IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 OP.No. 5689 of 2000(B) -------------------------------- PETITIONER: ------------------- SAKTHI HOTEL, BAKER JUNCTION, KOTTAYAM, REPRESENTED BY ITS PARTNER, SAJI PHILIP, S/O. M.C. PHILIP, AGED 33 YEARS, MOOZHAYIL HOUSE, MARIGATHURUTHIL.P.O. BY ADV. SRI.JACOB ABRAHAM, ADV. SMT.KOCHUMOL KODUVATH, ADV. SMT.M.C.BINDUMOL. RESPONDENTS: ----------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY. 2. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, PAKKIN.P.O., KOTTAYAM. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KOTTAYAM CENTRAL, KOTTAYAM. BY ADV. SRI. C.K. KARUNAKARAN, SC, KSEB. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 9489/2000 IN O.P. NO. 5689/2000-B DISMISSED 18/03/2008. SD/- T.R.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE CERTIFICATE DTD. 08/04/91 TO THE PETITIONER ISSUED BY MEMBER SECRETARY AND DIRECTOR, TOURISM. EXT.P.2: COPY OF THE ORDER NO. G.O. (P). NO. 224/86/GAD DTD. 11/07/1986 ISSUED BY ADDITIONAL CHIEF SECRETARY. EXT.P.3: COPY OF THE ORDER NO. G.O. (RT). NO. 65/87/PD DTD. 01/06/1987 ISSUED BY COMMISSIONER AND SECRETARY. EXT.P.3: COPY OF THE ORDER NO. D.O. NO. PLG. COM. 923/86 DTD. 06/06/87 ISSUED BY DEPUTY SECRETARY IN CHARGE. EXT.P.5: COPY OF THE NOTICE DTD. 14/06/99 ISSUED BY R.1. TO THE PETITIONER. EXT.P.6: COPY OF THE NOTICE NO. BB/SS/99-2000/3.6.99 ISSUED BY R.3 TO THE PETITIONER. EXT.P.7: COPY OF THE CERTIFICATE NO. DOC/5/4/STH/99 DTD. 15/06/99 ISSUED TO THE PETITIONER BY ASSISTANT DIRECTOR. EXT.P.7.A: COPY OF THE LETTER DTD. 16/06/1999 ISSUED BY MANAGING PARTNER TO THE ASST. EXECUTIVE ENGINEER, KOTTAYAM. EXT.P.8: COPY OF THE ORDER NO. C3-12956/99 DTD. 18/08/99 ISSUED BY DIRECTOR TO THE PETITIONER. EXT.P.9: COPY OF THE ORDER B.O. NO. 2220/99 (PLG. COM. 923/86) DTD. 11/10/99 ISSUED BY SECRETARY. EXT.P.10: COPY OF THE ORDER B.O. NO. 2432/99 (PLG. COM.923/86) DTD. 08/11/99 ISSUED BY SECRETARY. EXT.P.11: COPY OF THE REPRESENTATION DTD. 19/08/99 SUBMITTED BY PETITIONER TO THE DEPUTY CHIEF ENGINEER, KOTTAYAM. O.P. NO. 5689/2000-B: EXT.P.12: COPY OF THE REPRESENTATION DTD. 09/12/1999 SUBMITTED BY PETITIONER TO THE DEPUTY CHIEF ENGINEER, KOTTAYAM. EXT.P.13: COPY OF THE JUDGMENT DTD. 13/01/2000 IN O.P. NO. 1435/2000-U OF THIS HONOURABLE COURT. EXT.P.14: COPY OF THE ORDER NO. GB2/CON-TARIFF/99-2000 DTD. 01/02/2000 ISSUED BY DEPUTY CHIEF ENGINEER. EXT.P.15: BOARD ORDER BEARING NUMBER 2830/99 (PLG. COM.923/86) DTD. 20/12/99 RESPONDENT'S EXHIBITS: EXT.R1.A: COPY OF THE CERTIFICATE NO. GOIT/MAS/HRACC/96 (KER) 125 DTD. 14/03/1997 OF THE CONVENER HRACC AND REGIONAL DIRECTOR FOR SOUTH INDIA, GOVERNMENT OF INDIA, TOURIST OFFICE MADRAS. EXT.R1.B: COPY OF THE LETTER DTD. 03/06/1999 ISSUED BY THE R.3. EXT.R1.C: COPY OF THE B.O. NO. 2220/99/PLG. COM. 923/86 DTD. 11/10/1999. EXT.R1.D: COPY OF THE JUDGMENT IN O.P. NO. 1435/2000. EXT.R1.E: COPY OF THE PROCEEDINGS OF THE R.2. DTD. 01/02/2000. EXT.R1.F: COPY OF THE B.O. NO. 2432/99 (PLG. COM.923/86) THIRUVANANTHAPURAM, DTD. 08/11/1999. EXT.R1.G: COPY OF THE PROCEEDINGS OF THE DIRECTOR, DEPARTMENT OF TOURISM, THIRUVANANTHAPURAM. EXT.R1.H: COPY OF THE G.O. (MS). NO. 537/2000/GAD, DTD. 26/09/2000. EXT.R1.I: COPY OF THE JUDGMENT IN W.A. NO. 624/2005. //TRUE COPY// prv. T.R.RAMACHANDRAN NAIR, J. ========================= O.P.No.5689 of 2000-B. ========================= Dated this the 18th day of March, 2008. J U D G M E N T The petitioner is a consumer under the first respondent with consumer No.C-3527. From 8.1.1991 onwards the hotel was having one star classification as evidenced by Ext.P1. As per Exts.P2 and P3 various concessions have been ordered to be granted by the Government pursuant to the declaration of tourism as an industry. The classified hotels 1 to 5 stars were eligible for those concessions and one of them was in respect of electricity tariff. Thereafter the Board as per Ext.P4 allowed tariff concession to various categories of consumers including class I tariff (1 to 5 stars) concession. The petitioner has been enjoying the concessional tariff from the year 1991 to May, 1999. Thereafter based on Ext.P7 certificate the petitioner after being classified as class I sought for the benefit of O.P.No.5689 of 2000-B. -: 2 :- concessional tariff. Ext.P8 will show that the Director, Department of Tourism ordered to grant concessional tariff to the petitioner from 5.1.1999 the date from which one star classification was granted afresh. That was ordered to be given in accordance with the Government Order dated 11.7.1986. Ultimately by Ext.P9 order the Board cancelled the earlier orders granting industrial tariff to be effective from 15.5.1999. Again by Ext.P10 the Board clarified that institutions which were already enjoying industrial tariff prior to 15.5.1999 on the strength of certificate issued by Director of Tourism shall continue to be charged at industrial tariff rate until further orders. This was subject to the final decision of the Government on payment of subsidy. The petitioner thereafter filed representations before the Board to restore the concession and by Ext.P13 judgment the representations were directed to be considered. Finally by Ext.P14 the representations have been rejected and the said order under challenge in this writ petition. O.P.No.5689 of 2000-B. -: 3 :- 2. The respondents have filed a detailed counter affidavit. They are relying upon Ext.R1(h) Government Order whereby the Government revised the entire scheme. One of the crucial clauses therein is clause (2)(d) which expressly provides that the period for which concession would be made available to the tourism unit will be limited only to the first five years from the date of effective certification by the Department of Tourism, Government of Kerala. The concession will not be extended for any further period. It is further clarified in clause (3) that the tourism units will be eligible for concessional tariff only for a period of five years including the period for which they have already enjoyed the concession ie., if the tourism unit has already enjoyed tariff for a period of three years prior to 15.5.1999, they will be eligible for concessional tariff only for a further period of two years only. If any tourism unit has already enjoyed concessional tariff for a period of five years or more prior to 15.5.1999, it will not be eligible for any extension of the period of concession. As far as the O.P.No.5689 of 2000-B. -: 4 :- petitioner is concerned, it was enjoying the benefit from 4/1991 to 3/1994 and thereafter from 4/1994 to 3/1997. But after 14.3.1997 the petitioner did not produce any revised reclassification orders from the concerned authority to get the concession. It is clear from para.4 of the counter affidavit that even though the petitioner had not produced the revalidated certificate from the Director of Tourism Department, Kerala, the concessional tariff rate continued to be levied till 5/1999 due to an oversight by the respondents. This concessional tariff was applied to the petitioner from 4/91 to 5/99 and when this was noticed the petitioner was requested to produce the certificate regarding the reclassification. It is contended that in view of Ext.R1(h) petitioners are not entitled to claim any concession. 3. The issue is covered by the judgment of this Court produced as Ext.R1(i) wherein in WA.No.624/2005 the entire scheme was considered by a Division Bench of this Court. After examining various aspects it was held that the Government and the O.P.No.5689 of 2000-B. -: 5 :- Board are entitled to withdraw the concession due to change of policy and the parties have no legal right to get the concessional tariff granted to the industries. In the light of the above binding decision of the Division Bench, the Original Petition fails and the same is dismissed. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-