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2023 Supreme(Online)(KER) 4212
HIGH COURT OF KERALA
P.V.KUNHIKRISHNAN, J
I SCRIBES INDIA PVT. LTD. – Appellant
Versus
KERALA STATE ELECTRICITY BOARD – Respondent
WP(C) 19726/2021
SRI. ASOK M.CHERIYAN, P. HARIDAS, BIJU HARIHARAN, P.C. SHIJIN, RISHIKESH HARIDAS, N. SATHEESH
Tariff classification disputes under the Electricity Act must be resolved by the appropriate regulatory commission, not by an ombudsman.
Headnote:
Electricity - Writ Petitions - Electricity Act Section List - The court interpreted Section 62 and Regulation 22 of the Kerala Electricity Regulatory Commission regulations to conclude that tariff disputes are to be decided by the appropriate commission, leading to the quashing of the Ombudsman’s order and allowing the consumer to appeal.
Fact of the Case:
Two writ petitions were filed concerning tariff categorization of an IT-enabled service unit by the Kerala State Electricity Board, which sought to classify the unit under commercial tariffs based on an audit, contradicting the Ombudsman's earlier ruling.
Finding of the Court:
The court found that disputes regarding tariff classifications should be addressed by the Kerala State Electricity Regulatory Commission, as per the Electricity Act.
Issues: The main issue was whether the Ombudsman had jurisdiction in tariff disputes and the classification of the consumer under the appropriate tariff category.
Ratio Decidendi: The court ruled that tariff issues must be determined by the Electricity Regulatory Commission, under Section 62, not the Ombudsman.
Final Decision: The Ombudsman's order was quashed, allowing the consumer to petition the Electricity Regulatory Commission for tariff re-evaluation.
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
