2)        The Asst. Engineer,

Electrical Section,

Kanjirappally.

O  R  D  E  R

Sri. Santhosh Kesavanath P., President

Case of the petitioner filed on 10..3..2010 is as follows:

Petitioner is the chairman of St. Antony’s Educational Charitable Society,  society registered, under the Travancore – Cochin Literary, Scientific and Charitable Societies Registration Act 1955.  According to the petitioner  it is a non-profit making charitable society, mainly to establish , run and maintain  educational institutions for the benefit of members of the public without distinction of caste, race or creed.  The society is also exempted from payment of income tax.  To provide computer literacy for the youth in the rural areas,  Society is conducting the computer courses apart from the charitable works of the society.  Opposite party  provided an  electric connection to the St. Antony’s College of computer science with vide consumer No. 16879 under   LT VI A Tariff  Opposite party issued bills and the entire demands made by the opposite party is

being cleared  by the petitioner without fail.   On 20..1..2010  a demand notice was served by the opposite party to the complainant demanding Rs. 1,00,825/- as

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short assessment bill, for the period from 1..12..2007 to 1.2010.  Said demands were made by the opposite party by including the petitioner consumer under Tariff VII A.  A letter was also annexed to the demand notice stating that as per vide notification No. 2148 Dt: 27..12..2007,  self financing educational institutions were  categorized under LT VII A and said categorization have been quashed by the Hon’ble High Court.  Subsequently, opposite parties obtained an  interim order from the Hon’ble  Supreme Court.  In the light of the said interim order opposite parties responded  against the petitioner without giving petitioner an  opportunity of being  heard.  Petitioner  states that act of the opposite party including the petitioner under LT VII A tariff is a clear deficiency in service  .  So petitioner    prays for a direction to the opposite party not to asses the petitioner under LT VII A Tariff  instead of LT VI A Tariff.  Petitioner also prays for a direction to  opposite parties to adjust the amount of Rs. 20165/-, paid by them to the opposite party, in their  future bills.  Petitioner  claims Rs. 10,000/- as compensation and cost of the proceedings.

            First and second opposite party entered appearance and filed   joint version contenting that  petition  is not maintainable.  According to the opposite party the educational institution   run by the society is a self Financing Educational Institution.   Earlier  the tariff given to the institution was LT VI A which was later changed to LT VII A.  Since  self financing educational institutions are categorized under LT VII A tariff, as per gazette notification No. 2148 Dtd: 24..11..2007.  Additional invoice  amounting Rs. 1,00,825/- as the short assessment for the period from 12/2007 to 1/2010 was issued to the petitioner as per specific rules.  A number of petition s filed by self financing educational institutions before the Hon’ble High Court of Kerala were dismissed.  Against the  judgment of the Single Bench of  Hon’ble High Court of Kerala, appeal was  preferred to the  Division Bench  and the Hon’ble High Court set aside the clarification  made by the State Regulatory Commission  for categorizing the self financing  Educational Institution in LT VII A tariff and directed to bill them under LT VI A Tariff until new notification is issued.   Opposite party challenging

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the order of Hon’ble High Court of Kerala approached the Hon’ble Sureme Court by filing  special leave petition.  Hon’ble  Supreme  Court of India stayed the operation of the order of  the Division Bench of the Hon’ble High Court of Kerala. So, according to the opposite party they have every right to assess the petitioner under LT VII A tariff. According to the opposite party there is no deficiency in service on their part and they pray for dismissal of the petition with their costs.

Points for determinations are:

i)                    Whether there is deficiency in service on the part  of the opposite parties?

ii)                   Relief and costs.

            Evidence in this case consists of affidavit filed by both parties  and Ext. A1 to A9 documents on the side of the petitioner and Ext. B1 to B11 documents on the side of the opposite parties.    

Point No. 1.

            Petitioner produced the demand cum disconnection notice issued by the opposite party dtd: 20..1..2010 for an amount of Rs. 1,00,825/- said document is marked as Ext. A7.  Along with Ext. A7 demand notice opposite party issued a letter to the petitioner.  The letter  produced is marked as Ext. A8.  In Ext. A8 opposite party stated that Ext. A7 bill is issued categorizing  petitioner institution  under LT VII A tariff because it is a self financing educational institution.  The crux  of the point to be determined in this case is whether  the petitioners educational institutions will come under  LT VI A Tariff or LT VII A tariff.  According to the petitioner, petitioner society is conducting   parallel  college to provide computer literacy  for the youth in the rural areas and is registered to All Kerala Parallel College Association.  Further more according to the petitioner,   petitioner is a non profit making   charitable society, mainly to establish run and maintain educational institutions for the benefit of poor .  Bye law  of the society is produced and same is marked as Ext. A2.  The certificate issued by the AKPCA

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is produced and same is marked as Ext. A3.  Copy of the certificate of   approval issued by the Bharathiar  University is produced and  marked as Ext. A4.  According to the petitioner the institution is only a parallel college and will come under the tariff LT VII A (Non domestic) Tariff .  According to the opposite party  the petitioners institution is providing Education    and is self financing and is to be categorized under LT VII A.  Opposite party produced gazette notification Dtd: 27..11..2007 and same is marked as Ext. B1.  In Ext. B1 it is stated that   tariff applicable to premises of religious worship, Government or aided private Educational Institution, libraries and reading rooms of educational institutions, convents, Government hostels, x-ray units, libraries and mortuaries of Government  hospital and private hospital,    charitable societies which are exempted   from payment of income tax are included under LT VI – A.  In LT VII A consumers for commercial activities,   display line, cinema studio , hostels restaurants, business concerns, private hostels, lodge, guesthouse, milk chilling  

plants etc. etc. are included.  Admittedly the petitioners institutions is conducting a parallel college.  Further more petitioner institution is a non profit making charitable society and is exempted from paying income tax.  LT VII A does not include  parallel colleges or with regard to self financing educational institutions  as per Ext. B1 notification.  In our view non mentioning of self financing Educational Institution and the parallel colleges, while various establishments are made mentioned of, may indicate otherwise.  At any rate, when the extract itself contains the details of various types of consumers to be included or retained under LT VII A, the specific omission  to mention self financing educational institution and parallel colleges is an indication showing that  the opposite party excluded self  financing institution  and  parallel colleges from the commercial category.  In our view even though the opposite party has definite case that the petitioner  institution is    a self financing  institution. Opposite party produced notice published and distributed by the petitioner institution said document is marked as Ext. B11.    From Ext. B11 it can be presumed that it is a parallel college.  In the case of self financing institution even though it is purputed for the purpose of

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education  it  also provides luxuries  amenities like  humanities high powered lights, lifts, air-conditioned class rooms, hostels, canteens etc.  Here opposite party has not proved that this amenities are provided  by the petitioner  institution . In our view when the supply is to an educational institution whether it is self financing or aided or government or parallel college there cannot be a difference. Education means to impart knowledge.  Education in ancient   times was not connected  with earning.  Further more  education is what was accorded in dharma.  Education is a  disclosure  of tradition,  loyalty to culture and it is a    service to society.  We cannot  in the absence of material evidence simply accept the stand taken by the opposite party that the parallel colleges are profiteering  or run as business.  On a mere glance  of various consumers categorizes under LT VII A it can be seen that it categorizes  commercial  establishment and there can not be two opinion from that. In our view act of the opposite party in including the petitioner institution under LT VII A tariff is not justifiable.  Opposite party in their version and the counter affidavit admitted that even in the case of self financing institution categorization  under LT VII A tariff is not allowed by the Hon’ble High Court of Kerala. The dispute  is still  pending seeking final decision before the Hon’ble Supreme  of India as SLP No.  34714 to 34735/09 and 34823 to 34835/2009. .  The verdict of the Hon’ble Supreme court is yet to come in the meanwhile issuing a short assessment bill categorizing the petitioners institution as ‘self financing institution’ and issuing demand notice is a clear deficiency in service.  So, point No. 1 is found accordingly.

Point No. 2

            In view of the finding in point No. 1, petition is allowed.  In  the result  (1) the demand notice Dtd: 20..1..2010 for an amount   Rs. 1,00,325/- is cancelled (2) Opposite party is directed to assess the petitioner/consumer under LT VI A tariff (3) Opposite party is directed to adjust the amount of Rs. 20,165/- remitted by the consumer in future bills of the petitioner.  Considering the facts and circumstance no cost and compensation is ordered.  Opposite party is ordered to comply the

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order  with within one month of the receipt of the order.

Dictated by me transcribed by the Confidential Assistant corrected by me and

pronounced in the Open Forum on this the  30^th  day of November, 2010.

            Sri. Santhosh Kesavanath P., President Sd/-    

            Smt. Bindhu M. Thomas, Member                    Sd/-    

            Sri. K.N. Radhakrishnan, Member                    Sd/-    

APPENDIX

Document for the petitioner

Ext. A1:            Power of attorney  executed by the petitioner.

Ext. A2:            Bye low of the society

Ext. A3:            Certificate issued by AKPCA

Ext. A4:            Copy of certificate of approval Dtd: 20..10..2007 by the Bharathiar

University.

Ext. A5:            Bill Dtd: 5..1..2010

Ext. A6:            Receipt Dtd: 29..1..2010

Ext. A7:            Demand Notice Dtd: 20..1..2010

Ext. A8:            Letter Dtd: 20..1..2010

Ext. A9:            Receipt Dtd: 25..2..2010

Documents for the Opposite party

Ext. B1:            Copy of the Kerala Gazette Notification No. 2148 Dtd: 27..11..2007

Ext. B2:            Copy of judgment of the Hon’ble High Court of Kerala in WP (c) No. 23991 of 2008 and allied 251 Nos. DtdL 6..4.. 2009

Ext. B3:            Copy of judgment of the Hon’ble High Court of Kerala WA No. 1063/2009, 1064/2009 and allied cases dated: 17..8..2009

Ext. B4:            Copy of the order in SLP of the Hon’bl;e Supreme court of India Dtd: 14..12..2009 and 18..12..2009

Ext. B5:            Copy of the Board order Dtd: 28..5..2009

Ext. B6:            Copy of the leter of Secretary, KSEB Dtd: 7..11..2009

Ext. B7:            Copy of the letter of Secretary KSEB Dtd:  5..1..2010

Ext. B8:            Copy of the letter of Secretary, KSEB Dtd: 27..1..2010

Ext. B9:            Copy of the letter of Secretary, KSEB Dtd: 2..3..2010

Ext. B10:          Copy of the letter of Secretary, KSEB Dtd: 5..6..2010

By Order,

Senior Superintendent

Received on  /  Despatched on

amp/ 5 cs.