BRO JOSHEPH ANTONY Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THESE appeals are directed against the common judgment rendered by the learned single Judge in a batch of Writ Petitions filed challenging the tariff modification issued by the Kerala State Electricity Regulatory Commission in the matter of fixation of tariff for the Self-Financing Educational Institutions under Ss. 62and86of the Electricity Act, 2003 (hereinafter referred to for brevity "the Act" ). The appellants are Self-Financing educational Institutions either in the school level or in the college level. Some of the schools are under State Syllabus and some others under the C. B. S. E. Besides there are Industrial training Institutions also. As per the new tariff notification Self-Financing Educational institutions are classified under LT VII (A) as commercial institutions and the notification is effective from 01. 12. 2007.

(2.) UNDER this notification aided private educational institutions and Government schools are classified under LT VII category. The challenge was made on several grounds. The contentions raised were that the source of revenue cannot be the basis of thediscrimination between the educational institutions since all theeducational institutions irrespective of whether Self-Financing Institutions or aided or Government educational institutions, are engaged in imparting education, that the notification was issued without affording an effective opportunity to the petitioners to raise their objection to the introduction of the new tariff and therefore, the remedy under the Act vide S. 110 of the electricity Act cannot be a bar, being not an effective alternate remedy, that there was total lack of materials to justify the discrimination meted out to the Self-Financing educational Institutions by treating them as commercial tariff consumers as against the other educational institutions, that the provisions contained in S. 62 of the Electricity Act which provides the factors, based on which alone, any differentiation could be made, is totally absent and the Kerala State Electricity Regulatory Commission has traversed beyond the very provision contained in S. 62 of the Act in this regard, that the Self-Financing educational Institutions are prohibited from profiteering by the relevant statutes and also by the decision of the superior Courts, that there is also no material available to show that there is any profiteering by the Self-Financing Educational Institutions and that the educational Institutions cannot be characterized as commercial establishment. Reference was also made to the decision in M. P. Electricity Board and Ors. v. Shiv narayan and Anr. (2005 (4) KLT 485 (SC) = (2005) 7 SCC 283 ). It was pointed that students coming under the ITI category were generally drawn from the poorer sections and therefore, the mere fact that such ITI Institutions are Self-Financing Educational institutions does not mean that the student studying in such Institutions are better placed in life and the purpose of consumption of electricity in the Educational Institutions irrespective of whether it is aided or unaided or Self-Financing Institution, is the same. Incidentally, it was also contended that the Commission has no suo motu power for initiating any action for revising the tariff.

(3.) THE Kerala State Electricity Regulatory Commission and the Kerala State electricity Board sought to justify the tariff notification, inter alia contending that the consumers, if at all they are aggrieved by the notification, has got an effective alternate remedy by way of an appeal to the Appellate Tribunal and thereafter, an appeal to the apex Court. They also contended that there is no violation of the principles of natural justice in this case, that the Commission had issued Ext. R3 (a) notice inviting objections/suggestions from the public consumers and other stake holders in various newspapers and that in Ext. R3 (a) it was mentioned that the details were available in the web site of the Commission as also on request. Ext. R3 (c) is the detailed draft, ext. R3 (d) is the press release on the publication of the draft schedule and Ext. R3 (e) is yet another press release extending the time for receiving objections. The draft schedule was discussed by the State Advisory Committee and public hearing was held; but the petitioners did not appear in the public hearing. It was also pointed out that the Electricity board forwarded the proposals on the draft schedule to be effective from 01. 06. 2007 requesting that the tariff schedule be notified by the Commission with appropriate modification and that was accepted and treated as a petition filed by the Electricity Board- the Supplier. The notification is based on rationalisation principles, that educational institutions, were included in the earlier notification, as part of non domestic LTVI (B)as also commercial institutions were included in this category. It is the case of the commission that Self-Financing Educational Institutions have their own fees structure, wage structure etc. which are absent in a Government/aided private school and that self-Financing Educational Institutions are run on business prospects. Reference was made to Ss. 61 and 86 of the Act to contend that though the Commission has started the process of revising the tariff initially suo motu, subsequently the Board has filed a petition and therefore, the Commission was within its legal limits in issuing the tariff order. Besides the Kerala State Electricity Board Regulatory Commission (Conduct of Business)Regulations, 2003 provides for service of notice and vide Reg. 27 publication in news papers or in any other manner is an accepted service form of notice. Reg. 27 (8)specifically provides for service of notice and process issued by the Commission and that publication required to be done cannot be deemed to be invalid by reason of any defect in the name or description, provided the Commission is satisfied that such service is in other respect sufficient. Reg. 40 prescribes the procedure for publication of a petition. It is contended that the Commission has followed all these procedural regulations and notification issued is in full conformity with the requirements. On behalf of the Kerala state Electricity Board, the learned counsel contended that S. 62 (3) of the Act is on the same lines as S. 49 of the Electricity Supply Act, 1948, that Self-Financing Educational institutions are by themselves a class and further, sought to justify the difference in tariff on the basis of nature and purposes of supply. It is contended that considering the higher fee structure and facilities in Self-Financing Educational Institutions, they cannot be equated with the aided or Government Institution.