ALEXANDER PANICKER v. THE ASST.EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KSEB, PALARIVATTOM COCHIN-25

C.K.ABDUL REHIM,J.-------------------------------WP(C).NO. 29532 of 2005 ---------------------------------Dated this the 21st day of June, 2012JUDGMENT Petitioner is the proprietor of an SSI unit engaged inmanufacture of RC stabilisers and maintenance of Fax, STD-ISD,Telex, Computers and office automation products. Electricalconnection provided to the petitioner's industry was includedunder LT-IV tariff. Subsequently the petitioner started softwaredevelopment and training in the same premises as a franchisee ofan organisation viz. NIIT, in November, 1998. Thereafter thepetitioner had applied and obtained sanction for additional load tothe extent of 15 KVA. Issue involved in this writ petition pertainsto change of tariff effected from LT IV to LT VII, in the bill issuedduring the year 1999. Since Exts.P1 and P2 representationssubmitted by the petitioner against the bill evoked no response, itwas challenged before this court in OP.No.5955/1999. This courtdirected the 1st respondent to consider the grievance of thepetitioner. Through Ext.P4 the petitioner was informed that he isusing electricity for educational and industrial purposes, out of WP(C). 29532 /20052which nearly 70% of the load is used only for educationalpurposes, and unless the petitioner applies for separateconnection for educational activities and industrial activities, hewill be charged under the commercial tariff. On the above basissubsequent bills were also issued against the petitioner.Ultimately, OP.No.5955/99 was disposed of by this court throughExt.P7 judgment, permitting the petitioner to file appeal againstthe impugned bills before the 4th respondent. Appeal petition filedwas disposed of by the 4th respondent through Ext.P10 order. Itwas found that 70% of the load was being used for the computereducation centre and therefore the petitioner is liable forpayment under LT VI tariff, which is applicable to 'educationalinstitutions'. The bill issued under LT VII tariff was directed tobe modified. Further it was directed that unless the additionalload is regularised the petitioner is liable to be imposed withpenalty as per clause 42(d) of the Conditions of Supply ofElectrical Energy. The appellate authority directed that, billingunder LT VI tariff need to be continued unless the connected loadis separated for distinct purposes. Exhibits P11 and P11 (a) arethe revised bills issued in accordance with the appellate order. WP(C). 29532 /20053The petitioner is challenging Ext.P10 order, P11 and P11(a) .Inter alia the petitioner is seeking direction to recompute theenergy charges under LT IV tariff. 2.Contention of the petitioner is that, it is the declaredpolicy of the Government to promote IT based industries andtraining centers. Ext.P6 is a paper clipping produced aboutdeclaration of the policy in which it is stated that computereducation centres will be treated as industrial activity and will beclassified as under LT IV tariff. 3. Sri.George Thomas Mevada, Senior counsel appearingon behalf of the petitioner had drawn my attention to theschedule of tariff and terms and conditions for retail supply byKSEB, introduced with effect from 1.1.2010. The category comingunder the industrial tariff LT IV include “computer consultancyservice unit with SSI registration engaged in software servicesand data processing activities and also software units.Contention of the petitioner is that since the unit of the petitioneris having SSI registration and since it is engaged only insoftware development and training programmes, theconsumption will squarely fall within the said category . It is also WP(C). 29532 /20054contended that LTVI (A) tariff will be applicable only forGovernment or aided private educational institutions. It isargued that the petitioner is not conducting any educationalinstitution and that the finding to the effect that 70% of the loadis utilised for computer education center has no basis. Thereforethe petitioner contended that the electric connection in questionis liable to be charged only under LT IV tariff. 4. In the counter affidavit filed on behalf of therespondents it is contended that the petitioner had used theenergy supplied for industrial purpose for a different purposes,i.e. for computer training institution, and hence the higher tariffis applicable. It is contended that there is misuse of energydetected and hence the impugned bills were issued. According tothe respondents, more than 70% of the load was used foreducational activities, intending more commercial benefits andthat the petitioner is not taking steps to segregate the connectionseparating the consumption of energy for distinct purposes.Heard Sri. P.Santhalingam learned senior counsel appearing onbehalf of the respondents. WP(C). 29532 /200555. The question posed for consideration is regardingcorrectness of the tariff under which consumption of thepetitioner need be charged. Admittedly at the time of availing theconnection the petitioner was a small scale industrial unit. Butsubsequently the activity was diversified into a franchisee centerof NIIT. The petitioner had contended that other franchisees ofthe same organisation are still charged under LT IV. It is theargument that software training or computer education center isrecognised as an industrial activity as per the declared policy ofthe Government. According to the petitioner, at any rate theactivity will not amount to altering the nature of the consumptionas that of an educational institution. Hence computation ofcharges under LT VIA is unsustainable, is the contention.6. The dispute need be adjudicated based on the factualmatrix prevailing with respect to us age the energy, which to agreat extent will depend upon evaluation of exact nature of theactivity being conducted by the petitioner. This may requireappreciation of evidence, both documentary and oral. Furtherthe question as to which is the category exactly applicable fromtime to time in accordance with the usage and the tariff orders WP(C). 29532 /20056issued from time to time, is a matter which need elaborateconsideration. Section 86 of the Electricity Act 2003 definesfunctions of the Electricity Regulatory Commission which includedetermination of tariff and adjudication of dispute with respect toapplicability of the tariff. Since the Kerala State Regulatorycommission is empowered with such functions, I am of the viewthat the petitioner can be given liberty to approach the saidauthority for having adjudication on the issue.7. Under the above mentioned circumstances the writpetition is disposed of reserving liberty to the petitioner toapproach the Kerala State Electricity Regulatory Commission fordetermination of the question regarding applicability of the exacttariff. If the petitioner approaches the said commission raisingdispute by way of filing a proper complaint as prescribed, within aperiod of two weeks from the date of receipt of copy of thisjudgment, the same shall be adjudicated by the RegulatoryCommission following all procedural formalities.8. It is noted that with respect to payment of the billsimpugned in this writ petition, this court directed part paymentsthrough interim orders. Learned senior counsel appearing for WP(C). 29532 /20057the petitioner submitted that the condition stipulated in thoseinterim orders have already been complied with. Therefore it isdirected that, if the petitioner approaches the RegulatoryCommission within the time stipulated as above, recovery ofamounts covered under the bills impugned in this writ petitionshall be kept in abeyance till a decision is taken by the saidcommission on the dispute.9. Needless to say that the commission shall examine thenature of activity vis-a-vis the descriptions of the tariff ordersprevailing during the relevant periods, in order to decide thequestion regarding applicability of proper tariff during therelevant periods. The commission shall also decide the questionunder which the tariff the petitioner need be billed for continuedusage of electrical energy. C.K.ABDUL REHIM, JUDGEPmn/