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Malabar Hills Citizens' Forum Versus Best Undertaking & 2 Others

2016 (5) TMI 591 - BOMBAY HIGH COURT

Claim of incorrect categorization of the electricity meters installed at the Petitioner's premises - Held that:- The categorisation of electricity tariff is on the basis of 'usage' and not 'the terms of usage'. If a gymnasium uses electricity, it is usage for running a gymnasium, irrespective of the terms of such usage, namely, whether for a charge or not and whether on a profit motive or no profit principle. It is usage clearly falling within 'Non-residential or Commercial' usage. A non-residen .....

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sessed and charged under the tariff item LTII, which is for 'Non-residential or Commercial' use. No fault can be found with respect to such categorization or billing. - Writ Petition No. 1341 of 2013 - Dated:- 4-5-2016 - S. C. Dharmadhikari And S. C. Gupte, JJ. For the Petitioner : Mr. Navroz Seervai, Senior Counsel, a/w. Mr. Raj Patel, Mr. Aditya Khandeparkar and Mr. Jahaan Dastur, i/b. M/s. Hariani & Co. For the Respondent : Mr. A.B. Ketkar, a/w. Mr. Hetal Master, i/b. M/s. Ashwin Ankhad & .....

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k and sports complex and has been consuming electricity distributed by Respondent No.1. The park and the complex are situated on a plot of land, which is owned by the Government of Maharashtra and which was handed over by it to the Brihanmumbai Municipal Corporation ('BMC') for creation of a garden and a playground. BMC, in turn, entered into an agreement of licence with the Petitioner for such development and maintenance. The whole park complex, known as 'Priyadarshini Park', is .....

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the entire complex is run, according to the Petitioner, without a profit motive. 3. There are three electricity meters installed at the site, one in respect of the public garden and two for the sports complex. These three meters are placed under different categories. Whilst the meter in respect of the public garden is classified and categorized under a category known as LTVI (which is for public street lighting, lighting in public gardens, etc.), the other two meters are categorized as LTII (a) .....

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, not being 'commercial', none of the meters could fall within the tariff item LTII. It is submitted that within the broad category of Non-residential and commercial are included Subitems (a) which is basically for commercial or business premises including shopping malls and (b) which is for entertainment establishments such as film studios, cinema halls, multiplexes, etc. Though recreation places are part of this latter category, the same cannot include public utility services such as a .....

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ance with categorization based on user. Respondent No.1 also disputes the Petitioner's claim of allowing facilities to the public on an open and free of charge basis. It is submitted that on inspection of the premises by the Officers of Respondent No.1, it was found that though the garden was open to general public, the activities of the sports complex including the Gymnasium were restricted to the members of the Petitioner trust, who were charged separately. It is submitted that the activit .....

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that extensive arguments were advanced on both sides on the merits of the categorisation adopted by Respondent No.1 for charging of electricity used by the Petitioner, we propose to decide that issue. 7. At the outset it is important to note that any category of tariff fixed under the Electricity Act, 2003 is on the basis of 'usage' of electricity. The State Electricity Commission fixes tariff on the basis of such usage, namely, residential or Non-residential including commercial or indu .....

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KW load (LT IV), Advertisements and Hoardings (LT V), street lights (LT VI), Temporary supply (LT VII), Crematorium and Burial Grounds (LT VIII) and Hospitals and Educational Buildings (LT IX). We are primarily concerned with two categories here, namely, LT VI - Street Lights and LT II Non-residential or Commercial. The applicability of these categories is described as below : LT II: LT Non-Residential or Commercial Applicability Electricity used at Low/Medium Voltage in all Non-residential, no .....

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n places. c) Electricity used for the external illumination of monumental/historical/heritage buildings approved by MTDC. LT VI: LT-Street Lights Applicability Electricity used at Low/Medium Voltage for purpose of public street lighting, lighting in public gardens, traffic island, bus shelters, public sanitary conveniences, police chowkies, traffic lights, public fountains, other such common public places, irrespective of whether such facilities are being provided by the Government of the Munici .....

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roversy concerns the two other meters recording use of electricity in the sports complex, which are categorized as Non-residential or commercial, falling within LTII. The argument of Mr. Seervai, learned Senior Counsel for the Petitioner, is that even these meters should be categorized under LTVI, since the electricity recorded in these meters is used for public amenities such as an athletic track, gymnasium and tennis court, which are accessed by general public and operated at a nominal fee on .....

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purposes of electricity tariff does not cease to be non-residential or commercial if it is run on a no profit basis. Even the usage of electricity categorized as commercial is not because there is a profit motive, but because the activity is commercial as opposed to residential or individual. 9. The judgments relied on by Mr. Seervai are of no assistance to him. Queen's Educational Society vs. Commissioner of Income Tax (2015) 8 Supreme Court Cases 47 was a case involving interpretation of S .....

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