IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA WRIT PETITION Nos.13491-13493/2019 (GM-KEB) BETWEEN 1. AMIN PROPERTIES LLP A LIMITED LIABILITY PARTNERSHIP REGISTERED UNDER THE LIMITED LIABILITY PARTNERSHIP ACT,2008 HAVING ITS REGISTERED OFFICE AT NO.40/A, KHB INDUSTIRAL AREA, YELAHANKA NEW TOWN BENGALURU - 560064 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR. B R JAYAKUMAR 2. SLK GLOBAL SOLUTIONS PVT. LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT SLK GREEN PARK, TOWER B, 3RD & 4TH FLOORS, AMIN PROPERTIES LLP SEZ, SURVEY NUMBER 19,20,20/1 PUJANAHALLI VILLAGE, DEVANAHALLI TALUK, BANGALORE RURAL - 562 110 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR. B R JAYAKUMAR.
3. SLK SOFTWARE SERVICES PVT. LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.40/A, KHB INDUSTRIAL AREA, YELAHANKA NEW TOWN BENGALURU 560064 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR. B R JAYAKUMAR. ... PETITIONERS (BY SRI ACHAL ANAND V J, ADV.) AND 1. STATE OF KARNATAKA ENERGY DEPARTMENT REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT VIKASA SOUDHA, VIDHANA VEEDHI, BENGALURU 560001.
2. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) K.R. CIRCLE BENGALURU 560 001 THROUGH ITS MANAGING DIRECTOR.
3. ASST. EXECUTIVE ENGINEER (ELEC.) BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED DEVANAHALLI SUB-DIVISION DEVANAHALLI - 562110. ... RESPONDENTS (BY SMT. M.JYOTHI, AGA FOR R1, SRI H.V.DEVARAJU, ADV. FOR R2 & R3.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED BILL BEARING NO. 201903451280501 DATED 01.03.2019 FOR THE MONTH OF FEBRUARY 2019 (ANNEXUER-A) RAISED BY R-3 ON PETITIONER NO.1 AS ILLEGAL, ARBITRARY AND UNSUSTAINABLE AND CONSEQUENTLY DIRECT R-2 AND 3 TO REFUND THE SUM OF RS. 8,59,401/- TO PETITIONER NO.1 ETC.
THESE WRIT PETITIONS COMING ON FOR “ORDERS”, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Learned AGA is permitted to accept notice for respondent no.1.
Learned counsel Sri H.V.Devaraju is permitted to accept notice for respondent nos. 2 and 3.
The petitioners have challenged the Bill dated 1.3.2019 for the month of February 2019 raised by respondent no.3 as well as the order/notice dated 11.3.2019 issued by respondent no.3 inter alia seeking a direction to respondent nos. 2 and 3 to continue to bill the petitioner no.1 as per the tariff order of the KERC under HT 2(a) Tariff.
2. Petitioner no.1 is claiming to be a unit of Special Economic Zone for Information Technology/Information Technology Enabled services in Poojanahalli Village, Devanahalli Tq. Bengaluru. Petitioner nos. 2 and 3 are claiming to be the units undertaking the operations of `Information Technology Enabled’ services for the purpose of supply of power to petitioner no.1. Respondent no.2 had installed Meter bearing RR No.DYHT 310. Initially, petitioner no.1 had made an application for supply of power at HT 2(b) Tariff. It is contended that after approval of Government of Karnataka for setting up of Special Economic Zone for IT/ITES, petitioner no.1 made an application to respondent no.3 to change the tariff from HT 2(b) to HT 2(a) and the same has been accorded. Considering the request of the petitioner, as per the Millenium IT Policy of Government of Karnataka as well as relevant KERC tariff orders. The petitioner No.1 has received the impugned bill as well as the demand notices/order impugned herein billing the petitioners under HT 2(b) Tariff. Hence, these writ petitions.
3. The learned counsel appearing for the petitioners would submit that respondent nos. 2 and 3 have no power or jurisdiction to determine the tariff. The HT 2(a) tariff was determined considering the relevant aspects and the bills were issued under the said tariff from June 2018 to January 2019. The demand/order at Annexure-B issued by respondent no.3 is nullity in the eye of law as no opportunity of being heard was provided to the petitioners. The said order is vague and does not disclose the reasons except referring to the vigilance report which was not made available to the petitioners.
4. It was further submitted that an alternative remedy of appeal under Section 127 of the Electricity Act, 2003 is not a bar to redress the grievance of the petitioners in writ jurisdiction since the order impugned at Annexure-B is not in conformity with provisions of Section 126 of the Act. Neither the provisional assessment order was passed nor objections were called by the petitioners for changing the tariff. Reliance is placed on the order of the co-ordinate Bench decision of this Court in WP No.44405/2016 and connected matter dated 28.11.2016.
5. Reference is also made to the Tariff Order 2018 of BESCOM and Karnataka – the Millenium IT Policy to contend that the Software Companies will be treated as Industrial (and not commercial) and electricity tariff applicable to the Industrial consumers will be levied on such companies.
6. The learned counsel appearing for respondent nos. 2 and 3 justifying the impugned demand/order submitted that the petitioners cannot contend that they are oblivious of the vigilance report. It is obvious that in the presence of the petitioners, the vigilance report has to be prepared. It is based on the vigilance report, respondent no.3 has raised demand under HT 2(b). However, it is fairly submitted that the order/demand at Annexure-B may be treated as a show-cause notice and the petitioners may be provided an opportunity to file objections/reply to the same.
7. I have heard the learned counsel for the parties and perused the material on record.
8. It is apparent that the impugned order/demand is not in conformity with the provisions of the Act. No unilateral decision can be taken by respondent- authorities in changing the tariff. It is well settled that any order passed without assigning reasons is void abinitio and the same cannot be sustained. The order impugned except referring to the vigilance report, does not disclose any reasons. On the other hand, the grounds urged by the petitioners would indicate that the tariff of HT 2(a) was fixed after application of mind by respondent-authorities considering the various relevant aspects. That being the position, the demand made under the tariff HT 2(b) unilaterally by respondent no.3 cannot be sustained and the same deserves to be set aside.
9. Accordingly, impugned bill dated 01.03.2019 at Annexure-A as well as order at Annexure-B dated 11.03.2019 are quashed with liberty to respondent no.3 to issue a fresh show-cause notice assigning the reasons for the proposal to bill the petitioner under HT 2(b) tariff.
The Writ Petitions stand disposed of in terms of the above.
The amount deposited by the petitioners under protest shall be adjusted towards the arrears of bill if paid in excess.
Sd/- JUDGE Sk/- CT-HR