GOPINATHAN Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(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 re-categorise 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 categorised 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. 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. 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-VIIA tariff, is the findings. Aggrieved by Exts. P5 and P7 decisions this writ petition is filed.

(2.) 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.

(3.) 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 01/12/2007 as well as on 01/01/2010, 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 studies, 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-VIIA 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 VIIA 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.