Full Judgment Text
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 26 DAY OF FEBRUARY, 2020
BEFORE
THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NOS.6239-6243 OF 2018 (GM-KEB)
&
WRIT PETITION NOS.6270-6274 OF 2018 (GM-KEB)
BETWEEN
1. MANIPAL ACADEMY OF HIGHER EDUCATION,
FORMERLY KNOWN AS MANIPAL UNIVERSITY
MANIPAL EDU BUILDING,
MANIPAL – 576104,
REPSRESENTED BY ITS REGISTRAR.
2. T.M.A. PAI HOSPITAL AND RESEARCH CENTER/
KASTURBA MEDICAL COLLEGE HOSPITAL, ATTAVAR,
MANGALORE – 575001,
REPRESENTED BY ITS DEAN.
3. MANIPAL COLLEGE OF DENTAL SCIENCES,
ATTAVAR, MANGALORE,
REPRESENTED BY ITS DEAN.
4. MANIPAL SCHOOL,
ATTAVAR,
MANGALORE - 575001.
REPRESENTED BY ITS PRINCIPAL. … PETITIONERS
(BY SRI. MANMOHAN P.N, ADVOCATE)
AND
1. MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED,
PARADIGM PLAZA, NEAR A.B. SHETTY CIRCLE,
MANGALORE – 575001,
REPSRESENTED BY ITS EXECUTIVE ENGINEER.
2. THE SUPERINTENDING ENGINEER,
ELECTRICAL O & M CIRCLE,
POST BOX NO.240, ATTAVAR,
MANGALORE - 575001.
2
3. ASSISTANT EXECUTIVE ENGINEER (V),
MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED,
SUB-DIVISION-1, ATTAVAR,
MANGALORE - 575001.
4. DIRECTOR (TECHNICAL),
REVENUE APPLLATE AUTHORITY ,
CHAMUNDESHWARI ELECTRICITY SUPPLY COMPANY,
CORPORATE OFFICE, NO.29,
VIJAYANAGAR 2ND STAGE, HINKAL,
MYSURU - 570017. … RESPONDENTS
(BY SRI. H.V. DEVARAJU, ADVOCATE FOR R1-R3;
BY SRI. S. SRIRANGA, ADVOCATE FOR R4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE PROVISIONAL ORDER DATED 27.12.2013 ISSUED BY R-3
VIDE ANNEX-E AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
First petitioner is “deemed to be a University” under the
provisions of The University Grants Commission Act, 1956;
the petitioner Nos. 2, 3 & 4 are the institutions established &
administered by the first petitioner; all they are knocking at
the doors of Writ Court for assailing the orders dated
27.12.2013, 05.03.2014 & 06.02.2018 made by the
answering respondents herein; the net effect of these orders is
that the petitioners are required to pay the back billing
3
charges for the alleged “unauthorized use of electricity”, in a
sum of Rupees Two Crore plus.
2. After service of notice, the respondents have
entered appearance through their Panel Counsel who
vehemently resists the writ petitions making submission in
justification of the impugned orders.
3. Brief facts of the case:
a) petitioners are a registered consumer of power supply
in HT-22 which they obtained vide application dated
16.10.1998 at Annexure-R1 to the Statement of Objections;
the additional power supply that was sought for vide
application dated 25.02.2005 came to be sanctioned vide
order dated 10.06.2005 at Annexure-R3; the sanction order
specifically mentions about the requirement of power for “the
Hospital ” in the “ Existing Building ”; it was specifically
assured to the respondent-MESCOM from the side of the
petitioners vide letter dated 14.08.2006 at Annexure-R4 “ we
will not extend the power supply HT-64 to New Dental
College Building ” ;
(b) the respondent-MESCOM vide script dated
15.02.2010 made on the petitioner’s application dated
4
10.02.2010 at Annexure-R5 to the Statement of Objections
had specifically endorsed “ Power supply required for
Existing Building without addition to Plinth”; the sketch
of the subject premises at Annexure-R8 prima facie shows
that it is a vast area, in which are brought up; several
structures; the respondent-MESCOM officials in the spot
inspection of 09.12.2013 discovered that the petitioners had
on their own unilaterally carried the power supply through
their own cables to other buildings without authorization and
having submitted the Inspection Report dated 09.12.2013 to
the Vigilance disconnected the power supply; since it was a
case of unauthorized use of electricity, the MESCOM made a
back billing vide Notice dated 27.12.2013 in a sum of
Rs.2,10,52,365/- petitioner’s appeal against the same having
been negatived, these writ petitions are presented.
4. Having heard the learned counsel for the parties
and having perused the petition papers, this Court declines to
grant indulgence in the matter for the following reasons:
(a) the original HT power supply to the building in
question and subsequent enhancement of power quantum are
not in dispute; it is also not in dispute that the petitioners
have carried the power supply to other structures by their
5
own cable arrangement without permission; however the
petitioners contend that such arrangement does not require
any prior permission of or notice to the MESCOM, since all
structures do exist in the very same premises comprised in
the undisputed sketch at Annexure-R8 to the Statement of
Objections; the said contention cannot be countenanced,
because the power supply was “purpose & building specific”
and it was not a wholesale supply to the premises as such
and all structures erected therein;
(b) petitioners application for power supply and for
enhanced power quantum were also “purpose specific &
building specific”; the sanction orders in so many words had
stated the same; this apart, petitioners had specifically
assured to the MESCOM that the power supply would be for
the “ existing building without addition to plinth ”;
undertaken “ we will not extend the Power Supply HT 64
to New Dental College Building ”; but for this assurance
undertaken, the MESCOM would not have sanctioned
enhancement of power supply; therefore petitioners would
not have tapped the power from the building to which it was
sanctioned to other structures in the premises; they are
6
estopped from contending to the contrary; in fact, a
contention to the contrary is unconscionable, to say the least;
(c) the contention of the petitioners that paragraph
42.05 in “Conditions of Supply of Electricity of Distribution
Licensees in the State of Karnataka” authorizes them to
carry/draw the sanctioned power to all other structures in
the premises, cannot be countenanced without making
violence to the text & context of the said paragraph which the
petitioners themselves have reproduced in the writ petition; it
reads as under:
“42.05. Unauthorised Extension of Supply
(Applicable to both HT and LT installations)
If at any time, energy supplied to a
Consumer/premises is found extended
unauthorisedly 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…”
(d) the contention of the petitioners that, this
paragraph 42.05 employs the expression “person/premises”
and therefore once power is sanctioned to the “premises” the
consumer can carry the same to the other structures that
exist in the said premises, is bereft of legal force; firstly, the
7
power is not sanctioned to the premises at all and it is
sanctioned only to the “Existing Building without addition
to Plinth”; petitioners had also undertaken that they would
not use the power to the new buildings; the Dictionary Clause
of the supply Conditions vide paragraph 2.53 defines
“PREMISES” to include any land, building or structure; as
already stated, the power is sanctioned to the building and
not to the premises; if the supply was sanctioned to the
‘premises’, perhaps it would have been a different matter; ‘x’
includes ‘a’, ‘b’ & ‘c’, does not mean ‘b’ is equal to ‘x’, going by
sheer logic; thus, the inclusive definition of the ‘premises’
does not come to the aid of petitioners;
(e) the next contention of the petitioners that the word
‘person’ is defined under paragraph 2.48 of the conditions to
include “any company, body corporate or association or body
of individuals or artificial judicial person,” too does not come
to the help of petitioners in any way; this definition only
indicates that the registered consumer can be any one of
these; it cannot be stretched too far lest its over inclusiveness
should breed a lot of mischief; once the power is sanctioned
in the name of a person, he becomes the registered consumer
for the purpose of levy and other responsibilities; obviously,
8
the power sanction order specifies the structure/building
belonging to him; by no stretch of imagination the above
definition can be so widely construed as to enable him to
carry the sanctioned power to other buildings belonging to
him, even when such buildings exist in the very same
premises/area;
(f) the next contention of the petitioners that the
paragraph 42.05 has been subsequently amended wherein
no separate permission is necessary if the sanctioned power
to a building is carried to tenanted premises and therefore the
very registered consumer carrying the power to other
structures too does not require permission, too does not
impress the court; the tenancy spoken of in the amendment
should be in respect of the very building which is or any part
thereof is leased out; it does not cover the tenanted structures
that are not part of the building to which power is sanctioned;
this apart, under the amendment no permission is necessary
only if the registered consumer has installed in the tenanted
premises the “meter approved by the supplier” and not
otherwise; in view of this the decision dated 23.07.2019
made by a Co-ordinate Bench of this Court in M/s. EUREKA
FORBES LTD., -vs- BESCOM in W.P.No.45093/2015 (GM-
9
KEB) does not come to the aid of petitioners, fact matrix of
this case being essentially different;
(g) the next contention of the petitioners that the back
billing cannot go too much back, twelve months being the
reverse limit, computed from the date of inspection, is again
bit difficult to countenance; the second part of Paragraph
42.05 of the Supply Conditions which the petitioners
themselves have reproduced, reads as under:
“… 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 placed cannot be ascertained, such period
shall be limited to a period of 12 months
immediately preceding the date of inspection.”
the text of above paragraph conditionally speaks of twelve
months limit is true; but it is only when the Assessing Officer
is unable to ascertain the period during which the
unauthorized use of electricity took place; however, when
such period is ascertainable, there is no limit for travelling
back; an argument to the contrary cannot be sustained
without re-writing this paragraph; the subject Supply
10
Conditions have statutory flavour if not force; in the guise of
interpretation, this Court cannot re-write the same;
(h) the last contention of the petitioners that there is
absolutely no material for the Assessing Officer to hold that
the power is unauthorisedly used from August 2006 to
December 2013, again does not merit acceptance; when the
new structures were erected by the petitioners is a fact lying
especially within their knowledge and therefore they ought to
have produced the material for showing when the structures
in respect of which unauthorized use of power is alleged were
built; it is the petitioners who have custody of sanctioned
plan of the structure, building license and such other
material; the petitioners are not the persons from rural areas,
depressed classes or otherwise disabled; they are a reputed
‘Deemed to be University’ and the famous institutions run by
it; several Law Reports bear testimony to this; therefore, they
cannot seek refuge under the leaking umbrella of benefit of
doubt; this apart, the MESCOM officials, in original and in
appeal proceedings have recorded concurrent findings of fact
after giving full opportunity of hearing to the petitioners;
Writ Court ordinarily will not undertake a deeper
examination of these findings, as if it is a Court of Appeal.
11
In the above circumstances, these writ petitions being
devoid of merits are dismissed. However, the existing power
supply shall not be discontinued if the petitioners pay the
demand in question including all and whatever interest or
other levy accruing due thereon, if any, within a period of two
weeks.
Costs made easy.
Sd/-
JUDGE
CBC
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 26 DAY OF FEBRUARY, 2020
BEFORE
THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NOS.6239-6243 OF 2018 (GM-KEB)
&
WRIT PETITION NOS.6270-6274 OF 2018 (GM-KEB)
BETWEEN
1. MANIPAL ACADEMY OF HIGHER EDUCATION,
FORMERLY KNOWN AS MANIPAL UNIVERSITY
MANIPAL EDU BUILDING,
MANIPAL – 576104,
REPSRESENTED BY ITS REGISTRAR.
2. T.M.A. PAI HOSPITAL AND RESEARCH CENTER/
KASTURBA MEDICAL COLLEGE HOSPITAL, ATTAVAR,
MANGALORE – 575001,
REPRESENTED BY ITS DEAN.
3. MANIPAL COLLEGE OF DENTAL SCIENCES,
ATTAVAR, MANGALORE,
REPRESENTED BY ITS DEAN.
4. MANIPAL SCHOOL,
ATTAVAR,
MANGALORE - 575001.
REPRESENTED BY ITS PRINCIPAL. … PETITIONERS
(BY SRI. MANMOHAN P.N, ADVOCATE)
AND
1. MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED,
PARADIGM PLAZA, NEAR A.B. SHETTY CIRCLE,
MANGALORE – 575001,
REPSRESENTED BY ITS EXECUTIVE ENGINEER.
2. THE SUPERINTENDING ENGINEER,
ELECTRICAL O & M CIRCLE,
POST BOX NO.240, ATTAVAR,
MANGALORE - 575001.
2
3. ASSISTANT EXECUTIVE ENGINEER (V),
MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED,
SUB-DIVISION-1, ATTAVAR,
MANGALORE - 575001.
4. DIRECTOR (TECHNICAL),
REVENUE APPLLATE AUTHORITY ,
CHAMUNDESHWARI ELECTRICITY SUPPLY COMPANY,
CORPORATE OFFICE, NO.29,
VIJAYANAGAR 2ND STAGE, HINKAL,
MYSURU - 570017. … RESPONDENTS
(BY SRI. H.V. DEVARAJU, ADVOCATE FOR R1-R3;
BY SRI. S. SRIRANGA, ADVOCATE FOR R4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE PROVISIONAL ORDER DATED 27.12.2013 ISSUED BY R-3
VIDE ANNEX-E AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
First petitioner is “deemed to be a University” under the
provisions of The University Grants Commission Act, 1956;
the petitioner Nos. 2, 3 & 4 are the institutions established &
administered by the first petitioner; all they are knocking at
the doors of Writ Court for assailing the orders dated
27.12.2013, 05.03.2014 & 06.02.2018 made by the
answering respondents herein; the net effect of these orders is
that the petitioners are required to pay the back billing
3
charges for the alleged “unauthorized use of electricity”, in a
sum of Rupees Two Crore plus.
2. After service of notice, the respondents have
entered appearance through their Panel Counsel who
vehemently resists the writ petitions making submission in
justification of the impugned orders.
3. Brief facts of the case:
a) petitioners are a registered consumer of power supply
in HT-22 which they obtained vide application dated
16.10.1998 at Annexure-R1 to the Statement of Objections;
the additional power supply that was sought for vide
application dated 25.02.2005 came to be sanctioned vide
order dated 10.06.2005 at Annexure-R3; the sanction order
specifically mentions about the requirement of power for “the
Hospital ” in the “ Existing Building ”; it was specifically
assured to the respondent-MESCOM from the side of the
petitioners vide letter dated 14.08.2006 at Annexure-R4 “ we
will not extend the power supply HT-64 to New Dental
College Building ” ;
(b) the respondent-MESCOM vide script dated
15.02.2010 made on the petitioner’s application dated
4
10.02.2010 at Annexure-R5 to the Statement of Objections
had specifically endorsed “ Power supply required for
Existing Building without addition to Plinth”; the sketch
of the subject premises at Annexure-R8 prima facie shows
that it is a vast area, in which are brought up; several
structures; the respondent-MESCOM officials in the spot
inspection of 09.12.2013 discovered that the petitioners had
on their own unilaterally carried the power supply through
their own cables to other buildings without authorization and
having submitted the Inspection Report dated 09.12.2013 to
the Vigilance disconnected the power supply; since it was a
case of unauthorized use of electricity, the MESCOM made a
back billing vide Notice dated 27.12.2013 in a sum of
Rs.2,10,52,365/- petitioner’s appeal against the same having
been negatived, these writ petitions are presented.
4. Having heard the learned counsel for the parties
and having perused the petition papers, this Court declines to
grant indulgence in the matter for the following reasons:
(a) the original HT power supply to the building in
question and subsequent enhancement of power quantum are
not in dispute; it is also not in dispute that the petitioners
have carried the power supply to other structures by their
5
own cable arrangement without permission; however the
petitioners contend that such arrangement does not require
any prior permission of or notice to the MESCOM, since all
structures do exist in the very same premises comprised in
the undisputed sketch at Annexure-R8 to the Statement of
Objections; the said contention cannot be countenanced,
because the power supply was “purpose & building specific”
and it was not a wholesale supply to the premises as such
and all structures erected therein;
(b) petitioners application for power supply and for
enhanced power quantum were also “purpose specific &
building specific”; the sanction orders in so many words had
stated the same; this apart, petitioners had specifically
assured to the MESCOM that the power supply would be for
the “ existing building without addition to plinth ”;
undertaken “ we will not extend the Power Supply HT 64
to New Dental College Building ”; but for this assurance
undertaken, the MESCOM would not have sanctioned
enhancement of power supply; therefore petitioners would
not have tapped the power from the building to which it was
sanctioned to other structures in the premises; they are
6
estopped from contending to the contrary; in fact, a
contention to the contrary is unconscionable, to say the least;
(c) the contention of the petitioners that paragraph
42.05 in “Conditions of Supply of Electricity of Distribution
Licensees in the State of Karnataka” authorizes them to
carry/draw the sanctioned power to all other structures in
the premises, cannot be countenanced without making
violence to the text & context of the said paragraph which the
petitioners themselves have reproduced in the writ petition; it
reads as under:
“42.05. Unauthorised Extension of Supply
(Applicable to both HT and LT installations)
If at any time, energy supplied to a
Consumer/premises is found extended
unauthorisedly 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…”
(d) the contention of the petitioners that, this
paragraph 42.05 employs the expression “person/premises”
and therefore once power is sanctioned to the “premises” the
consumer can carry the same to the other structures that
exist in the said premises, is bereft of legal force; firstly, the
7
power is not sanctioned to the premises at all and it is
sanctioned only to the “Existing Building without addition
to Plinth”; petitioners had also undertaken that they would
not use the power to the new buildings; the Dictionary Clause
of the supply Conditions vide paragraph 2.53 defines
“PREMISES” to include any land, building or structure; as
already stated, the power is sanctioned to the building and
not to the premises; if the supply was sanctioned to the
‘premises’, perhaps it would have been a different matter; ‘x’
includes ‘a’, ‘b’ & ‘c’, does not mean ‘b’ is equal to ‘x’, going by
sheer logic; thus, the inclusive definition of the ‘premises’
does not come to the aid of petitioners;
(e) the next contention of the petitioners that the word
‘person’ is defined under paragraph 2.48 of the conditions to
include “any company, body corporate or association or body
of individuals or artificial judicial person,” too does not come
to the help of petitioners in any way; this definition only
indicates that the registered consumer can be any one of
these; it cannot be stretched too far lest its over inclusiveness
should breed a lot of mischief; once the power is sanctioned
in the name of a person, he becomes the registered consumer
for the purpose of levy and other responsibilities; obviously,
8
the power sanction order specifies the structure/building
belonging to him; by no stretch of imagination the above
definition can be so widely construed as to enable him to
carry the sanctioned power to other buildings belonging to
him, even when such buildings exist in the very same
premises/area;
(f) the next contention of the petitioners that the
paragraph 42.05 has been subsequently amended wherein
no separate permission is necessary if the sanctioned power
to a building is carried to tenanted premises and therefore the
very registered consumer carrying the power to other
structures too does not require permission, too does not
impress the court; the tenancy spoken of in the amendment
should be in respect of the very building which is or any part
thereof is leased out; it does not cover the tenanted structures
that are not part of the building to which power is sanctioned;
this apart, under the amendment no permission is necessary
only if the registered consumer has installed in the tenanted
premises the “meter approved by the supplier” and not
otherwise; in view of this the decision dated 23.07.2019
made by a Co-ordinate Bench of this Court in M/s. EUREKA
FORBES LTD., -vs- BESCOM in W.P.No.45093/2015 (GM-
9
KEB) does not come to the aid of petitioners, fact matrix of
this case being essentially different;
(g) the next contention of the petitioners that the back
billing cannot go too much back, twelve months being the
reverse limit, computed from the date of inspection, is again
bit difficult to countenance; the second part of Paragraph
42.05 of the Supply Conditions which the petitioners
themselves have reproduced, reads as under:
“… 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 placed cannot be ascertained, such period
shall be limited to a period of 12 months
immediately preceding the date of inspection.”
the text of above paragraph conditionally speaks of twelve
months limit is true; but it is only when the Assessing Officer
is unable to ascertain the period during which the
unauthorized use of electricity took place; however, when
such period is ascertainable, there is no limit for travelling
back; an argument to the contrary cannot be sustained
without re-writing this paragraph; the subject Supply
10
Conditions have statutory flavour if not force; in the guise of
interpretation, this Court cannot re-write the same;
(h) the last contention of the petitioners that there is
absolutely no material for the Assessing Officer to hold that
the power is unauthorisedly used from August 2006 to
December 2013, again does not merit acceptance; when the
new structures were erected by the petitioners is a fact lying
especially within their knowledge and therefore they ought to
have produced the material for showing when the structures
in respect of which unauthorized use of power is alleged were
built; it is the petitioners who have custody of sanctioned
plan of the structure, building license and such other
material; the petitioners are not the persons from rural areas,
depressed classes or otherwise disabled; they are a reputed
‘Deemed to be University’ and the famous institutions run by
it; several Law Reports bear testimony to this; therefore, they
cannot seek refuge under the leaking umbrella of benefit of
doubt; this apart, the MESCOM officials, in original and in
appeal proceedings have recorded concurrent findings of fact
after giving full opportunity of hearing to the petitioners;
Writ Court ordinarily will not undertake a deeper
examination of these findings, as if it is a Court of Appeal.
11
In the above circumstances, these writ petitions being
devoid of merits are dismissed. However, the existing power
supply shall not be discontinued if the petitioners pay the
demand in question including all and whatever interest or
other levy accruing due thereon, if any, within a period of two
weeks.
Costs made easy.
Sd/-
JUDGE
CBC