Karnataka High Court
Sri Sanath Kumar Shetty vs Mangaluru Electricity Supply Company ... on 24 April, 2025
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WP No. 19895 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO.19895 OF 2022 (GM-KEB)
BETWEEN:
SRI. SANATH KUMAR SHETTY
S/O LATE DR. K.SOMESH SHETTY,
AGED ABOUT 56 YEARS,
R/AT: G-1, CASA GRANDE MALL,
STURROCK ROAD, FALNIR,
MANGALURU - 575 001.
...PETITIONER
(BY SRI SANATH KUMAR SHETTY K., ADVOCATE)
AND:
Digitally signed by 1. MANGALURU ELECTRICITY
BASALINGAPPA
SHIVARAJ SUPPLY COMPANY LIMITED
DHUTTARGAON REPRESENTED BY ITS CHAIRMAN
Location: HIGH ATTAVARA
COURT OF
KARNATAKA MANAGALURU - 575 001.
2. ASSISTANT EXECUTIVE ENGINEER
(ELECTRICAL)
ATTAVARA
SUB DIVISION MESCOM
MANAGALURU - 575 001.
3. CHAMUNDESHWARI ELECTRICITY
SUPPLY AUTHORITY LIMITED
APPELLATE AUTHORITY (REVENUE)
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WP No. 19895 of 2022
HAVING ITS OFFICE AT CESE
MYSURU - 570 017.
REP. BY TECHNICAL DIRECTOR.
...RESPONDENTS
(BY SRI SUMANA NAGANAND, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, 1956 PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE
ORDER DATED 22.07.2022 PASSED BY THE
CHAMUNDESHWARI ELECTRICITY SUPPLY AUTHORITY LTD.,
(APPELLATE AUTHORITY THE 3RD RESPONDENT IN ITS ORDER
NO.ZÁ«¸À¤¤/PÀAªÉÄÃ/2022-23/8773-79 VIDE ANNEXURE-A BY WHICH
ORDER THE ORDER OF ASSISTANT EXECUTIVE ENGINEER (E)
THE 2ND RESPONDENT, ATTAVARA SUB-DIVISION DATED
11.10.2021 IN ORDER NO.¸ÀPÁEA(«)/¸À¯É(PÀAzÁAiÀÄ)/»¸É-1/21-22/3719-
3723 VIDE ANNEXURE-B HAS BEEN AFFIRMED AND ETC.
THIS WRIT PETITION PERTAINS TO PRINCIPAL BENCH
BENGALURU HAVING BEEN HEARD AND RESERVED ON
21.04.2025 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS AT KALABURAGI BENCH THROUGH VIDEO
CONFERENCING, THIS DAY, THE COURT MADE THE
FOLLOWING :
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
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C.A.V. ORDER
Heard the learned counsel appearing for the
petitioner and the learned Senior counsel appearing for
the respondents.
2. This petition is filed assailing the order dated
22.07.2022 passed by 3rd respondent/Appellate Authority
vide Annexure-A. In terms of which, the order dated
11.10.2021 at Annexure-B, passed by the Assistant
Executive Engineer-2nd respondent is confirmed. In terms
of the earlier demand, the petitioner was directed to pay
Rs.16,23,656/- towards back billing charges. Impugned
order at Annexure-B, directed the petitioner to pay
Rs.4,36,230/- excluding amount of Rs.11,87,426/- already
deposited (in previous rounds of appeal before the
Appellate Authority) out of total demand of Rs.16,23,656/-
referred to above.
3. The order dated 11.10.2021 passed by 2nd
respondent is confirmed by the Appellate Authority.
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4. The brief facts necessary for adjudication of the
petition are stated as under:
(a) Petitioner claims to be the owner of residential
apartment known as 'Home Space Apartment'
comprising 11 residential units in Mangalore. The
competent authority had issued permission to
construct residential units in the said apartment.
Likewise electricity connection is also obtained for
residential use which attracts LT2 tariff. Petitioner
claims that the flats in the building are used for
residential purpose by the tenants under him who
have taken the premises on long term lease basis.
(b) Vigilance squad claims to have inspected the
premises in question on 15.04.2013 and it is alleged
that the premises was found to be used as service
apartment and according to the respondents, said
use attracts LT3 tariff.
(c) Vigilance squad claims to have recovered certain
documents and claims to have prepared a mahazar
at the time of inspection.
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WP No. 19895 of 2022
(d) First respondent on 08.05.2013 issued notices to the
petitioner demanding electricity charges applying LT3
charges.
(e) Petitioner states that he applied under the Right to
Information Act, 2005, seeking certain information to
reply to the notices dated 08.05.2013, and alleges
that the information sought was not furnished to the
petitioner.
(f) On 16.07.2013, the petitioner appeared before the
Authority and addressed oral argument, and on
05.08.2013, filed application to summon the
witnesses alleged to have been present at the time of
spot inspection. However, the application was not
considered and 13 different confirmation orders were
passed on 27.08.2013, holding that the petitioner is
liable to pay the amount quantified in the notices
dated 08.05.2013.
(g) Appeal filed by the petitioner against the said order
was dismissed. W.P.Nos.31549-31562/2018 filed by
the petitioner challenging aforementioned orders
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WP No. 19895 of 2022
were allowed and the aforementioned orders passed
by 2nd respondent as well as the Appellate Authority
were quashed and matter is remitted to the
competent authority for fresh disposal in accordance
with law. Later original Authority permitted the
petitioner to file statement of objections and on
19.08.2019, passed the order confirming the demand
and the petitioner's appeal against the said order
dated 19.08.2019, was also dismissed. It is stated
that before the Appellate Authority, statement of
Assistant Executive Engineer, Vigilance Squad was
recorded and said witness was cross-examined. The
petitioner filed W.P.No.10251/2020 assailing the
orders passed after the first remand. In terms of
order dated 31.03.2021, the Writ Petition was
disposed of and the matter was remitted to 2nd
respondent to dispose of the matter by taking into
consideration, the observations made in the order
dated 20.02.2019 in W.P.No.31549-31562/2018.
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WP No. 19895 of 2022
(h) After the remand, again the petitioner's objections
were overruled and the Authority confirmed the
demand. Petitioner's appeal against the said order is
also dismissed by the Appellate Authority and these
two orders, post second remand by this Court are
under challenge.
5. Learned counsel for the petitioner would submit
that 2nd respondent as well as the Appellate Authority has
not considered the materials placed on record and passed
an erroneous order despite there being no materials to
hold that the petitioner was running a service apartment in
the premises in question.
6. Referring to the stand of the respondents in
earlier Writ Petition No.31549-31562/2018, wherein it is
stated before the Court that no documents/goods were
seized at the time of inspection, it is urged that the
documents produced later are concocted. Attention of this
Court is invited to the said statement in paragraph No.4 of
the order in W.P.No.31549-31562/2018 to urge that the
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WP No. 19895 of 2022
impugned orders are based on the documents said to have
been allegedly seized during spot inspection are not
sustainable.
7. It is also urged on behalf of the petitioner that
after the remand by this Court, a compact disc containing
videograph is produced to establish the spot inspection of
the premises in question and based on this, respondents
are erroneously contending that the premises is used as
service apartment. It is urged that in the cross-
examination, the witness on behalf of respondent No.3 has
admitted that the compact disc is incomplete. Thus, the
impugned order could not be have been passed at all.
8. Learned counsel would also contend that the
lease agreements are produced before the Authority to
substantiate the contention that the petitioner had let out
the premises on lease, and those lease agreements have
not been considered at all and the same resulted in
miscarriage of justice.
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WP No. 19895 of 2022
9. Learned Senior counsel appearing for the
respondents on the other hand would contend that the
allegations levelled against the petitioner are duly
established. He would contend that the respondent -
Authorities have produced the documentary evidence to
show that the petitioner was collecting luxury tax which is
applicable to the service apartment, and the petitioner had
maintained the register to enter the details of the
customers and the videograph of the premises would
clearly disclose that the premises was not in occupation of
the tenants as alleged by the petitioner.
10. It is also contended that bills, day register and
cash are also recovered from the premises and these facts
would clearly establish that the petitioner was running a
service apartment and the electricity connection taken to
the premises was for residential use, as such, there is a
misuse of electricity.
11. It is also urged by the learned Senior counsel
that the documents in fact were seized at the time of spot
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WP No. 19895 of 2022
inspection and the event has been videographed and part
of the videography is also available and photographs and
the videograph were produced before the competent
authority and hardly there is any dispute relating to the
authenticity of the said photographs and videograph.
Thus, he would urge that impugned orders have to be
upheld by dismissing the petition.
12. Learned Senior counsel would also urge that the
alleged lease of the premises by the petitioner is not
established. The lease deeds produced are admittedly
unregistered and insufficiently stamped consequently, and
inadmissible in evidence, as such the defence of alleged
lease and use of the premises by the tenants for
residential purpose cannot be accepted.
13. Learned Senior counsel would also submit that
the respondents have filed an application to impound the
alleged lease agreements produced by the petitioner as
they are insufficiently stamped.
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WP No. 19895 of 2022
14. Learned counsel for the petitioner by way of
reply would submit that the lease agreements produced by
the petitioner being the Xerox copies cannot be
impounded. It is also submitted that the petitioner does
not rely on the said lease agreements.
15. This Court has considered the contentions
raised at the bar and perused the records.
16. During the course of hearing, this Court
specifically asked the learned counsel for the petitioner to
submit as to whether the structures and other articles
found in the photographs at Annexures-R1 series and the
videograph in the pendrive produced by the respondents
are pertaining to the petitioner's premises. And in this
regard, order is passed on 25.02.2025 to file affidavit on
three queries posed in the said order. Those three queries
are as under:
(a) Whether the petitioner is the proprietor of
the 'SKS Group'?
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WP No. 19895 of 2022
(b) Whether the building shown in the
photographs at Annexures-R1 series is the
building belonging to the petitioner?
(c) Whether the building featured in the
videography which is copied in the
pendrive belongs to the petitioner?
17. As a response to the said order, the petitioner
on 28.02.2025 has filed an affidavit. The response to the
aforementioned queries submitted in the form of an
affidavit are as under:
(1) I am the managing partner of SKS Group.
(2) The building shown in the photograph belongs
to me.
(3) The building shown in the video belongs to me.
18. Considering the affidavit referred to above, it is
very much evident that the structure in the photographs
and the videograph produced by the respondent are
owned by the petitioner. The building does not belong to
any partnership firm. The petitioner in his petition has also
stated that he is the owner of Home Space Apartment.
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WP No. 19895 of 2022
19. This Court has perused the videograph
produced in the pendrive. On perusal of the said
videograph, it can be certainly inferred that the premises
is not in occupation of tenants as claimed by the
petitioner. During the visit, none of the tenants were found
to be in occupation of the premises. Certain features
appearing in the videograph would clearly suggest that the
premises was not in use by a long term user like a tenant.
The features captured in the videograph as well as
photographs suggest that the premises was used as a
service apartment. Some of the sign plates like "Do not
disturb", "Clean the room" and "Leave the towels on
the rack to dry & reuse by not asking us for
changing your towels & linens daily you are helping
to avoid chemical detergents and use of water
needed for their washing" are noticed in the
videograph.
20. It is relevant to notice that no tenant is
examined on behalf of the petitioner to prove the tenancy.
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WP No. 19895 of 2022
This Court takes the view that the premises was not used
by the tenants keeping in mind, the defence raised by the
petitioner that the petitioner has let out the premises to
the tenants on long term lease basis, which is not
established by leading evidence.
21. This Court has also considered the contentions
relating to the long term lease said to have been created
in respect of the petition premises. The counsel for the
petitioner during the course of hearing has submitted that
the petitioner does not intend to rely on the agreements of
lease produced by the petitioner marked at Annexures-C
to J. Except the aforementioned documents, no documents
are produced to establish the alleged lease.
22. Admittedly, the alleged lease agreements
purport to create lease beyond 11 months and in such
event, the lease deeds require compulsory registration. In
addition to that, the lease deeds attract stamp duty
depending on the rental value as well as security deposit if
any. Hardly there is any difficulty in holding that the
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WP No. 19895 of 2022
alleged lease agreements are inadequately stamped as all
the lease agreements are drawn on a stamp paper of
Rs.50/-. Hence, the said documents cannot be considered
as proof of alleged lease.
23. It is also relevant to note that except those
documents which are inadmissible in evidence for want of
registration and for want of payment of stamp duty, no
materials are placed to hold that the property in question
was let out for residential purpose.
24. It is relevant to bear in mind that the petitioner
has not claimed that the premise was vacant or
unoccupied. It is not his case that he was using the
premises for his individual use or use by his family. The
defence is that the petitioner has let out the premises in
favour of 3rd parties for residential purpose. When the said
defence is not established, the inference that can be
drawn from undisputed photographs and the videograph
would be that the premise was used for commercial
purposes at relevant point of time.
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WP No. 19895 of 2022
25. Though, it is urged that no documents and no
articles were seized at the time of the spot inspection,
based on the statement made at the bar in the previous
round of litigation before this Court, given the fact that the
building in the photographs and the contents of the
videograph lead to the inevitable conclusion that the
premises was not used for residential purposes and it is
not the case of the petitioner that it was kept vacant and
was not in use. Hence, the Court inevitably has to draw
conclusions from the admitted videograph. There is no
scope in this case to hold that the premise was kept
vacant and not used for any purpose as there is no such
defence.
26. It is also relevant to note that the documents at
Annexure-R2, R3 and R4 have not been seriously
disputed. May be, it is true that there may not be perfect
evidence to hold that the said documents are seized in the
premises of the petitioner. Even excluding the said
documents at Annexures-R2, R3 and R4, this Court
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WP No. 19895 of 2022
considering the defence of lease raised by the petitioner
which is not established, the Court has to hold that the
respondents have established the contention that the
premises was used for commercial purpose.
27. Though the petitioner claims that he has
received rent in respect of the premises, the statements of
accounts have not been produced. The contention relating
to long term lease appears to be a fabricated story given
the fact that petitioner has not chosen to examine any of
the persons who are said to be the tenants in the
premises.
28. Even the documents at Annexures-C to J which
are the alleged lease agreements are referred to, keeping
aside the objection relating to its admissibility for want of
registration and stamp duty, it is to be noticed that in
those agreements, lessor is described as M/s S.K.S. Group
- a registered partnership firm. Whereas, the petition is
filed by an individual who does not claim to have held the
petition on behalf of the partnership firm.
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WP No. 19895 of 2022
29. In the affidavit dated 28.02.2005, the petitioner
has asserted that he is the partner of S.K.S. Group.
However, Writ Petition is not filed by the partnership firm.
In paragraph No.2 of the Writ Petition, the petitioner
states that he is the absolute owner of the premises in
question. Even in earlier Writ Petitions, the petitioner
never took a stand that the premises belong to the
partnership firm. In the reply dated 29.04.2019 before the
Authority, the petitioner has never stated that partnership
firm owns the premises. On the other hand, petitioner in
paragraph No.10 of the reply dated 29.04.2019 has stated
that he has rented the apartments on long term lease on
monthly rent to various parties. In addition, the petitioner
has also stated that he is one of the partners in M/s S.K.S.
Netgate LLP, Mangalore. Even in paragraph No.12 of the
reply, the petitioner has stated that he has provided
accommodation (free of cost) in Home Space Apartment
(the building in question) to the Engineers working for the
project of M/s S.K.S. Netgate LLP, Mangalore. Thus, it is
very much apparent that M/s. S.K.S. Group never owned
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WP No. 19895 of 2022
the premises in question which is named as 'Home Space
Apartment'. Thus, the lease agreements could not have
been executed by M/s. S.K.S. Group. These being the
facts, the defence relating to the lease of the premises for
residential use by the tenants cannot be accepted at all.
30. In the facts and circumstances already
discussed, it is not possible to hold that the premises was
vacant or under the personal use of the petitioner as such
defence was not raised at any point of time. Under these
circumstances, more particularly in view of the admission
relating to the photographs and the videograph, this Court
does not find any reason to interfere in the orders passed
by the Competent Authority and the Appellate Authority
which have concluded that the premises was used as
service apartment. Given the fact that the photographs
and the videograph are admitted in the spot inspection is
also established. Hence, the finding relating to use of the
premises as service apartment cannot be interfered with.
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WP No. 19895 of 2022
31. Though various grounds are urged in the Writ
Petition to contend that the mahazar is not drawn, the
witnesses are not examined to prove the mahazar or
seizure of goods or the inspection of the premises, said
grounds cannot be upheld given the fact that photographs
and the videograph referred to above establish the fact
that the premises was inspected by the officials of the
respondent No.3.
32. It is also noticed that the petitioner has urged
that witnesses examined do not support the case of the
respondents relating to seizure and spot inspection or the
use of the premises for commercial use. Again this Court
has to observe that the inspection of the premises is very
much established. In the instant case, considering the
defence raised by the petitioner, there are only two
possibilities. Either the premises must have been used by
the tenants for residential use or must have been used by
the petitioner for commercial purposes. The third mode of
use is not the contention of either of the parties. The
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residential use by the tenants is not established at all for
the reasons already discussed above. Thus, by logical
deduction and with reference to the photographs and the
videograph referred to above, the nature of use of the
premises has to be inferred as commercial use.
33. Though ground relating to the amount
demanded by way of back billing is raised in the petition,
during the course of hearing, it is not urged as to how the
amount demanded is erroneous.
34. In so far as the application to impound the
inadequately stamped lease agreements are concerned,
the learned counsel for the petitioner has relied on the
judgment of the Hon'ble Apex Court in Hariom Agrawal
vs. Prakash Chand Malviya1 to contend that there is no
scope to impound the Xerox copies.
35. This Court has considered the contentions
raised at the bar in this regard. In the aforementioned
1
(2007)8 SCC 514
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WP No. 19895 of 2022
case, the Apex Court was dealing with production of a
Xerox copy of inadequately stamped lease agreement in a
suit. And the Apex Court referring to the provisions of
Madhya Pradesh Stamp Act and Rules, concluded that
there is no provision to impound the Xerox copy of
inadequately stamped instrument. It is also noticed that in
the aforementioned case, before the Trial Court, the
person who sought to produce the Xerox copy of the lease
agreement pleaded that the original agreement is lost.
36. It is relevant to note that the petitioner does
not say that the original lease agreements are lost. And
these lease agreements are produced in a Writ Petition.
The Writ proceeding rules do not contemplate production
of original documents. Under the rules, the parties to the
proceeding are enabled to produce the true copies of the
original. The verifying affidavit dated 25.09.2022 annexed
to the Writ Petition would reveal that the documents
produced along with the Writ Petition are the true copies
of the original. This being the position, the facts in the
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WP No. 19895 of 2022
present case do not attract ratio in Hariom Agrawal
supra.
37. However, it is to be noticed that this Court has
taken a view that the alleged lease agreements are not
established as the lease agreements are allegedly
executed by a partnership firm M/s S.K.S. Group which is
not the owner of the property in question even according
to the petitioner. Hence, the said agreements are not the
agreements of lease and no lease is created under the said
agreements. Hence, the question of paying stamp duty on
the said agreements does not arise.
38. Hence, the following:
ORDER
(i) Writ Petition is dismissed.
(ii) The petitioner shall pay the amount due after deducting the amount already deposited, within 45 days from today failing which the petitioner shall pay 6% interest on the said amount from
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WP No. 19895 of 202211.10.2021 i.e., the date of the impugned order at Annexure-B.
(iii) No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE GVP/CHS