The petitioner challenged a board order changing her electricity tariff from residential to commercial retroactively. Dismissing the writ petition, the court held that having executed a commercial agreement and paid commercial tariffs for years, retrospective domestic classification based on later evidence was untenable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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
RESPONDDENTS' EXHIBITS
NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
P.V.ASHA J.
--------------------------------------------
W.P.(C) No.19788 of 2006
--------------------------------------------- Dated this the 23rd 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.
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.
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.
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.
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.
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.”
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.
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
3 issues framed by the court
Whether the petitioner is entitled to change the electricity tariff from commercial to domestic with retrospective effect from the date of connection.
Whether documents produced by the petitioner establish that the connection was for residential purposes despite an agreement for commercial connection.
Whether the High Court can direct a retrospective change in tariff based on evidence of residential usage standing in contrast to the original agreement.
Colour shows how this judgement treated each authority
Gopinathan v. Kerala State Electricity BoardReferred¶7
(2013 [4] KLT 455)
New Delhi Municipal Council v. Sohan Lal SachdevReferred¶7
(2000 [2] SCC 494) · Who else cites this
Smt. S. Ambika
Kerala State Electricity Board
Executive Engineer, K.S.E.B., Trivandrum (West)
Assistant Executive Engineer, K.S.E.B., Chakka
P.V.ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
