'. If certain dealers in bakery products make Jilabi, Halva, Gulabjaum and fried food articles such as banana chips, tapioca chips, murukku, pakkavada etc., it will only show that making of such goods is their individual choice or preference or taste. It is also a matter of common knowledge that modern marketing has many dimensions. For convenience of the customers, certain bakeries may sell even pickles, pappadom or even stationery articles. They are goods made or sold out of individual choice or taste probably to cater to their particular customers as part of their business method or marketing method. But these isolated or individual choices or taste for marketing particular goods will not and cannot render such goods 5 WP(C) No. 26436/2011 as one covered by the word 'bakery products'.” The practice of restaurants being run in the guise of a bakery with tables and chairs inside supplying milk shakes and juices apart from many other non baked items has become prevalent in many parts of the State. The presence of tables and chairs inside the premises to serve cooked food in addition to baked items should certainly take the consumer outside the purview of LT-IV tariff in the matter of assessment. 5. But whether the premises in question having consumer No. 22747 was really utilised for manufacturing or selling non baked items attracting LT VII tariff is a matter for deeper scrutiny. Whether there was misuse of electrical energy and the penalty could be assessed on LT-IV tariff or LT-VII tariff would depend on the nature of user by the consumer on the basis of the materials on record. LT-IV tariff would apply for bakery with manufacturing process whereas LT - VII tariff would apply for bakery without manufacturing process even as per the present tariff regulations. I think it will be fair to permit the 6 WP(C) No. 26436/2011 petitioner to prosecute Ext.P5 appeal under Section 127 of the Act since a proper appellate authority has been constituted pursuant to **Muhammad Haji** 's case **[2014 (3) KLT 706]** . The petitioner is permitted to represent Ext.P5 appeal with or without additional grounds after complying with the mandatory statutory deposit within a period of one month from today. Every endevaour shall be made to dispose of the appeal if so filed by the petitioner within a period of two months after preferment after affording an opportunity of being heard. The status quo as on today shall continue for a period of six weeks to enable the petitioner to obtain appropriate interim orders in the appeal if any filed from the appellate authority aforestated. The Writ Petition is disposed of. No costs. Sd/- **V. CHITAMBARESH JUDGE** ncd