IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.5084/2017 (GM – KEB) BETWEEN:
RADHAMANI EXPORTS LTD., A COMPANY INCORPORATED UNDER COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.176, JAMUNALAL BAJAJ STREET, BURA BAZAAR, GROUND FLOOR, KOLKATA-700 007 ITS CORPORATE OFFICE NO.27 VTMS ARCADE, YALANKUNTE MANGAMMANA PALYA, HOSUR MAIN ROAD, BENGALURU-560068 REP BY ITS AUTHORIZED SIGNATORY ... PETITIONER [BY SRI MANMOHAN P.N., ADV.] AND:
1 . BANGALORE ELECTRICITY SUPPLY COMPANY LTD., (BESCOM) NRUPATHUNGA ROAD, K.R.CIRCLE, BENGALURU-560 001 REP BY ITS MANAGING DIRECTOR 2 . ASSISTANT EXECUTIVE ENGINEER (ELE) AND ASSESSING OFFICER, BESCOM, ANEKAL SUB DIVISION, ANEKAL, BENGALURU-560105 …RESPONDENTS [BY SRI H.V.DEVARAJU, ADV.] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE DEMAND NOTICE DATED 28.05.2015 ISSUED BY R-2 PRODUCED AS ANNEXURE-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has assailed the demand notice dated 28.05.2015, the order dated 03.10.2015, notices dated 21.09.2016 and 05.12.2016 issued by respondent No.2 at Annexures – F, H, M and P respectively.
2. The petitioner is claiming to be the owner of property bearing Plot Nos.314(P), 315(P), 316, 317, 318 and 319(P) of Bommasandra, Jigan Link Road, Industrial Area, Jigani Post, Bengaluru with the industrial shed constructed therein. The petitioner has obtained the sanction for High-Tension power 250 KVA. On the notice issued by the respondents calling upon the petitioner to pay a sum of Rs.2,07,27,758/- by way of back billing charges for the period from January 2010 to May 2015, alleging unauthorised extension of the power supply to M/s. Yazaki India Ltd., the petitioner submitted its reply. However, respondent No.2 has upheld the demand made. Being aggrieved, the petitioner filed representation requesting the respondents to review the matter. Respondent No.2 passed an order inter alia observing that there is no revenue loss to respondent - Corporation and that the power supply is within the same premises and such actions of the respondents would discourage industries operating in the State and as such Regulation 42.05 requires to be rectified. Accordingly, the demand notice dated 28.05.2015 was kept in abeyance till final disposal of the proposed amendment to Section 42.05 of the Conditions of Supply (COS). Subsequent to amendment to Section 42.05 of COS, the respondents issued notice calling upon the petitioner to pay the demand made in terms of the notice dated 28.05.2015. Further notice was issued in terms of Annexure – P dated 05.12.2016 reiterating original demand made as per the notice dated 28.05.2015 holding that the amendment to COS – insertion of clause 7.06 and 8.14(3) is prospective. Hence, this writ petition.
3. Learned counsel for the petitioner would submit that the issue involved is no more res integra in view of the decision of this Court in W.P.No.45093/2015 (D.D. 23.07.2019), whereby this Court has held thus:-
“23. It is the argument of the learned counsel for the respondent No.1 that the said approval by the licensee as regards the sub- meter cannot be made at this juncture. Hence the said Notification has to be given the prospective effect which otherwise would lead to absurdity. This argument would not be countenanced for the reason that the petitioner has already discharged the electricity power supply charges with regard to the meter installed in the composite premises. At most the approval of the licensee for the sub meter would be required for actual recording and to determine whether such extension of power supply was on no profit and no loss basis. If that object could be achieved through the main meter and the same has been already discharged, such a clause of approval of sub meter by the licensee would not render the substantial remedy granted by virtue of the substitution redundant. As could be seen, the said amendment by way of substitution was brought with a purpose to remedy the problems or to set right the dispute faced by the registered consumers for no fault of theirs.
24. The entire process for amendment has started with the request of the respondent No.1. It is thus clear that the amendment confers a benefit on the registered consumes without inflicting a corresponding determent on some other person or on the public. Generally giving a purposive construction to the phrase “substitution” in the present context, it appears the object of the amendment by “substitution” was to give effect retrospectively. This view is fortified by the judgment of the Hon'ble Apex Court in the case of Vatika Township Pvt. Ltd., and the Full Bench decision of this Court in The Hassan Co-operative Milk Producers Societies Union Limited, supra. The doctrine of fairness has to be held to be a relevant factor to construe a statute conferring a benefit as the law if it is enacted for the benefit of the registered consumers, as a whole, retrospectivity has to be attached to benefit such registered consumers. In the circumstances, the amendment brought to by condition No.8.14 by “substitution” has to be held clarificatory in nature. Hence, the point No.1 has to be answered in the affirmative.
25. xxxxxxxx 26. xxxxxxx 27. xxxxxx 28. In furtherance of this, it can be stated that if there were two separate meters, the amount paid to BESCOM would have been less by Rs.64,800/- for the period from 2007-08 to 2014-15. It is not the case of the respondent authorities that there is any excess load used by the petitioner over and above the sanctioned load or difference in tariff to the power supplied to the tenant. Giving a purposive interpretation to Clause 42.05 as well as 8.14, it appears that demand made by the respondent authorities towards back billing is not founded on any substantial evidence to invoke Clause 42.05, more particularly, the amendment made to Clause 8.14 of the COS vide Notification dated 22.11.2016 pursuant to the representation made by several consumers including the petitioner herein.”
Finally the demand made by the respondent - Authorities has been set aside and the proceedings are restored to the file of respondent No.2 herein i.e., Assistant Executive Engineer to consider the matter in the light of the observations made therein and take a decision in accordance with law in an expedite manner. Learned counsel placing reliance on the said judgment seeks to dispose of the instant petition in similar terms.
4. Learned counsel for the respondent - Authorities though made an endeavor to contend that the amendment to COS is prospective in nature, the same cannot be countenanced in view of the decision taken by this Court in W.P.No.45093/2015 (D.D. 23.07.2019), referred to above.
5. Accordingly, the impugned notices and the orders at Annexures – F, H, M and P dated 28.05.2015, 03.10.2015, 21.09.2016 and 05.12.2016 are quashed.
The proceedings are restored to the file of respondent No.2 to re-consider the matter in the light of the observations made by this Court in W.P.No.45093/2015 (D.D. 23.07.2019) and take a decision in an expedite manner, in any event, not later than eight weeks from the date of receipt of certified copy of the order. Ordered accordingly.
The amount deposited by the petitioner in terms of the interim order passed in the present writ petition before the respondent – Authorities shall be adjusted towards the future bills.
With the aforesaid observations and directions, the writ petition stands disposed of.
Sd/- JUDGE PMR