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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 29TH DAY OF SEPTEMBER, 2022

BEFORE

THE HON'BLE MS. JUSTICE JYOTI MULIMANI

WRIT PETITION No.8593 OF 2020 (GM-KEB)

BETWEEN:

NEXGEN CONCRETE SOLUTIONS,

READY MIX CONCRETE,
SY.NO.28, BEHIND VIBGYOR SCHOOL,
KATMATMNALLUR GATE,
VIGRO NAGAR POST,
WHITEFILED, BANGALORE - 560 049.

AUTHORIZED REPRESENTATIVE,
SRI Y.ANSARBASHA,
S/O Y.ABDUL JAMEL,
AGED ABOUT 38 YEARS,
R/AT NEAR GANGANGAMMA GUDI,
HOSAKOTE TOWN,
BANGALORE RURAL DISTRICT. ... PETITIONER

(BY SRI H.M.MANJESH, ADVOCATE)

AND:

1. STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPARTMENT OF ENERGY,
M.S.BUILDING, DR.AMBEDKAR ROAD,
BANGALORE - 560 001.

2. THE EXECUTIVE ENGINEER,

BESCOM, HOSKOTE DIVISION,
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HOSAKOTE CIRCLE,
BANGALORE RURAL DISTRICT - 562 114.

3. THE ASSISTANT EXECUTIVE ENGINEER,

BESCOM, AVALALLI SUB DIVISION,
HOSAKOTE DIVISION,
BANGALORE RURAL DISTRICT - 562 114.

4. THE ASSISTANT EXECUTIVE ENGINEER,

BESCOM VIGILANCE HOSKOTE POLICE STATION,
NO.250, 1ST MAIN ROAD, HIG A SECTOR,
YALAHANKA TOWN,
BANGALORE - 560 064.
... RESPONDENTS

(BY SMT.JYOTI BHAT, HCGP FOR R1;

SRI H.V.DEVARAJU, ADVOCATE FOR R2 TO R4)

THIS WRIT PETITION IS FILED UNDER ARTICLES

226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.

THIS WRIT PETITION COMING ON FOR HEARING,

THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

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.

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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

07.06.2014 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

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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

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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 23.03.2020 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/- (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 17.04.2020 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/- (Rupees Four

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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 11.04.2017 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 18.03.2020

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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.

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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 11.04.2017 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 Section 135(1)(e) of

the Electricity Act, 2003 is wholly untenable.

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I have carefully perused the Provisional order and

the Final order which are produced at Annexures-J & 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 11.04.2017, ought to have sought

explanation from Assistant Executive Engineer (O & 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/-

(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/- (Rupees Four Lakh Seventy Three Thousand

One Hundred and Nine only) within 30 days.

In my considered opinion, both the Assistant

Executive Engineer (O & M) and the Assistant Executive

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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/- (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

dated:23.03.2020 in No.¨ÉeÁzÀ/ºÉÆ/£ÉÆÃn¸ï passed by the

Assistant Executive Engineer (V), BESCOM, Hosakote vide

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Annexure-J and the order dated:17.04.2020 in

No.¨ÉeÁzÀ/ºÉÆ/C-DzÉñÀ/02/2020 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.

Sd/-
JUDGE
TKN