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2022 DIGILAW 1302 (KAR)

Nexgen Concrete Solutions v. State of Karnataka

2022-09-29

JYOTI MULIMANI

body2022
JUDGMENT/ORDER 1. Sri.H.M.Manjesh., learned counsel for petitioner, Smt.Jyoti Bhat., learned HCGP for respondent No.1 and Sri.H.V.Devaraju., learned counsel for respondents 2 to 4 have appeared in person. 2. The facts are quite simple and are stated as under: The petitioner is a registered partnership firm i.e., Nexgen Concrete Solutions. The nature of the activities of the partnership firm is Manufacture and supply of ready Mix Concrete. The Firm started its activity from 7/6/2014 with four partners till today the firm is carrying very same business. The Firm is having very good reputation in the local area and it is also following all guidelines issued by the State and other Authorities. It is stated that the petitioner filed an application before the Assistant Executive Engineer, BESCOM, Hosakote Sub-division, Hosakote for electricity connection for the purpose of concrete mixing and requested to sanction 15HP load power supply. It is also stated that in the application, the petitioner clearly mentioned that the purpose of supply of electricity is for concrete mixing. After receipt of the application, the respondents issued guidelines for procedure to be followed before getting electricity supply. As per the guidelines issued by respondents, the petitioner followed all the procedure from the registered licensed contractor. Thereafter the spot inspection was conducted by the Assistant Executive Engineer (Ele) - respondent No.3 and verified all the documents and works done by the petitioner and recommended for supply of electricity connection to the petitioner Firm. The petitioner applied for license and no objection certificate for supply of electricity from Doddabanahalli Grama Panchayath, Bidarahalli Hobli, Bangalore East Taluk. The concerned Grama Panchayath has also issued license and No objection Certificate. The petitioner paid all security deposit before the Authority concerned for supply of energy from the BESCOM. Thereafter the petitioner and the Assistant Executive Engineer, BESCOM entered into Power Supply Agreement. Immediately thereafter the respondents provided power supply for ready mix Concrete as applicable tariff under LT5. The concerned Grama Panchayath has also issued license and No objection Certificate. The petitioner paid all security deposit before the Authority concerned for supply of energy from the BESCOM. Thereafter the petitioner and the Assistant Executive Engineer, BESCOM entered into Power Supply Agreement. Immediately thereafter the respondents provided power supply for ready mix Concrete as applicable tariff under LT5. It is stated that respondent No.4 i.e., the Assistant Executive Engineer (Vigilance) without any enquiry and spot mahazar alleged that there is a misuse of power and accordingly issued a Provisional Assessment Bill and notice on 23/3/2020 vide Annexure-J during lockdown period and further alleged that the petitioner is utilizing power supply unauthorizedly for the purpose of Commercial activity and also directed the petitioner to pay a sum of Rs.4,73,109.00 (Rupees Four Lakh Seventy Three Thousand One Hundred and Nine only) within 7 days from the date of the notice. It is averred that the Assistant Executive Engineer (Vigilance) without any enquiry passed Assessment Final order on 17/4/2020 vide Annexure-K and the same is also issued during the lockdown period and directed the petitioner to pay a sum of Rs.4,73,109.00 (Rupees Four Lakh Seventy Three Thousand One Hundred and Nine only) within 30 days. The Provisional Order and Final Assessment Order are challenged by the petitioner in the captioned Writ Petition on several grounds as set out in the Memorandum of Writ Petition. 3. Learned counsel for petitioner and respondents have urged several contentions. 4. Heard, the contentions urged on behalf of the respective parties and perused the Writ papers with care. 5. Counsel Sri.H.V.Devaraju., in presenting his arguments contended that the KERC issued a Tariff order on 11/4/2017 that manufacture and supply of ready mix concrete has been incorporated and treated as Commercial under LT3 tariff. It is also submitted that the petitioner continued in paying consumption charges under Industrial Tariff (LT5). Therefore, the Vigilance Cell attached to the BESCOM inspected the aforesaid installation on 18/3/2020 and found that the petitioner is using the aforesaid installation i.e., Industrial Tariff (LT5) for ready mix Concrete which comes under LT3 Tariff. The Authority also found that the bills issued under LT5 Tariff amounts to misuse of power supply. Therefore, the Vigilance Cell attached to the BESCOM inspected the aforesaid installation on 18/3/2020 and found that the petitioner is using the aforesaid installation i.e., Industrial Tariff (LT5) for ready mix Concrete which comes under LT3 Tariff. The Authority also found that the bills issued under LT5 Tariff amounts to misuse of power supply. Counsel also brought to the notice of the Court that the Officer concerned has drawn Mahazar in the presence of panchas and also registered a case in Crime No.74/2020 and sought to justify the action of the Officer concerned. 6. In reply, counsel Sri.H.M.Manjesh., for petitioner strenuously urged that in the present case, the petitioner was sanctioned with power supply under LT5 Tariff and as & when there is revision in the Tariff order, it is the duty of the BESCOM Authorities to bring it to the notice of the Consumer and change the installation and upgrade the same to the applicable Tariff. In the present case, the Official concerned for the best reasons known to him, has not done this exercise. Therefore, the petitioner continued to pay the Bills as per LT5 Tariff. There is no fault on the part of petitioner in not paying the amount as claimed by the BESCOM Authorities under LT3 Tariff. 7. Heard, the rival contentions urged on behalf of petitioner and respondent. Suffice it to note that the KERC revised the Tariff order on 11/4/2017 and brought manufacture and supply of ready mix Concrete under LT3 category. It is the obligation on the part of the Authority concerned i.e., the BESCOM to inform the Consumer and change the applicable tariff so far as petitioner is concerned. Admittedly, the Authority concerned has not changed the tariff applicable to the petitioner. Therefore, alleging that the petitioner has not paid the tariff as per LT3 and invoking the Provision under Sec. 135(1)(e) of the Electricity Act, 2003 is wholly untenable. Admittedly, the Authority concerned has not changed the tariff applicable to the petitioner. Therefore, alleging that the petitioner has not paid the tariff as per LT3 and invoking the Provision under Sec. 135(1)(e) of the Electricity Act, 2003 is wholly untenable. I have carefully perused the Provisional order and the Final order which are produced at Annexures-J and K. As could be seen from the Annexure-J, the Assistant Executive Engineer (Vigilance) though noticed that the KERC has revised the Tariff order way back in the year 2017 i.e., on 11/4/2017, ought to have sought explanation from Assistant Executive Engineer (O and M) i.e., Operation and Maintenance of the concerned Sub- division as to why the revised Tariff order has not been applied to the petitioner. Having not done so, erroneously proceeded to pass order imposing penalty of Rs.4,73,109.00 (Rupees Four Lakh Seventy Three Thousand One Hundred and Nine only). Thereafter, the Assistant Executive Engineer (V), BESCOM proceeded to issue Final Assessment Order and directed the petitioner to pay Rs.4,73,109.00 (Rupees Four Lakh Seventy Three Thousand One Hundred and Nine only) within 30 days. In my considered opinion, both the Assistant Executive Engineer (O and M) and the Assistant Executive Engineer (Vigilance) have exercised their powers arbitrarily and illegally. It is needless to observe that the exercise of power by the Officials of public body is subject to the judicial review. In the present case, there is no fault on the part of the petitioner. The officials concerned are not diligent in exercising their statutory powers and are compelling the Consumers, Citizens at large to approach the Court. Therefore, this Court deem it appropriate to quash Annexure-J and K and the Court is also directing the BESCOM Authorities to recover the said amount of Rs.4,73,109.00 (Rupees Four Lakh Seventy Three Thousand One Hundred and Nine only) from the official concerned and see that the amount is credited to the account of BESCOM. Accordingly, the Writ Petition is allowed. The order dtd.:23/3/2020 in [XXXXX] passed by the Assistant Executive Engineer (V), BESCOM, Hosakote vide Annexure-J and the order dtd.:17/4/2020 in [XXXXXXX] passed by the Assistant Executive Engineer (V), BESCOM, Hosakote vide Annexures-K are quashed. The BESCOM Authorities are hereby directed to file the compliance report for the action taken in this regard on or before 15/11/2022.