AI Drafter 
TaxTMI 
TaxTMI 
1988 (4) TMI 440
X X X X Extracts X X X X
X X X X Extracts X X X X
....us categories of consumers of electrical energy and the tariff rates applicable to each category. It is the admitted case that the petitioners in all these writ petitions are Low Tension Consumers governed by this tariff order and they were classified as LT VI - Non domestic (single or 3 phase). 3. LT VI - Non-domestic category was treated under this tariff order of the Board thus: LT VI - Non-domestic (Single or 3 Phase) - (a) Applicable to Government or non-Government offices, Aerodromes, Radio Stations, Telephone Exchanges etc., run by State or Central Government or Local Bodies, Technical and other Educational Institutions', Libraries and Hostels Private or run by or affiliated to Universities and Government, Departments, Hospitals, and Nursing Homes - Government, or otherwise, X'rays, Laboratories, Churches, Mosques, Temples, Convents, etc., Commercial Cold Storages, Poultry farms - Government or otherwise printing presses, and all SSI registered units not eligible to come under LT VI tariff. Fixed charges at Rs. 5/- kw or part thereof connected load/month. plus Energy charges upto 5 kw. (1) at 50 ps/Unit for connect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onsumption will be paid for at the normal tariff rates and the balance 50 percent will be paid for at Rs. 1.50 per unit. 5. The petitioners in all these writ petitions were classified by the Board as "Non-domestic" falling under LT.VI(a) category from 1985 onwards. The petitioners acquiesced in this classification and paid the electrical charges at the normal tariff applicable to this category. When the Government issued the directive under Section 22-B, the same classification was not retained; but a compendious expression was employed - "Commercial consumers" i.e. shops and establishments - to denote the category liable to pay the enhanced tariff. These commercial consumers have to pay for 50 percent of their consumption at the normal rate and 50 percent of the balance at Rs. 1.50 per unit. The Board, unilaterally, treated the petitioners and commercial consumers and demanded from them at the enhanced rate. The petitioners have churches, monasteries, convents, orphanages, seminaries, educational institutions, hostels and hospitals and separate consumer cards were issued for each establishments separately. The petitioners contend that these establishments cannot be treated as s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stribution of electrical energy. Rightly, therefore, in these cases, the parties are not in issue on the power of Government to fix tariff rates under Section 22-B. 8. We have held in Cyriac v. State of Kerala 1987 (1) KLT 777, thus: The 1985 order was issued by the Board under Section 49 of the Electricity (Supply) Act for fixing tariff in respect of the Low Tension consumers. It Was not necessary for the Government to follow the same classification adopted by the Board when it exercised power under Section 22B of the Electricity Act and the Government was well within its power either to ignore the said classification or to make a fresh classification. The fixation of the tariff rate by the Board in 1985 or the classification made therein cannot, therefore, be a basis to challenge an order passed by the Government under an independent statutory power. It is thus no longer in dispute before us that the government are free to make their own classification of consumers for fixation of different rates of electricity tariff and they are not bound by the specification, categorization, designation or division made by the Board for purposes of levying electricity charges. S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ways be a reasonable basis for categorization of that group either for preferential treatment or for enhanced levy. If the intention of the Government was to treat non-consumers as commercial consumers there was no necessity to call the same class by a different name and the Government could very well have retained the expression non-domestic consumers for purposes of enhanced levy. 11. It is, therefore, necessary for us to consider whether the establishments of the petitioners are commercial consumers to attract the enhanced levy of electricity tariff for, on this question depends the jurisdiction to demand the increased rate. 12. Commercial consumers i.e. shops and establishments, as the classification denotes, thus take in commercial establishments, not establishments simpliciter. We were taken through the definition of "commercial establishment" occurring in the Kerala Shops and Commercial Establishments. Act and other allied Acts; but we think we cannot "import by analogy, the concept applied in analogous or parallel statutes" to understand the true meaning of the expression "commercial establishment" for the purposes or electricity tariff. Nor are we prepared to be invo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Hospital Mazdoor Sabha Case AIR 1960 SC 610, thus: We have yet to decide which are the attributes the presence of which makes an activity an undertaking within Section 2(j), on the ground that it is analogous to trade or business. It is difficult to state these possible attributes definitely or exhaustively; as to working principle it may be sated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such activity generally involves the cooperation of the employer and the employees; and its object is the satisfaction f material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be casual nor must it be for oneself nor for pleasure. Thus the manner in which the activity in question is organised or arranged, the condition of the cooperation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are di....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in temples and the devotees pay for them in kind or cash; but they go there in search of spiritual bliss, and not for satisfying hunger. That they can do by resort to hotels or restaurant. The predominant nature of the activity is not the production of goods or the rendering of services necessary for meeting material waste; the activity is basically geared to spiritual aspirations. It is therefore difficult to hold that the temples of the Devaswom Board are all engaged in industrial activities and that the Poojaris are engaged for doing unskilled, skilled, clerical, technical, or supervisory work so as to qualify for being treated as workmen. These observations also lend considerable weight to the conclusion we have already reached. 20. Convents, are "association of persons secluded from the world and denoted to a religious life" and Monastery constitute the residence of monks living under religious vows. Spiritual fascination has brought these persons - men and women, under common roofs. Economic activity is thus not the dominant aspect of the institutional life in these establishments. Convents and monasteries are thus outside the pale of commercial establishments. 21. O....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat schools have become trade and managers merchants. Whether this will apply to universities or not, schools and colleges have been accused, at least in the private sector of being tarnished with trade motives. Let us trade romantics for realities and see. With evening classes, correspondence courses, admissions unlimited, fees and government grants escalating, and certificates and degrees for prices, education-legal, medical, technological, school level or collegiate education is riskless trade for cultural entrepreneurs and hapless posts of campus (industrial) unrest. Imaginary assumptions are experiments with untruth. 25. The famous dissent of Isaacs. J. in the "landmark Australian case", The Federated State School Teachers, Association of Australia v. The State of Victoria and Ors. 41 CLR 569, which has the approval of our Supreme Court in Bangalore Sewerage Board case, is worth repeating. The theory was that society is industrially organised for the production and distribution of wealth in the sense of tangible, ponderable, corpuscular wealth, and therefore an "industrial dispute" cannot possibly occur except where there is furnished to the public - the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cally opposed to a vast and formidable array of recorded opinion. I have already indicated my view that education so provided constitutes in itself an independent industrial operation as a service rendered to the community. Charles Dickens evidently though so when ninety years ago Squeers called his school "the shop" and prided himself on Nickleby's being "cheap" at GBP 5 a year and commensurate living conditions. The world has not turned back since then. 26. Hostel is a house of residence for students and is thus part of an educational institution taking its colour as a commercial consumer. 27. Seminary run by the petitioners, are mainly institutions for the training of candidates for the priesthood or ministry. Webster's Third International Dictionary states that it is a "a Roman Catholic" institution preparing young men for diocesan priesthood or for membership in a religious order and having a course of study comprising typically twelve years of secondary, collegiate and theological training; a professional school giving training in religion cap, for men preparing for ordination as church persons. Seminary is thus an educational institution and should, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....embered that hospitals, aerodromes, telephone exchange etc. have been treated as a public utility consumers and rightly too by the Board, when it classified consumers and fixed uniform tariff for each class. This public utility concerns, mainly essential services, were justifiably excluded from the operation of the power cut provision. There is no dispute and there can be none that hospitals are essential services and electricity supply has to be assured in public interest. To ignore this classification may be to invite a successful challenge under Article 14 of the Constitution. 30. These writ petitions related to hospitals having high tension connection. The same principle was applied in the case of hospitals having only low tension connection in subsequent judgment in O.P. No. 1271 of 1987, where we held thus: Though the petitioner in this case is a low tension consumer, he having a hospital, the decision rendered by us in O.P. Nos. 8128/86, and connected cases govern this case as well, the only difference being that the particular item of tariff which is applicable to this case is L.T.-VI(a). Except for this modification all other directions in the said decision gov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s laid down by the Supreme Court in K.S.E. Board v. S.N. Govinda Prabhu & Bros. AIR 1986 SC 1999, that it is not within our province to examine the price structure in minute detail. We are, however, bound to consider whether the revision or enhancement of tariff is arbitrary and whether the Board attempts to collect from any consumer of electricity charges on a wrong principle ignoring even the classification made for the purpose. It has been our attempt to show that at least in some cases specifically referred to by us, certain establishments have been wrongly treated as commercial consumers. 34. In the result, we hold that the Board was wrong in treating Churches, Temples and Mosques, Convents, Monasteries and Orphanages as commercial consumers and claiming from them enhanced electric charges under the Government order dated 14.8.1986. The Board will, therefore, issue revised bills in respect of these establishments and collect charges only at the normal tariff fixed by the Board in 1985 treating them as non-domestic L.T. VI(a) category. We uphold the classification as commercial consumers made by the Board in respect of Educational Institutions, Nursing Schools Hostels, Semin....