IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION No.27108/2019 (GM – KEB)
BETWEEN:
ZIAULLAH SHERIEF S/O LATE GAFFER SHERIEF, AGED ABOUT 79 YEARS, NO.73, SHERIEF CENTRE, 5TH FLOOR, St. MARKS ROAD, BANGALORE-560001. ... PETITIONER [BY SRI M.SUBRAHMANYA BHAT, ADV.] AND:
1 . BANGALORE ELECTRICITY SUPPLY COMPANY LTD., (BESCOM) CORPORATE OFFICE, K.R.CIRCLE, BANGALORE-560001 REP. BY CHIEF ENGINEER (ELE) 2 . CHIEF GENERAL MANAGER (IA) BESCOM, CORPORATE OFFICE, K.R.CIRCLE, BANGALORE-01.
3 . THE ASSISTANT EXECUTIVE ENGINEER (ELCL) BANGALORE ELECTRICITY SUPPLY COMPANY LTD.(BESCOM), NO.5, SUB DIVISION NORTH, PEENYA, BANGALORE-560058. …RESPONDENTS [BY MS.SHRIVIDYA ZIRALI, ADV. FOR SRI SRIRANGA, ADV.] THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE OM DATED 16.05.2019 AND THE DEMAND NOTICE DATED 16.05.2019 ISSUED BY THE R-3 (ANNEXURE-K AND L) AS THE SAME ARE ARBITRARY, ILLEGAL, UNJUST AND WITHOUT THE AUTHORITY OF LAW AND POWER.
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 Official Memorandum dated 16.05.2019 and the demand notice dated 16.05.2019 issued by respondent No.3 at Annexures – K and L respectively.
2. Learned counsel for the petitioner would submit that the relief claimed in the writ petition is restricted to the aforesaid challenge made to the Annexures – K and L though other reliefs are sought in the memorandum of writ petition.
3. The petitioner claims to be the builder and land developer. The petitioner has sought for sanction of 476 KVA electricity through HT installation to 5 blocks located in the land bearing Nos.47 and 48, ‘Platinum City’, HMT Main Road, Yashwanthapur, Bangalore. The installation was serviced. The petitioner had applied for additional load of 1000 KVA to the above residential blocks under LT tariff basis. Additional load was duly sanctioned by the competent authority.
4. It is contended that respondent No.3 has issued a notice dated 05.01.2013 threatening to disconnect the power supply on the ground of unauthorized use of electricity. Being aggrieved, the petitioner has filed W.P.Nos.2659/2013 and 10376/2013 before this Court which came to be disposed of on 31.10.2017 relegating the petitioner to the Chief Electrical Inspector to Government and the Executive Engineer (Elec) for updating about the requisite approval in accordance with law. On such compliance by the petitioner, the Assistant Executive Engineer (Elec), Vigilance, BESCOM along with his team has inspected the premises of the petitioner on 26.11.2016 and allegedly found that the petitioner has unauthorizedly extended the power supply to two additional blocks namely Blocks C and G. Thereafter, respondent No.3 has provisionally worked out the back billing charges of Rs.2,66,41,035/- and demand was also made against which the petitioner has preferred W.P.No.15457/2017. This Court vide order dated 21.06.2017 permitted the petitioner to raise his objection to the provisional order. Pursuant to which, the petitioner has filed representation dated 22.06.2017 questioning the procedure adopted in imposing back billing. Respondent No.3 has passed the final order confirming the back billing imposed earlier vide order dated 29.06.2017. On the detailed representation submitted by the petitioner, respondent No.3 has rescinded the earlier order dated 29.06.2017 vide order dated 06.02.2018. Respondent No.2 has directed respondent No.3 vide communication dated 09.05.2019 at Annexure – J to withdraw the earlier order dated 06.02.2018. On the instructions of respondent No.2, respondent No.3 has passed the order dated 16.05.2019 impugned herein withdrawing the order dated 06.02.2018. Hence, the present writ petition.
5. Learned counsel for the petitioner submitted that respondent No.2 had no authority to direct respondent No.3 to withdraw the order dated 06.02.2018 which was passed by respondent No.3 in accordance with law after getting legal opinion and analyzing the material facts. Respondent No.3 has no jurisdiction to withdraw the order dated 06.02.2018 merely on the instructions of respondent No.2. In compliance with the directions issued by this Court in W.P.No.2659/2013 and connected matters disposed of on 31.10.2017, the petitioner has appeared before the Executive Engineer (Elec) who in turn had directed respondent No.3 to examine the matter and to take a decision. In such circumstances, respondent No.3 after hearing the parties and analyzing the material facts has arrived at a decision to rescind the order dated 29.06.2017 wherein back billing charges of Rs.2,66,41,035/- was determined and demanded. If aggrieved by the decision of respondent No.3, respondent No.2 ought to have invoked the appeal remedy available under the provisions of the Electricity Act, 2003. The action of respondent No.2 in directing respondent No.3 and further respondent No.3 acting upon the directions of respondent No.2 withdrawing the order dated 06.02.2018 is arbitrary and lacks jurisdiction.
6. Learned counsel for the respondents would submit that in terms of the inspection report of the alleged unauthorized extension of power supply to the two blocks, back billing charges were made. Respondent No.3 has set aside the said order and the demand of back billing charges of Rs.2,66,41,035/- without any basis. As such, respondent No.2 has directed respondent No.3 to withdraw the order dated 06.02.2018 whereby the order of back billing charges was set aside.
7. On the query made by the Court inasmuch as the source of power for respondent No.2 to direct respondent No.3 and respondent No.3 in turn withdrawing his own order merely on the directions of respondent No.2, learned counsel for the respondent is not in a position to answer.
8. It is ex-facie apparent that the orders of respondent No.3 are not consistent. The order of respondent No.3 dated 29.06.2017 depicts the unauthorized extension of power supply to the two blocks of the petitioner and a huge amount towards back billing charges of Rs.2,66,41,035/- was assessed and demanded. Surprisingly, vide order dated 06.02.2018, the same authority has withdrawn the earlier order dated 29.06.2017. Again vide order dated 16.05.2019, the said order dated 06.02.2018 is withdrawn. The quasi-judicial authorities acting under the statute cannot act indifferently and pass incongruous orders. Moreover, the respondents are not in a position to defend the orders impugned. The order of respondent No.2 dated 09.05.2019 would disclose that respondent No.3 has no authority to pass an order rescinding the earlier order dated 29.06.2017. It is settled position that Assessing authority would become functus officio as soon as the assessment order is passed. In the entire gamut of the orders now passed, there is no clarity.
9. In the interest of justice, this Court deems it appropriate to direct the Appellate Authority – MESCOM, Director of Technical and Financial Advisor of CESC or an officer of equivalent rank to examine the order passed by respondent No.3 and a decision shall be taken in accordance with law in an expedite manner after hearing the parties. The compliance shall be made within a period of eight weeks from the date of receipt of certified copy of the order. Ordered accordingly.
Till the Appellate Authority decides the matter, the respondents shall not precipitate the matter.
Writ petition stands disposed of in terms of the above.
Sd/- JUDGE
PMR WP NO.27108/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU [ZIAULLAH SHERIEF VS. BANGALORE ELECTRICITY SUPPLY COMPANY LTD., (BESCOM AND OTHERS] HCJ 27.05.2022 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER Heard on IA No.1/2020.
Learned counsel appearing for respondent Nos.1 to 3 submits that since the claim amount exceeds Rs.5 lakhs, the appropriate authority to consider the claim is The Director [Technical and Financial Advisor], of MESCOM. Accordingly, IA No.1/2020 is allowed.
In para No.9 of the order dated 04.12.2019 instead of Director of Technical and Financial Advisor, CESC, the same to be read as “The Director [Technical and Financial Advisor], of MESCOM.” The time granted for taking a decision in the light of the order dated 04.12.2019, is extended by another period of four months from today.
This order shall be read in conjunction with the order dated 04.12.2019.
Sd/- JUDGE PL List No.: 1 Sl No.: 36