The Catholic Reformation Literature Society, Hosanna Mount, Edamattom P.O. v Kerala State Electricity Board & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938** **WP(C).No. 6661 of 2011 (G) ---------------------------** **PETITIONER(S): -------------** **THE CATHOLIC REFORMATION LITERATURE SOCIETY, HOSANNA MOUNT, EDAMATTOM P.O., PIN - 686 588, KOTTAYAM, REPRESENTED BY ITS DIRECTOR SRI.JOSEPH PULIKUNNEL** **BY ADVS.SRI.JOSEPH KODIANTHARA (SR.) SRI.BINU MATHEW SRI.B.J.JOHN PRAKASH SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.TOM THOMAS (KAKKUZHIYIL)** **RESPONDENT(S): --------------** **1. THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BAHVAN, PATTOM, THIRUVANANTHAPURAM - 695 004, REPRESENTED BY ITS SECRETARY. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, POOVARANI P.O., PAIKA - 686 577. 3. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, PALA - 686 575. BY ADV. SRI.T.R.RAJAN,SC,K.S.E.B.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2016 THE COURT ON 18-10-2016, DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 6661 of 2011 (G) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1. COPY OF CERTIFICATE OF REGISTRATION DTD.19.7.1977 OF THE PETITIONER UNDER THE TRAVANCORE-COCHIN LITERARY, SCIENTIFIC AND CHARITABLE SOCIETIES' REGISTRATION ACT XII OF 1955. EXHIBIT P2. COPY OF RECEIPT DTD.4.3.2010 EVIDENCING THE AUDITED FINANCIAL REPORT AND BOOKS OF ACCOUNTS SUBMITTED TO THE REGISTRAR OF SOCIETIES. EXHIBIT P3. COPY OF CERTIFICATE DTD.28.4.1978 ISSUED FROM THE INCOME TAX DEPARTMENT UNDER SECTION 12 A(a). EXHIBIT P4. COPY OF CONSTITUTION OF THE PETITIONER SOCIETY. EXHIBIT P5. COPY OF APPLICATION DTD.31.1.2002 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ASSISTANT ENGINEER, ELECTRICAL SECTION, PAIKA, POOOVARANI. EXHIBIT P6. COPY OF ORDER DTD.15.3.2002 ISSUED BY THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PALA. EXHIBIT P7. COPY OF COVERING LETTER DTD.28.8.2002 ALONG WITH THE DEMAND DRAFT SENT BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P8. COPY OF THE COVERING LETTER NO.EB/PAIKA/APTS/ 10-11/TO/30.11.2010 DTD.NIL ENCLOSING THE MAHAZAR ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P9. COPY OF INVOICE DTD.28.10.2010 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P10 COPY OF OBJECTIONS DTD.1.11.2010 AGAINST EXHIBIT P9 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P11 COPY OF ORDER DTD.9.12.2010 ISSUED BY THE 2ND RESPONDENT ALONG WITH THE COVERING LETTER. EXHIBIT P12 COPY OF FINAL BILL DTD.9.12.2010 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P13 COPY OF LETTER DTD.11.1.2011 ISSUED BY THE CONSUMER GRIEVANCE REDRESSAL FORUM, ERNAKULAM TO THE PETITIONER. Msv/** **-2-** **-2-** **WP(C).No. 6661 of 2011 (G)** **---------------------------** **EXHIBIT P14 COPY OF COVERING LETTER AND DEMAND DRAFT DTD.10.1.2011 ISSUED BY THE PETITIONER TO THE DEPUTY CHIEF ENGINEER, PALA.** **EXHIBIT P14(a): COPY OF APPEAL DTD.24.1.2011 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P15 COPY OF ORDER DTD.17.2.2011 ISSUED BY THE DEPUTY CHIEF ENGINEER, PALA.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **A.M. SHAFFIQUE, J.** =============== W.P. (C) No. 6661 of 2011 ================== Dated this, the 18[th] day of October, 2016 ## **J U D G M E N T** This writ petition is filed challenging Ext.P9, P11, P12 and P15 and for a declaration that the petitioner is liable to be billed only under LT VIB tariff. 2. The petitioner, a charitable organization, is a low tension consumer of electricity under the 2[nd] respondent with Consumer No.6396 categorized under LT VIB tariff. Another charitable society in the name of Good Samaritan Project India is situated in the same premises with Consumer No.5679 which is also categorized under LT VIB tariff. It is submitted that prior to 2002, seven different consumer numbers were given under different tariffs for hospital, press, canteen, quarters, pump house, chapel etc,. Petitioner was asked to install a transformer in the premises since the total load was above 50KW. On the basis of the said request, all the works relating to the setting up of transformer was completed. Necessary amount was paid and the connections were clubbed into two consumer numbers as aforesaid cancelling the earlier numbers. W.P(C) No.6661/11 -:2:- 3. An inspection was conducted in the premises on 28/10/2010 and a mahazar was prepared. With reference to Consumer No.6396, it was alleged that petitioner has an unauthorised load of 41KW as against the authorized load of 49 KW. Further, it was alleged that power was used for commercial purpose. A provisional invoice was issued demanding `6,77,722/on the basis of penal assessment under LT VIIA tariff for one year. Objection was filed by the petitioner. However, the 2[nd] respondent upheld the provisional invoice as per Ext.P11 order dated 9/12/2010 and a final bill was issued as Ext.P12. 4. Petitioner preferred a complaint challenging Ext.P12 before the Consumer Grievance Redressal Forum, Ernakulam which was returned with the endorsement that it is not maintainable. Subsequently, after interference by this Court in WA No. 52/2011, petitioner preferred an appeal before the 3[rd] respondent, which was dismissed as per Ext.P15. It is in the said circumstances that this writ petition is filed _inter alia_ contending that the authorities have not considered the matter in the proper perspective. ## W.P(C) No.6661/11 -:3:- 5. Counter affidavit has been filed on behalf of the respondents stating that the supply from Consumer No.6396 was being utilized for the operation of conference hall, dormitory, guest rooms, old age home used for accommodation of IELTS students, canteen, offset press, office building, library etc,. It is stated that, during 2002, two service connections alone were given to the activities of the two projects, viz., Catholic Reformation Literature Society and Good Samaritan Project. At the time of allotting LT VIB tariff, the total connected load was 50KW and there were no commercial activities. But at the time of inspection, it was found that the connected load was 91 KW and the petitioner was utilizing the service connection for commercial activities as well. It is in the said circumstances that the demand had been made. It is stated that there is no basis for the contentions urged and the authorities had considered the matter in the proper perspective and there is no reason why a different view should be taken in the matter. 6. Heard the learned senior counsel appearing for the petitioner and the learned standing counsel appearing for the ## W.P(C) No.6661/11 ## -:4:- respondent Board. 7. It was argued that even during 2002, various facilities were provided in the premises of the organization and the Board was well aware of the nature of activity that was being carried on in the said premises. Until after the inspection being conducted, no attempt had been made to inform the petitioner about the alleged irregularity. Further, it is at the instance of the Board that separate consumer numbers were treated as one and presently, there are only two consumer numbers. The activities being carried on in the premises are part of the charitable organization and there is no commercial venture as alleged. 8. Following are the judgments relied upon:- ## (i) _**N.S.S. Hindu College. v. Chief Engineer, Kerala State Electricity Board and Others**_ (2007 (4) KLT 779). That was a case in which petitioner challenged the demand of electric charge at commercial tariff for the electricity connection given to the canteen attached to the petitioner's college. Petitioner contended that the canteen is exclusively catering to the needs of the students and staff and therefore, W.P(C) No.6661/11 -:5:- tariff applicable to educational purposes, i.e., LT VIA, should be applied. It was held that canteen run by educational institution directly or through contractor cannot be treated as educational institution and cannot be billed under LT VIA. However, it was held that college canteen which provides for food to the students and staff should more appropriately fall under LT VIB tariff. (ii) _**Joseph Antony v. KSEB and Others**_ (2009 (3) KLT 1022). In this case, a Division Bench of this Court while considering a question relating to the tariff modification issued by Kerala State Regulatory Commission in the matter of fixation of tariff for self financing educational institution held that there is no justification for treating and including such institutions under LT VII tariff as commercial. Therefore, they should be treated under Tariff VI until a new notification is issued in accordance with law. (iii) _**Gopinathan G. v. Assistant Executive Engineer, Kerala State Electricity Board**_ (2013 (4) KLT 455). In this case, a learned Single Judge of this Court while considering the question relating to the tariff applicable for W.P(C) No.6661/11 -:6:- providing accommodation to the workers of hotel business run by a firm held that the use cannot be categorized as private hostel included in LT VIIA and it was declared that the petitioner was entitled to get his connection reclassified under LT-1 category (domestic tariff). 9. I do not think that the judgments aforesaid can have any bearing on the factual aspects involved in the present case. In the case on hand, there is a finding by the authorities, as evident from the mahazar, that the connected load had exceeded by 41KW and that the premises is being given for commercial activities. The report in the mahazar has been approved by the appellate authority as well, as evident from the findings in Ext.P15. The following has been laid down in Ext.P15 order:- _“As per the prevailing rules of the Board, LT VIB tariff is applicable to hostels run by institutions that are registered under Cultural, Scientific and Charitable Societies Act and exempted from payment of income tax. Eventhough CRLS is a registered charitable institution, its hostels are not running for charitable purposes only. The hostel buildings are used as guest houses, dormitories and rent is collected for the same which is a commercial activity. Sri.Joseph Pulikkunnel, the_ W.P(C) No.6661/11 ## -:7:- _Director of the institute agreed that the conference hall is being given for rent for conducting seminars and meetings._ _Eventhough it is stated in the circular produced by the appellant that as per section 2 (15) of Income Tax Act business can also be carried out by the charitable institutions under certain conditions no specific orders in this regard is issued by the KSE Board._ _As per the prevailing rules of the KSE Board regarding tariff, private hostels, lodges, Guest/Rest houses are coming under LT VIIA tariff which is commercial. The income generated from the hostels/Guest houses/Conference hall of CRLS is purely from business/commercial activities as admitted by the Director. Hence I am convinced that the findings of the APTS during their inspection in the premises of consumer No.6396 of Electrical Section, Paika are genuine and reasonable.”_ 10. When these findings are relevant based on the materials collected, I do not think that there is any scope for judicial review taking note of the various aspects involved in the matter. The tariff originally applied to the petitioner was with reference to a charitable organization but when it is found that they are also undertaking commercial activity, the Board is forced W.P(C) No.6661/11 -:8:- to take action in that regard. When on factual materials made available, a proper decision had been arrived at by the Assistant Engineer as well as the appellate authority, I do not think that this Court will be justified in taking a different view in the matter. Hence, I do not think that the petitioner is entitled to challenge the demand made. Writ petition is, therefore, dismissed. Sd/- **A.M. SHAFFIQUE, JUDGE** Rp //True Copy// P.S to Judge