IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 7818 of 2008(E) -------------------------------------- PETITIONER(S): ------------------------ 1. SR.ANNIE,MANAGER.ST.CHARLES CONVENT SCHOOL, THUTHIYOOR, KAKKANAD, KOCHI-30. 2. SR.JESSY MARIA,MANAGER, SHANTHAL JYOTHI PUBLIC SCHOOL, MUTTOM P.O.,THODUPUZHA AND JYOTHI PUBLIC SCHOOL, ,PAIKA, POOVARANI P.O. KOTTAYAM. BY ADV. MR.WILSON URMESE RESPONDENT(S): ----------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM P.O. THIRUVANANTHAPURAM. 695 004. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, K.S.E.B, THRIKKAKARA. 3. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, K.S.E.B, MOOLAMATTOM. 4. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, K.S.E.B,PAIKA, POOVARANI. 5. THE PRINCIPAL SECRETARY TO GOVERNMENT, POWER DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 6. THE KERALA STATE ELECTRICITY REGULATORY COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. R1 TO R4 BY ADVS. MR.C.K.KARUNAKARAN, SC, KSEB, MR.P.P.THAJUDEEN. R5 BY GOVERNMENT PLEADER MR. BEJOY CHANDRAN R6 BY MR. K.P.DANDAPANI, SENIOR ADVOCATE, SC, MR. T.K.KUNHABDULLA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2009 ALONG WITH WPC.NO.7777 OF 2008 AND CONNECTED CASES, THE COURT ON 06/04/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.7818/2008 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER DTD. 10/01/2003 ISSUED BY ICSE, DELHI. EXT.P1(A): COPY OF THE AFFILIATION LETTER DTD. 10/10/2007 ISSUED BY CBSE, DELHI. EXT.P1(B): COPY OF ORDER OF AFFILIATION DT. 18/09/2007 ISSUED BY CBSE, DELHI. EXT.P2: COPY OF THE MONTHLY ISSUED UNDER LT VI A TARIFF, DTD. 27/12/2007. EXT.P2(A): COPY OF THE MONTHLY BILL UNDER LT VIA A TARIFF, DTD. 15/11/2007. EXT.P2(B): COPY OF THE MONTHLY UNDER LT VI A TARIFF, DTD.3/12/2007. EXT.P3: COPY OF THE RELEVANT PAGES OF THE SCHEDULE OF TARIFF AND TERMS AND CONDITIONS FOR RETAIL SUPPLY BY KSEB WITH EFFECT FROM 01/12/2007 ISSUED BY THE KERALA STATE ELECTRICITY REGULATORY COMMISSION. EXT.P4: COPY OF THE BILL DTD. 17/12/2007 ISSUED BY THE 3RD RESPONDENT. EXT.P4(A): COPY OF THE BILL DTD. 16/01/2008 ISSUED BY THE 3RD RESPONDENT. EXT.P4(B): COPY OF THE BILL DTD. 16/02/2008 ISSUED BY THE 3RD RESPONDENT. EXT.P4(C): COPY OF THE BILL DTD. 2/2/2008 ISSUED BY THE 4TH RESPONDENT. EXT.P5: COPY OF THE INTERIM ORDER DTD.11/02/2008 IN W.P.C.NO. 4802/2008. RESPONDENT'S EXHIBITS: EXT.R6(A): 1 TO XIX PAPER PUBLICATIONS. EXT.R6(B): LETTER DTD. 24/04/2007 OF RESPONDENT NO.3 TO THE DIRECTOR OF PUBLIC RELATIONS. EXT.R6(C): DRAFT TARIFF ISSUED BY RESPONDENT NO.3. EXT.R6(D): PRESS RELEASE DTD. 23/04/2007 ARRANGED THROUGH THE DIRECTOR, PUBLIC RELATIONS. Kss ...2/- ..2.... WPC.NO.7818/2008 E EXT.R6(E): PRESS RELEASE DTD. 8/05/2007 ARRANGED THROUGH THR DIRECTOR, PUBLIC RELATIONS. EXT.R6(F): COPY OF THE MINUTES OF THE STATE ADVISORY COMMITTEE HELD ON 15/05/2007. EXT.R6(G): GAZETTE NOTIFICATION DTD. 31/10/2006 REGARDING THE NOTIFICATION OF THE CONSTITUTION OF THE STATE ADVISORY COMMITTEE. EXT.R6(H): COPY OF THE LIST OF PERSONS ATTENDED IN THE PUBLIC HEARING HELD ON 17/05/2007. /TRUE COPY/ P.S.TO JUDGE Kss K. M. JOSEPH, J. -------------------------------------------------------------- WRIT PETITIONS (CIVIL) NOS. 7818/2008-E, 16488/2008-K, 19622/2008-J, 7781/2008-B, 7777/2008-A, 7137/2008-Y, 7138/2008-Y, 10267/2008-V, 10372/2008-I, 10474/2008-V, 10545/2008-E, 10492/2008-Y 10618/2008-L, 7255/2008-L, 7167/2008-C, 7166/2008-C, 8005/2008-C, 8008/2008-C, 4802/2008-V, 6692/2008-V, 6341/2008-E, 6016/2008-N, 6032/2008-R, 6181/2008-J 6182/2008-J, 5370/2008-L, 6524/2008-B, 6495/2008-W, 6530/2008-B, 6659/2008-P, 6547/2008-D, 6492/2008-W, 6678/2008-T, 6852/2008-N, 5035/2008-Y, 7695/2008-N 7286/2008-P, 7377/2008-C, 5077/2008-D, 5098/2008-F, 7226/2008-I, 7428/2008-H, 6860/2008-Y, 6902/2008-V, 6980/2008-E, 7004/2008-H, 7008/2008-H, 7067/2008-N 7602/2008-E, 7598/2008-D, 8354/2008-T, 8375/2008-V, 8404/2008-A, 8432/2007-D, 8452/2008-F, 8467/2008-G, 8087/2008-K, 8196/2008-A, 9993/2008-M, 9066/2008-D 9067/2008-D, 9118/2008-I, 9809/2008-P, 9810/2008-P, 8758/2008-P, 8769/2008-R, 8718/2008-K, 9136/2008-K, 9101/2008-H, 8940/2008-L, 9149/2008-L, 9096/2008-G 9929/2008-F, 8604/2008-Y, 8498/2008-J, 9104/2008-H, 9261/2008-C, 9685/2008-C, 9950/2008-H, 10226/2008-P, 10037/2008-T, 10036/2008-T, 10038/2008-T, 10436/2008-P, 10403/2008-L, 10266/2008-V, 14066/2008-Y, 14053/2008-W, 14961/2008-F, 15125/2008-A, 15167/2008-E, 15211/2008-J, 15476/2008-P, 15493/2008-T, 15506/2008-U, 15083/2008-U 10919/2008-Y, 10948/2008-C, 10949/2008-C, 13926/2008-G, WPC.7818/08E & CON.CASES 2 15681/2008-P, 15740/2008-W, 15884/2008-N, 16139/2008-U, 16137/2008-U, 16138/2008-U, 16458/2008-H, 15755/2008-A 17449/2008-B, 15089/2008-U, 14872/2008-U, 7599/2008-D, 5603/2008-P, 3558/2008-W, 12726/2008-M, 17633/2008-Y, 17818/2008-U, 17949/2008-J, 17888/2008-D, 18080/2008-B, 12400/2008-A, 12424/2008-D, 13563/2008-M, 13564/2008-M, 18339/2008-G, 18498/2008-B, 18777/2008-I, 18943/2008-E, 19113/2008-A, 19224/2008-L, 19653/2008-M, 19753/2008-B, 19991/2008-E, 20020/2008-G, 20297/2008-N, 20355/2008-W, 20597/2008-B, 18842/2008-Y, 18843/2008-R, 20728/2008-P, 21400/2008-V, 11823/2008-G, 16557/2008-U, 14887/2008-V, 18840/2008-P, 29531/2008-N, 11402/2008-G, 17812/2008-U, 22224/2008-U, 17810/2008-T, 22097/2008-E, 22919/2008-C, 22597/2008-M, 22403/2008-P, 22409/2008-P, 22456/2008-W, 23145//2008-E, 23409/2008-J, 23250/2008-P, 23487/2008-U, 23686/2008-T, 23740/2008-A, 23807/2008-H, 23983/2008-E, 24008/2008-G, 24187/2008-D, 24266/2008-L, 24058/2008-L, 24425/2008-G, 24733/2008-T, 25610/2008-W, 25699/2008-H, 25446/2008-D, 25548/2008-N, 26217/2008-U, 25976/2008-P, 26453/2008-Y, 26394/2008-P, 26353/2008-K, 26980/2008-J, 26984/2008-K, 27113/2008-C, 27135/2008-E, 27143/2008-F, 27187/2008-J, 27200/2008-K, 27660/2008-P, 28000/2008-G, 28542/2008-W, 29417/2008-B, 29812/2008-Y, 30044/2008-B 30121/2008-J, 28775/2008-A, 29478/2008-H, 29487/2008-I, 29929/2008-K, 29433/2008-D, 29225/2008-D, 29890/2008-G, 28713/2008-R, 29917/2008-J, 28782/2008-B, 23991/2008-F, WPC.7818/08E & CON.CASES 3 30476/2008-C, 30781/2008-M, 20245/2008-I, 25377/2008-U, 14771/2008-H, 29860/2008-D, 28174/2008-D, 18877/2008-V, 1865/2009-V, 33502/2008-L, 33519/2008-M, 33551/2008-T, 33085/2008-L, 32963/2008-Y, 31701/2008-Y, 32157/2008-C, 31062/2008-W, 32148/2008-B, 33564/2008-U, 33893/2008-I, 34612/2008-U, 35012/2008-R, 34516/2008-H, 35319/2008-D, 35493/2008-A, 36292/2008-U, 37436/2008-F, 36758/2008-A, 8/2009-A, 502/2009-I, 546/2009-M, 13440/2008-Y, 1106/2009F, 1567/2009-J, 2153/2009-F, 2256/2009-R, 2651/2009-N, 2641/2009-M, 2642/2009-M, 2944/2009-A, 146/2009-P, 1232/2009-V, 3056/2009-L, 3456/2009-J, 3830/2009-E, 4641/2009-C, 5288/2009 & 4925/09 ------------------------------------------------------------- Dated this the 6th April, 2009 JUDGMENT Since common questions arise in these Writ Petitions, they are disposed of by a common Judgment. 2. All the petitioners are running Self-financing Educational Institutions. Some of them are affiliated to the CBSE, some are following the State Syllabus, yet others are Industrial Training Institutions. There are Colleges also. All the petitioners are aggrieved by the classification of “Self-financing WPC.7818/08E & CON.CASES 4 Educational Institutions” under LT VIIA tariff as commercial institutions. The classification has been done by the Kerala State Electricity Regulatory Commission with effect from 1.12.2007. Under this classification, Aided Private Educational Institutions and Government Schools are classified under LT VIA category, while Self-financing Educational Institutions/Hostels fall under LT VII A tariff. 3. I heard the learned counsel appearing on behalf of all the petitioners, led by Shri Kurian George Kannanthanam, (senior counsel), Shri Wilson Urmese, Shri Rajit, Shri Ashik K. Mohammed Ali, Shri Nagaresh, Shri Tom Jose P. and Shri M.A. Thomaskutty, Shri Gangesh, Shri T.P.Ibrahim Khan and Shri Paul K. George. The other counsel appearing for the petitioners have adopted the arguments. I also heard Shri K.P. Dandapani, learned senior counsel appearing on behalf of the Kerala State Electricity Regulatory Commission (hereinafter referred to as the Commission) and Shri C. K. Karunakaran, learned senior standing counsel appearing on behalf of the Kerala State WPC.7818/08E & CON.CASES 5 Electricity Board (hereinafter referred to as the Board). 4. Contentions of the petitioners: (I) Shri Kurian George Kannanthanam: The source of revenue cannot be the basis of discrimination between Educational Institutions. In other words, while the source of revenue for a Government School or an Aided Private Educational Institution may be governmental funds and the source of revenue for a Self-financing Educational Institution may be the students, the difference in the source of revenue cannot be a legal and valid basis for discrimination between the two categories. Both Institutions are engaged in imparting of education. Secondly, he contended that this is a case where, even if there may be an alternate remedy under Section 110 of the Electricity Act, 2003 (hereinafter referred to as the Act), in view of the fact that the tariff has been brought into force without affording an opportunity to the petitioners to object to the introduction of the tariff, the tariff order in question is violative of the principles of natural justice. Thirdly, it is WPC.7818/08E & CON.CASES 6 contended that there was no material to decide the matter as was done. He further took me through Section 61 of the Act. Section 61 provides that the Commission shall, subject to the Act, specify the terms and conditions for the determination of the tariff and in doing so, shall be guided by certain principles which are as follows: “Sec.61. Tariff Regulations.- The Appropriate Commission shall, subject to the provisions of this Act, specify the terms and conditions for the determination of tariff, and in doing so, shall be guided by the following, namely:- (a) the principles and methodologies specified by the Central Commission for determination of the tariff applicable to generating companies and transmission licensees; (b) the generation, transmission, distribution and supply of electricity are conducted on commercial principles; (c) the factors which would encourage competition, efficiency, economical use of the resources, good performance and optimum investments; WPC.7818/08E & CON.CASES 7 (d) safeguarding of consumers' interest and at the same time, recovery of the cost of electricity in a reasonable manner; (e) the principles rewarding efficiency in performance; (f) multi-year tariff principles; (g) that the tariff progressively reflects the cost of supply of electricity and also reduces cross- subsidies in the manner specified by the Appropriate Commission; (h) the promotion of co-generation and generation of electricity from renewable sources of energy; (i) the National Electricity policy and tariff policy.” He also relied on Section 62(3) of the Act which reads as follows: “Section 62: Determination of tariff.- (3) The Appropriate Commission shall not, while determining the tariff under this Act, show undue preference to any consumer of electricity but may differentiate according to the consumer's load factor, power factor, voltage, total consumption of WPC.7818/08E & CON.CASES 8 electricity during any specified period or the time at which the supply is required or the geographical position of any area, the nature of supply and the purpose for which the supply is required.” He further contended that even in Self-financing Educational Institutions profiteering is expressly prohibited both by the relevant Statute and also by the decisions of the superior Courts. What is more, he contended, there was no material available to show that there was profiteering by the Self-financing Educational Institutions. He would also contend that the Appellate Tribunal constituted under Section 110 of the Act is located in New Delhi and it may not be characterised as an effective alternate remedy. He has also pointed out that in fact fifty per cent of the students admitted to the Self-financing Educational Institutions were allotted by the Government. He also submitted that all Self-Financing Educational Institutions are treated as one class. (This does not appear to be specifically pleaded.) He relied on the following decisions: 1) Sanjeevi v. State of Kerala (1994 (2) KLT 127 (FB). WPC.7818/08E & CON.CASES 9 2) Padmanabhan v. Kerala State Handloom Development Corpn. (1991 (2) KLT SN 55 Case No.66). 3) Sunny Mathew v. Union of India (1993 (1) KLT SN 17 Case No.23). 4) Agrl. Income Tax & Sales Tax Officer v. Tata Tea Ltd. (2002 (2) KLT 433). 5) Padmanabhan v. Commissioner, HRCE (2007 (3) KLT 617). (II) Contentions of Shri Wilson Urmese: He also referred to Sections 61 and 62(3). He contended that there was non-application of mind by the Commission. It is pointed out that the true scope of an Educational Institution was not borne in mind by the Commission. He submitted that the impugned tariff order was irrational. He emphasised that by no stretch of imagination, can an Educational Institution be characterised as a commercial establishment. In this connection, he referred to the decision in M.P. Electricity Board and Others v. Shiv Narayan And Another (2005 (7) SCC 283). “Education”, he contended, means essentially imparting of knowledge. It cannot be treated as a trade or as commerce. He WPC.7818/08E & CON.CASES 10 pointed out that he represented also petitioners who were ITI. He pointed out that students coming under the ITI category were generally drawn from the poorer sections. It is further pointed out that the fact that the Educational Institutions were self- financing, should not have led the Commission to take the view that they are doing commercial activities. There is no difference between an Aided Private Educational institution and an Unaided self-financing Educational Institution from the point of view of the energy consumed. He also relied on the following decisions: 1) State of Kerala v. Manoranjan Chakraborty And Others (2001 (10) SCC 740). 2) Pambra Coffee Plantations v. Tahsildar (1991 (2) KLT 833). 3) Alicekutty v. Kadambazhippuram Grama Panchayat (1996 (2) KLT 203). The decisions which I have referred to, as relied on by Shri Kurian George Kannanthanam and Shri Wilson Urmese, are for establishing the circumstances in which a Writ Petition will lie, WPC.7818/08E & CON.CASES 11 even if alternate remedies exist. They are violation of the principles of natural justice, absence of jurisdiction, violation of fundamental rights, patent illegality, pendency of Writ Petition for a long time, and gross injustice in appropriate cases. (III) Shri N. Nagaresh pointed out that he represented a national Open School, a Vocational ITI, besides a School affiliated to the CBSE. He also relied on Section 62(3) of the Act and posed the question as to whether there could be discrimination between a tax payer and a person who does not pay tax. (IV) Shri T.P.M. Ibrahim Khan contended that undue preference is shown to the Aided Private Schools and this is violative of Article 14 of the Constitution of India. (V) Shri Thomaskutty pointed out the clause in the sanction given by the CBSE to contend that there could not be any profit making. (VI) Shri Paul K. George has pointed out that there is no power for the Commission to act suo motu and the exercise was WPC.7818/08E & CON.CASES 12 done without jurisdiction. In this connection, he relied on Sections 61 to 64 of the Act besides the Regulations. He relied on the decisions in Ramachandran Master v. Kerala Lok Ayukta (2006 (4) KLT 166). 5. Per contra, Shri K.P. Dandapani, learned senior counsel appearing for the Commission made the following submissions: Section 111 of the Act provides for an effective alternate remedy by way of Appeal to the Appellate Tribunal. He pointed out that the Chairperson is to be a person who is/has been a Judge of the Supreme Court/the Chief justice of a High Court. As far as the member is concerned also, he is a person who is/has been/is qualified to be a judge of the High Court/a person who is/has been a Secretary for at least one year. It is further pointed out that the Statute in Section 125 of the Act provides for a further Appeal to the Supreme Court from the decision of the Appellate Tribunal on any one or more of the grounds specified under Section 100 of the Code of Civil Procedure. In this connection, he also relied on the decisions of the Supreme WPC.7818/08E & CON.CASES 13 Court in Orissa Electricity Regulatory Commission v. L.I. Parija And Others (2006 (1) SCC 637) and Maharashtra Electricity Regulatory Commission v. Reliance Energy Ltd. And Others (2007 (8) SCC 381). Regarding the complaint of violation of natural justice, it is pointed out that the Commission had issued Ext.R3(a) notice inviting objections/suggestions from the public consumers and other stake holders in various newspapers. In the notice, it was mentioned that the details were available in the web site of the Commission and the same was available on request. Ext.R3(c) is produced as a detailed draft. Ext.R3(d) is produced as the press release on the publication of the draft schedule. Ext.R3(e) was another press release which came to be issued on requests of consumers extending the time for receiving objections. It is pointed out that the draft schedule was discussed in the meeting of the State Advisory Committee as Ext.R3(f) Minutes revealed. Ext.R3(g) is the Notification of the constitution of the State Advisory Committee. Public hearing was held, it was contended, on the draft schedule of tariff and WPC.7818/08E & CON.CASES 14 Ext.R3(h) is produced as the list of persons who have attended the public hearing. It is the case of the Commission that there were no objections filed by the petitioners and they have not appeared in the public hearing. It is stated that on 23.5.2007, the Board forwarded proposals on the draft schedule to be effective from 1.6.2007, praying that the draft tariff schedule notified by the Commission may be modified incorporating the changes in the tariff and classification and other proposals furnished by the KSEB. It is stated that the Commission accepted the proposal and notice was issued inviting salient features of the proposal published as a Notification dated 7.9.2007 informing that the detailed tariff proposal is available in the Commission's web site inviting objections before 5 PM on 1.10.2007. Public hearings were held at three places, namely, Palakkad, Alwaye and Thiruvananthapuram on 16.10.2007, 17.10.2007 and 18.10.2007. Fortyeight written objections were received. It is the Commission's case that Self-financing Educational Institutions have not filed any objections to the proposal or WPC.7818/08E & CON.CASES 15 appeared in the public hearings. It is stated that in the draft schedule published by the Commission, rationalisation principle was extended. The draft schedule was essentially extension of the rationalisation principle to the Educational Sector by separating the Self-financing Educational Institutions from the Government/Aided Private Institutions. In the tariff existing prior to 1.12.2007 under the High Tension Category, the Technical and Educational Institutions and Hostels run by or affiliated to Universities or Government Departments and Government Hospitals were included as HT - II Non-industrial and Non-commercial categories whereas commercially oriented institutions, like private hospitals, they are included in HT - IV commercial category. Educational Institutions were included as part of non-domestic LT - VI B and many commercial institutions were also included in this category. Though a separate commercial category was present, this was found to be against the principle of tariff rationalisation. It is the case of the Commission that Self-financing Educational Institutions have WPC.7818/08E & CON.CASES 16 their own fee structure, wage structure, student and employee welfare measures which are totally absent in a Government/Aided Private School, and that Self-financing Educational Institutions are operating on business prospects. ` 6. Shri C.K. Karunakaran, learned senior standing counsel for the Electricity Board raised the following contentions: There is an alternate remedy available and the petitioners are to be relegated to the pursuit of the said remedy. The Court cannot sit in appeal over the tariff, and that the limited role the Court can assume is that of judicial review. He referred to the reasons which led to the Electricity Act, 2003. He pointed out that there is indeed power to the Commission to act even suo motu. But, he pointed out that, at any rate, this was a case where, though the Commission had started out suo motu, there was subsequently a petition by the Board and, therefore, the Commission was, at any rate, within legal limits in issuing the tariff order. He relied on Section 61 as also Section 86 of the Act. He further pointed out the Kerala State Electricity WPC.7818/08E & CON.CASES 17 Regulatory Commission (Conduct of Business) Regulations, 2003 (hereinafter referred to as the Conduct of Business Regulations). He pointed out that regulation 27 provides for service of notices and processes issued by the Commission. It included service by hand delivery/courier/certificate of posting/registered post with acknowledgment due/E mail or Fax/publication in newspapers or any other manner as considered appropriate by the Commission. Regulation 27(8) reads as follows: “27. Service of notices and processes issued by the Commission.- (8) No service or publication required to be done shall be deemed invalid by reason of any defect in the name or description of a person provided that the Commission is satisfied that such service is in other respects sufficient and no proceedings shall be invalidated by reason of a defect or irregularity in the service or publication unless the Commission, on an objection taken, is of the opinion that substantial injustice has been caused by such defect or irregularity or there are WPC.7818/08E & CON.CASES 18 otherwise sufficient reasons for doing so.” Regulation 28 provides for filing of reply and other documents. Regulation 29 speaks of filing of objections by the public. Regulation 31 provides power with the Commission to permit any Association/Forum or other Body Corporate or any group of electricity consumers to participate in any proceedings before the Commission. Regulation 32 provides for hearing of the matter. Regulation 40 on which considerable importance was placed, reads as follows: “40. Publication of petition.- (1) Where any application, petition, or other matter is required to be published under the Act or these Regulations or as per the directions of the Commission, it shall unless the Commission otherwise orders or the act or Regulations otherwise provide, be published not less than 15 days before the date fixed for hearing. (2) Except as otherwise provided, such publication shall give a heading describing the subject matter in brief.” He pointed out that there is no challenge to the validity of WPC.7818/08E & CON.CASES 19 regulation 40(2) and the publication by the Commission in this case is in full conformity with the requirement and there is no merit in the complaint of violation of the principles of natural justice. He submitted that, in fact, the burden on the categories mentioned in the LT VII A has been reduced by 20 Paise. He has pointed out that what has been done is nothing new and he further pointed out that Section 62(3) of the Act is on the same lines as Section 49 of the Electricity Supply Act, 1948. He submits that Self-financing Educational Institutions are also a class. He referred to Section 62(3) of the Act and emphasised that difference in tariff can be justified on the basis of nature of supply and also purposes of supply. He submitted that even under the earlier regime, there was such classification. He has also pointed out that Self-financing Educational Institutions have higher fee structure, the facilities offered were incomparable with the facilities offered in Aided Private/Government Educational Institutions. He further contended that much cannot be made of the word “commercial” WPC.7818/08E & CON.CASES 20 and the concept of “commercial” should be that any institution which is free to charge such amounts as would make it financially feasible and the Self-financing Educational Institutions fall in such a category and they are commercial. He would submit that in these matters, the Court should not be concerned with the facts of individual Institutions, at any rate. He also relied on the following decisions: (1) Association of Industrial Electricity Users v. State of A.P. and Others (2002 (3) SCC 711). (2) Kerala Hotel And Restaurant Association and Others v. State of Kerala And Others (1990 (2) SCC 502). (3) State of Karnataka And Others v. D.P. Sharma And Others (1975 (1) SCC 391) besides also relying on the decisions of the Apex Court in Orissa Electricity Regulatory Commission v. L.I. Parija And Others (2006 (1) SCC 637) and Maharashtra Electricity Regulatory Commission v. Reliance Energy Ltd. And Others (2007 (8) SCC 381) for the proposition that Section 111 creates an alternate forum rendering the Writ Petitions not maintainable. WPC.7818/08E & CON.CASES 21 7. Issues which arise for decision: (1) Whether the Court should consider the matter under Article 226 of the Constitution in the light of the provisions contained in Sections 111 and 127 of the Act ? (2) Whether the impugned tariff order is vitiated on account of non-observance of the principles of natural justice ? (3) Whether the tariff order is issued beyond jurisdiction and whether the Commission has power to determine tariff suo motu ? (4) Whether the Self-financing Educational Institutions can be treated as “commercial”? (5) Whether there is violation of Section 62(3) of the Act and whether there is valid classification ? 8. The first question to be considered, of course, is whether the Writ Petitions can be maintained under Article 226 of the Constitution of India. Respondents draw support from the WPC.7818/08E & CON.CASES 22 alternate forum provided under Section 111 of the Act and Section 127 of the Act, to contend that the Act contained the code for redressal of grievances. Violation of principles of natural justice is one of the grounds justifying resort to Article 226. I note that the plea of violation of principles of natural justice is actually not seen taken in many of the Writ Petitions. It is settled law that Article 226 provides the Court with an extraordinary, though discretionary jurisdiction. Existence of an alternate forum can never be a total bar or a matter of jurisdiction. But, the Courts have evolved self-imposed restraints in the matter of interference where alternate forums are provided. The exceptions to the Rule which have been evolved are three in number: Firstly, it has been held that violation of principles of natural justice offers a reason to bypass the alternate forum. Absence of jurisdiction is another ground. Thirdly, violation of fundamental rights can also be pleaded by a writ petitioner to bypass an alternate remedy. 9. It is important to notice the decision of the Apex Court WPC.7818/08E &