Karnataka High Court
Smt. Moksha. V vs Bengaluru Electricity Supply Co. Ltd., on 3 July, 2019
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2019
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
WRIT PETITION No.39159 OF 2018 (GM-KEB)
BETWEEN :
Smt. Moksha V.
W/o. Sri. Gajanana
Aged about 52 years
Residing at No.44/1
Beretena Agrahara
Beguru Road
Off: Hosuru Main Road
Near Flyover Pillar No.193
Bengaluru - 560 100. ... Petitioner
(By Sri. M. Subramanya Bhat, Advocate)
AND :
1. Bengaluru Electricity Supply Co. Ltd.
Represented by its Managing Director
K.R.Circle, Bengaluru - 560 001.
2. The Assistant Executive Engineer (Electrical)
BESCOM Limited
S-11 subdivision, HSR Layout
Bengaluru - 560 102.
3. General Manager (Revenue)
BESCOM, Corporate Office
K.R.Circle,
Bengaluru - 560 001. ... Respondents
(By Sri. H.V. Devaraju, Advocate)
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This Writ Petition is filed under Article 226 of the
Constitution Of India praying to call for the entire records
pertaining to the case of the petitioners and etc.
This Writ Petition is coming on for Preliminary
Hearing in "B" Group, this day, the Court made the
following:
ORDER
The petitioner has assailed the endorsement dated 04.06.2018 issued by the respondent No.3 inter alia seeking a direction to the respondent No.3 to accept the appeal dated 26.02.2018 filed by the petitioner and to consider the same in accordance with law by condoning the delay, to meet the ends of justice.
2. The petitioner is claiming to be the registered consumer of the respondent Electricity Company. The installation bearing RR No.S8HT-340 was serviced on 02.06.2010 under HT-2(A) tariff for industrial purpose.
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3. The respondent No.2 has passed an order dated 22.03.2016 holding that the petitioner is liable to pay Rs.7,06,825/- as back billing charges against which, the petitioner had approached the Consumer Grievance Redressal Forum (CGRF) and filed the complaint on 06.02.2017. The CGRF, by its order dated 29.01.2018, held that the petitioner has to file an appeal before the Appellate Authority as per Clause 44 of the Conditions of Supply of Electricity as per Karnataka Electricity Regulatory Commission (KERC) [procedure for filing appeal before the Appellate Authority] Regulations, 2004 providing liberty to approach appropriate jurisdiction within 30 days from the date of the order. Thereafter, the petitioner preferred an appeal under Section 127 of the Electricity Act, 2003 ('the Act' for short) before the Appellate Authority-the respondent No.3. It appears, by an order dated 17.03.2019, the corporate office of -4- the BESCOM condoned the delay in preferring the appeal. Subsequently, the respondent No.3 addressed a letter to the petitioner to make the pre-deposit of Rs.3,53,413/- along with the processing charges of Rs.7,068/- for accepting the appeal. The representations were made by the petitioner requesting to extend the time for pre-depositing the amount. However, an order has been passed by the respondent No.3 rejecting the request of the petitioner to extend time to make pre-deposit on the ground that there is no provision under the Rules for extension of time. It is further submitted by the learned counsel for the petitioner that the entire back billing charges of Rs.7,06,825/- was deposited on 04.06.2018 before the respondent No.2.
4. Being aggrieved by the order of the respondent No.3 dated 04.06.2018, the petitioner is before this Court.
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5. Sri. Subramanya Bhat, learned counsel appearing for the petitioner placing reliance on the order of this Court in Writ Petition No.55070/2016 (D.D.23.11.2016), would submit that there being no provision for extension of time for pre-depositing, the petitioner is compelled to approach this Court. Hence, the delay caused in making pre-deposit in terms of Clause 44.02 of the Conditions of Supply requires to be condoned and the file has to be restored to the Appellate Authority for consideration.
6. The learned counsel for the official respondents submits that the appeal under Section 127 of the Act shall be entertained only on complying with Condition 44.02 of Conditions of Supply. Unless an amount equal to half of the assessed amount is deposited and the documentary evidence of such deposit has been enclosed along with the appeal, no -6- appeal shall be entertained. Hence, no exception can be found in the order impugned.
7. I have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
8. The relevant Clauses 44.01 and 44.02 are quoted here under for ready reference:-
"44.00 APPEALS 44.01 Any person aggrieved by a final order made under the Condition 42.07 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as specified by the State Commission in KERC (Procedure for Filing Appeal before the Appellate Authority) Regulations, 2005(Annex-3) under intimation to the office of issue.
44.02 No appeal against an order of assessment under made as per Clause 42.07 of these Conditions shall be entertained unless an amount equal to half of the assessed -7- amount as per Amendment vide Notification No.K.E.R.C./COS/D/07/08 Dated 14.3.2008 published in Karnataka Gazette dated:20.3.2008 (Old version :
equal to one third of the assessed amount) is deposited in cash or by way of bank draft with the Licensee and documentary evidence of such deposit has been enclosed along with the appeal."
9. Indisputably, CGRF in its order dated 29.01.2018 while dismissing the complaint, reserved liberty to the petitioner to approach the appropriate jurisdictional Court within 30 days from the date of the order. The petitioner has filed an appeal on 22.06.2018 under Section 127 of the Act well within the period provided by the CGRF. Now the question would be whether such an appeal filed without being accompanied by pre-deposit as contemplated under Clause 44.02 of Conditions of Supply would be construed as an appeal filed well within the period of 30 days in terms of the order of CGRF; if not so, -8- whether the Appellate Authority has the jurisdiction to condone the delay in filing the appeal along with the pre-deposit amount.
10. It is not in dispute that the petitioner has deposited the entire back billing charges of Rs.7,06,825/- before the respondent No.2 on 04.06.2018, the date of the order impugned is passed by the respondent No.3. For all practical purpose, in the light of the Clauses 44.00 and 44.02 of Conditions of Supply, it is to be construed that the appeal was filed on 04.06.2018 when the pre-deposit was made in terms of Clause 44.02. If the time is reckoned from that date i.e., 04.06.2018, there is a delay of 94 days in filing the appeal under Section 127 of the Act. This Court while considering the identical issue in the writ petition No.55070/2016 supra has observed that:-
"7. The purpose of providing a remedy by way of an appeal cannot be allowed to be defeated by providing such stringent provisions as to -9- limitation and not providing any discretion to the Appellate Authority to condone such delay either. These kind of provisions even in genuine cases, may unnecessarily lead the aggrieved persons to approach the superior constitutional courts, thereby leading to flooding of the dockets of the superior constitutional courts unnecessarily, whereas the competent Appellate Authority provided by the relevant statutes themselves in the first instance should attend to the grievance against the impugned orders on merits, which may require an examination of the technical aspects of the matter. Clause 44.00 of the General Conditions, therefore, not providing either such discretion to condone the delay or not even counting the period of limitation from the date of service of the impugned order, which in some cases, may be served after some time of passing of the impugned order itself is, therefore, not happily worded and deserves a reconsideration on the part of the respondent -BESCOM or the State Government or the Karnataka Electricity Regulatory Commission (KERC) as the case may be, which has notified these General Conditions and suitably amend the same."
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11. It is apparent that the petitioner has filed several representations before the respondent No.3 seeking for extension of time to make the pre-deposit, but the same not been extended due to want of jurisdiction. This Court's interference is warranted in the light of judgment referred to supra.
12. Considering the satisfactory reasons offered by the petitioner for the delayed pre-deposit made, the condition precedent for filing the appeal under Section 127 of the Act, the delay of 94 days deserves to be condoned.
13. Accordingly, the order impugned at Annexure-M dated 04.06.2018 is set aside; the proceedings are restored to file of the respondent No.3 to hear the appeal of the petitioner on merits and to decide the same in accordance with law by
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passing an appropriate order without raising the objection to the limitation in filing the same.
Writ petition stands disposed of in terms of the above.
Sd/-
JUDGE SJK