Shri G P Shivaprakash vs The State Of Karnataka ...
2021 Latest Caselaw 7112 Kant

                                      W.A No.1297/2012

                              1

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 23RD DAY OF DECEMBER, 2021

                         PRESENT

     THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                             AND
      THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

       WRIT APPEAL No.1297 OF 2012 (GM-KEB)

BETWEEN :

SHRI. G.P. SHIVAPRAKASH
S/O LATE G. PARAMASHIVAIAH
SINCE DECEASED BY HIS LRS

1.    VIJAYA S. PRAKASH
      W/O LATE G.P. SHIVAPRAKASH
      AGED 70 YEARS
      R/AT NO.1420, III CROSS
      IV MAIN ROAD, JUDICIAL LAYOUT
      ALLALASANDRA, YELAHANKA
      BENGALURU-560 065

2.    SIDDARTH S.G
      S/O LATE G.P. SHIVAPRAKASH
      AGED 40 YEARS
      NO.1420, III CROSS
      IV MAIN ROAD, JUDICIAL LAYOUT
      ALLALASANDRA, YELAHANKA
      BENGALURU-560 065

3.    PAVITRA S. GURUKAR
      D/O LATE G.P. SHIVAPRAKASH
      AGED 40 YEARS
      NO.1420, III CROSS
      IV MAIN ROAD, JUDICIAL LAYOUT
                                         W.A No.1297/2012

                              2

     ALLALASANDRA, YELAHANKA
     BENGALURU-560 065                ... APPELLANTS

(BY SHRI. ASHOK B. PATIL, ADVOCATE)

AND :

1.   THE STATE OF KARNATAKA
     REPRESENTED BY ITS SECRETARY
     DEPARTMENT OF POWER
     M.S.BUILDING
     BANGALORE-560 001

2.   THE KARNATAKA ELECTRICITY
     REGULATORY COMMISSION
     VI FLOOR, 'MAHALAXMI CHAMBERS'
     M.G.ROAD
     BANGALORE-560 001
     REPRESENTED BY ITS SECRETARY

3.   THE KARNATAKA POWER
     TRANSMISSION CORPORATION LTD.,
     CAUVERY BHAVAN
     BANGALORE-560 009

4.   THE SUPERINTENDING ENGINEER
     BANGALORE CIRCLE (NORTH)
     KARNATAKA POWER
     TRANSMISSION CORPORATION LTD.,
     K.R.CIRCLE
     BANGALORE-560 001

5.   THE BANGALORE ELECTRICITY
     SUPPLY CO.LTD
     K.R.CIRCLE
     BANGALORE-560 001
     REP. BY ITS MANAGING DIRECTOR

6.   THE MANGALORE ELECTRICITY
     SUPPLY COMPANY LTD ( MESCOM)
     MANGALORE

7.   THE CHAMUNDESHWARI ELECTRICITY
     SUPPLY COMPANY LTD.,
                                                    W.A No.1297/2012

                                     3

       SARASWATHIPURAM
       MYSORE

8.     THE HUBLI ELECTRICITY SUPPLY
       SUPPLY COMPANY LTD.,
       (HESCOM), HUBLI

9.     THE GULBARGA ELECTRICITY
       SUPPLY COMPANY LTD.,
       ( GESCOM)
       GULBARGA                               ... RESPONDENTS

(BY SMT. A.R. SHARADAMBA, AGA FOR R1;
    SHRI. S.R. TEJAS, ADVOCATE FOR R2;
    SHRI. H.V. DEVARAJU, ADVOCATE FOR R3-R5 & R7;
    SHRI. N.K. GUPTA, ADVOCATE FOR R6, R8 & R9)
                                ....
      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT
PETITION No.12426/2002 DATED 25.07.2011.

     THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.12.2021 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE
FOLLOWING:-


                           JUDGMENT

This intra-court appeal is directed against order dated

July 25, 2011 in W.P. No.12426/2002 dismissing

petitioner's writ petition.

2. For the sake of convenience, parties shall be

referred as per their status in the writ petition.

W.A No.1297/2012

3. We have heard Shri. Ashok B. Patil, learned

Advocate for appellant, Smt. A.R. Sharadamba, learned

AGA for respondent No.1, Shri. H.V. Devaraju, learned

Advocate for respondents No.3 to 5 & 7 and Shri.

N.K.Gupta, learned Advocate for respondents No.6, 8 & 9.

Brief facts of the case:

4. Petitioner applied for electricity supply to his

residential premises. By communication dated February 14,

2002, fourth respondent called upon the petitioner to

deposit certain amounts. Petitioner feeling aggrieved by the

demand for Rs.1,61,000/- towards developmental charges,

has presented the instant writ petition inter alia with

following prayers:

(i) Issue appropriate writ, order or direction, declaraing Section 9.02 and Section 9.04 of the KERC (Electricity Supply and Distribution) Code, 2000-01 as unconstitutional and strike down the same as such, in the interest of justice and equity;

(ii) Issue an appropriate writ, order or direction quashing the communication dated 14.02.2002 th (Annexured-A) issued by the 4 respondent in so far as it relates to the demand of Rs.1,61,000/- towards development charge based on specified W.A No.1297/2012

load of 45.5 KVA, in the interest of justice and equity.

5. The Hon'ble Single Judge has dismissed the writ

petition on the ground that the validity of Regulation

challenged in the instant writ petition was considered and

upheld in W.A. Nos.1285-86/2001.

6. Shri. Ashok Patil, learned Advocate for the

appellant submitted that:

• there is no provision to justify the calculation of

assessed load in the KERC1 (Electricity Supply and

Distribution) Code 2000-01;

• the authorities are not uniformly applying the formula

in calculating the specified load inasmuch as many

buildings of much bigger area in the same locality are

charged with lesser amount towards developmental

charges. It is only in the case of the petitioner that

authorities are applying the formula of plinth area

while calculating the specified load;

Karnataka Electricity Regulatory Commission W.A No.1297/2012

• the object of collecting the developmental charge is to

provide infrastructure. In the instant case, no separate

service line is required. The requirement of electricity

is minimal even though the plinth area is more and

the decision in W.A. Nos.1285-86/2001 is not

applicable to the facts of this case;

• the developmental charges are in the form of fees.

When fee is levied and collected, there must be quid

pro quo service. In the instant case, BESCOM is not

providing service commensurate with the fee

collected; and

• there is no rational nexus and intelligible differentia

between the plinth area and the calculation of load.

7. Shri. Tejas, learned Advocate for KERC

submitted that the issue is no more res integra. The validity

of Electricity Supply (Amendment) Regulation, 1995 notified

on December 30, 1995 was challenged before this Court in

Vimala Shetty and another Vs. Karnataka Electricity Board W.A No.1297/2012

and another2 and the same has been upheld by the Hon'ble

Single Judge as also the Division Bench3. Therefore, this

appeal does not merit any consideration.

8. We have carefully considered rival contentions

and perused the records.

9. In substance, petitioner's case is, the formula

applied as per Regulation 9.2 to compute 'assessed load' is

bad in law.

10. Petitioner has prayed for declaring Clause 9.02

and 9.04 of the KERC (Electricity Supply and Distribution)

Code, 2000-01 as ultra vires the Constitution. The said

clauses read as follows:

"9.02 ASSESSED LOAD On registration of the application, the Licensee will assess the load of the Building/Complex as detailed below.

The assessment shall be for the entire building area for all the floors as per plan or as actually constructed, whichever is higher. This is applicable for cases both (a) &

(b) noted below:

W.Ps. No. 24526/1996 and connected cases, decided on January 19, 2001

WA 1285-86/2001 and connected cases, decided on October 7, 2003 W.A No.1297/2012

(a) For commercial type of installations

(i) At 75 Watts per sq. mtr. in respect of Corporation areas and its agglomeration areas of Bangalore, Mysore, Hubli-Dharwad, Gulbarga, Mangalore, Belgaum and other areas as notified by the Licensee with the approval of KERC from time to time.

(ii) At 55 Watts per Sq. mtr in respect of other District headquarters

(iii) At 40 Watts per Sq. mtr in respect of Taluk headquarters and in all other places except (i) & (ii) above

(b) For Domestic type of installations

(i) At 50 Watts per Sq. mtr in respect of Corporation areas and its agglomeration areas of Bangalore, Mysore, Hubli-Dharwad, Gulbarga, Mangalore, Belgaum and other areas as notified by the Licensee with the approval of KERC from time to time.

(ii) xxxxxx

(iii) xxxxxx

9.04 SPECIFIED LOAD

(a) In case of new buildings, specified load of the building / complex shall be the assessed load calculated as per Section 9.02 or the requisitioned load, whichever is higher.

(b) In case of existing building already having power specified load is the assessed load calculated as per Section 9.02 for the entire building or the sum of existing W.A No.1297/2012

load and additional requisitioned load, which ever is higher.

(c) Specified load shall be considered only for purpose of deciding the transformer capacity and requirement of space for erecting transformer at Consumer premises."

11. It was argued by Shri. Patil that petitioner has

sought for 22 kw of Power supply, whereas, the fourth

respondent has computed the developmental charge on

45.5 kw. The relevant provision applicable in the instant

case is, Clause 9.02(b). According to the said provision, the

assessed load is computed at 50 Watts per sq. meter.

12. The Electricity Supply (Amendment) Regulation,

1995 notified on December 30, 1995 were challenged in

Vimala Shetty. As per Regulation 9.02(a) of the said

Regulations, the requirement of load was to be computed at

50 Watts per sq. meter of the plinth area of the sanctioned

plan for domestic installations.

W.A No.1297/2012

13. The Hon'ble Single Judge, in the said writ

petition has framed three points for consideration. Points

No.1 & 2 are relevant and they reads as follows:

"1. Whether the amended Regulation No.9 of 1995 and 1998 are beyond with powers conferred upon the KPTCL under the provision of Section 49 r/w. Section 79(j) & (k) of the Electricity Supply Act, 1948 ?

2. Whether the impugned Regulation is unguided, arbitrary and unreasonable in demanding the applicants/consumers for payment of infrastructure, developmental charges and other deposits upon the specified load of power supply by the KPTCL to the Commercial/Residential/Multi-storied buildings which falls within the Regulation 9(a)(b)(c) and (d) of ESR Regulations, 1988?"

(sic)

14. The said points have been answered as follows:

"Therefore, this Court has to answer the points with regard to the power of the Board to frame such terms and conditions as has been laid down under the amended Regulation 9 of the Regulations by issuing the Notifications with regard to determination of the assessed load in respect of the new buildings referred to supra is perfectly legal and valid which need not be interferred with by this Court in exercise of its extraordinary and discretionary power under Articles 226 & 227 of the Constitution of India."

(sic) W.A No.1297/2012

15. The common order in Vimala Shetty, was

challenged in W.A. Nos. 1285-1286/2001 and connected

cases. By judgment dated October 7, 2003, the Division

Bench of this Court has held in para 27 of the judgment

that the findings recorded by the Hon'ble Single Judge in

Vimala Shetty on points No. 1 and 2 do not suffer from any

legal infirmity.

16. As recorded hereinabove, by applying Regulation

9.02(b), the assessed load is computed at 50 Watts per sq.

meter, which was precisely the point for consideration in

Vimala Shetty.

17. It is settled that when the validity of the

provision is upheld, it cannot be collaterally challenged

(See. Anil Kumar Neotia Vs. Union of India)4

18. In view of the fact that the validity of the

provision under challenge in the instant writ petition has

already been upheld by the Division Bench of this Court, we

(1988) 2 SCC 587 - para 18 W.A No.1297/2012

find no merit to interfere with the order passed by the

Hon'ble Single Judge.

19. Resultantly, this writ appeal fails and it is

accordingly dismissed.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE

SPS