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2013 DIGILAW 757 (KER)

G. Gopinathan v. Assistant Executive Engineer Kerala State Electricity Board

2013-08-27

C.K.ABDUL REHIM

body2013
Judgment : 1. The petitioner is the Managing Partner of a firm engaged in Hotel business. Issue involved is regarding the tariff applicable to an electricity connection provided in a residential building owned by the petitioner. The building in question is used for providing accommodation to the workers of the Hotel business run by the firm. The electric connection was initially included in the tariff under LT-I category (Domestic tariff). Subsequently the authorities of the Board had changed the tariff to LT-VIIA (commercial category). The petitioner made an application as per Ext.P3 to recategorise the connection under LT-I( Domestic) tariff, on the premise that electricity is used only for domestic/residential purposes, such as lights, fans, radio and other home appliances being used by the occupants and there is no commercial usage. But the application was rejected through Ext.P4 stating the reason that the premises is occupied as dormitory/bachelors quarters and hence it will not fall within Domestic tariff. The petitioner challenged the said decision before the 'Consumer Grievance Redressal Forum (CGRF). In Ext.P5 order the Forum found that the building is exclusively used for accommodating the staff of the Hotel as part of their business strategy and it is a lodging activity associated with the petitioner's Hotel business, and therefore it is to be categorized as a commercial activity. In Ext.P5 order the Forum observed that, the staff of the Hotel staying in the premises are connected with the business activity of the Hotel and hence it could not be included in the ambit of domestic purpose, as envisaged under the tariff order dt. 26.11.2007. According to the Forum, such premise has to be identified as 'Hostel' meant for commercial activity. 2. The petitioner took up the matter in appeal before the 2nd respondent, the State Electricity Ombudsman. The petitioner placed reliance on Ext.P8 judgment of this court before the Ombudsman. In Ext.P8 judgment this court held that unless it is proved that the building is used as, Hotel or Restaurant or private Hostel or lodge or guest house or rest house, it cannot be treated as non-domestic usage. This court further held that, even in cases where the building is let out and the tenant is utilising such premises for private accommodation to their employees, such occupancy cannot be treated as Hostel, lodge, guest house or rest house. This court further held that, even in cases where the building is let out and the tenant is utilising such premises for private accommodation to their employees, such occupancy cannot be treated as Hostel, lodge, guest house or rest house. But the 2nd respondent found that, observations contained in Ext.P8 have not inconclusively ordered that the employees' hostel accommodation will fall under domestic tariff. In Ext.P7 order, the Ombudsman found that, rent free accommodation provided by a person in own building to his employees can be considered as private Hostel or Lodge because only the premises like home, family, domestic purpose etc. alone are given preference in the matter of deciding electricity tariff. If a group of employees of a hotel or any business establishment is staying in a house, it tantamount to be treated as lodging facility and hence the usage is commercial coming under LT-VII A tariff, is the findings. Aggrieved by Exts.P5 and P7 decisions this writ petition is filed. 3. Petitioner had placed reliance on Exts.P9 and P10 documents, which are building permit and occupancy certificate issued by the Corporation, in order to show that the building in question was constructed in the residential category. But I am of the opinion that, nature of the construction of the building is not the real criteria for deciding the tariff, but the usage of electrical energy assumes more importance. 4. The first question to be decided is as to whether the purpose for which the electricity is used is domestic or commercial. When the Regulatory Commission, which derives power under the statute had categorised the usages into different tariffs, undoubtedly the billing has to be done on the basis of such categorisation considering the nature of usage. The schedule of the tariff orders issued by the Regulatory Commission, brought into effect on 1.12.2007 as well as on 1.1.2010, indicate that the tariff applicable to “domestic use” is categorised under LT-I. But the tariff order does not define or illustrate the term, “domestic use”. Commercial use is categorised under LT-VII. Sub category LT VIIA clearly illustrate the commercial usages coming within the said category. It is the tariff applicable for commercial consumers such as display lights, cinema studios, commercial premises, hotels and restaurants, show rooms business houses, private hostels/lodges/guest/rest house, freezing plants, cold storages etc. Commercial use is categorised under LT-VII. Sub category LT VIIA clearly illustrate the commercial usages coming within the said category. It is the tariff applicable for commercial consumers such as display lights, cinema studios, commercial premises, hotels and restaurants, show rooms business houses, private hostels/lodges/guest/rest house, freezing plants, cold storages etc. When the tariff order defines/illustrates nature of the commercial use or activity, only the commercial use falling within any one of such specific categories alone can be treated under the said category. Private Hostels/lodges/guest houses/rest houses are usages included in the category of LT VII A tariff. Whether the usage in the present case will fall within any of the said categories is the question to be decided. There is no allegation that the building is used as a lodge or guest/rest house. Therefore the only question is whether it will fall within the ambit of a 'private hostel'. The meaning of the word Hostel contained in 'Chambers 21st century Dictionary' revised edition 2004 is, “a residence providing shelter for the homeless, especially one run for charitable rather than for profitable purpose and a residence for students or nurses outside the confines of the college or youth hostel”. On the facts of the case at hand, there is no dispute that the petitioner is using the building only for accommodating workers in their own Hotel establishment. There is no case that any activity connected with the hotel business is carried on in the building in question. The owner of the building is not providing accommodation to any homeless persons or to any students. Providing accommodation or facility for stay to own workers cannot be termed as Hostel or as private Hostel. The tariff under LT VIIA will be attracted only if a Hostel activity is run in the building in question. When specific categorisation is made through illustrations with respect to usage contained in the Tariff Order issued by the Regulatory Commission, meaning of any term in common usage or in common parlance cannot be imported for deciding the issue. The use cannot be categorised as 'private Hostel' included in LT VII A categorisation under the tariff order. When specific categorisation is made through illustrations with respect to usage contained in the Tariff Order issued by the Regulatory Commission, meaning of any term in common usage or in common parlance cannot be imported for deciding the issue. The use cannot be categorised as 'private Hostel' included in LT VII A categorisation under the tariff order. In view of the discussions contained in Ext.P8 decision of this court, the observation made by the 2nd respondent in Ext.P7 that, this court has not conclusively ordered that the employees hostel accommodation as one falling under domestic tariff, is not a correct appreciation of the dictum contained in the judgment. 5. In the counter affidavit filed on behalf of respondents 1 & 3 it is contended that, the petitioner had conceded to the change of tariff effected earlier. Even at the time of applying for additional power allocation he had not objected the inclusion of the connection under LT VII A. But it is pertinent to note that in Ext.P3 request the petitioner had specifically raised a contention that the energy supplied in the premises is used only for domestic/residential purposes and therefore the use of energy will not fall within the category of LT VII A. It cannot be denied that the consumer is at liberty to request for correction of the billing pattern if he is of the opinion that the usage is being billed under a wrong tariff. Therefore merely because he had conceded for billing under a different tariff, it will not preclude him from making a request for the change of tariff. Hence I am of the opinion that the only point to be decided is with respect to sustainability of the rejection of such request. As already observed, the usage cannot be included within the ambit of a private Hostel included in the tariff order, falling under LT VII A category. Hence the writ petition has to succeed. 6. In the result, it is declared that the petitioner is entitled to get his connection reclassified under LT-I category (domestic tariff). Therefore Ext.P4, P5 and P7 orders are hereby quashed. It is noticed that, by virtue of an interim order issued by this court on 10.6.2013 the respondents were directed to collect electricity charges only at domestic tariff of LT-IA. In the result, it is declared that the petitioner is entitled to get his connection reclassified under LT-I category (domestic tariff). Therefore Ext.P4, P5 and P7 orders are hereby quashed. It is noticed that, by virtue of an interim order issued by this court on 10.6.2013 the respondents were directed to collect electricity charges only at domestic tariff of LT-IA. Therefore it is directed that the electric connection in question is to be treated as one falling under domestic tariff from 10.6.2013 onwards (the date of the interim order). The authority concerned shall work out and issue revised demands and shall appropriate amount already paid by the petitioner. Needless to observe that amounts if any found further due on the basis of such revision shall be paid by the petitioner. The directions shall be given effect at the earliest possible, at any rate within one month from the date of receipt of a copy of the judgment.