Bangalore Electricity Supply ... vs M/S Eureka Forbes Limited
2023 Latest Caselaw 1356 Kant

                           1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                                    R
       DATED THIS THE 16TH DAY OF FEBRUARY 2023

                       PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

            W.A. No.4017 OF 2019 (GM-KEB)
                          IN
            W.P. No.5084 OF 2017 (GM-KEB)
                         C/W
            W.A. No.3885 OF 2019 (GM-KEB)
                          IN
            W.P. No.45093 OF 2015 (GM-KEB)

IN W.A. No.4017 OF 2019
IN W.P. No.5084 OF 2017

BETWEEN:

1.     BANGALORE ELECTRICITY SUPPLY
       COMPANY LIMITED (BESCOM)
       WHOLLY OWNED GOVERNMENT OF
       KARNATAKA UNDERTAKING
       CAUVERY BHAVAN, K G ROAD
       BENGALURU - 560009
       NOW REPRESENTED BY ITS
       MANAGING DIRECTOR
       GENERAL MANAGER (AD AND HRD).

2.     ASSISTANT EXECUTIVE ENGINEER (ELE)
       AND ASSESSING OFFICER, BESCOM
       ANEKAL SUB DIVISION
       BENGALURU - 560105.
                            2



                                ... APPELLANTS

(BY MR. H.V. DEVARAJU, ADV.,)

AND:

RADHAMANI EXPORTS LTD.,
A COMPANY INCORPORATION UNDER
COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE
AT NO.176, JAMUNALAL BAJAJ STREET
BURA BAZAAR, GROUND FLOOR
KOLKATA - 700007.

ITS CORPORATE OFFICE AT
NO.27, VTMS ARCADE
YALANKUNTE, MANGAMMANA PALYA
HOSUR MAIN ROAD
BENGALURU - 560068
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
                          ... RESPONDENT

(BY MR. MANMOHAN P.N. ADV.,)
                       ---

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 23/10/2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.5084/2017 AND DISMISS THE WRIT PETITION.

IN W.A. No.3885 OF 2019 IN W.P. No.45093 OF 2015

BETWEEN:

1. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) WHOLLY OWNED GOVERNMENT

OF KARNATAKA UNDERTAKING CAUVERY BHAVAN, K G ROAD BENGALURU-560009 NOW REP. BY ITS GENERAL MANAGER (ADMIN & HR).

2. EXECUTIVE ENGINEER (ELECTRICAL) BESCOM, CHANDAPURA SUB-DIVISION BENGALURU-560099.

3. ASSISTANT EXECUTIVE ENGINEER (ELECTRICAL) BESCOM, CHANDAPURA SUB-DIVISION BENGALURU-560099.

4. EXECUTIVE ENGINEER BESCOM VIGILANCE JAYANAGAR VIGILANCE POLICE STATION 1ST FLOOR, NO.31/1, 32/2 CRESCENT TOWER, CRESCENT ROAD MADHAVANAGAR, BENGALURU-560001.

5. ASSISTANT EXECUTIVE ENGINEER BESCOM VIGILANCE 1ST FLOOR, NO.32/1, 32/2 CRESCENT TOWER, CRESCENT ROAD MADHAVANAGAR, BENGALURU-560001.

... APPELLANTS

(BY MR. S. SRIRANGA, SR. COUNSEL A/W MS. ASHWINI N. RAVINDRA, ADV., MR. S.G. PRASHANTH MURTHY, ADV., FOR MRS. SUMANA NAGANAND, ADV.,)

AND:

M/S. EUREKA FORBES LIMITED NO.143, C-4, BOMMASANDRA INDUSTRIAL AREA

OFF HOSUR ROAD, BENGALURU-560099 REPRESENTED BY ITS DIRECTOR MR. P.J. REDDY AGED ABOUT 72 YEARS AUTHORIZED BY BOARD RESIDING IN BENGALURU.

... RESPONDENT

(BY MR. G. SHIVADASS, SR. COUNSEL FOR MR. PRASHANTH SHIVADASS, ADV., FOR C/R1)

---

THIS W.A. IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 23.07.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.45093/2015 AND DISMISS THE WRIT PETITION IN THE INTEREST OF JUSTICE.

THESE WRIT APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08.02.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

In these intra court appeals filed by the

Bangalore Electricity Supply Company (hereinafter

referred to as 'the BESCOM' for short), a common

issue viz., whether notification dated 22.11.2016

issued by Government of Karnataka amending the

conditions of supply of electricity of distribution

licencees, is retrospective in nature, arises for

consideration. These appeals were therefore, heard

analogously and are being decided by this Common

Judgment. For the facility of reference, facts from

W.A.No.3885/2019 are being referred to.

2. The respondent (hereinafter referred to as

'the Company' for short) is the absolute owner of

composite premises measuring 2,04,535 square feet

situated at Bommasandra Industrial Area of Hosur

Road, Anekal Taluk, Bengaluru. The premises

consists of 9 independent units / buildings. The

company had availed of High Tension Power Supply

from the erstwhile Karnataka Electricity Board in the

year 1998. The company in the year 2007 entered

into a lease agreement with M/s Shell India Markets

Pvt. Ltd. and leased out 8 out of 9 units in the

composite premises. Thereafter, it applied for an

increase in the load of contract demand from 175 KVA

TO 1500 KVA. Subsequently on 09.09.2008, the

company submitted an application for additional

power supply of 750 KVA.

3. The company thereafter filed an application

on 06.05.2015 for a separate meter for same power

connection. The premises of the company was

inspected by the officers of the BESCOM and it was

found that 96% of the power supply was extended to

the lessee without authorization of BESCOM. The

power supply to the premises of the company was

disconnected under Clause 42.05 of Conditions of

Supply of Electricity of Distribution Licencees in the

State of Karnataka, 2006 (hereinafter referred to as

'the COS' for short).

4. Being aggrieved by the disconnection of

power supply, the company filed a writ petition in

W.P.No.2269/2015, which was disposed of by an

order dated 05.06.2015 directing BESCOM to restore

the power supply with the liberty to take appropriate

action in accordance with law. The BESCOM

thereafter served a notice dated 11.06.2015 by which

the company was directed to remove the unauthorized

extension of power supply and to report compliance.

The company was further requested to pay back

billing charges of Rs.12,55,47,954/- within a month.

5. The Assistant Executive Engineer

(Electrical) passed an order of assessment by which

the company was held liable to pay a sum of

Rs.12,55,47,954/- as back billing charges for a period

from 2007-08 to 2014-15 as per provisions of Clause

42.05 of the COS. The company thereupon filed a writ

petition assailing the order dated 22.09.2015 passed

by Assistant Executive Engineer (Electrical). The

Learned Single Judge by an order dated 23.07.2019

inter alia held that notification dated 22.11.2016

amending COS with respect to Clause 8.14 is

retrospective in nature. It was further held that

demand made by the Assistant Executive Engineer

(Electrical) towards back billing is not founded on any

substantial evidence to invoke Clause 42.05 of COS.

The order dated 22.09.2015 passed by Assistant

Executive Engineer (Electrical) was quashed and the

matter was remitted to him to take a decision in

accordance with law after affording an opportunity of

hearing to the company within a period of four weeks.

In the aforesaid factual background, these appeals

have been filed.

6. Learned Senior counsel for the appellant

submitted that provisions of the Electricity Act, 2003

(hereinafter referred to as 'the Act' for short) do not

confer power to enact the Regulations with

retrospective effect. Therefore, the question of giving

retrospective operation to the Regulations does not

arise. It is further submitted that the notification

dated 22.11.2016 itself provides that amended

Regulations shall come into force with effect from the

date of its publication in the official gazette of

Karnataka. Therefore, the question of retrospective

operation of Clause 8.14 does not arise. It is urged

that wherever the legislature intended to confer the

power to enact Regulations with retrospective effect,

such a power as been expressly provided. In support

of aforesaid submission, reference has been made to

Section 40A of Protection of Human Rights Act, 1993,

Section 48(2-B) of Life Insurance Act, 1956 and to

Section 164 of the Central Goods and Services Tax

Act, 2017. Reliance has been placed on decisions of

Hon'ble Supreme court in 'SRI.VIJAYALAKSHMI RICE

MILLS, NEW CONTRACTORS CO AND OTHERS VS.

STATE OF ANDHRA PRADESH ', (1976) 3 SCC 37,

'ZILE SINGH VS. STATE OF HARYANA AND

OTHERS', (2004) 8 SCC 1, 'MAHABIR VEGETABLE

OILS (P) LTD AND ANOTHER VS. STATE OF

HARYANA AND OTHERS', (2006) 3 SCC 620 and

'VICE CHANCELLOR, M.D.UNIVERSITY, ROHTAK

VS. JAHAN SINGH', (2007) 5 SCC 77 .

7. On the other hand, Learned Senior counsel

for the respondents in W.A.No.3885/2019 submitted

that Section 16(1) confers the power on the

Commission to issue Notification with retrospective

effect. It is further submitted that in terms of Section

56 of the Karnataka Electricity Reforms Act, 1999, the

Karnataka Electricity Regulatory Commission had

enacted KERC (General and Conduct of Proceedings)

Regulation, 2000 (hereinafter referred to as

'Regulations 2000' for short). It is contended that

under Regulation 11, the Commission has inherent

power to make orders as may be necessary for

meeting the ends of justice and the Regulations do not

limit or otherwise effect the inherent powers. It is

pointed out that a petition was filed by BESCOM on

09.09.2015 under Regulation 11 of the Regulations

2000 and an amendment was sought to clause 42.05

of KERC Electricity Supply Distribution Board, 2000.

The KERC after considering various objections,

suggestions and views from the stakeholders, thought

it fit to substitute Regulation 8.14 and to add Sub-

clause (3) to Regulation 8.14 to specifically state that

permitting the tenant to use the power of the same

tariff through a sub meter shall not be considered as

unauthorized extension of supply or resale of

electricity, so long as power charges are collected from

the tenant on no profit no loss basis.

8. It is contended that the principle of

purposive construction of a statute has to be applied

and it is to be held that supply of electricity to a

tenant will not amount to unauthorized supply of

electricity. In support of aforesaid submissions,

reliance has been placed on decisions of Hon'ble

Supreme Court in 'K.R.VENUGOPALAN NAIR VS.

STATE OF KERALA AND ORS.', 2015 SCC Online

21975, VINAY VS. STATE OF MAHARASHTRA &

ORS.', (2006) 6 SCC 289, and 'K.P.VARGHESE VS.

INCOME TAX OFFICER, ERNAKULAM AND ORS.',

(1981) 4 SCC 473 and a full bench decision of this

court in 'HASAN CO-OPERATIVE MILK PRODUCERS

SOCIETY UNION LIMITED VS. STATE OF

KARNATAKA', ILR 2014 KAR 4257.

9. Learned counsel for respondent in

W.A.No.4017/2019 submitted that the amendment of

Clause 8.14 of the Regulations 2000 is clarificatory

and has been made to supply an obvious omission,

therefore, the amendment to COS is retrospective in

nature. It is also argued that Doctrine of Fairness is a

relevant factor for construction of statute, which has

to be applied to the facts of this case. Alternatively it

is submitted that back billing charges for a period of

more than 12 months cannot be recovered from the

company. In support of aforesaid submissions,

reliance has been placed on decisions in 'ZILE SINGH

VS. STATE OF HARYANA AND ORS', (2004) 8 SCC

1, 'GOTTUMUKKALA VENKATA KRISHAMRAJU VS.

UNION OF INDIA AND ORS.', (2019) 17 SCC 590 and

'GOVERNMENT OF INDIA AND ORS. VS. INDIAN

TOBACCO ASSOCIATION', (2005) 7 SCC 396.

10. We have considered the submissions made

on both sides and have perused the record. Before

proceeding further, it is apposite to take note of

relevant statutory provisions, which read as under:

           16.     (Condition    of   licence):   The
     Appropriate   Commission    may    specify   any

general or specific conditions which shall apply either to a licensee or class of licensees and

such conditions shall be deemed to be conditions of such licence:

Provided that the Appropriate Commission shall, within one year from the appointed date, specify any general or specific conditions of licence applicable to the licensees referred to in the first, second, third, fourth and fifth provisos to section 14 after the expiry of one year from the commencement of this Act.

Section 16 empowers the appropriate

commission to specify the specific conditions which

shall apply either to a licencee or a class of licencees

and such conditions shall be deemed to be conditions

of licence.

181. (Powers of State Commissions to make regulations): --- (1) The State Commissions may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act. The Electricity Act, 2003 (2) In particular and without prejudice to the generality of the power contained in sub-

section (1), such regulations may provide for all or any of the following matters, namely: -

(a) period to be specified under the first proviso of section 14;

(b) the form and the manner of application under sub-section (1) of section 15;

(c) the manner and particulars of application for licence to be published under sub-section (2) of section 15;

(d) the conditions of licence section 16;

(e) the manner and particulars of notice under clause(a) of subsection (2) of section 18;

(f) publication of the alterations or amendments to be made in the licence under clause (c) of sub-section (2) of section 18;

(g) levy and collection of fees and charges from generating companies or licensees under sub-section (3) of section 32;

(h) rates, charges and the term and conditions in respect of intervening transmission facilities under proviso to section 36;

(i) payment of the transmission charges and a surcharge under subclause (ii) of clause(d) of sub-section (2) of section 39;

(j) reduction 1[***] of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (d) of sub-section (2) of section 39;

(k) manner and utilisation of payment and surcharge under the fourth proviso to sub- clause(ii) of clause (d) of sub-section (2) of section 39;

(l) payment of the transmission charges and a surcharge under subclause(ii) of clause (c) of section 40; 1 The words "and elimination" omitted by Act 26 of 2007, Sec. 21 (w.e.f. 15th June 2007). The Electricity Act, 2003 (m) reduction 1[***] of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (c) of section 40;

(n) the manner of payment of surcharge under the fourth proviso to sub-clause (ii) of clause (c) of section 40;

(o) proportion of revenues from other business to be utilised for reducing the transmission and wheeling charges under proviso to section 41;

(p) reduction 2[***] of surcharge and cross- subsidies under the third proviso to sub-section (2) of section 42;

(q) payment of additional charges on charges of wheeling under subsection (4) of section 42;

(r) guidelines under sub-section (5) of section 42;

(s) the time and manner for settlement of grievances under sub-section (7) of section 42;

(t) the period to be specified by the State Commission for the purposes specified under sub-section (1) of section 43;

(u) methods and principles by which charges for electricity shall be fixed under sub- section (2) of section 45;

(v) reasonable security payable to the distribution licensee under sub-section (1) of section 47;

(w) payment of interest on security under sub-section (4) of section 47;

(x) electricity supply code under section 50;

(y) the proportion of revenues from other business to be utilised for reducing wheeling charges under proviso to section 51;

(z) duties of electricity trader under sub- section (2) of section 52;

(za) standards of performance of a licensee or a class of licensees under sub- section (1) of section 57; 1 The words "and elimination" omitted by Act 26 of 2007, Sec. 21 (w.e.f. 15th June 2007). 2 The words "and elimination" omitted by Act 26 of 2007, Sec. 21 (w.e.f. 15th June 2007). The Electricity Act, 2003 - 131 -

(zb) the period within which information to be furnished by the licensee under sub-section (1) of section 59;

(zc) the manner of reduction of cross- subsidies under clause (g) of section 61;

(zd) the terms and conditions for the determination of tariff under section 61;

(ze) details to be furnished by licensee or generating company under sub-section (2) of section 62;

(zf) the methodologies and procedures for calculating the expected revenue from tariff and charges under sub-section (5) of section 62;

(zg) the manner of making an application before the State Commission and the fee payable therefor under sub-section (1) of section 64;

(zh) issue of tariff order with modifications or conditions under subsection(3) of section 64;

(zi) the manner by which development of market in power including trading specified under section 66;

(zj) the powers and duties of the Secretary of the State Commission under sub-section (1) of section 91;

(zk) the terms and conditions of service of the secretary, officers and other employees of the State Commission under sub-section (2) of section 91;

(zl) rules of procedure for transaction of business under sub-section (1) of section 92;

(zm) minimum information to be maintained by a licensee or the generating company and the manner of such information to be maintained under sub-section (8) of section 128;

(zn) the manner of service and publication of notice under section 130; 1 Subs. by Act 26 of 2007, Sec.21 (w.e.f. 15th June 2007). The Electricity Act, 2003.

(zo) the form of preferring the appeal and the manner in which such form shall be verified

and the fee for preferring the appeal under sub- section (1) of section 127;

(zp) any other matter which is to be, or may be, specified.

(3) All regulations made by the State Commission under this Act shall be subject to the condition of previous publication.

Section 181 deals with the power of the

Commissions to make Regulations consistent with the

Act and the Rules generally to carry out the provisions

of the Act.

11. In exercise of powers conferred under

Section 181 (2)(d) of the Act read with Section 16 of

the Act, Karnataka Electricity Regulatory Commission

by a notification dated 26.11.2016 amended the

Conditions of Supply of Electricity of the Distribution

licencees in the State of Karnataka, 2006. Regulation

8.14 was also amended by adding clause (3) therein,

which reads as under:

(i) The H.T./E.H.T. consumers are permitted to use power within their premises for any bona fide purpose including construction works without exceeding the contract demand or permitted maximum demand/energy entitlement, as the case may be. Such usage shall not amount to prejudicial use.

(ii) The H.T./E.H.T. consumers desirous of using a part of the premises for residential or commercial purposes as the case may be shall be permitted to use power within their premises through a LT sub-meter. The consumption so recorded in the sub-meter shall be deducted from the consumption so recorded in the main meter and the consumption recorded in the sub- meter shall be billed as per applicable LT Commercial tariff in force. In such cases no fixed charged shall be levied on the LT residential or commercial load.

     (iii)   The     H.T./E.H.T.        consumer
desirous of letting out a           part of his

premises for industrial purpose shall be permitted to allow his tenant to use the power at the same tariff as applicable to

the said consumer and to collect the charges for the power from such tenant on no profit no loss basis (i.e. sharing of electricity bill) through a sub-meter as approved by the licensee and such arrangement shall not be treated as unauthorized extension of supply or re-sale electricity.

Provided that for billing, the consumption recorded in the main meter shall be reckoned as per the slab rated in accordance with the tariff order in force. (Inserted Vide fifth amendment with effect from 22.11.2016).

Clause (iii) of Regulation 8.14 provides that HT

/EHT consumer desirous of letting out part of his

premises shall be permitted to allow his tenant to use

the power at the same tariff as applicable to said

consumer and to collect charges for power from such

tenant through a sub meter as approved by the

licencee and such arrangement shall not be treated as

unauthorized extension of supply or re-sale of

electricity.

12. Regulation 42.05, which deals with

unauthorized extension of supply reads as under:

42.05 Unauthorized extension of supply (Applicable to both HT and LT Installations) If at any time, energy supplied to a Consumer/premises is found extended unauthorizedly to some other person/premises, the installation shall be disconnected forthwith. The installation shall be reconnected only after unauthorized extension of supply is removed and reported by the Consumer. Further, the Assessing Officer, shall assess the quantum of energy and excess load so extended and charge for that quantum for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months immediately preceding the date of inspection at two times the Tariff applicable for the purpose

for which the energy is so extended as per the Electricity (Amendment) Act, 2007 (No.26 of 2007) dated 15.6.2007.

Such amount shall be paid within thirty days from the date of final order, failing which, the installation shall be disconnected, and such amount shall be deemed to be arrears of electricity charges.

Note: If the Assessing Officer arrives at the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of 12 months immediately preceding the date of inspection.

2) In respect of installations which are in service for not more than six months and temporary installations, the minimum period specified above may be suitably reduced keeping in view the date of service.

13. It is trite law that every statute shall be

construed as prima facie prospective unless expressly

or by necessary implication it is made to have a

retrospective operation. It is trite law that a power

conferred to make a subordinate legislation must be

exercised in conformity with the parent Act. A

subordinate legislation can be given a retrospective

effect and operation if any power in this behalf

contained in the main Act. [See: 'HUKUM CHAND VS.

UNION OF INDIA', (1972) 2 SCC 601, 'MAHABIR

VEGETABLE OILS P. LTD. VS. STATE OF

HARYANA', (2006) 3 SCC 620, VICE CHANCELLOR

M.D.UNIVERSITY ROHTAK VS. JAHAN SINGH

(2007) 5 SCC 77 and 'FEDERATION OF INDIAN

MINERAL INDUSTRIES AND OTHERS VS. UNION OF

INDIA AND ANOTHER', (2017) 16 SCC 186].

14. The Amendment to the conditions of supply

of electricity of distribution licencees by notification

dated 22.11.2016 has obviously been made in

exercise of powers under Section 181(2)(d) of the Act,

which empowers the State Commission to frame

Regulations with regard to conditions of licence under

Section 16 of the Act. Though the notification dated

22.11.2016 makes a reference to Section 16 of the

Act, but Section 16 of the Act deals with power of the

appropriation commission to specify the general or

specific conditions either to a licencee or class of

licencees and does not deal with the power to make

Regulations. Section 181(2)(d) of the Act expressly

deals with the power of the commission to frame

Regulations and the amendment to the Regulations

has been made under Section 181(2)(d) of the Act. The

aforesaid provision viz., Section 181 does not confer

power on the Karnataka Electricity Regulatory

Commission to make regulations with retrospective

effect. Therefore, in the absence of a power under the

parent Act, neither the regulations nor amendment to

the same can be made with retrospective effect.

15. It is noteworthy that wherever the

legislature has intended to confer the power to make

the subordinate legislation with retrospective effect, it

has expressly said so. For the facility of reference,

Section 40A of the Protection of Human Rights, 1993,

Section 48A(2-B) of Life Insurance Corporation Act,

1956 and Section 164(3) of Central Goods and

Services Tax Act, 2014 are quoted below for the

facility of reference.

Section 40A of Protection of Human Rights, 1993

40A. Power to make rules retrospectively.--The power to make rules under clause (b) of sub-section (2) of section 40 shall include the power to make such rules or any of them retrospectively from a date not earlier than the date on which this Act received the assent of the President, but no such retrospective effect shall be given to

any such rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.

Section 48A(2-B) of Life Insurance Corporation Act,

48A(2-B) The power to make rules conferred by clause (cc) of sub-Section (2) shall include -

     (i)    the power to give retrospective effect to
     such rules; and
     (ii)   the   power    to    amend   by   way   of

addition, variation or repeal, the regulations and other provisions referred to in sub- section (2-A), with retrospective effect from a date not earlier than the twentieth day of June, 1979.

Section 164(3) of Central Goods and Services Tax Act, 2014 Section 164 - Power of Government to make rules (3) The power to make rules conferred by this

section shall include the power to give retrospective

effect to the rules or any of them from a date not earlier

than the date on which the provisions of this Act come

into force.

However, there is no such provision in the Act.

Therefore, it has to be held that KERC has no power

to make regulations with retrospective effect.

16. In the absence of any provision which

either expressly or by necessary implication makes

the amendment to the regulations with retrospective

effect, no such inference can be drawn that the

amendment to Regulation 8.14 is retrospective. In any

case, in the absence of a power under Section

181(2)(d) of the Act. Therefore, it has to be held that

KERC has no power to make regulations with

retrospective effect.

17. The Amendment to the Regulations has not

been either expressly or by necessary implication,

made to have retrospective effect. On the other hand,

amendment to the Regulation clearly state that they

shall come into force on the date of publication in the

official gazette. Regulation 1(c) reads as under:

(c) It shall come into force from the date of its publication in the official gazette of Karnataka.

Thus, in view of aforementioned reasons, it is

evident that notification dated 22.11.2016 issued by

Government of Karnataka amending conditions of

supply of electricity of distribution licencees is

prospective in nature and not retrospective.

18. The contention that Section 16 of the Act

confers power on the Commission to issue notification

with retrospective effect need not be examined as the

issue involved in these appeals is about retrospectivity

of legislation. Reliance placed on Regulation 7.3 of

Karnataka Electricity Regulatory Commission

(Conditions of Licence for ESCOMs) Regulations, 2004

is of no assistance to the respondents as the same

deals with powers of the Commission to make

amendments or alterations in the standard

agreements on an application made by the licencee or

by the affected person. The Regulations have been

made in exercise of powers under Section 181(2)(d) of

the Act. The inherent powers of the Commission does

not empower it to make Regulations with retrospective

effect. Neither the principle of purposive construction

nor doctrine of fairness is applicable to the fact

situation of the case.

19. In view of preceding analysis the impugned

orders dated 23.07.2019 and 23.10.2019 passed in

W.P.No.3885/2019 and W.P.No.4017/2019 passed by

Learned Single Judge cannot be sustained in the eye

of law. The impugned orders therefore, are set aside.

However, needless to state that respondents shall be

at liberty to take recourse to such remedy as may be

available to them in law with regard to their grievance

pertaining to back billing charges. The BESCOM is

directed not to take any coercive action for recovery of

back billing charges against respondents for a period

of six weeks to enable them to avail of the remedy

available to them in law.

With the aforesaid directions, the appeals are

disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS