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 No.8416/2013 (GM – KEB) BETWEEN:
SRI AROOR LAXMI NARAYANA RAO MEMORIAL AYURVEDIC COLLEGE, KOPPA, CHIKKAMAGALUR DISTRICT-577126 REP. BY ITS PRESIDENT A.RAMESH RAO ... PETITIONER [BY SRI A.MADHUSUDHANA RAO, ADV.] AND:
1. THE SUPERINTENDING ENGINEER & APPELLATE AUTHORITY, CITY WORKS CIRCLE, CHAMUNDESHWARI ELECTRICITY SUPPLY COMPANY LTD., MYSORE.
2. THE ASSISTANT EXECUTIVE ENGINEER (EL) WORKS AND MAINTAINABLE SUB-DIVISION, MANGALORE ELECTRICITY SUPPLY COMPANY LTD., KOPPA, CHIKKAMAGALUR DISTRICT-577126.
3. THE ASSISTANT EXECUTIVE ENGINEER (EL) HT RATING SUB-DIVISION, MESCOM, SHIMOGA-577201.
4. MESCOM CONSUMER GRIEVANCES REDRESSAL FORUM, MESCOM, PARADIGM, A.B.SHETTY CIRCLE, MANGALURU-575001, REP. BY ITS CHAIRMAN.
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 16.10.2017.) …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 IMPUGNED DEMAND NOTICE DATED 19.12.2009 VIDE ANNEXURE-C ISSUED BY RESPONDENT NO.2 AND THE IMPUGNED ORDER DATED 05.11.2012 VIDE ANNEXURE-F ISSUED BY RESPONDENT NO.1.
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 challenged the order/demand notice dated 19.12.2009 issued by respondent No.2 and the order dated 05.11.2012 issued by respondent No.1 as well as the order dated 09.01.2013 passed by MESCOM Consumer Grievances Redressal Forum.
2. The petitioner is claiming to be a reputed Ayurvedic College established in Koppa Town of Chikkamagalur District. It appears that the petitioner – institution has been provided with the electricity connection bearing installation No.KHTP7 and the petitioner has been paying regularly the electricity charges as and when they were demanded by the respondents. The electricity installation of the petitioner was inspected periodically by the officials of respondent No.2. It was noticed by the Assistant Executive Engineer (EI), Shimoga on 23.11.2009 that the meter is faulty and the same has to be replaced. Accordingly, the meter was replaced by another meter on 05.12.2009. It transpires that the notice dated 19.12.2009 was issued by the Assistant Executive Engineer (EL) informing the petitioner that as per the Electricity Supply Regulation 27.03, back billing has been made for a period of six months on the ground that there was slow reading of the meter at 70.7% and the petitioner was called upon to pay a sum of Rs.1,91,713/- which included back billing charges of Rs.1,87,45.90. Pursuant to the said notice/order, the petitioner has filed an appeal before the Appellate Authority as per Section 127 of the Electricity Act, 2003 (‘Act’ for short) and the said appeal came to be dismissed. Further, the petitioner has filed a complaint before the MESCOM Consumer Grievances Redressal Forum disputing the correctness and legality of the orders passed by respondent Nos.1 and 2. However, the said Forum vide order dated 09.01.2013 dismissed the complaint/petition of the petitioner as not maintainable. Hence, this writ petition.
3. The learned counsel for the petitioner submitted that no provisional assessment order was passed under Section 126 of the Act even assuming but not admitting that the petitioner was indulging in unauthorized use of electricity. The dispute whether the meter in question is correct or faulty is required to be decided by the Electrical Inspector. Assistant Executive Engineer is not the competent authority to determine the said question. Reliance is placed on the judgment of the Hon’ble Apex Court in the case of M.P.E.B. and others vs. Smt. Basantibai reported in AIR 1988 Supreme Court 71(1). It is further submitted that several grounds were urged before the Appellate Authority as regards the determination of the back billing is concerned but the Appellate Authority sans considering the same confirmed the order of the original authority. It is the specific assertion of the learned counsel for the petitioner that scientifically ETV meter would determine the exact date on which the meter became faulty and such exercise has not been done by the authorities before coming to a conclusion as regards the back billing is concerned.
4. The learned counsel for the respondents supports the impugned orders. Learned counsel placed reliance on the Regulation 27.03 of the Conditions of Supply of Electricity of Distribution Licensees in the State of Karnataka to justify the order of the Original Authority and the Appellate Authority. Further, Regulation 22.1(d) of the Karnataka Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Ombudsman) Regulations, 2004 (Regulations, 2004) has been referred to contend that in cases where a representation for the same grievance by the Complainant is pending in any proceedings before any court, tribunal or arbitrator or any other authority, or a decree or award or a final order has already been passed by any such court, tribunal, arbitrator or authority, no complaint under the said regulations is maintainable before the MESCOM Consumer Grievance Redressal Forum.
5. Heard the learned counsel for the parties and perused the material on record.
6. As regards the dismissal of the compliant/petition filed before the MESCOM Consumer Grievance Redressal Forum as not maintainable, the same do not call for any interference by this Court in view of the Regulations 22.1(d) of the Regulations 2004 referred to above as an order being passed by the Appellate authority under Section 127 of the Act against the order of the original authority on the subject matter.
7. As regards the order of the Appellate Authority at Annexure – F, the matter requires consideration by this Court for the reason that the Assistant Executive Engineer (EI) has issued demand notice/order without providing an opportunity of hearing to the petitioner. In terms of Section 126 of the Act, a provisional assessment to the best of judgment of the assessing authority is mandatory and such provisional assessment order is required to be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. The person, on whom the order has been served shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person. Thus, it is clear that in terms of Section 126 of the Act the order of provisional assessment is sine qua to pass a final order of assessment. The same not being complied with, the final order/demand notice issued by the Assistant Executive Engineer (EL) at Annexure – C is contrary to Section 126 of the Act and is hit by the principles of natural justice. On this ground alone, the Appellate Authority was required to set aside the demand notice and ought to have remanded the matter to the original authority for re-determination.
8. Apart from that, the judgment of the Hon’ble Apex Court in the case of M.P.E.B. and others, supra, lays down the law relating to the scope and dispute inasmuch the question whether the meter is correct one or faulty to be decided by the Electrical Inspector. In such circumstances, without going into the merits or demerits of the matter, this Court deems it appropriate to remand the matter to the original authority setting aside the order/demand notice at Annexure – C and order of the Appellate Authority at Annexure – F keeping open all the rights and contentions of the parties to be urged before the original authority.
9. The impugned orders at Annexures – C and F are quashed and the matter is restored to the file of the original authority/Assistant Executive Engineer (EL) - respondent No.2 to reconsider the matter in accordance with law in the light of the observations made hereinabove. The compliance of this order shall be made by respondent No.2 in an expedite manner preferably within a period of eight weeks from the date of certified copy of the order. All the rights and contentions of the parties are left open.
With the aforesaid observations and directions, the writ petition stands disposed of.
Sd/- JUDGE PMR