Karnataka High Court
Mrs Veena Shantharam Prabhu vs The Ombudsman on 16 April, 2025
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL 2025
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
WRIT PETITION NO.5570 OF 2021 (GM-KEB)
BETWEEN
MRS. VEENA SHANTHARAM PRABHU
AGED ABOUT 53 YEARS
W/O. MR. SHANTHARAM RAMDAS PRABHU,
R/AT NARASIMHA KRUPA,
B/403, MAURISHKA PARK,
OPP. SHARADA VIDYALAYA,
NEAR NAVABHARATA CIRCLE,
KODIALBAIL, MANGALORE 03.
...PETITIONER
(BY SRI. VITTAL B R, ADVOCATE)
AND:
1. THE OMBUDSMAN
KARNATAKA ELECTRICITY
REGULATORY COMMISSON,
NO. 16C-1, KAVERAPPA LAYOUT,
TANK BED AREA, VASANTH NAGAR,
BENGALURU 560052.
2. EXECUTIVE ENGINEER
MESCOM (O AND M) DIVISION ATTAVAR,
MANGALORE - 575 001.
3. ASSISTANT EXECUTIVE ENGINEER
MANNAGUDDA SUB DIVISION,
MESCOM, MANGALORE -575 003.
4. MAURISHKA PARK APARTMENT
OWNERS ASSOCIATION
2
MAURISHKA PARK APARTMENT
OPP. SHARADA VIDYALAYA
NEAR NAVABHARATA CIRCLE
KODIALBAIL, MANGALORE - 3
REPRESENTED BY ITS PRESEIDENT
MR. K. DAYANANDA RAI.
...RESPONDENTS
(By SRI.H.V. DEVARAJU, ADVOCATE FOR R2 & R3;
SRI. VIJAYA KRISHNA BHAT M, ADVOCATE FOR R4;
NOTICE TO R1 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER IN CASE NO.
OMB/M/G-394/2020 DATED 31.08.2020 OF
RESPONDENT-1 AS IN ANNEXURE-B WHEREIN
OMBUDSMAN HAS NOT INTERFERED WITH ORDER OF
CGRP STATING THAT THE TRANSFER IS EFFECTED AS
PER KERC; DIRECTION TO RESPONDENT NO. 2 & 3 TO
CANCEL THE EFFECTED NAME TRANSFER IN THE
YEAR 2018 MAURISHKA PARK APARTMENT OWNERS
ASSOCIATION AND RESTORE THE SAME TO THE
ORIGINAL CONSUMER.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED AND COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD
3
CAV ORDER
The petitioner has impugned the first
respondent's Order dated 31.08.2020 in Case No.
OMB/M/G-394/2020/D-1470 [Annexure-B] while
seeking directions to the Executive Engineer and the
Assistant Executive Engineer, Mangalore Electricity
Supply Company [MESCOM], who are arrayed as the
second and third respondents, to cancel the transfer
of High Tension [HT] connection in MGHT-47 in
favour of the fourth respondent, an Association of the
owners of the apartments in the complex called
Maurishka Park Condominium, Near Nava Bharata
Circle, Kodiyalbail, Mangalore.
2. The petitioner is the owner of the
Apartment No. B-403, and she has purchased this
apartment from the Builder, M/s R K Developers and
Builders, a partnership firm which is represented by
its Managing Partner, Sri. Ramesh Kumar, under the
Sale Deed dated 24.10.2008. The Developer, on
4
16.03.2007, has caused a Deed of Declaration, as
contemplated under the Karnataka Apartment
Ownership Act, 1972, [referred to as the 'Karnataka
Apartment Ownership Act'] in the name of an
association called Maurishka Park Condominium. In
the year 2014, after the initial sanction of the Low
Tension [LT] connection of 1659 KW, the Developer
has got the sanction of a HT connection [in MGHT-
47] for 400 KVA in the name of its Managing Partner.
In June 2018, the Developer, as the Consumer of
MESCOM has issued No-objection Certificate [NOC],
for transfer of the subject HT connection to the fourth
respondent.
3. The fourth respondent, after the
resolution in the general body, has applied with
MESCOM for transfer of this HT Connection
enclosing NOC signed by Sri Ramesh Kumar [the
Managing Partner of the Developer], a Fresh
Agreement and an Indemnity bond. The Assistant
Executive Engineer, MESCOM [the third respondent],
5
upon verification of these documents, has
recommended transfer, and the Executive Engineer
[the second respondent] has issued Work Order dated
28.07.2018 for transfer of the HT Connection to the
fourth Respondent. The petitioner has filed a
complaint with the second respondent complaining
about illegal disconnection of electricity to her
apartment, and the second respondent by the
Communication dated 16.10.2018 has informed the
petitioner that the fourth respondent is the
Registered Consumer and that it is not responsible for
any disconnection.
4. The petitioner, with this Communication
dated 16.10.2018, has applied with Consumer
Grievance Redressal Forum, Mangalore [the
Grievance Redressal Forum] against the MESCOM
authorities under the provisions of the Karnataka
Electricity Regulation Commission [the Consumer
Grievance Redressal Forum and Ombudsman]
Regulations, 2004 [the KERC Regulations, 2004]. The
6
petitioner has complained about the transfer of the
HT Connection in favour of the fourth respondent.
5. The Grievance Redressal Forum, by its
order dated 07.02.2020, has rejected the petitioner's
complaint inter alia because the Consumer [the
Developer] and the Transferee [the Apartments'
Owners' Association - the Fourth Respondent] are not
parties. The petitioner has filed her appeal against
this Order dated 07.02.2020 with the first respondent
under Regulation 21.2 of the KERC Regulations
2004. The petitioner in the appeal with the first
respondent has contended that the Consumer
Grievance Forum has failed to consider that:
[i] the fourth respondent is not a
Cooperative society registered with the
Registrar of Cooperative Societies as is
required under the provisions of the
Karnataka Apartment Ownership Act,
[ii] the transfer of the HT connection in
MGHT-47 in favour of the fourth
7
respondent violates Regulation 9.10 of
the Conditions of Electricity Supply
Regulations1 as documents in terms of
Regulation 36 thereof are not collected,
[iii] even otherwise, the fourth respondent,
to be a properly constituted Society or an
Association, should be registered under
the Registration Act, 1908 and the stamp
duty paid under the Karnataka Stamp
Act,1957, and
[iv] the petitioner, as the owner of the subject
apartment, will be a consumer with the
MESCOM under the Conditions of Supply
Regulations.
The petitioner has also alleged that there was some
violation of due procedure in the proceedings with the
Consumer Grievance Forum as copies were not
served.
1 These Regulations are called "Conditions of Supply of
Electricity of Distribution Licenses in the State of
Karnataka 2006".
8
6. The first respondent, in the light of the
contentions as aforesaid, has considered whether it
must interfere with the Consumer Grievance
Redressal Forum's order dated 07.02.2020 on the
ground that such order is illegal or perverse. The first
respondent has opined that the Consumer Grievance
Redressal Forum's order does not suffer from any
such infirmity. The first respondent' conclusion in
these regards is based on its opinion that:
[a] the officers of MESCOM cannot go into
the question of legality of the
constitution of the fourth respondent
and if the petitioner has any grievance
with the constitution of the fourth
respondent, such grievance must be
addressed by the competent civil court;
[b] the first respondent has also concluded
that HT connection transferred in
favour of the fourth respondent is
based on the consent of the consumer
9
[the Developer] and upon execution of
Indemnity Bond and Fresh Agreement.
7. As regards the petitioner's reliance upon
Regulation 9.10[b][ii] of Conditions of Electricity
Supply Regulations, the first respondent has opined
that it is clear from the plain reading of this
Regulation that if a Developer does not wish to have
any stake in the complex after completion of the
project, MESCOM can permit transfer of the service
in the name of an Association, or a Society, that is
formed to attend to the maintenance of the apartment
complex with sub-meters but on the condition there
shall be no profit or loss accruing to the society. The
first respondent has also opined that the
disconnection of the electricity cannot be attributed
to the MESCOM and its officers as the HT connection
is transferred in favour of the fourth respondent.
8. The petitioner, during these proceedings,
has filed civil suits, and she is joined by her
husband. The orders of the respective courts in these
10
civil proceedings have been carried in challenge
before this Court in Revision Petitions, and this Court
has disposed of these petitions answering questions
canvassed for consideration. The details of these
proceedings as also another pending suit must be
mentioned before the rival submissions in support of
and against the first respondent's impugned order
dated 31.08.2020. The details are as follows.
A Small Causes suit in SC No. 26/20192 on the
file of the II Additional Senior Civil Judge and
CJM, Mangalore
8.1 The petitioner, joined by her
husband - a co-owner of the subject apartment with
her - has filed this suit for a mandatory injunction
against the fourth respondent's Office bearers to
restore electricity connection for their apartment. The
petitioner and her husband have asserted that the
fourth respondent is formed illegally by a few owners
2 The suit is initially filed in SC No. 4/2018 with another
Court and with this plaint being rejected with liberty to the
petitioner and her husband to re-present, the plaint in SC
No. 4/2018 is re-presented and is assigned the present
number.
11
of the apartments in the complex without complying
with the conditions in the Deed of Declaration
registered under the provisions of the Karnataka
Apartment Ownership Act. However, the first
respondent has applied for rejection of the plaint
under Order VII Rule 11[a] and [d] of the Code of Civil
Procedure, 1908 [CPC].
8.2 The civil Court has allowed the
fourth respondent's application rejecting the plaint,
and the civil Court's order is called in question in the
revision petition in CRP 64/2021. The civil Court's
another order rejecting the petitioner's application
[for restoration of the disconnected electricity to the
petitioner's apartment - IA No. 2] is called in question
in CRP No. 96/2021. This Court has disposed of
both the civil revision petitions by the Common order
dated 08.09.2021 affirming that the civil Court has
rightly rejected the petitioner's suit.
8.3 This Court in CRP No.64/2021 and
CRP No.96/2021 has considered the petitioner's
12
contention that the submission of the apartments to
the provisions of the Karnataka Apartments
Ownership Act is only to ensure marketable and
editable title to the concerned apartments and the
responsibility of maintenance and other aspects are
covered by the Karnataka Ownership Flats
[Regulation of the Promotion of Construction, Sale,
Management and Transfer] Act, 1972 [Karnataka
Ownership of Flats Act], and that the fourth
respondent is not duly constituted because it is not
registered under this latter enactment. This Court
has examined whether the Karnataka Apartment
Ownership Act and the Karnataka Ownership of
Flats Act are mutually exclusive or supplementary
and when an apartment is submitted to the former
Act would the latter apply.
The suit in OS No. 221/2022 on the file of the III
Additional Civil Judge and CJM, Mangaluru.
8.4 The petitioner, and again joined by
her husband, has filed this suit for declaration that
certain clauses in the Deed of Declaration dated
13
16.03.2007 are void, that this Deed of Declaration is
not in accordance with the Karnataka Apartment
Ownership Act and are void ab initio and that the
fourth respondent cannot disconnect electricity to her
apartment. This suit is pending consideration.
8.5 However, the petitioner has filed Ex.
Case No.228/2023 on the file of the III Additional
Civil Judge and JMFC, Mangaluru for breaking open
of the lock of the Electrical Room and Restoration of
electricity supply with the intervention of the
jurisdictional police relying on the civil Court's
interim order on IA No. III directing the fourth
respondent to restore electricity to the apartment.
The Executing Court, on 05.10.2023, has issued
directions for restoration of electricity with the
assistance of an electrician.
8.6 This Court, on 22.09.2023, has
heard the learned counsels for the parties, and when
the petition is listed for final submissions on
29.09.2023, Sri. Vittal B R, the learned counsel for
14
the petitioner, is permitted to file a Memo, to ensure
that there is no precipitation because of certain
orders in the execution proceedings. The learned
counsel and Sri Vijaykrishna M Bhat, the learned
counsel for the fourth respondent, have stated the
following.
[a] The fourth respondent can file an
application for the release of the amount
deposited by the petitioner with the
concerned Court in O.S. No.221/2022
under protest, but on the condition that
there shall be restoration of electricity to
the subject unit forthwith, and the fourth
respondent shall receive such amount
subject to the outcome of the suit and
without prejudice to the petitioner's rights
to claim set off for such amount towards
"future liability towards maintenance".
[b] With the restoration of electricity, the
petitioner will continue to pay future
demands by the fourth respondent
towards maintenance subject to the
outcome of the suit and to claim set off in
that regard for all future maintenance;
15
c) The fourth respondent is willing to restore
electricity forthwith upon the orders of
this Court in that regard, and also make
an application for receipt of the monies in
deposit and to receive the amounts
payable towards future maintenance
subject to the two conditions as
aforesaid.
8.7 These statements have not brought
about quietus on restoration of electricity with the
Executing Court passing orders on 05.10.2023 for
breaking open the Electrical Room and restoration of
electricity to the petitioner's apartment with the
assistance of the jurisdictional police. This Court,
after recording submissions for restoration of
electricity, has deferred the execution of the
executing Court's order while calling for a Report.
8.8 Subsequently, the electricity to the
petitioner's Apartment is restored. The fourth
respondent is reserved with liberty to receive the sum
of Rs.5,32,781/- deposited by the petitioner with the
16
civil Court. On 09.10.2023, the Executing Court has
closed the proceedings on a Memo filed by the
petitioner after the orders of this Court as
aforementioned.
The details of the submission by Sri Vittal B R,
the learned counsel for the petitioner
9. The fourth respondent could have sought
for transfer of the HT connection only if it was
constituted by all the owners of 360 Apartments in
the complex, and that this would be because of
Section 3[d] of the Karnataka Apartment Ownership
Act and as seen from the Law Department's response
[allegedly to a query raised by the Department of Co-
operation]. The fourth respondent is not formed or
registered as contemplated under Regulation 9.10 of
the Conditions of Electricity Supply Regulations.
9.1 In view of the expressions 'formed' and
'registered' as found in Regulation 9.10[b][ii] of the
Conditions of Electricity Supply Regulations and the
definition of a 'consumer' in clause 2.18 of Regulation
17
2 of the aforesaid Regulations the fourth respondent
is 'a service agency' and the petitioner is 'the
consumer' insofar as her Apartment. The power to
disconnect electricity is under Section 56 of the
Electricity Act, 2003 and such power must be
exercised by the MESCOM when a consumer is in
default.
9.2 The MESCOM can transfer
installations/connections according to Regulation 36
of the Conditions of Electricity Supply Regulations
and that this Regulation makes it mandatory for the
transferee to produce proof of ownership and if the
transferee is not an owner, a proper lease deed. In
the present case, because the fourth respondent
claims to be an Association of Apartment owners, it
should have produced a proper Certificate of
Registration, but the fourth respondent has not
produced the same and the second respondent has
transferred the HT connection.
18
The details of the submission of Sri Vijay
Krishna M, the learned counsel for the fourth
respondent:
10. The fourth respondent is constituted as
required under the provisions of the Karnataka
Apartment Ownership Act with the Deed of
Declaration dated 16.03.2007 and that there is no
other mode of registration or certification under this
Act. The learned counsel also submits that MESCOM
cannot decide on the due constitution of the fourth
respondent and therefore has rightly acted upon the
Deed of Declaration and other documents such as the
consent by the developer, the indemnity bond and
other compliances to transfer the HT connection in
favour of the fourth respondent.
10.1 The petitioner, having initially relied
upon the Karnataka Ownership of Flats Act to
undermine the efficacy of the Deed of Declaration in
the suit in SC No.26/2019 and calling in question the
validity of this Deed in OS No. 221/2022, cannot
challenge the merits of the first respondent's order
19
dated 31.08.2020 contending that the fourth
respondent is not duly constituted. As such, all
questions [including whether the fourth respondent
could rely upon the Deed of Declaration to raise
maintenance charges with electricity charges] must be
decided by the concerned Civil Court in the suit in
OS No. 221/2022 based on the decision in CRP
No.64/2021 and CRP No. 96/2021,
10.2 The Regulation 36.01[a] of the
Conditions of Electricity Supply Regulations, which
refers to the title documents and lease deed for the
purposes of transfer of connections, do not apply to the
fourth respondent. The transfer of the HT Connection
in favour of the fourth respondent is under Regulation
9.10 of these Regulations, which contemplate transfer
of connection from a Promoter/Developer. The transfer
of the connection in favour of the fourth respondent is
rightly made under this Regulation with the Developer
providing the Consent/NOC and the fourth respondent
complying with all the requirements.
20
The details of the submission of Sri H V Devaraj,
the learned counsel for MESCOM / its Officers:
11. The learned counsel does not join the
debate on whether the fourth respondent is a duly
constituted Association/ Society under the Karnataka
Apartment Ownership Act but he relies upon the
circumstances in which LT Connection is sanctioned
and later a HT Connection is approved and
transferred to the fourth respondent. The learned
counsel places on record the following details:
On 9.12.2011: The concerned Chief
Engineer sanctioned 1695 KW power under
LT- 2A Tariff upon an application filed by the
Developer for power supply under LT tariff.
On 28.01.2013 & 25.09.2013: The
developer was required to furnish a
Completion Certificate but before that he
submitted his applications to avail HT
Connection.
21
On 16.11.2013: The HT for 400 KVA
connection is sanctioned.
On 05.04.2014: The Developer has
furnished the Completion Certificate.
On 11.04.2015: The HT power is serviced by
Installation bearing RR No. MGHT 47.
The learned counsel next emphasizes the following
on the merits of the decision of sanctioning HT
connection.
11.1 The power sanction as aforesaid is
subject to Regulation 4.02 of the Conditions of
Electricity Supply Regulations which contemplate
providing, "for the power supply to building/premises
either HT or LT or combination of HT and LT through
separate distinct service mains from a single source
with the provision for a common isolation point". The
initial sanction is under Regulation 9 of the
Conditions of Electricity Supply Regulations, and the
request for 400 KVA [which is for 320 KW] is also
considered under Regulation 9 of the Regulations.
22
11.2 The Regulation 9 of the
Regulations3, when read in its entirety along with the
Notes appended, a Consumer must avail HT supply
for load 100 KW and above. The power sanction as
aforesaid is subject to Regulation 4.02 of the
Conditions of Electricity Supply Regulations which
contemplate providing, "for the power supply to
building/premises either HT or LT or combination of
HT and LT through separate distinct service mains
from a single source with the provision for a common
isolation point". Further, the Electricity Tariff 2018 -
Schedule HT- 4 provides for tariff payable by the
Residential Colonies/ Apartments.
This Court's reasoning:
12. The petitioner's case, as canvassed in this
application with the Grievance Redressal Forum is
encapsulated thus.
3 These submissions are both by Sri H V Devaraju and Sri
Vijay Krishna Bhat in response to the clarification sought for
by this Court vide the order dated 06.11.2024
23
[a] The submission of the apartments to the
provisions of the Karnataka Apartments
Ownership Act is only to ensure marketable
title to the concerned apartments and the
responsibility of maintenance and other
aspects are covered by the Karnataka
Ownership of Flats Act, and the fourth
respondent is not duly constituted because it
is not registered under this latter enactment.
[b] The fourth respondent, taking advantage of
the transfer of HT Connection in its name,
has raised unauthorized charges for
electricity as part of the Maintenance
Charges payable by her. The MESCOM has
not raised any Bill, but she has paid to the
fourth respondent electricity charges based
on the average consumption over the relevant
six months and that she is only liable to pay
such amount and not any other amount that
the fourth respondent may claim.
24
[c] As an Apartment Owner she will be the
consumer of such apartment as
contemplated under the provisions Section
43 of the Electricity Act, 2003 [referred to as
'the Electricity Act'] and Regulation 9.10 of
the Conditions of Electricity Supply
Regulations.
12.1 The merits of the petitioner's
grievance against the first respondent's order dated
31.08.2020, in the peculiarities of this case, are
examined as against the touchstone of these
questions:
[i] Whether this Court, with the petitioner
raising question about the due
incorporation of the fourth respondent in
the pending suit in OS No. 221/2022 on
the file of the III Additional Civil Judge
and JMFC, Mangaluru, should render
any finding in that regard or should the
parties be relegated to work out their
remedies in the suit in view of this
25
Court's decision in CRP No.64/2021
connected with CRP No.96/2021.
[ii] Whether the change of the initially
sanctioned LT supply to HT supply is
permissible under the Conditions of
Electricity Supply Regulations, and
whether the first respondent should
have considered this facet.
This Court's reasoning and conclusion on
Question No. 1
13. This Court, in CRP No.64/2021 and CRP
No. 96/2021, has considered the petitioner's
contention that the submission of the apartments to
the provisions of the Karnataka Apartment
Ownership Act is only to ensure marketable title to
the concerned apartments and the responsibility of
maintenance and other aspects are covered by the
Karnataka Ownership of Flats Act, and that the
fourth respondent is not duly constituted because it
is not registered under this latter enactment.
13.1 This Court has considered the
petitioner's aforesaid case in the backdrop of whether
26
the Karnataka Apartment Ownership Act and the
Karnataka Ownership of Flats Act are mutually
exclusive or supplementary, and when an apartment
is submitted to the former Act, would the latter apply.
This Court has summarized its conclusion on the
different questions, including the questions as
aforesaid, as follows:
• The Karnataka Apartment Ownership Act
and the Karnataka Ownership of Flats Act
are not mutually exclusive nor can they be
said to be supplementary to each other
inasmuch as both the enactments cannot
apply at the same time.
• Once an apartment is submitted to the
Karnataka Apartment Ownership Act by
execution of a Declaration and Deed of
Apartment under such Act, the Karnataka
Ownership of Flats Act will not apply. It is
only the provisions of the Karnataka
Apartment Ownership Act, which would
apply.
• Declaration, Deed of Apartment and Bye-
laws in respect of an apartment building or
27
a property can be executed at any point of
time and not necessarily when the
apartment complex is ready or is sold. As
and when the Declaration, Deed of
Apartment and Bye-laws are executed
under the Karnataka Apartment Ownership
Act, the said apartment building and
property would come out of the purview of
the Karnataka Ownership of Flats Act and
be subject to the Karnataka Apartment
Ownership Act.
Admittedly, this Court's opinion has attained finality,
and therefore, every question must be examined in
the light of this opinion.
13.2 The petitioner further contends that
the fourth respondent, taking advantage of the
transfer of HT Connection in its name, has raised
unauthorized charges for electricity as part of the
Maintenance Charges payable by her, that the
MESCOM has not raised any Bill, but she has paid to
the fourth respondent electricity charges based on
the average consumption over the relevant six
28
months and that she is only liable to pay such
amount and not any other amount which the fourth
respondent may claim.
13.3 These are aspects which are rooted
in factual matrix, and the petitioner [joined by her
husband] has sued the fourth respondent in OS No.
221/2022 for declaration that the Deed of
Declaration dated 16.03.2007 is void and for other
relief/s. The fourth respondent relies upon certain
clauses in this Deed of Declaration to assert the right
not just to take care of the maintenance of the
Apartment Complex, but also to raise Bills for
electricity consumption. The petitioner and the fourth
respondent must lead evidence on the true import of
the clauses that are contained in the Deed of
Declaration and a host of other circumstances based
upon which the civil Court will have to decide on the
merits in the light of this Court's exposition in the
revision petitions in CRP Nos. 64/ 2021 and
96/2021.
29
13.4 When the first respondent's opinion
that the Courts must examine whether the fourth
respondent is constituted in accordance with the law,
is thus examined this Court cannot take any
exception, and the petitioner must work out remedies
in such suit. The first question is answered
accordingly, and all questions are left open to be
considered by the Civil Court in OS No. 221/2022
subject to this Court's opinion in CRP Nos. 64/ 2021
and 96/2021.
This Court's reasoning and conclusion on
Question No. 2
14. The Electricity Supply Companies
[ESCOMS], as required under the KERC [Conditions
of Licence to ESCOMS] 2004, have furnished 'Model
Conditions Of Supply Of Electricity' describing the
operating practices and connection policies with the
Commission for approval. The Commission by its
Order dated 02.06.2006 has communicated its
approval for the Conditions of Supply of Electricity
30
which is notified on 17.06.2006. These Conditions
govern the terms upon which electricity is supplied
even by the MESCOM. If the expression 'a consumer'
is defined under clause 2.184, the supply of electricity
to Multi-storied Buildings [both Commercial and
Residential] is governed by Regulation 9 of these
Conditions. The subject apartment complex,
'Mourishka Park Condominium' is entirely a
residential complex with about 360 units. Therefore,
the relevant Regulation will be 9.09c5. This
Regulation is for metering of power supply to 'Purely
Residential Apartments/ Complex[es], and it reads as
under.
c) METERING OF PUREY RESIDENTIAL APARTMENTS/COMPLEX
(ES)
4 CONSUMER‟ means any person who is supplied with
electricity for his own use by a licensee or the Government
or by any other person engaged in the business of
supplying electricity to the public under the Act or any other
law for the time being in force and includes any person
whose premises are for the time being connected for the
purpose of receiving electricity with the works of a licensee,
the Government or such other person, as the case may be.
5 The service of electricity for "Mixed Loads" too is also under
Regulation 9.08 and as discussed in this Order. The
expression "Mixed Loads" refer to both supply of power to
residential and commercial uses.
31
L.T. Power supply shall be arranged at
the request of the Applicant with the
facility of LT metering to individual
installations subject to observing all
other Conditions as per provisions under
note (b) & (c) of Clause 3.1.1 of the
K.E.R.C (Recovery of Expenditure for
supply of Electricity) Regulations 2004
and its amendments from time to time
{Annex-2}.
a) Power supply to common areas like lifts,
water supply, staircase lighting etc., if
metered separately, shall be billed
under either residential or commercial
Tariff as per the classification of the
building as defined under note (b) & (c)
of Clause 3.1.1 of the K.E.R.C (Recovery
of Expenditure for Supply of Electricity)
Regulations 2004 and its amendments
from time to time {Annex-2}.
b) For building having requisitioned load of
combined residential and commercial
loads less than 100 KW, the power
supply shall be arranged on LT basis
with individual meters to each of the
installations irrespective of whether it is
commercial or domestic installation.
Billing shall be done at appropriate
Tariff.
c) For commercial buildings having
requisitioned load less than 100 KW, the
power supply shall be arranged on LT
basis with individual meters to each of
the installations. Billing shall be done at
the appropriate Tariff.
Note:
i) In the case of existing commercial
buildings already under service, where
the requisitioned load is less than 100
KW and Consumer opts for individual
meter, the same can be arranged if the
32
Consumer gets the wiring done through
LEC at his cost duly making provision to
fix up the meter by the side of the
existing bulk meter. However, the
sanctioned load of the bulk meter shall
be automatically reduced to the extent of
the load of the installation bifurcated for
individual meter.
ii) If additional load is requested over and
above the total load already sanctioned,
the same shall be sanctioned within 100
KW only. For loads of 100 KW and
above, the Consumer shall avail himself
of HT supply.
14.1 This Court, upon reading of these
Regulations, must opine that the clustering of
additional clauses [a] to [c] after Regulation 9.09c
could lead to a reading that these clauses will be
applicable to even "Purely Residential
Apartments/Complex[es]". However, whether it must
be read so will have to examined. When Regulation
9.09c is read along with the Heading, it would be that
LT Power supply shall be arranged at the request of
an applicant for Residential Apartments/Complexes
subject to observance with the conditions mentioned
therein. Crucially, when LT Power supply is thus
arranged, there will be LT Metering to individual
33
installations as against one Bulk Energy Meter as
contemplated under Regulation 9.09[a] and [b] for the
'Mixed Loads'. The decision to extend LT power
supply with individual LT Meter brings about a
relationship of consumer and the company supplying
electricity between the owner of the concerned unit
and the company unlike when Bulk energy Meter is
installed where such relationship is between the
company and an intermediary as is the case.
14.2 The subsequent Clauses i.e. [a] - [c]
relate to metering and billing of power supply to [i]
common areas for both residential and commercial
building, [ii] buildings with residential and
commercial loads less than 100KW and [iii]
commercial buildings with less than 100KW. Even in
case of buildings with only commercial and both
commercial and residential loads, there will be
Individual Meters as in the case of 'purely residential
Apartments/Complexes'. Under Note [i], an existing
building with commercial load less than 100KW can
34
be serviced with Individual Meters if the concerned
opts for the same subject to bearing 'the cost' as
stipulated therein. The Note [ii] stipulates, without
specifying whether it is for residential or commercial
or mixed [both residential and commercial] loads, the
additional load can be up to 100KW, and beyond that
the consumer must apply under HT supply.
14.3 The Scheme under this Regulation,
as it emerges from the reading as above, is that in
case of commercial load and mixed load [both
commercial and residential] subject to a minimum of
100KW Individual Meters will be available with even
the existing building with commercial load up to
100KW being given this option of Individual Meters,
but in the case of Load for 'purely residential
Apartments/Complexes' notwithstanding the load, the
metering of consumption will be by Individual Meters.
The terms of Note [ii] will be applicable when there is
a request for additional load, if the request for
additional load is up to 100KW, it will be as a LT
35
supply with Individual Meters, and if the request for
additional load is for a load over 100 KW, the supply
must be as a HT supply. The supply through HT
supply will be metered by Bulk Energy Meters.
14.4 This Court must reiterate that the
significance of this, apart from the tariff that will
apply, indubitably is that the owners of the premises
to which there is Individual Meters are the
consumers unlike when there is a Bulk Energy Meter
with Sub-meters. When there is Bulk Energy Meter,
the applicant, who is given this facility, will be the
consumer and this consumer can provide for Sub-
meters to individual premises subject to "no profit"
and other conditions. The Owner/Occupier of the
premises with Sub-meters will not be the consumer.
This enables in the applicant who avails "Bulk Energy
Meters" certain obligation and rights with no
relationship between the ESCOMS and the
Owner/Occupier.
36
14.5 A residential apartment, if the Note
[ii] is made applicable, despite the Scheme and
consequences as aforesaid only because the
Electricity Tariff - 2018 [with its amendments]
provide for HT tariff for residential apartments, is
provided with HT Supply, the entire Scheme under
this Regulation will be vitiated. This Court opines,
with the Regulations as they are, that every
residential complex which is entirely so must be
initially given, irrespective of the load; LT supply with
Individual Meters, and if subsequently there is a
request for increase in the load, subject to a
maximum of additional load of 100KW, the supply
must be LT supply with Individual Meters. However,
if the request is for an additional load which is above
100KW, the supply must be HT supply with Bulk
Energy Meters and Sub-meters.
14.6 Further, this Court opines that if
despite this Scheme, a residential complex, which is
entirely so, is given HT supply with Bulk Energy
37
Meter facility, unwittingly or otherwise, the
Owner/Occupier of a unit in a purely residential
complex will be denied the status of being consumer
of the concerned ESCOMS leading to denial of
obvious advantages. The present case perhaps
exemplifies the same, and that will have to be
examined in the pending suit.
14.7 In the present case, the initial
sanction is for LT supply with a load of more than
100 KW, but it is later changed to HT Supply again
with a load more than 100KW [though reduced]. It is
only stated that this is done because the Developer
requested for the same and nothing is placed on
record to justify that this decision was taken on a
minutiae reading of the Regulations and upon
examining the repercussions. The decision to give HT
supply and the servicing is in the year 2015 and
there have been multiple proceedings which are
mentioned. The first respondent has not considered
38
any of these circumstances, and should have as this
facet lies at the core of the dispute.
14.8 This Court, in the peculiarities of the
case, opines that the Managing Director, MESCOM
must call for all the details and take such decision as
would be necessary to undo the deleterious effect of
the decision to grant HT supply with Bulk Energy
Meter notwithstanding the Regulations as the
controversy over the change in the HT connection
from the Developers' name to the fourth respondent's
name will also be addressed by the said consideration
in the light of this Court's opinion on the object of the
Regulation 9.09 of the Conditions of Supply of
Electricity Regulations. The second question is
answered accordingly.
ORDER
[a] The petition is disposed of directing the Managing Director, MESCOM to call for all the details and the records and take such decision 39 as would be necessary to ensure that the Maurishka Park Condominium, Opposite Sharada Vidyalaya, Near Bharat Circle, Kodialbail, Mangaluru has LT supply with Individual Meters for each of the Apartment in the Complex working out the modalities therefor.
[b] All questions inter se the petitioner and the fourth respondent as regards the Deed of Declaration dated 16.03.2007 and the action by the fourth respondent in terms thereof are left open to be decided in the suit in O.S. No.221/2022 on the file of the III Additional Civil Judge and JMFC, Mangaluru subject to this Court's opinion in CRP No.64/2021 and CRP No.96/2021.
[c] The fourth respondent is reserved with liberty to seek disbursement of Rs.5,32,781/- deposited by the petitioner in the suit subject to 40 the outcome in the afore suit in O.S. No.221/2022.
SD/-
(B M SHYAM PRASAD) JUDGE nv*