IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 OP.No. 15390 of 2003(F) --------------------------------- PETITIONER(S): --------------------- 1. BPL MOBILE CELLULAR LIMITED, BPL CENTRE, ASHIS BUILDING, SHANMUGHAM ROAD, COCHIN - 31, REPRESENTED BY ITS EXECUTIVE - LEGAL MR. RAJESH MEETH VEETTIL. 2. GLENDALE OWNERS ASSOCIATION, BANK ROAD, CALICUT, REPRESENTED BY ITS PRESIDENT, MR.P.RAGHUNATHAN. 3. P.R.GOPALAN, CHITRA, XXXIX/125, MULLASSERY CANAL ROAD, ERNAKULAM. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MANJOORAN RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. MEMBER (DISTRIBUTION), KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. CHIEF ENGINEER (COMMERCIAL), KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, NADAKKAVU, KOZHIKODE. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO.15390/2003-F ORDER ON CMP NO.25523/2003 IN O.P. NO.15390/2003 DISMISSED 09/12/2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 14/09/2001 NO.COD/53/2002/852 ISSUED BY THE CHIEF OF DISTRIBUTION, KSEB, TRIVANDRUM. EXT.P2: COPY OF THE BOARD ORDER D.O. NO.2407/2001 (PLG. COM 4355/2001) DATED 07/12/01 ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE LETTER SIGNED ON 18/12/2002. EXT.P3(a): COPY OF THE CALCULATION SHEET DATED 17/12/2002. EXT.P4: COPY OF THE APPEAL TO THE 4TH RESPONDENT DATED 12/01/2003. EXT.P5: COPY OF THE JUDGMENT IN O.P. NO.2931 OF 2003 DATED 31/01/2003. EXT.P6: COPY OF THE ORDER DATED 11/04/2003 ISSUED BY THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.15390/2003-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 9th day of December, 2008. J U D G M E N T Aggrieved by Ext.P6 order passed in an appeal, the petitioner has filed this original petition. The question is regarding the correct interpretation of Ext.P2 notification issued by the Electricity Board as regards tariff for common facilities in multi-storied buildings. 2. By Ext.P3, it was informed to the petitioner that while assessing the applicability of Ext.P2 notification in consumer No.NS 8293, the total area of two non-domestic occupancy of Southern Investments comes to 6.9% and, therefore, the invoices issued under tariff Ia for the period 6/2001 to 10/2002 have been revised and a fresh invoice for short assessment for the above period is being forwarded. Ext.P3(a) gives the details of revised invoice consequent on the said tariff revision. Challenging this, Ext.P4 appeal was filed which resulted in Ext.P6 order. Earlier, the petitioner approached this Court in O.P.No.2931/2003 which was disposed of by Ext.P5 judgment, wherein the appellate authority was directed to consider the matter on merits. 3. The building in question consists of 96 apartments and some portion of the multi-storied building is occupied by two non domestic O.P. No.15390/2003 -:2:- consumers namely, the first petitioner and the Southern Investments Pvt. Ltd. As per Ext.P2, a notification amending the earlier notification for assessment for common facilities in multi-storied buildings mainly for domestic occupation was issued. Amendment reads as follows: “In part IV, Low Tension Tariff Note 2 below Para XIV, LT I shall be substituted by the following:- Power supplies to common facilities such as water supply, common lighting, lifts etc. in multi-storied buildings, mainly for domestic occupation shall be under domestic tariff, if the area of occupancy other than domestic is less than 5% (five percent) of total area.” 4. The view taken in Ext.P3 to deny the benefit of Ext.P2 is that the total area of two non-domestic occupancy of Southern Investments comes to 6.9%. This is reiterated in Ext.P6. A reading of Ext.P6 reveals the following facts:- 5. There are three common supply service connections given in the three blocks of the Glendale apartments. Consumer No.NS 8293 pertains to Glendale East Block, Cons.No.NS 9003 in Glendale West Block and Cons.No.NS 9583 in Glendale North Block. Consumer Nos.NS 9003 and NS 9583 are billed in domestic tariff. According to the appellate authority, as there exists three separate service connections for the common facility of each O.P. No.15390/2003 -:3:- apartment block, the total area of domestic occupation in respect of each service connection is limited to the respective blocks and, therefore, in the case of consumer No.NS 8293, the total area of Glendale East Block is to be taken. This comes to 49103 square feet. The area occupied by the two commercial establishments viz. BPL Cellular Phones and Southern Investments Office housed in the ground floor of Glendale East Block together comes to 3407 square feet. As such the percentage of area other than domestic use is calculated to 6.9% of the total area. Accordingly, it is held that the eligibility of allowing domestic tariff to Cons.No.NS 8293 as per Board's notification cannot be granted and the applicable tariff is Commercial LT VII-A. 6. Going by Ext.P2 notification, the power supplies to common facilities such as water supplies, common lighting, lifts etc. in multi-storied buildings, mainly for domestic occupation shall be under domestic tariff, if the area of occupancy other than domestic is less than 5% of total area. Therefore, to consider whether the tariff applicable is domestic or commercial, one has to assess the total area and find out the area of occupancy other than domestic, to assess whether it is less than 5%. By that method only the correct tariff can be assessed. Here, going by the counter affidavit and Ext.P6, the stand taken is that there are three common supply service connections for the three blocks of O.P. No.15390/2003 -:4:- the Glindale apartments. Therefore, this has to be assessed separately going by the three separate service connections. If that be so, the total area of domestic occupation in respect of each service connection should be the guiding factor. 7. The said method is clearly faulty going by the plain terms of Ext.P2. Ext.P2 is issued in exercise of powers conferred under Section 79 of the Electricity (Supply) Act., 1948. When the language of the said notification is plain and clear no other interpretation can be adopted. There is no ambiguity in the language in which the notification has been issued. Therefore, the plain meaning alone can be taken. If that be so, the total area is the crucial factor, to assess whether the area of occupancy other than domestic is less than 5%. This total area to be arrived at is not with reference to a particular service connection or the area relating to a particular consumer number. That is not provided in Ext.P2 and therefore, the said method cannot be relied upon. When the multi- storied building is mainly for domestic occupation, domestic tariff is the rule in respect of power supply to common facilities, provided, the area of occupancy other than domestic is less than 5% of the total area. If that be so, the restriction now adopted by the authorities in regard to the said factor cannot be sustained. It cannot be disputed that going by Ext.P2, the benefit is conferred on the consumer and an interpretation for promoting the object and purpose of the O.P. No.15390/2003 -:5:- notification alone be adopted. In this view of the matter, the reasoning adopted in Ext.P6 supported by the averments in the counter affidavit cannot be accepted. 8. Therefore, Exts.P3 and P6 are quashed. The respondents shall issue fresh proceedings and revised bills, in accordance with the provisions of Ext.P2 as declared above, to the petitioners. Pursuant to the interim order passed by this Court, the petitioner has remitted Rs.40,000/-, the same shall be adjusted to the total liability payable, if any, of the petitioner. Excess amount if any, shall be adjusted towards the future bills payable by the petitioner. The original petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms O.P. No.15390/2003 -:6:- T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.15390/2003-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T 9 t h D e c e m b e r , 2 0 0 8 .