Disposed

Lokrakshaka Society v. the Assistant Engineer

Kerala HC24 Jun 2016WP(C)/2387/2013

Case brief

AI extract

What is this about?

Petitioner challenged enhanced electricity charges, relying on a prior High Court judgment. Court referred to a recent order in a similar matter where enhanced recovery was restrained pending Supreme Court decision. Petitioner directed to withdraw Consumer Forum complaint and continue paying LT VIA tariff charges.

What did the court decide?

Petitioner to withdraw Consumer Forum complaint; continue paying LT charges; payment of enhanced demand subject to Supreme Court disposal.

Lokrakshaka Society Vs the Assistant Engineer — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938

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WP(C).No. 2387 of 2013 (W)

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PETITIONER(S):

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LOK RAKSHAKA SOCIETY MULLIKKALA, THEVALAKKARA, KOLLAM, REPRESENTED BY ITS SECRETARY ANGEL MARY.

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BY ADV.SRI.M.T.SURESHKUMAR

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RESPONDENT(S):

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1. THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, THEVALAKKARA, KOLLAM-691001.

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2. THE KERALA STATE ELECTRICITY BOARD VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY-695001.

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BY SRI.JAICE JACOB, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-06-2016, THE COURT ON 24.06.2016 DELIVERED THE FOLLOWING:

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WP(C).No. 2387 of 2013 (W) ---------------------------

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APPENDIX

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PETITIONER'(S) EXHIBITS:

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EXHIBIT-P1: TRUE COPY OF THE MEMORANDUM OF ASSOCIATION AND RULES AND REGULATIONS OF THE LOKARAKSHAKA SOCIETY.

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EXHIBIT-P2: TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE REGISTRATION OF SOCIETIES DATED 17.05.2000.

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EXHIBIT-P3: TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 30.09.2005 OF THE PRESIDENT, INDIAN NURSING COUNCIL.

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EXHIBIT-P4: TRUE COPY OF THE ORDER NO.824/05/NC/11 DATED 11.8.2011.

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EXHIBIT-P5: THE LATEST FEE STRUCTURE OF THE NURSING SCHOOL.

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EXHIBIT-P6: TRUE COPY OF THE BILL DATED 22/01/2011 ISSUED BY THE ASST. ENGINEER ELECTRICAL SECTION, THEVALAKKARA.

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EXHIBIT-P7: TRUE COPY OF THE COMMUNICATION DATED 22/01/2011 OF THE ASST ENGINEER ELECTRICAL SECTION, THEVALAKKARA.

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EXHIBIT-P8: TRUE COPY OF THE REPRESENTATION DATED 24/01/2011 SUBMITTED BY THE PETITIONER BEFORE THE ASST ENGINEER ELECTRICAL SECTION THEVALAKKARA.

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EXHIBIT-P9: THE COPY OF THE LETTER ISSUED BY THE RESPONDENT REDUCING THE BILL TO RS.2,61,225/- DATED 09.02.2011.

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EXHIBIT-P10: COPY OF THE COMPLAINT BEFORE THE HON'BLE COUSUMER DISPUTES REDRESSAL FORUM, KOLLAM ON 26.02.2011.

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EXHIBIT-P11: TRUE COPY OF THE OBJECTION PREFERRED BY THE RESPONDENTS BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM DATED NOVEMBER, 2011.

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EXHIBIT-P2: TRUE COPY OF THE DISCONNECTION CUM DEMAND BILL DATED 19/01/2013.

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RESPONDENT'(S) EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE

bka/-

**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.2387 of 2013

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Dated this the 24^th day of June 2016

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J U D G M E N T

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This writ petition is filed challenging Exts.P6, P7 and P12 and to declare that the petitioner is liable to be billed only under LT VIA classification and the respondents are bound to adjust all the amounts already paid in excess of the above tariff in the future bills.

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The short facts involved in the writ petition would disclose that the petitioner is a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Act. They claim to carry on charitable activities. They started a Nursing School in the hospital premises. An inspection was conducted by Anti-Power Theft Squad, Ernakulam on 20/01/2011. During the relevant time, the School and Hostel were billed for energy under LT-VI A Tariff for the period from December 2007 to January 2011. It was noticed that the actual tariff ought to be LT-VIIA and the petitioner was liable to pay compensation and penal charges at Rs.2,97,249/-. An additional amount of Rs.63,893/- was also charged when it was found that one phase of

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W.P.C.No.2387/2013

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the meter placed in the premises was not functioning properly. Petitioner relies upon judgment of this Court in Joseph Antony (Bro.) v. Kerala State Electricity Board and Others [2009(3) KHC 797] in which this Court held that self financing educational institutions cannot be included as a commercial consumer and has to be treated as one falling under tariff LT-VIA.

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Though the petitioner preferred a representation, the demand was confirmed in terms of Ext.P9 bill for an amount 2,61,2275/-. Petitioner approached the Consumer Grievance Redressal Forum (hereinafter referred to as 'the Forum'), Kollam by filing a complaint. Petitioner submits that during the pendency of the complaint, bills were being issued under LT VIIA tariff and the petitioner has protested against it. Though a stay was granted by the Forum initially, the same was subsequently vacated. On 19/01/2013, the officials served a disconnection notice on the petitioner demanding Rs.2,61,225/-. Proceeding on the belief that there is no likelihood of CDRF passing an order in the matter, this writ petition is filed.

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Counter affidavit is filed by respondents 1 and 2. It is stated that the petitioner was given service connections as per Consumer Nos.2153, 7665 and 7674 for running a hospital under

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W.P.C.No.2387/2013

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LT VIA tariff. Later it was understood on surprise inspection that Consumer No.7674 was used for a financial institution namely a Nursing School. That apart, one phase of the energy meter of consumer No.7674 was not recording the consumption. It is, after complying with all the procedural formalities, that the bill for the difference amount and the unrecorded portion due to the nonworking of one phase of the meter was served on the petitioner. Reliance is placed on Regulation 37(5) of the Kerala State Electricity Board Terms and Conditions of Supply, 2003 enabling the Board to issue such bills. It is stated that the petitioner did not challenge the demand before an appropriate Forum as provided under the Statute whereas a complaint has been filed before the CDRF. When the matter is pending before the CDRF, there is no reason for the petitioner to approach this Court.

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Learned counsel for the petitioner placed reliance on the judgment in WP(C) No.4453/2016 wherein after taking note of similar set of facts, it was observed in paragraphs 3 and 4 as under:

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“3. Challenge in this writ petition is against Ext.P3 demand whereby the petitioner was requested to make payment of arrears of

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W.P.C.No.2387/2013

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electricity charges under the enhanced rate. I take note of the fact that the question regarding liability for payment will depend upon outcome of the decision of the Hon'ble Supreme Court. In view of the stay granted by the Hon'ble Supreme Court, I am not inclined to restrain the Board from charging the enhanced tariff. This is because of the fact that, if ultimately the Hon'ble Supreme Court upholds the change of tariff, the respondents will be put to prejudice. On the other hand the petitioner can seek refund/adjustment if the decision is ultimately in favour of them. But it is only just and proper to restrain the respondent Board from recovering the arrears on the basis of the enhanced tariff, till the matter is ultimately decided by the Hon'ble Supreme Court.

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4. Therefore the writ petition is disposed of directing the respondents to keep in abeyance recovery of W.P.C.No.4453 of 2016-F arrears demanded under Ext.P3 notice till ultimate decision is rendered by the Hon'ble Supreme court in the SLPs referred above. In the case at hand, it is stated that the electric supply was disconnected alleging arrears in payment of the enhanced tariff. It is made clear that the respondents are free to charge the petitioner under LT VIA tariff for continued consumption of energy. The electric supply shall be restored as and when the

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W.P.C.No.2387/2013

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petitioner clear payment of the arrears at the rate applicable under LT VIA. It is made clear that payments made under the enhanced tariff will be liable to be refunded/adjusted in case the Hon'ble Supreme Court upholds the judgment in Bro.Joseph Antony (supra). It is also made clear that the respondents will be entitled to recover the arrears, if the change of tariff is ultimately upheld by the Hon'ble Supreme Court.”

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