VISHWAS CONCRETE PRODUCTS PRIVATE LIMITED vs. BANGALORE ELECTRICITY SUPPLY COMPANY LTD

th
DATED THIS THE 28 DAY OF NOVEMBER, 2016
BEFORE
THE HON’BLE Dr.JUSTICE VINEET KOTHARI
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)

In WP No.44405/2016
BETWEEN
VISHWAS CONCRETE PRODUCTS PRIVATE LIMITED
RD
OFFICE AT #80/85, 3 MAIN ROAD
NEW THARAGUPET
BANGALORE – 560 002.
(REPRESENTED BY ITS MANAGING DIRECTOR
B.R.VISHWAS)
...PETITIONER
(BY SRI A.V.AMARANATHAN, ADVOCATE)

AND

1. BANGALORE ELECTRICITY SUPPLY COMPANY LTD
CORPORATE OFFICE
K.R.CIRCLE
BANGALORE – 560 001.
(REPRESENTED BY ITS MANAGING DIRECTOR)

2. THE ASSISTANT EXECUTIVE ENGINEER(EL.,)
BESCOM, C8 SUB DIVISION
SAHAKAR NAGAR
BANGALORE – 560 011.
(REPRESENTED BY ITS
ASSISTANT EXECUTIVE ENGINEER)
...RESPONDENTS
(BY SRI PAVAN SAGAR, ADVOCATE FOR
SRI P.PRASANNA KUMAR, ADVOCATE)



Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

2/16


THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE NOTICE ISSUED BY THE RESPONDENT AT ANNEXURE-C
DATED 22.07.2016 AS THE SAME IS ILLEGAL ARBITRARY AND
CAPRICIOUS AND ETC.


In WP No.15128/2016
BETWEEN
VISHWAS CONCRETE PRIVATE LIMITED
RD
OFFICE AT #80/85, 3 MAIN ROAD
NEW THARAGUPET
BANGALORE – 560 002.
(REPRESENTED BY ITS MANAGING DIRECTOR
B.R.VISHWAS)

...PETITIONER
(BY SRI A.V.AMARANATHAN, ADVOCATE)


AND

1. BANGALORE ELECTRICITY SUPPLY COMPANY LTD
CORPORATE OFFICE
K.R.CIRCLE
BANGALORE – 560 001.
(REPRESENTED BY ITS MANAGING DIRECTOR)

2. THE ASSISTANT EXECUTIVE ENGINEER(EL.,)
BESCOM, C8 SUB DIVISION
SAHAKAR NAGAR
BANGALORE – 560 058.
(REPRESENTED BY ITS
ASSISTANT EXECUTIVE ENGINEER)
...RESPONDENTS
(BY SRI PAVAN SAGAR, ADVOCATE)




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

3/16


THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE NOTICE ISSUED BY THE RESPONDENT AT ANNEXURE-K
DATED 24.11.2015 AND ETC.

THESE WRIT PETITIONS COMING ON FOR ORDERS DAY,
THE COURT MADE THE FOLLOWING:

ORDER


Mr. A.V.Amaranathan, Adv., for petitioner.
Mr. Pavan Sagar, Adv., for
Mr. P.Prasanna Kumar, Adv., for respondents


1. The petitioner, Vishwas Concrete Products Private
Limited, engaged in the business of running a concrete
mixing industrial unit situated at Chandapur and Yelahanka
villages is having a HT power supply to the extent of 200
KV from the respondent-BESCOM and had been paying
concessional rate of power supply under category HT-2(a)
of the Tariff Schedule published by the respondent-
BESCOM, as applicable to the industrial units.






Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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2. Being aggrieved by the order at Annexure-C dated
22.07.2016 passed by the Assistant Executive Engineer
(El), Attibele Sub-Division, Chandapura, demanding
difference of power tariff, treating the petitioner’s unit as
falling under HT-2(b) category, which provides for a higher
tariff rate applicable to commercial establishments and the
demand of Rs.13,05,908.00 was raised against the
petitioner, the petitioner has preferred this WP
No.44405/2016 before this Court.

3. Mr.A.V.Amarnathan, learned counsel for the
petitioner submitted that the petitioner’s industrial unit is
carrying on the business of mixing sand, cement, granite,
additives with water in a proportionate manner and such
mixed concrete is provided to the customers upon their
orders and is transported to the construction sites in trucks
in mounted transit Trucks. This activity, he urged, is an
industrial activity only and cannot be said to be purely a
commercial activity, falling within the scope of HT-2(b)




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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Tariff Schedule and therefore, the Assistant Executive
Engineer(AEE) was not justified in applying HT-2(b) Tariff
Schedule vide Annexure-C dated 22.07.2016. He also
submitted before the Court that the respondent-BESCOM
itself had approached the Karnataka Electricity Regulatory
Commission (KERC) seeking a clarification and adjudication
from the said KERC and the stand taken by the
respondent-BESCOM before the KERC itself was one
favourable to the petitioner, where they stated that the
redi-mix concrete should be included under LT5/HT-2(a)
category of Tariff. The relevant paragraph XIII of the
application filed by the respondent-BESCOM before the
KERC seeking approval of the tariff is quoted below for
ready reference.
“ Redi mix concrete to be included in LT5 tariff
Previously redimix concrete activity was included
under LT5/HT2a category. In Tariff Order 2015,
dtd.02.03.2015 this activity is not included either
under commercial or industrial activity. To
prevent ambiguity in the field it is prayed before




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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the Hon’ble Commission to include the said activity
under LR5/HT2a category.”

He therefore submits that the impugned order of the
respondent-AEE is contrary to the stand taken by the
respondent-BESCOM itself and the same deserves to be
quashed by this Court.

4. On the other hand, learned counsel for the
respondent-BESCOM submitted that upon inspection
carried out by the authorities of the respondent-BESCOM,
it was found that the petitioner was involved in commercial
activity of mixing certain components like sand, cement,
granite, additives etc. with water and supply the same to
the customers upon their orders and which activity is
nothing but a commercial activity, therefore the
respondent-AEE was justified in passing the impugned
order. He also submitted that under the provisions of
Section 127 of Electricity Act, 2003, a regular appeal is
provided to the appellate authority namely, the




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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Superintending Engineer against the order passed by the
AEE and, therefore, in view of the alternative remedy
available to the petitioner-Company, the present writ
petition is not maintainable. He also submitted that
further appeal would lie to the KERC against the order
passed by the Appellate Authority.

5. Having heard the learned counsel for the parties, this
Court is of the opinion that the present writ petition
deserves to be allowed. The reasons are as follows;
The Tariff Schedule of category HT-2(a) and 2(b)
published by the respondent-BESCOM is quoted below for
ready reference.

“ TARIFF SCHEDULE HT-2(a)
Applicable to Industries, Factories, Workshops,
Research & Development Centres, Industrial
Estates, Milk Dairies, Rice Mills, Phova Mills, Roller
Flour Mills, News Papers, Printing Press, Railway
Workshops/KSRTC Workshops/Depots,
Crematoriums, Cold Storage, Ice & Ice-cream mfg.




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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Units, Swimming Pools of local bodies, Water
Supply Installations of KIADB and other industries,
all Defence Establishments. Hatcheries, Poultry
Farm, Museum, Floriculture, Green House, Bio
Technical Laboratory, Hybrid Seeds processing
Units, Stone Crushers, Stone cutting, Bakery
Product Manufacturing Units, Mysore Palace
illumination, Film Studios, Dubbing Theatres,
Processing, Printing, Developing and Recording
Theatres, Tissue Culture, Aqua Culture, Prawn
Culture, Information Technology Industries
engaged in development of Hardware & Software,
Information Technology (IT) enabled Services /
Start-ups / Animation / Gaming / Computer
Graphics as certified by the IT & BT Department of
GOK/GOI, Drug Mfg. Units, Garment Mfg. Units,
Tyre retreading units, Nuclear Power Projects,
Stadiums maintained by Government and local
bodies, also Railway Traction, Effluent treatment
plants and Drainage water treatment plants owned
other then by the local bodies, LPG bottling plants,
HT-2(a)(i) : Applicable to Areas under Bruhat
Bangalore Mahanagara Palike (BBMP) and Municipal
Corporation.






Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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TARIFF SCHEDULE HT-2(b)

Applicable to Commercial Complexes, Cinemas,
Hotels, Boarding & Lodging, Amusement Parks,
Telephone Exchanges, Race Course, All Clubs,
T.V.Station, All India Radio, Railway Stations, Air
Port, KSRTC bus stations, all offices, Banks,
Commercial Multi-storied buildings, APMC Yards,
Stadiums other than those maintained by
Government and Local Bodies, Construction power
for irrigation, Power Projects and Konkan Railway
Project, Petrol / Diesel and Oil storage plants,
I.T.based medical transcription centers, telecom,
call centers /BPO / KPO.
RATE SCHEDULE
HT-2(B)(I): Applicable to Areas under Bruhat
Bangalore Mahanagara Palike (BBMP) and Municipal
Corporation,




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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HT-2(b)(ii): Applicable to Areas other than those
covered under HT-2(b)(i)

6. There is no dispute of facts that the petitioner’s
industry is a cement concrete mixing unit. It mixes sand,
cement, granite and water with certain additives providing
a ready mixture for the construction of buildings upon the
orders placed by the customers as per their requirements.
As against the broad description of the Tariff Schedule HT–
2(a) quoted above including “Industries, Factories,
Workshops etc” the Tariff Schedule given in HT-2(b) is
restricted to commercial activities in “Commercial




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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Complexes, Cinemas, Hotels, Boarding and Lodging,
Amusement Parks, Clubs, T.V. Station etc.”. the activity
which the petitioner carries on cannot, by any stretch of
imagination, fall under HT-2(b) category dealing with
purely commercial activities and service activities like
Cinemas, Hotels, Amusement Parks, Clubs etc. There is
absolutely no justification for giving a restrictive meaning
to the terms “Industries, Factories, and Workshops etc”
employed in HT 2(a) Tariff Schedule category. Only a
perverse and pedantic approach for them could perhaps
take out the petitioner’s industrial activities in to HT-2(b)
category. Therefore cannot be a water tight compartment
between the Industry and Commerce. Whatever an
industry manufactures has to be sold also and therefore
commercial activity to that extent will be necessarily an
integral part of the industry itself. If a commercial activity
is an integral part of the industry, without any exception
carved out by the respondent-BESCOM itself or KERC, one




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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fails to understand what prompted the AEE to take out the
petitioner’s activity from out of HT-2(a) Tariff Schedule
and place it under HT-2(b) Tariff Schedule. No such
reasons have been assigned by him except saying that it is
a commercial activity.

7. By no common understanding or well-known
connotations of these terms employed in these two Tariff
Schedules, the petitioner’s industrial activity could be said
to be falling outside the scope of HT-2(a) Tariff Schedule.
The words ‘Industries and Factories’ employed in HT-2(a)
Tariff Schedule is not restricted to only those units carrying
out the manufacturing activity in a narrow or limited sense
as the respondent-AEE would want it to be. A new
commercial article is being produced in the present case
also. Concrete mixer by mixing cement, granite, water
and additives, so as trader and common man understands,
there is definitely a manufacturing activity involved and




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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thus why it should not be an ‘industry’ and there is no
reason to hold it to be not so.

8. The so-called reasons assigned by the AEE in the
impugned order are those not only against the clear and
common understanding of these terms, but is also contrary
to the stand taken by the respondent-BESCOM itself when
they approached the KERC for a clarification and approval
of their tariff for the concrete mixing unit to fall under the
LT5/HT-2(a) category. Thus, the stand of the respondent-
AEE is contrary to the stand taken by the Institution itself
to which he belongs. Such a contrary stand cannot
therefore be permitted to be taken by the said authority.
A large number of industrial and commercial activities are
included in the Tariff Schedule in HT-2(a) category
published by the respondent-BESCOM itself and units like
Bio Technical Laboratory, Stone Crushers, Film Studios,
Dubbing Theatres, Information Technology Industries,
Gaming and Computer Graphics etc. have been included in




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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the said Tariff Schedule HT-2(a) by the respondent-
BESCOM and where such broad categories of industrial and
commercial units have been included in HT-2(a) category
providing for them a marginally concessional rate, the
impugned charging of a higher rate under category HT-
2(b) as indicated above, included only purely commercial
and service providing units like Amusement Parks, Clubs,
Hotels, Cinemas etc. is an order perverse to its core and
therefore such order cannot be sustained in law.

9. The plea of alternative remedy available to the
petitioner-Company before the respondent-BESCOM is too
weak to be entertained in such cases. As of now, even the
KERC, where the respondent-BESCOM had approached for
Tariff approval on the lines indicated above are in favour of
the petitioner unit and which has not been decided by the
KERC itself. It cannot be expected that the departmental
authorities like the Superintending Engineer before whom
an appeal lies under Section 127 of the Electricity Act,




Date of order : 28.11.2016 in
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Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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2003 as contended by the learned counsel for the
respondent also would have expeditiously decided such an
appeal leaving the petitioner in a lurch and subjecting him
to the higher tariff rates unnecessarily in the meanwhile.
Even otherwise, the availability of alternative remedy
under the concerned statute is not a bar of jurisdiction to
be exercised by this Court under Article 226 of the
Constitution of India. It is only rule of discretion to be
exercised by the Court in the facts of each case.

10. In the present case, this Court is satisfied and
convinced that there is no need to relegate the petitioner-
Company back to the alternative remedy, as this Court has
come to the conclusion that the impugned order passed by
the AEE has no justifiable foundation to stand and
therefore deserves to be quashed.

11. Accordingly, WP No.44405/2016 is allowed and the
impugned order at Annexure-C dated 22.07.2016 is




Date of order : 28.11.2016 in
WP No.44405/2016 c/w WP No.15128/2016(GM-KEB)
Vishwas Concrete Products Private Limited
Vs. Bangalore Electricity Supply Company Ltd
& another

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quashed and it is held that the petitioner’s cement
concrete mixing unit falls under HT-2(a) category of tariff
published by the respondent-BESCOM and is entitled to
and is liable to pay the tariff rates prescribed under HT-
2(a) category only at concessional rates.
For the reasons indicated above, WP No.15128/2016
is also allowed and the impugned order Annexure-K dated
24.11.2015 is quashed.
No order as to costs.


Sd/-
JUDGE















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