IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION Nos.31549 – 31562/2018 (GM – KEB) BETWEEN:
SANATH KUMAR SHETTY S/O Dr. K.SOMESH SHETTY AGED ABOUT 53 YEARS, G-1, CASA GRANDE MALL STURROCK ROAD, FALMIR, MANGALURU-575001 ... PETITIONER [BY SRI SANATH KUMAR SHETTY K., ADV.] AND:
1. MANGALORE ELECTRICITY SUPPLY COMPANY LTD., BY ITS CHAIRMAN, ATTAVARA MANGALURU-575001 2. THE ASSISTANT ENGINEER O/O ASSISTANT ENGINEER (ELECTRICAL) NO.1, SUB DIVISION MESCOM, ATTAVARA MANGALURU-575001 3. CHAMUNDESHWARI ELECTRICITY SUPPLYAUTHORITY, NO.29, VIJAYANAGAR II STAGE HINAKAL, MYSORE-570009 BY ITS DIRECTOR …RESPONDENTS [BY SMT.M.C.NAGASHREE, ADV. FOR R-1 & R-2; SRI SHANMUKHA, ADV. FOR R-3.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 23.03.2018 PASSED BY THE 3RD RESPONDENT IN APPEAL NO.13/2013 AT ANNEXURE-A AND ALSO THE ORDERS OF THE 2ND RESPONDENT DATED 27.08.2013 VIDE ANNEXURE-B TO P AND ALSO DEMAND NOTICE DATED 03.05.2018 VIDE ANNEXURE-AD.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the order dated 23.03.2018 passed by the respondent No.3 in Appeal No.13/2013 as well as the Demand notice dated 27.08.2013 issued by the respondent No.2 vide Annexures-B to P respectively to the writ petitions.
2. The petitioner contends that he has leased apartments to the tenants on long term basis. The respondent No.2 – the Assistant Engineer inspected the apartment on 15.04.2013 and issued communications relating to the 13 flats to which written argument was filed by the petitioner. The respondent No.1 passed the orders as per Annexures-B to P to the writ petitions.
Being aggrieved, the petitioner filed appeal before the Superintendent Engineer under Section 127 of the Electricity Act, 2003. In the said proceedings, the petitioner has filed an application to summon the witnesses. However, the respondent No.3 without summoning the witnesses, confirmed the orders dated 27.08.2013 passed by the Assistant Engineer [Electrical] subsequent to the respondent No.2 has issued communication, confirming the petitioner to pay the amount, as observed in the Communication issued on 08.05.2013. Hence, these writ petitions.
3. Learned counsel for the petitioner reiterating the grounds urged in the writ petitions, submits that the authorities have passed the orders impugned in a perfunctory manner sans considering the written arguments submitted by the petitioner and rejecting the request made by the petitioner for summoning the witnesses for cross-examination by the petitioner. It is submitted that no reference is found relating to the seizure of any goods/documents at the time of the inspection relating to the installation in question in the mahazar prepared by the inspecting authority. Hence, the orders impugned passed, placing reliance on the documents said to have been seized are untenable and deserves to be set aside.
4. Learned counsel for the respondents justifying the orders impugned would submit that the petitioner has given on rent the 13 flats where the installations are made, as service apartments and is collecting Rs.4000/- per day. The said information was collected at the time of inspection made by the inspecting authority and the mahazar at Annexure-R clearly depicts the same wherein the permanent fixtures are found in all the 13 apartments. However, learned counsel fairly submits that no documents/goods were seized by the inspecting authority at the time of inspection. Further, it is submitted that the witnesses were not available for cross-examination as requested by the petitioner since the said witnesses had not given their permanent residence address. The inspection conducted by the authority concerned clearly demonstrates that the installation made in the 13 apartments/flats are used as service apartments and liable to the tariff as per LT-3.
5. I have given my anxious consideration to the arguments advanced by the learned counsel appearing for the parties and perused the material on record.
6. Annexure-B to P are ex-facie not speaking orders. It is only based on the report submitted by the intelligence wing, the order is passed creating the demand as the installation comes under the LT-3. The order of the Appellate Authority no doubt refers to the request made by the petitioner about summoning the witnesses, but the same is negatived for the reason that the permanent residential addresses of the witnesses are not available with the authority. Similarly, reference is made to the documents said to have been seized during the inspection to arrive at a decision that the petitioner is using the 13 flats as service apartments. However, no such material is placed by the learned counsel for the respondent to the query made by the Court to establish the factum of seized documents.
7. It is significant to note that the mahazar does not reflect the seizure of any documents. The fulcrum of dispute is based on the said documents said to have been seized during the inspection, particularly the receipts for having collected the rent on daily basis for Rs.4000/-. The basic aspects not being supported by the documents which is said to have been relied upon, the order of the Appellate Authority cannot be held to be justifiable. On these grounds alone, the orders impugned deserves to be set aside restoring the proceedings to the original Authority. Ordered accordingly.
Hence, the writ petitions stand disposed of restoring the proceedings to the original authority to re- consider the issue afresh, in accordance with law.
The respondent No.2 shall re-examine the matter in accordance with law, after providing an opportunity to the petitioner and shall take a decision in an expedite manner.
All rights and contentions of the parties are left open.
Sd/- JUDGE NC.