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2023 Supreme(Online)(KER) 4211
HIGH COURT OF KERALA
P.V. KUNHIKRISHNAN, J
KERALA STATE ELECTRICITY BOARD & ANR. – Appellant
Versus
THE KERALA STATE ELECTRICITY OMBUDSMAN – Respondent
WP(C) 16603/2011
SRI. ASOK M.CHERIYAN, SC, KSEB; P.HARIDAS; BIJU HARIHARAN; P.C.SHIJIN; RISHIKESH HARIDAS; N.SATHEESH
Disputes regarding electricity tariff classifications must be addressed by the regulatory authority, not the Ombudsman, per the Electricity Act.
Headnote:
Tariff - Electricity - Electricity Act, 2003 Section 62; Kerala State Electricity Regulatory Commission Regulations 2003 Regulation 22 - The court addressed the jurisdiction for tariff determination under the Electricity Act and emphasized that disputes regarding tariff classification should be resolved by the Kerala State Electricity Regulatory Commission.
Fact of the Case:
The case involves two writ petitions concerning the tariff classification of an IT service unit. The Kerala State Electricity Board claims the unit operates under a commercial tariff category, while the unit argues it should be classified under an industrial category due to its service nature.
Finding of the Court:
The court found that tariff disputes should be resolved by the Kerala State Electricity Regulatory Commission as per Section 62 of the Electricity Act. It decided to quash the Ombudsman's order to allow the Commission to evaluate the issue depending on statutory provisions.
Issues: Whether the dispute over tariff classification of the 2nd respondent's connection falls within the purview of the Kerala State Electricity Regulatory Commission or if the Ombudsman had jurisdiction.
Ratio Decidendi: The court held that tariff disputes, such as categorization between LT-IV and LT-VII classes, must be adjudicated by the appropriate regulatory authority in accordance with the Electricity Act and its regulations.
Final Decision: The court quashed the Ombudsman’s order and directed the petitioner to approach the Kerala State Electricity Regulatory Commission for resolution.
JUDGMENT
These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment.
2. WP(C) No.16603 of 2011 is filed by the Kerala State Electricity Board (KSEB) and its Assistant Executive Engineer, challenging Ext.P2 order passed by the Kerala State Electricity Ombudsman in representation No.136 of 2010. The 2nd respondent herein is an IT enabled service unit engaged in the software development and health care services like medical transcription, medical billing etc., for hospitals in USA and other foreign countries earning foreign currency. It is the case of the petitioners that On 03.11.2005 a Low Tension- IV Tariff connection with consumer No. 9731 under industrial tariff was given in favour of the 2nd respondent herein. It is the case of the petitioners that during audit conducted by the Accountant General during 07/2009, it was found that the 2nd respondent is engaged in the activity of medical transcription and is operating purely for commercial purposes and 2nd respondent will fall under Tarrif VII-A (commercial) category. It is also the case of the petitioners that, as per the tariff notification issued by the Kerala State Electricity Regulatory Commission vide gazette notification no. 2148, dated 27.11.2007, IT enabled services are not included in LT IV (industrial) category. Accordingly a short assessment bill dated 25.07.2009 for Rs.2,30,312/- was issued for the period from 06/2008 to 07/2009 on 20.08.2009. On 26.09.2009 a final bill for Rs.2,53,824/- was issued which includes the current consumption charges for the month 08/2009. It is the case of the petitioners that though the said bill was challenged before the Consumer Grievances Redressal Forum, the said forum dismissed the same as per Ext. P1 and thereby found that the 2nd respondent herein falls under LT-VII-A (commercial) category. However the 1st respondent on appeal found as per Ext. P2 that Ext.P1 order will not sustain and same was set aside. The Forum found that it is not purely a commercial profit making business. Aggrieved by Ext.P2 order, this writ petition is filed by the KSEB with following prayers:
“i to declare that Ext. P2 order passed by the Kerala State Electricity Ombudsman in representation no. P
136/2010 is illegal, unjust and arbitrary;
ii. to call for records leading to Ext. P2 order passed by the Kerala State Electricity Ombudsman in representation no. P 136/2010 dated 06/10/2010 and to issue a writ in the nature of certiorari and to quash the same;
iii to issue any other writ, declaration, order or direction appropriate in the circumstances of the case.
The above writ petition was admitted by this Court on
21.06.2011.
3. WP(C) No.19726 of 2021 was filed by the 2nd respondent in WP(C) No.16603 of 2011 with following prayers:
“i. Declare that since the respondents are liable to pay in lump-sum the entire amount collected from the petitioner in excess along with 12% interest because they wilfully evaded to pay or adjust the amount as directed by ombudsman or Electricity Board and continued to collect excess amount in wilful violation of the said order and to modify Ext P7 accordingly.
ii. Issue a writ in the nature of mandamus or any other appropriate writ order or direction commanding the respondents to quantify the amount excessively collected from the petitioner till this date after treating his connection as LT VIIA category instead of LTIV category and to pay such amount along with 12% interest from the date of accrual of the same to the petitioner within a time limit fixed by this hon'ble court.
iii. May grant such other reliefs this Hon'ble court deem fit and necessary in the facts and circumstances of the case.” (sic)
The main prayer of the petitioner in WP(C) No.19726 of 2021 is to declare that the petitioners connection will come within the cateogry of LT-IV and the lumpsum amount collected from the petitioner is to be refunded with interest.
4. Heard the counsel for the petitioners in both t
