Judgment :- A. R. LAKSHMANAN, J. The above writ appeal under Clause 15 of the Letters Patent is directed against the order of Kanakaraj, J. dated 1-2-1995 in Writ Petition No. 751 of 1992 on the file of this Court. The learned Judge passed the following Order : "The writ petition is for the issue of a writ to declare that the levy of electrical consumption charges under H.T. Tariff VI. is illegal and claiming the levy under H.T. Tariff VI. 2. Learned counsel for the respondent brings to my notice a letter No. SE. MRDC, C, AAC, H.T. A/c No. 2068/D 519/92 dated 24-2-1992 conceding the prayer of the petition. Consequently, nothing survives in this writ petition and it is dismissed as infructuous. No costs." * 2. According to the appellant, the letter dated 24-2-1992 relied on by the counsel for the Electricity Board was not even shown to them and they are not aware of the contents of the same, and that the learned Judge has also not extracted the contents of the said letter in his order. According to the appellant, the writ petition was filed for declaring that the levy of electrical consumption charges by the respondent under H.T. Tariff VII is illegal and the appellant is liable to be charged the consumption charges under H.T. Tariff VI They claim refund of consumption charges paid under H.T. Tariff VII from 1-4-1989 to 6-12-1991 and the excess payment, according to the appellant, works out to Rs. 6, 88 lakhs. 3. We have gone through the letter dated 24-2-1992 on the basis of which the learned Judge has passed the final order in dismissing the writ petition as infructuous. The abovesaid letter was sent by the Superintending/Engineering to the then counsel for the Electricity Board Mr. R. Muthukumaraswamy, High Court, Madras. In that letter, it is mentioned that the tariff has already been changed from Tariff VII to VI (i.e. the t ariff applicable to Theatres availing H.T. Supply) with effect from 7-12-1991, which was given effect after the consumer was given a separate L.T. supply to the premises in question for their tenants from that date who have hitherto been enjoying the electrical energy from the H.T. supply. As already mentioned, there is no dispute with regard to the levy of electricity charges after 7-12-1991. As already mentioned, there is no dispute with regard to the levy of electricity charges after 7-12-1991. Here, the dispute is with regard to the payment of consumption charges under H.T. Tariff VII from 1-4-1989 to 6-12-1991. Therefore, the appellant has come forward with the writ petition for a declaration that the levy of electrical consumption charges by the respondent under H.T. Tariff VII is illegal and that the appellant is liable to be charged the consumption charges for its H.T. Service No. 2068 at No. 48, Anna Salai, Madras 2 only under H.T. Tariff VI. No counter-affidavit has been filed by the electricity Board in the writ petition as usual. 4. The learned single Judge disposed of the writ petition on the basis of the oral representation made by the learned counsel for the Electricity Board and on the basis of the letter dated 24-2-1992. 5. The appellant is the owner of Devi, Devi Paradise, Devi Kala and Devi Bala Theatre situated at No. 48, Anna Salai, Madras 2. The complex in 48, Anna Salai known as "TNK House" is housing the above said four theatres and one pre-view theatre and few tenants. The entire building was serviced by a single H.T. Service No. 2068 since 1970 and all other tenants were provided with separate meters for calculating their individual consumption of electricity and charges were collected from them on this basis as per the rate collected by the Electricity Board. The total consumption of electricity by all the tenants works out to a meagre quantum of about 2.5% to 3% of the appellant's total consumption. The connected load of all the tenants is 39.78 Kw as against the appellant's total connected load of 684 KW for their entire complex. According to the appellant, the respondent was also aware of this position as they were furnishing statement showing the connected load details of the entire thtaeatre complex as also that of various tenants, regularly to the respondent right from 1971. 6. On 17-12-1986, the respondent issued a letter addressed to all the consumers including the appellant thereby advising all consumers that as per the terms and conditions of supply of electricity, sale of engery by a consumer is prohibited. It was further mentioned in the said letter that "re-sale of energy" means supply of electrical energy within his premises by a consumer to other persons for consideration. It was further mentioned in the said letter that "re-sale of energy" means supply of electrical energy within his premises by a consumer to other persons for consideration. Such action without permission of the Government amounts to violation of the provisions of the Indian Electricity Act, 1910. Therefore, all the consumers including the petitioner were called upon to apply to the Government of Tamil Nadu through the Electricity Board for permission for the supply of energy to any other person and such application should be submitted, to the respondent on or before 31-12-1986. The appellant, according to him, submitted an application on 29 -12-1986. While so, the respondent Electricity Board, in exercise of the powers conferred by Section 49 of the Electricity (Supply) Act, 1948, revised the terms and conditions of the supply of electricity, thereby superseding the terms and conditions of supply of electrical energy issued in B.P. Ms. No. 780 dated 21-6-1977 and the amendments issued from time to time. The revised terms and conditions were notified in B.P. Ms. (FB) No. 61 (Administrative Branch) dated 24-12-1988, which came into force on 1-2-1989. By virtue of the abovesaid Board proceedings Ms. No. 61, the definition of re-sale of energy or unauthorised supply of energy was modified. As per clause 30.02 the above B.P. supply of energy by the owner of a building to his tenants, shall not be considered as unauthorised supply of energy. The said clause 30.02 reads as follows :- "If a consumer is detected to be supplying energy unauthorisedly at any time, he shall be liable to pay compensation charges and supply shall be disconnected if the unauthorised supply is not disconnected within 24 hours. For the purpose of the condition, the unauthorised supply of energy shall mean the supply of energy by consumer to any other person from energy drawn by him from the Board, irrespective of whether supply is charged in any form or not. However, the supply of energy by the owner of a building to his tenants or by any establishment or person to leases, employees and/or to the areas used for the welfare amenities of employees shall not be considered as unauthorised supply of energy. 7. However, the supply of energy by the owner of a building to his tenants or by any establishment or person to leases, employees and/or to the areas used for the welfare amenities of employees shall not be considered as unauthorised supply of energy. 7. It is submitted that the Government of Tamil Nadu with effect from 1st April, 1989, has amended the Schedule to Tamil Nadu Revision of Tariff Rates on supply of Electricity Energy Act, 1978 vide G.O. Ms. No. 482 P.W. (Electricity) dated 22nd March, 1989 published in the Official Gazette on 28-3-1989. From 1st April, 1989, all cinema theatres availing High Tension (HT) supply were classified under High Tension Tariff VI and those consumers who were not covered under High Tension Tariff I to VI were classified under High Tension Tariff VII. The Government with a view to help the air-conditioned theatre complex as to tide over the crisis faced by the theatre owners from the high cost of electricity charges and other mounting operational costs of running air-conditioned theatres such as the appellant herein, have classified the cinema theatres availing HT supply under separate Tariff VI, charging concessional rate from 1-4-1989. Prior to the abovesaid re-classification of the tariff from April, 1989, the appellant was charged under Tariff VI applicable to cinema theatre and other commercial establishments under the same tariff vide G.O. Ms. No. 3042 PW (Electricity) dated 23-12-1986. From April, 1989, the Tamil Nadu Electricity Board began to bill electricity consumption charges at 99 paise per unit under HT Tariff VII which according to the appellant, is not applicable to cinema theatre. In the subsequent bill for May, 1989, the respondent advanced the following reason in support of their stand which is extracted below. "As there is re-sale of energy, the bill is rendered under Tariff VII." 8. As already stated, G.O. Ms. No. 482 PW (Electricity) was issued on 22-3-1989, that the said G.O. was issued in exercise of the powers conferred by Section 4 of the Tamil Nadu Revision of Tariff Rates on Supply of Electrical Energy Act, 1978 (Tamil Nadu Act 1 of 1979), the amendment came into force on 1st April, 1989. It is useful to extract High Tension Tariff VI, and High Tension Tariff VII, for the purpose of better understanding of the case. It is useful to extract High Tension Tariff VI, and High Tension Tariff VII, for the purpose of better understanding of the case. " * High Tension Tariff VI : Public sewerage works by Government Local Bodies, Laboratories Research Institutes, Studios and Cinema theatres. Area Rate per KWH (In paise) Rate per KVA of maximum demand per month (in rupees) (1) (2) (3) Madras Metropolitan areas 80 55 Non-Metropolitan areas 75 55 High Tension Tariff VII : All categories of consumers not covered under High Tension Tariffs I, II, III, IV, V and VI. Area Rate per KWH (In paise) Rate per KVA of maximum demand per month (in rupees) (1) (2) (3) Madras Metropolitan areas 99 55 Non-Metropolitan areas 94 55 Provided that the industries requring High Tension supply during construction period shall be charged under this tariff." 9. The appellant submitted many representations to the respondent thereby clarifying that under no circumstances the supply of energy to the tenants would be termed as re-sale citing the Board proceedings Ms. No. 61 and also informed them that the change of Tariff from VI to VII was without notice to the appellant and without any basis. Since such Tariff change resulted in excess billing they requested the respndent-Electricity Board by their letters dated 7-8-1989, 6-12-1989, 5-2-1990, 9- 2 -1990, 15-5-1990 and 15-12-1990 apart from the oral representations, to revise the Tariff to VI. The respondent did not send any reply. In the meanwhile, the appellant was advised to apply and get a separate LT service to cater to their tenants. Accordingly, the appellant were able to obtain a separate LT service. Thus the supply of energy to their tenants were segregated with effect from 9-12-1991. It is the contention of the learned counsel for the appellant that the respondent has failed to consider the impact of clause 30.02 of B.P. No. 61 and also failed to see that since 9-12-1991 the tenants were provided with a separate LT service connection. Thus, the appellant filed the present writ petition seeking declaration that the levy of electrical consumption charges by the respondent under the HT Tariff VII from 1-4-1989 is illegal and therefore, the appellant is liable to be charged the consumption charges for its HT Service No. 2068 at No. 48, Anna Salai, Madras 2 only under HT Tariff VI. 10. Mr. 10. Mr. A.L. Somayaji, learned senior counsel took us through the entire correspondence that was exchanged between the appellant and respondent. He also invited our attenion to G.O.B.P.Ms. (FB) No. 61 dated 24-12-1988, G.O.Ms. No. 482 P.W. (Electricity), 22nd March, 1989 and other relevant correspondence between the parties. Our attention was also drawn to the terms and conditions of Clause No. 30.02. Many copies of the letters addressed to the Board were filed to show that the payments for the period in question were made under protest and without prejudice. In order to verify the correctness of the statement, we directed the Electricity Board to produce the relevant file before this Court. Accordingly, files were produced by the learned counsel for the Electricity Board. We have perused the same. The learned counsel for the Elecricty Board also conceded that payments during the relevant point of time were made under protest and without prejudice. According to the learned counsel for the appellant, as per the terms and conditions of Electricity (Supply) Act clause 30.02 approved by the Tamil Nadu Electricity Board, the supply of energy by the owner of a building to his tenants or by any establishments or person to lessees, employees and/or the areas used for the welfare/aamenities of employees shall not be considered as unauthorised supply of energy. Mr. Somayaji placed a strong relaince on the terms and conditions of Clause No. 30.02 that the supply of energy by the owner of a building to his tenants or to the areas used for the welfare amenities of employees shall not be considered as unauthorised supply of energy. According to him, the unauthorised supply of energy would only mean the supply of energy by consumer to any other person (other than the tenants) from energy drawn by him from the Board, irrespective of whether supply is charged in any form or not. He also submitted that the total consumption of electricity by all the tenants works cut to a meagre quantum of about 2.5% to 3% of the total consumption and that the connected load of all the tenants is 39.78 KW as against the total connected load of 684 KW for the entire complex. He also submitted that the total consumption of electricity by all the tenants works cut to a meagre quantum of about 2.5% to 3% of the total consumption and that the connected load of all the tenants is 39.78 KW as against the total connected load of 684 KW for the entire complex. It is also submitted that the respondent was also aware of this position as the appellant was furnishing statement showing connected load details of the entire theatre complex as also that of the various tenants regularly to the respondent right from 1971. Since the predominent use of consumption of electricity is by the theatre, the theatre shall be charged only under High Tension Tariff VI and not under High Tension Tariff VII by separately charging the cinema theatre and the tenants. A reading of High Tension Tariff VI would only show that the said Tariff is applicable to public sewerage works by Government Local Bodies, Laborataries, Research Institute, Studios and Cinema theatres. Mr. Somayaji also referred to clause 30.02 which says that the supply of energy by the owner of a building to his tenants or by any establishment shall not be considered as unauthorised supply of energy. The supply of electrical energy to the tenants should be considered as an authorised one and therefore, the energy charges could be levied only under High Tension TariffVI. As an alternative plea, Mr. Somayaji contended that if for any reason this court is not inclined to accept the first contention, the appellant may be permitted to furnish details with regard to the consumption of electricity by the tenants during the relevant period from 1-4-1989 to 6-12-1991 and the consumption of electricity by the theatre so that the excess amount paid under protest by the theatre under Tariff VII can be refunded to the appellant and the amounts collected under Tariff VII towards the energy consumed by the tenants be retained by the Department. 11. Mr. N. Muthusamy, learned counsel for the Electricity Board contended that the appellant would be entitled for concessional tariff under Tariff VII only from the date applying for L.T. connection and not before and therefore, declaration cannot be granted for other period. Mr. 11. Mr. N. Muthusamy, learned counsel for the Electricity Board contended that the appellant would be entitled for concessional tariff under Tariff VII only from the date applying for L.T. connection and not before and therefore, declaration cannot be granted for other period. Mr. Muthusamy also contended that cinema theatres alone will come under H.T. Tariff VI and the other establishment housed in the same cinema theatre complex as tenants of the two theatres, will not come under H.T. Tariff VI and therefore, the respondent is right in charging the tenants under H.T. Tariff VII. We are unable to accept the contention of Mr. N. Muthusamy, learned counsel for the Board. 12. In our opinion, the cinema theatre includes all the other establishments located within the cinema theatre complex because such establishments are absolutely necessary for running a cineme theatre. In other words, the tenants who are carrying on business in the theatres premises are carrying on only allied business to the cinema business. We prefer to accept the argument of Mr. A.L. Somayaji, learned senior counsel, for the reasons stated supra. As alread seen, the entire building "TNK House" consisting of four multicomplex theatres and one pre-view there and few tenants, in different floors of the complex, was serviced by a single HT Service No. 2068 right from 1970. The Government of Tamil Nadu have amended with effect from 1-4-1989 the schedule to Tamil Nadu Revision of Tariff rates on supply of Electricity Energy Act, 1978 vide G.O. Ms. No. 482 P.W. (Elecricity) dated 22nd March, 1989. From 1st April, 1989 all cinema theatres availing High Tension supply were classified under H.T. Tariff VI charging concessional rate with a view to help the Air-conditioned theatre complexes to tide over the crisis faced by the theatre owner. Prior to the amendment from 1st April, 1989, cinema theatres and commercial establishments availing H.T. supply were charged under one single Tariff VI. But, from 1-4-1989, in the case of the appellant, the facility of concessional tariff was not considered because they extended the supply to a few tenants in the appellant's theatre and the case was t reated as "RE-SALE OF ENERGY". But, from 1-4-1989, in the case of the appellant, the facility of concessional tariff was not considered because they extended the supply to a few tenants in the appellant's theatre and the case was t reated as "RE-SALE OF ENERGY". From the inception of the theatre from the year 1970, the tenants were provided by the theatres owners with separate meters and the tenants pay at the actual rates charges by the Department to the appellant on no loss no profit basis. The consumption of elecricity by all the tenants works out to only between 2.5% to 3% of the total consumption. Prior to the re-classification of tariff from April, 1989, the appellant was charged under tariff VI applicable to cinema theatres vide G.O.ZMs. No. 3042 PW (Electricity) dated 23-12-1986. From April, 1989, the appellant are charged at the rate of 99 paise per unit under H.T. Tariff VII as against 80 paise per unit under H.T. Tariff VI applicable to cinema Theatres. In the subsequent bill for May, 1989, the appellant was charged at the rate of 99 paise per unit as there is concessional resale of energy, according to the Department. 13. We have carefully considered clause 30.02 of the Terms and Conditions of Supply of Electricity of the Tamil Nadu Electricity Board. It states that the extension of supply of energy by the onwer of the building to his tenants or any establishments or persons to lessees/employees to the areas used for the welfare/amenitres to employees shall not be considered as un-authorised supply of energy and will not come within the meaning of "RESALE OF ENERGY". Moreover the agreement executed by the appellant with the Electricity Board is for the supply of electricity to the four cinema theatres. It is not in dispute that more than 97% of the Electricity is consumed by these four cinema theatres only. Therefore, as per the orders contained in G.O.Ms. No. 482, P.W. (Electricity) dated 22-3-1989, supply to cinema theatres should be charged under H.T. Tariff VI only. All the cinema theatres under L.T. supply having tenants are billed under L.T. Tariff VIII only as per the orders of the Government and the clarification issued by the Tamil Nadu Electricity Board in their circular Memo dated 25/28-9-1989. Major number of cinema theatres under H.T. supply having tenants are billed under H.T. Tariff VI only. All the cinema theatres under L.T. supply having tenants are billed under L.T. Tariff VIII only as per the orders of the Government and the clarification issued by the Tamil Nadu Electricity Board in their circular Memo dated 25/28-9-1989. Major number of cinema theatres under H.T. supply having tenants are billed under H.T. Tariff VI only. The specific provisions contained in Clause 30.02 to the effect that supply of energy by the owner of a building to tenants is an authorised one and hence does not fall within the purview of an unauthorised supply. 14. Having gone through the amendment introduced to the schedule to the Tamil Nadu Revision of Tariff Rates on supply of Electrical Energy Act, 1978, we are of the opinion that in a case where consumer of electrical energy is a cinema theatre and such consumer has inducted tenants to some portion of the theatres, the test of predominant use has to be applied. In other words, where the consumer of H.T. energy is a cinema theatres and the electrical supply is consumed for the dominant purpose of running a cinema, the respondent can only charge them under H.T. Tariff VI even though there may be some tenants in the said theatre who occupy some portions for carrying on business either connected, allied or unconnected with the exhibition of cinema. We have already noticed the fact that in the present case, supply of energy by the owner of a building to his tenant shall not be considered as resale or unauthorised supply of energy under the terms and conditions of supply of electrical energy. 15. Further, it would be very harsh and taxing if just for the sake of a few tenants consuming less than 3% of power of the total consumption, the entire cinema complex is charged at the higher tariff rate under H.T. Tariff VII instead of concessional tariff rate under H. T. Tariff VI. In the circumstances, we are of the view that payment of energy charges for the cinema theatre having a few tenants should be billed under H.T. Tariff VI only for the relevant period from 1-4-1989 to 6-12-1991. However, since the appellant was provided with. L.T. supply to their premises for the use of their tenants separately with effect from 7-12-1991, there is no difficulty for the Board to charge them separately as per the appropriate tariff. However, since the appellant was provided with. L.T. supply to their premises for the use of their tenants separately with effect from 7-12-1991, there is no difficulty for the Board to charge them separately as per the appropriate tariff. As already noticed, the entire payment of Rs. 6 lakhs and odd was made by the appellant under protest and without prejudice, which is also not disputed by the Electricity Board and also as could be seen from the records produced. The appellant would be entitled to the refund of the excess amount collected from the appellant from 1-4-1989 to 6-12-1991. It will be open to the Electricity Board to adjust such excess payment against future bills or refund the excess amount collected. 16. The writ appeal succeeds. There will, however, be no order as to costs. Appeal allowed.