Important Point—A non-residential or commercial establishment for the purposes of electricity tariff does not cease to be non-residential or commercial if it is run on a no profit basis.

S.C. GUPTE, J.

1. This writ petition, filed under Article 226 of the Constitution of India, challenges bills raised on the Petitioner by Respondent No. 1, which is an electricity distribution company. The challenge is based entirely on a claim of incorrect categorization of the electricity meters installed at the Petitioner's premises.

2. The Petitioner is a public charitable trust running a public park and sports complex and has been consuming electricity distributed by Respondent No. 1. The park and the complex are situated on a plot of land, which is owned by the Government of Maharashtra and which was handed over by it to the Brihanmumbai Municipal Corporation ('BMC') for creation of a garden and a playground. BMC, in turn, entered into an agreement of licence with the Petitioner for such development and maintenance. The whole park complex, known as 'Priyadarshini Park' is divided into two areas, one a public garden and the other a sports complex which has an athletic track, a gymnasium and a tennis court. Whereas no fee is charged from the public for entry into the garden, which is open to all between 5.00 A.M. to 11 A.M. and 4 P.M. to 9 P.M., charges are recovered for use of the facilities in the sports complex, though the Petitioner claims these to be nominal, barely covering the cost of maintenance of the complex and coaching provided therein. In other words, the entire complex is run, according to the Petitioner, without a profit motive.

3. There are three electricity meters installed at the site, one in respect of the public garden and two for the sports complex. These three meters are placed under different categories. Whilst the meter in respect of the public garden is classified and categorized under a category known as LTVI (which is for public street lighting, lighting in public gardens, etc.) the other two meters are categorized as LTII (a) (which is for nonresidential, commercial and business purposes) and LTII (b) (which is for combined lighting of power services for entertainment including recreation places).

4. It is the Petitioner's grievance in the present petition that all three meters are used in common public places and for public services and as such, should be categorized as LTVI and not as either LTII (a) or (b). It is submitted that the activities of the Petitioner at the site, even as regards the sports complex, not being 'commercial', none of the meters could fall within the tariff item LTII. It is submitted that within the broad category of “nonresidential and commercial” are included Sub-items (a) which is basically for commercial or business premises including shopping malls and (b) which is for entertainment establishments such as film studios, cinema halls, multiplexes, etc. Though recreation places are part of this latter category, the same cannot include public utility services such as athletic track, gymnasium and tennis court made available to public on payment of nominal fee on a nonprofit basis.

5. On the other hand, it is the case of Respondent No. 1 that the categorization of the meters in the sports complex as LTII is proper and legal. It is submitted that the categorization of meters has nothing to do with whether the electricity is used for making available facilities free of charge or with no-profit motive. The distribution company is entitled to charge tariff in accordance with categorization based on user. Respondent No. 1 also disputes the Petitioner's claim of allowing facilities to the public on an open and free of charge basis. It is submitted that on inspection of the premises by the Officers of Respondent No. 1, it was found that though the garden was open to general public, the activities of the sports complex including the Gymnasium were restricted to the members of the Petitioner trust, who were charged separately. It is submitted that the activities at the sports complex were, accordingly, very much commercial.

6. In the first place, the subject matter of th