clr/1986/1986_3_193.pdf

(1986)the applicants, in their application to the respondents for the connection of their said premises with the electncitv mains, stated that the maximum load required was 50 KVA As a result there was installed in the premises η meter which would allow machinery operating at the same time to use electricity up to 50 KVA capacity or, else the fuses installed would blow 5 The respondents originally charged the applicants for the consumption of electricity by them on the basis of tariff 63, but after the abolition of the tariff in 1980, 10 they charged them under tariff 61.* It should be noted that (

1. a)Tariff 60 applies when the respondents are "reasonably satisfied that the capacity of the apparatus installed .. does not exceed 50 KVA", (
2. b)The basis of Tariff 61 is the maximum demand, and (
3. c)15 Tariff 63 applies when the respondents are reasonably satisfied that the capacity of the apparatus installed is in excess of 50 KVA Counsel for the applicants complained that since their maximum demand never exceeded 50 KVA and that neither could the applicants make use of electricity of a capacity greater than that, the said decision of the res­ pondents offends against the provisions of Articles 24 and 28 of the Constitution 20 Held, (Π Article 24 1 of the Constitution is not appli- 25 cable in the present case because the amount payable is for services rendered to a specific individual and not to the public in general and such amount is calculated on the basis of such services and not as a contribution to pu­ blic burdens Further such an amount cannot be treated B0 as a tax, duty or rate of a destructive or prohibitive nature as provided by Article 24 4 of the Constitution

(2)Reasonable distinctions, even resulting in practice in some inequality, do not violate Article 28 of the Con* The charges payable by consumers for the supply of electricity were governed by regulations made under s44 of Cap 171 as amended The 5th Schedule to the said regulations fixes the tariffs inter alia for the Commercial and Industrial supplies of electricity This Schedule was amended by the Electricity Development (Amend­ ment) Regulations 1978 Tariffs, 60, 6 1 , 62 and 63 as enacted by the said regulations of 1978 are cuoted at DD 196-199 post 194 3 C.L.R. 5 10 15 20 Agathangolou Ltd. v. E.A.C. stitution. What is of a particular importance in this case is that the applicants could not use 133 KVA, i.e. the capacity of their machinery operating at the same time, and that if they attempt to use more than 50 KVA a short while, their fuses will blow. The Court cannot sec how a reasonable distinction can be made between consumers charged under Tariff 60 and those charged under Tariff 63. The basis of the distinction, i.e. the installed load, is unreasonable and, in the circumstances, it violates Article 28. However, the distinction between consumers charged under tariff 60 and those charged under tariff 61. made on the basis of maximum demand is reasonable because in the case of maximum demand the respondent had to make special provisions and be always in a position to meet such demand and give to the consumer the amount of electricity for which he had switched on.

(3)In the light of the material before the Court the applicants on whom the burden is cast failed to persuade the Court that the respondents in placing the applicants under tariff 61 had acted under a misconception of fact. Sub judice decision partlyannulled. No order as to costs. Recourse. 25 Recourse against the decision of the respondents to charge applicants for the consumption of electricity at their foundry workshop on the basis of Tarrif No. 63 and after its abol:tion on the basis of Tariff No. 61. L. Georghtades (Mrs.), for the applicants. 30 G. Cacoyannis, for the respondents. Cur. adv. vuit DEMETRIADES J. read the following judgment. The app!i cants, who are the owners of a foundry workshop situntet at the Sopaz area of Kaimakli quarter Nicosia, applied ti 35 the respondents, who are by law entaisted with the pro duction and supply of electricity in the Republic, for th. connection of their premises with the electricity mains. \95 Demetriades J. Agathangelou Ltd. v. E.A.C.

(1986)Though the total load of electricity needed to operate at the same time all the machinery installed in the said premises is 133 KVA, the applicants, in their said application, stated that the maximum load required by them was 50 KVA. Following this, the respondents installed in the premises of the applicants an electricity meter of thai capacity which would allow machinery operating at the time to use electricity up to that KVA capacity or, else, the fuses installed would blow. 5 Rates of charges payable by consumers for the supply of 10 electricity to them are governed by Regulations made under section 44 of the Electricity Development Law, Cap. 17 f, as later amended. The 5th Schedule to these Regulations fixes the tariffs, amongst others, for commercial and industrial supplies of electricity. It was amended by the Elec- 15 tricity Development (Amendment) Regulations. 1978 -(see No. 151 in the Third Supplement, Part 1, to the Official Gazette of the 25th August, 1978). which provide:"TARIFFS FOR COMMERCIAL SUPPLIES AND INDUSTRIAL The following tariffs apply to supplies of electricity for use wholly for the purposes of, or in connection with, any trade, business or profession, or for use in churches, monasteries, hospitals, schools, hostels (boarding schools), hotels, guest-houses, clubs or other 25 similar buildings, establishments or institutions whether public or otherwise. These tariffs also apply to supplies of electricity for use wholly or mainly for the purpose of motive power or electromechanical or electrothermal processes in a factory, works, foundry, mill, 30 pumping station or other industrial premises. GENERAL TARIFF (CODE NO. 60) Provided that the Authority is reasonably satisfied that the capacity of the apparatus installed in the premises for lighting, heating, motive power and any 35 other purposes does not exceed 50 kilovoltamper, the prices chargeable bi-monthly for the supply of electricity under this tariff are: 196 20 L.R. (

1. i)Agathangetou Ltd. ν E.A C. Demetriades J. A fixed charge as follows: Single-phase supply Multi-phase supply i»nd C£ 1.300 C£ 2.500 (i'O For c:ch of the first 170 units supplied 40 mils For each additional unit supplied 23 4 mil:. In each b:-month!v period the unit prices shall be increased or reduced by 0.025 mils per unit for each 50 mils by which the cost of fuel per metric ton 'is may be prescribed by the Authority in the bi-monthly period, shall be above or below C£24 per metric ton The consumer shall immediately notify the Authoritx in writing when the capacity of his anparatus installed exceeds 75 kilovolta'nper. Tn the event of failure *n sive such nct : ce. the consumer shall, in addition to the provisions of article 8 of the General Conditions of Snnplv. be liable to nay anv charges resulting from the application of an alternative tariff from either the date the additional apparatus was installed or from the date of the last previous load psses^ment af he Authority may decide at >*c absolute discretion SEASONAL MONTHLY MAXIMUM DEMAND TARIFF (LOW VOLTAGE CODE NO. 6J) The prices chargeable each month for the «uml· »· electricity under +hfs tariff are(
2. i)A fixed charge of C£24 000 (ϋ) For each kiOvoltamnc" ff i"i\ n ' mi demand ; n each of the fofl'^ mi mon'l.s r Januarv. Febrttarv. Μ> ch N'wemlv and December April to October inelrsne C£ ^ 10f Ct" 1 7 00 and (iii) For units supplied in cai.Ii mrnth For each of 'ho fust 200 -·!ΐικ nor kilovoltampci of mi\irmini demand in the month For each additionn1 unu 197 19 6 mils Μ -I in '-^ Demetriades J. Agathangetou Ltd. v. E.A.C.

(1986)In each month the unit prices shall be increased or reduced by 0.025 mils per unit for each 50 mils by which the cost of fuel per metric ton as may be prescribed by the Authority in the month, shall be above or below C£ 24 per metric ton. 5 SEASONAL MONTHLY MAXIMUM DEMAND TARIFF (HIGH VOLTAGE, CODE NO. 62) The prices chargeable each month for the supply of Electricity under this tariff are: (

1. i)A fixed charge of C£ 65.000 10 (
2. ii)For each kilovoltamper of maximum demand in each of the following months: January, February, March, November and December C£ 2.600 April to October inclusive C£ 1.200 15 and (iii) For units supplied in each month: for each of the first 200 units per kilovoltamper of max!mum demand in the month For each additional unit 18.7 mils 20 13.7 mils In each month the unit prices shall be increased or reduced by 0.024 mils per unit for each 50 mils by which the cost of fuel per metric ton as may be prescribed by the Authority in the month, shall be above or below C£ 24 per metric ton. 25 TARIFF (RATE 63) The following tariff shall be applied by the Au:hority in accordance with the conditions set out in Note 4 hereof. Provided the Authority is reasonably satisfied that the capacity of the apparatus installed in the premises of lighting, heating, motive power and any other purposes is in excess of 50 kilovoltamper the prices chargeable monthly for the supply of electricity under 35 this rate are: 198 30 3 C.L.R. Agathangetou Ltd. v. E.A.C. Demetriades J. For each of the first 40 units per month per kilovoltamper of the total capacity of all apparatus installed whether electricity to that amount is used or not 22.5 mils 5 For each of the next 40 units supplied per month per kilovoltamper of the total capacity of all apparatus installed 20.0 mils 10 For each unit supplied in excess of 80 units per month per kilovoltamper of the total capacity of all apparatus installed 19.0 mils 15 In each month the unit prices shall be increased or reduced by 0.025 mils per unit for each 50 mils by which the cost of fuel per metric ton as may be prescribed by the Authority in the ' month, shrill be above or below C£ 24 per metric ton. Where the supply is used for the purpose of electric arc or resistance welding, a service charge will be payable in addition to the aforementioned charges as follows: 20 25 30 35 For each kilovoltamper or part thereof of the nominal kilovoltamper rating of the largest machine installed 190 mils per month And for each kilovoltamper or part thereof of the nominal kilovoltamper rating of each additional machine installed '9.0 mils per month This tariff (Rate 63) will be withdrawn at the end of the period of account \erminating closest to 31st August, 1979. Thereafter, the consumer will be charged on either the General Tariff or the Seasonal Monthly Maximum Demand Tariff as the case may be." The respondents originally charged the applicants for the consumption of electricity by them on the basis of tariff No. 63. but after this tariff was abolished in 1980 they charged them under tariff No. 61. The applicants are, by this recourse, challenging the decision of the respondents to charge them on the basis of 199 Demetnades J. Agathangetou Ltd. v. E.A.C. {1986) Tariff No. 63 and later, after its abolition, on the basis of Tariff No. 61. on the ground that since their maximum demand has never exceeded 50 KVA and that neither they could make use of electricity of a capacity greater than that nor the respondents could supply them with electricity in excess of that capacity, the decision of the respondents was unconstitutional in that it offended Articles 24 and 28 of the Constitution. 5 Applicants further contended that the respondents acted under a misconception of fact, in excess or abuse of their 10 powers and that they exercised their discretion in a defective manner. Regarding the alleged unconstitutionality counsel for the applicants argued that the amount payable by them should be treated as a tax, duty or rate of a destructive or 15 prohibitive nature, contrary to Article 24 of the Constitution and that there is no reasonable distinction between consumers charged to pay on the basis of the actual consumption under Tariff No. 60 and those charged to pay, on a theoretical basis, under Tariffs Nos. 61 and 63. 20 Paragraphs

(1)and

(4)of Article 24 of the Constitution provide as follows:" 1 . Every person is bound to contribute according to his means towards the public burdens. 4. No tax. duty or rate of any kind whatsoever other than customs duties shall be of a destructive or prohibitive nature." Taking into consideration the fact that the amount due in the present case is payable for services rendered to a 30 specific individual in a given case and not to the public, in general and that same is calculated on the basis of such services rendered and not as a contribution towards public burdens, I am of the view that Article 24.1 of the Constitution is inapplicable in the present case. I further find 35 that such amount cannot be treated as a tax, duty or rate of a destructive or prohibitive nature, as provided by Arti200 3 C.L.R. Agathangetou Ltd. v. E.A.C. Demetriades J. cle 24.4 of the Constitution and, therefore, the submission of counsel for the applicants in this respect cannot stand. I now come to the complaint that Article 28.1 of the Constitution is violated by the decision of the respondents. 5 This Article provides that all persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby. What has to be examined, therefore, on this issue, in the present case, is whether the classification of consumers and 10 their emplacement under different Tariffs has some reasonable basis, as it is well settled that reasonable distinctions, even resulting in practice in some inequality, cannot be treated as violating the rights safeguarded by the provisions of Article 28 of the Constitution. 15 Counsel for the respondent Authority pointed out that if the arguments of counsel for the applicants as to the alleged infringement by the Regulations of Article 28 of the Constitution were to be accepted, then all consumers ought to be placed under Tariff No. 60 notwithstanding their in20 stalled load. In the present case what determines the tariff under which the applicants were placed is the load installed on their premises, but particular importance must be paid to the fact that though the installed load on such premises is 133 25 KVA, the appUcants can never make use of 133 KVA, and that even if they attempt to use more electricity than 50 KVA for a short while, their fuses will blow. In such a case, since the supply which could be provided by the respondent Authority is up to, actually 50 KVA, and the 30 meter installed on such premises is, also, up to such capacity, I fail to see how a reasonable distinction could be made between those consumers charged under Tariff No. 60 and those under Tariff No. 63 on the basis of the installed load. I, therefore, find that the differentiation made 35 on the basis of such installed load is unreasonable, in the circumstances, and is violating the provisions of Article 28.1 of the Constitution. However, regarding the distinction made between consumers placed under Tariff No. 60 and those placed under 201 Demetriades J. Agathangetou Ltd. v. E.A.C.

(1986)Tariff No.

1. I am of the view that it could be taken into consideration by the Authority the maximum demand as a basis for finding the amount payable by a consumer, in which case the Authority had to make special provision* and be always in a position to meet such maximum demand 5 and give to a consumer the amount of electricity for which he had switched on. In such a case, the applicants could be charged on the basis of such maximum demand under Tariff No. 61 without creating unequal treatment between them and the consumers charged under Tariff No.
2. 10 Having found in favour of the applicants on the issue of unconstitutionality of Tariff No.
3. I propose to deal very briefly with the other grounds raised by them regarding Tariff No.
4. On the basis of the documents placed before the Court 15 and the arguments advanced by counsel on both sides, I have reached the conclusion that the respondent Authority, in reaching its decision to charge the applicants under Tariff No.
5. had before it every relevant factor and the applicants, on whom the burden is cast in this respect, 20 have failed to persuade me that the Authority had in any way acted under a misconception of fact. Takina into consideration all the above, I am, also, of the view that the respondent Authority had not acted in excess or abuse "-f powers or in a defective exercise of its 25 discretionary powers. For all the aforesaid reasons, this recourse is partly allowed but with no order as to costs. Sub fudice decision partly annulled. No order as to costs. 202 30