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2014 DIGILAW 1059 (MP)

Neoteric Developers Pvt. Ltd. (M/s. ), Gwalior v. M. P. Madhya Kshetra Vidyut Vitaran Company Ltd.

2014-08-26

SHEEL NAGU, SUJOY PAUL

body2014
ORDER Nagu, J. : INTRODUCTION : 1. This writ appeal filed under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 assails the final order of the learned Single Judge passed in Writ Petition No.1681/2013 on 11.07.2013, whereby the petition in question has been disposed of with the direction that the petitioner is liable to bear the expenditure of installing 33/11 KW Sub-Station in terms of Regulation 4.1.3 (ii) of the Madhya Pradesh Electricity Regulatory Commission (Recovery of Expenses and Other Charges for providing Electric Line or Plant Used for the Purpose of giving Supply) Regulations (Revision-I), 2009 (“Regulations of 2009” for brevity) and thus if the petitioner fulfils the conditions contained in the said provision, the application of the petitioner contained in Annexure P-6 shall be considered in accordance with law. 2. Learned counsel for the rival parties are heard on the question of admission as well as final disposal of the case. SUBMISSION OF APPELLANT-PETITIONER : 3. The primary submission of the petitioner-appellant herein before the learned Single Judge was that the requirement of incurring expenses for installation of a Sub-Station of 33/11 KW on the anvil of requirement contained in Regulation 4.1.3 of the Regulations of 2009 is on the satisfaction of the condition that the total load of the complex/colony in question is more than 2000 KW and since the colony in question (East Park Avenue) requires total load of 1062 KW only, the said colony is not liable to bear the expenses for installation of the said Sub-Station. The petitioner/Company had further contended that the East Park Avenue Colony was developed by petitioner/Company, which is an independent colony by itself and the respondents cannot club the load required by the other colonies also constructed by petitioner/Company, situated adjacent to the East Park Avenue for the purpose of assessing requirement of establishment of 33/11 KW Sub-Station. 4. The petitioner/Company had further contended that the East Park Avenue Colony was developed by petitioner/Company, which is an independent colony by itself and the respondents cannot club the load required by the other colonies also constructed by petitioner/Company, situated adjacent to the East Park Avenue for the purpose of assessing requirement of establishment of 33/11 KW Sub-Station. 4. Learned senior counsel Shri Anil Khare assisted by Shri S.K. Shrivastava Advocate for appellant herein invited attention of this Court to the provisions of Regulation 4.1.3 of the Regulations of 2009, which are reproduced below : “4.1.3 (i) For providing power supply for Residential/Domestic use to a Colony developed under State Government Regulations, namely “The Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam,1973” or to a Building as defined under Madhya Pradesh Prakoshtha Swamitva Adhiniyam, 2000, the Distribution Licensee shall estimate the load on the basis of number and size of Plots/Apartments in the approved layout of the Colony or the approved Building Plan of the Apartment /Complex, as the case may be. (ii) The cost of extension required for providing power supply to such Colonies and Buildings shall comprise of HT line (in case of load upto 10000 KVA)/EHT line (in case of load more than 10000 KVA) , 33/11 KV Sub-Station (in case of load more than 2000 KW)/Distribution Transformer Sub-Station and LT Lines/cables along with associated equipment upto common point of metering in case of Multi-user Complex and upto the terminal pole of LT Distribution Mains for individual consumer (in case of Colonies) shall be borne by the applicant(s). (iii) The supply shall be arranged through a separate Distribution Sub-Station of adequate capacity. However, if combined load of the Complex/Colony is not more than 2000 KW, charges @ Rs.500 per KW shall be levied towards System Development cost. Such Applicant(s) shall not be required to pay charges for installation of 33/11 KV Substation. If combined load of the Complex/Colony is more than 2000 KW, the applicant(s) is/are required to pay charges for installation of 33/11 KV Sub-Station of required capacity towards System Development.” 5. Such Applicant(s) shall not be required to pay charges for installation of 33/11 KV Substation. If combined load of the Complex/Colony is more than 2000 KW, the applicant(s) is/are required to pay charges for installation of 33/11 KV Sub-Station of required capacity towards System Development.” 5. It is contended by the learned senior counsel that calculation of load required for a particular colony developed under the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1993 or under the M.P. Prakoshtha Swamitva Adhiniyam is statutorily provided to be based upon number and size of plots/Apartments in the approved layout of the colony in terms of provision under the Regulation 4.1.3 (i) of Regulations of 2009. Learned senior counsel submits that the unit prescribed for calculation of the load is a colony having an approved lay out. Learned senior counsel further submitted that the calculation of load is not based on the fact of the colony being owned by a particular individual or a group of companies. It is also submitted that Regulation 4.1.3(ii) of the Regulations of 2009 refers to the concept of colony with approved lay-out and not to ownership of the company establishing the colony. 6. On the basis of the abovesaid legal provisions, it is pointed out that the learned Single Judge went astray by ignoring the concept of a colony with an independent approved lay out to be recognized as a unit for calculation of load. SUBMISSION OF RESPONDENTS : 7. Per contra, the respondents/Company took the stand that the petitioner/Company has developed four colonies, namely, Gulmohar City, Green Park, Orchid Green and East Park Avenue. It was contended by the respondents that all the four abovesaid colonies, which are situated adjacent to each other, ought to be taken as a single unit for calculating the estimated load. It was, thus, contended that the combined load required for the said four colonies, owned by the same petitioner/Company, works out to be 3416 KW, which is much more than the limit of 2000 KW prescribed in Regulation 4.1.3 of the Regulations of 2009. The counsel for respondent has thus attempted to defend the impugned order. 8. It was, thus, contended that the combined load required for the said four colonies, owned by the same petitioner/Company, works out to be 3416 KW, which is much more than the limit of 2000 KW prescribed in Regulation 4.1.3 of the Regulations of 2009. The counsel for respondent has thus attempted to defend the impugned order. 8. On the other hand, Shri Vivek Jain, learned counsel for respondent drew the attention of this Court to the prayer clause of the petition, which for convenience and ready reference is reproduced below : “The petitioner, therefore, mot respectfully prays that this Hon’ble Court may graciously be pleased to allow this petition granted following reliefs to the petitioner : (i) To direct the respondents to decide the representation of the petitioner company by giving personal hearing to the petitioner in accordance with law; (ii) To direct the respondents to grant application of the petitioner for external electricity moved vide Annexure P-6 on 11.10.2012; (iii) To pass such other further order(s) deemed fit and proper in the interest of justice; (iv) Cost may also be awarded.” By referring to the prayer clause in the petition, Shri Vivek Jain learned counsel for respondent points out that the only prayer made by the petitioner was for a direction to decide the representation in accordance with law after giving personal hearing and to direct the respondents to grant application Annexure P-6 dated 11.10.2012 of the petitioner for external electrification of the campus. 9. Shri Vivek Jain learned counsel for respondents/Company further submits that the representation Annexure P-6 dated 11.10.2012 was in fact decided and rejected by letter dated 24.12.2012 Annexure P-7, but the petitioner never challenged the said rejection dated 24.12.2012 and, therefore it is contended that the petition of the petitioner ought to have been rejected in limine by the learned Single Judge. Learned counsel for respondents attempted to explain the real impact of the statutory provisions of Regulation 4.1.3 of the Regulations of 2009 by contending that the petitioner is trying to take advantage of four different colonies showing the requirement of each colony separately, but in reality all the four colonies are situated adjacent to each other and the design of the petitioner/Company is to get away from the rigorous of Regulation 4.1.3 (ii) of Regulations of 2009. It is submitted that the loads required for all four colonies are to be clubbed to calculate the load under Regulation 4.1.3 (i) for the purpose of applying Regulation 4.1.3(ii). FINDINGS : 10. Learned Single Judge after considering the submissions of the rival parties, came to the conclusion after taking note of the Website of petitioner/Company that all the four colonies are within the neighbouring area with premises of each being adjoined. Learned Single Judge further found that though different companies are mentioned as owners of the colonies but after perusal of the details mentioned on the Website of the company it is clear that the said colonies are developed by one group, namely, M/s. Neoteric Group. The Single Bench after referring to the decision of the apex Court on the aspect of the doctrine of lifting of corporate veil came to the ultimate finding that for the purpose of deciding as to whether the load required by all the four colonies should be clubbed or not, the lifting of corporate veil is justified. Consequently, the Single Bench held the petitioner liable to pay charges for securing electricity connection in accordance with the provisions of Regulation 4.1.3(ii) of the Regulations of 2009 by bearing the cost of installing 33/11 KW Sub-Station. 11. After hearing the learned counsel for the rival parties, this Court is of the view that the objection of the learned counsel for respondents by referring to the prayer clause in the petition deserves consideration. The application dated 11.10.2012 (Annexure P-6) being referred to by the petitioner in the prayer clause was already decided and rejected by letter dated 24.12.2012 Annexure P-7, whereby the request for assessing the load of East Park Colony, independent of the other colony was rejected and the respondents categorically held that the electricity connection can be provided only when 33/11 KW Sub-Station is established in terms of Regulation 4.1.3 (ii). This rejection dated 24.12.2012 Annexure P-7 was not challenged in the petition. In fact, the petitioner preferred another representation dated 4.1.2013 contained in Annexure P-8 against the said rejection dated 24.12.2012, which appears to remain undecided. Thus the only representation pending immediately prior to passing of impugned order by writ Court was Annexure P-8 dated 4.1.2013. 12. This rejection dated 24.12.2012 Annexure P-7 was not challenged in the petition. In fact, the petitioner preferred another representation dated 4.1.2013 contained in Annexure P-8 against the said rejection dated 24.12.2012, which appears to remain undecided. Thus the only representation pending immediately prior to passing of impugned order by writ Court was Annexure P-8 dated 4.1.2013. 12. In view of abovesaid where the petitioner failed to seek quashment of Annexure P-7 dated 24.12.2012 and merely sought a direction for deciding the representation, it could safely be assumed that the said direction was sought in respect of Annexure P-8 dated 4.1.2013, which is the only representation on record, which was pending. In this undisputed factual background, the learned Single Judge could not have gone into the merits of the matter. In absence of any relief for quashment of Annexure P-7, the learned Single Judge, at best could have directed the respondents to take a decision on the representation Annexure P-8. 13. This Court, thus, holds that the impugned order passed by the learned Single Judge is beyond the pleadings made and relief claimed in the writ petition and is therefore liable to be set aside. 14. At this juncture, the learned senior counsel for petitioner seeks direction for decision on the said representation Annexure P-8 dated 4.1.2014 with a further request that a finding in regard to the true import of the statutory provisions of Regulation 4.1.3 be enumerated so that the respondents can now take a correct decision in accordance with law. 15. The abovesaid prayer appears to be reasonable since before remitting the matter with a direction to the respondents to decide the representation, the correct interpretation of Regulation 4.1.3 deserves to be given. 16. A combined reading of Regulation 4.1.3(i) and (ii) reveals that the calculation of load is based on the size of plot/apartment mentioned in the approved layout of the colony. Thus, the colony whose layout has been independently approved under the Adhiniyam of 1973 or any other equivalent relevant statutory provisions, is the unit for the purpose of calculation of load. If there are more than one colony with independent approved layout, then calculation of the required load of electricity shall be done for each colony having independent approved layout without clubbing together more than one colonies notwithstanding the ownership being common. If there are more than one colony with independent approved layout, then calculation of the required load of electricity shall be done for each colony having independent approved layout without clubbing together more than one colonies notwithstanding the ownership being common. Thus, it is neither the name of the colony nor the location nor the fact of the colonies being adjacent to each other nor the ownership, which can form the foundation for calculation of load under Regulation 4.1.3(i). The deciding factor for this purpose is the approved layout. Any colony having an independent approved layout is to be treated as one single unit for the purpose of calculation of load. The same principle applies for deciding as to whether the total load exceeds 2000 KW or not as per Regulation 4.1.3(ii). If a particular colony with an independent approved layout does not require a load of more than 2000 KV, then the requirement of establishment of 33/11 KW Sub-Station under the Regulation 4.1.3(ii) of the Regulation of 2009 gets obviated. RELIEF : 17. In view of the above, this writ appeal deserves to be, and is, disposed of with the following directions : 1. The impugned order of the learned Single Judge passed on 11.7.2013 in Writ Petition No.1681/2013 is set aside; 2. The respondents shall consider the pending representation dated 4.1.2013 Annexure P-8 after affording due and reasonable opportunity to the petitioner and after taking into consideration the interpretation of the legal provision of Regulation 4.1.3 (i) and (ii) of the Regulations of 2009 explained above, without being influenced by its earlier decision dated 24.12.2012 contained in Annexure P-7 and also by the fact of the petitioner having approached this Court; and 3. No order as to cost. ............