The Executive Engineer (Electrical) vs Consumer Grievance Redressal Forum And ... on 20 December, 2024

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Karnataka High Court

The Executive Engineer (Electrical) vs Consumer Grievance Redressal Forum And ... on 20 December, 2024

SRI. NANDAKISHORE BOOB, ADVOCATE, FOR R2-R5; SRI. SUDHARSHAN M., ADVOCATE FOR R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI BY QUASHING THE IMPUGNED ORDER DATED 09.07.2024 IN FILE NO.A.EM(V)/GU/ULENE/LEASLEA/S-3/2024- 25CYS-34, PASSED BY THE R1 WHICH IS AT ANNEXURE-A AS ILLEGAL AND ARBITRARY AND ETC.

THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 05.12.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ -3- NC: 2024:KHC-K:10010 WP No. 202016 of 2024 CAV ORDER (PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. The Petitioner is before this Court seeking for the following reliefs:

i. Issue a writ of certiorari for quashing the impugned order dated 09.07.2024 in file No. A.EM(V)/GU/ULENE/LEASLEA/S-3/2024-25 CYS-34, passed by the R1 which is at Annexure-A as illegal and arbitrary. ii. Issue of writ of mandamus directing the respondents No.2 to 5 to provide space in their premises free of cost for erection of transformers etc., for power supply, in the interest of justice and equity.

2. Respondents No.2 to 5 had applied for sanction of electricity connection to their newly constructed houses contending that the building of the respondents No.2 to 5 is more than 500 square meters. It is in that background that the petitioner had sanctioned the connection subject to making available a space for installation of 25 KVA transformer free of cost. Respondents No.2 to 5 objected and did not provide the space for installation of the transformer, hence the electricity -4- NC: 2024:KHC-K:10010 WP No. 202016 of 2024 supply was not given. It is challenging the same, respondents No.2 to 5 had approached respondent No.1 seeking for a direction to sanction and supply the power without insisting on an area to be made available by them free of cost for the purpose of installation of the transformer.

3. Respondent No.1 after hearing all the parties had passed an order dated 9.7.2024 in terms of Annexure-A to the petition holding that the petitioner's request would not come within the purview of Regulation 3.1.3 (A) of the KERC (Recovery of Expenditure for Supply of Electricity) (Ninth Amendment) Regulations, 2017 and that there being a 250 kilowatt transformer already installed in the area. There was no requirement for separate transformers to be installed by each of the Respondents No.2 to 5 and directed the petitioner to supply electricity. It is challenging the same, petitioner-GESCOM is before this Court. -5-

NC: 2024:KHC-K:10010 WP No. 202016 of 2024

4. The submission of Sri.Shivkumar Malipatil., learned counsel appearing for the petitioner, is that; 4.1. It is Regulation 3.1.3 (A) of the KERC (Recovery of Expenditure for Supply of Electricity) (Ninth Amendment) Regulations, 2017 which would be applicable, which is extracted hereunder for easy reference;

3.1.3(A) (i) In the case of new buildings where the (New) requisitioned load is 25 KW or more but less than 35 KW, or built up area of the building exceeds 500 sq. meter, but is less than 800 sq. meters, the applicant shall provide the required space at free of cost in his premises for erection of distribution line & transformer and associated equipment at its cost by the licensee

(ii) In the case of new buildings availing power supply with requisitioned load of less than 25 KW or with built up area of less than 500 sq. meters, subsequently when the additional requisitioned load including the existing sanctioned load exceeds 25 KW or more but less than 35 KW or the additional build up area including the existing built up area exceeds 500 sq.meters but less than 800 sq. meters, the conditions specified in the above sub clause shall also be applicable.

(iii) In the above cases, the licensee is at liberty to utilize any balance capacity in the transformer installed by him.

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024 4.2. By relying on the above, he submits that in case of new buildings where the load is 25 kilowatt or more but less than 50 kilowatt or built-up area of the building exceeds 500 square meters but is less than 800 square meters, the applicant is required to provide the required space free of cost in the premises for erection of distribution line and transformer and associate equipment and in that background. 4.3. He submits that the built-up area of respondents No.2 to 5 exceeds 500 square meters i.e., 5000 square feet and therefore the said area is required to be made available. 4.4. The existence of a 250 kilowatt transformer in another location will not negate the requirement of Respondents No.2 to 5 to provide the aforesaid area, as and when the area is provided free of cost and the works executed by Respondents No.2 to 5, electricity would be provided.

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024 4.5. His submission is that the transformer would be provided by GESCOM free of cost, it is only the land area which is required to be provided by landowner free of cost. In that background, on enquiry as to what is the extent of land which is required to be made available, on 25.9.2024, it had been submitted that an area 8 feet x 8 feet i.e., 64 square feet was required to be made available.

5. In order to understand the reason for requirement of a transformer to be fixed, if the constructed area is more than 500 square meters, a responsible officer was directed to be present.

6. On 3.9.2024, Sri.Srinivas of the KERC was present through video conferencing and submitted that it is only if the load is more than 25 kilowatt that a transformer is required. If the load is less than 25 kilowatts, merely because the construction is more than 500 square meters, there would be no -8- NC: 2024:KHC-K:10010 WP No. 202016 of 2024 requirement of providing a transformer and he had further indicated that there is an exception for Single Dwelling Houses on the basis of the load factor of the said house.

7. On the basis of said submission, both the counsel for the petitioner and respondent No.6- KERC were directed to file a joint Standard Operating Procedure indicating the requirement of transformer for different properties, so that the implementing authority can implement the same without any confusion.

8. An affidavit was filed by respondent No.6 KERC on 29.10.2024. The affidavit filed by respondent No.6, reads as under;

AS ORDERED BY THE HON'BLE COURT, AFFIDAVIT IS FILED ON BEHALF OF 6th RESPONDENT I, Srinivasappa S/o Eswarappa, aged about 63 years, presently working as a Director (Technical) at KERC having its office at No. 16C-1, Millers Tank Bed Area, Vasanthanagara, Bengaluru-560001, do hereby solemnly affirm and state on oath as follows:

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024

1. During the hearing of this writ petition on 30.09.2024, the Hon'ble Court was pleased to pass an order to file affidavit on the clarification made on behalf of this respondent. I have been duly authorized by the 6th Respondent Commission to file this affidavit. Hence, I am swearing to this affidavit.

2. The Hon'ble Court while hearing this petition on

30.09.2024, directed the officer of this Respondent- Commission to file affidavit on the process of erection of transformers in the premises where the built up area is more than 500 Sq. meters but demand load is less than 35 kW. The Respondent-Commission before clarifying these points, would like to mention some of the Clauses of related Regulations. As per Clause 3.1.5 of KERC (Recovery of Expenditure for supply of Electricity) Regulations, 2004 (7) Amendment), dated 25.08.2014 provides that where the requisitioned load is 35 kW or more or built up area in the premises of the applicant exceeds 800 Sq. meters, the applicant shall provide the required space in his premises and also provide at his cost electric line, distribution transformer and associated equipment. The transformer so provided by the applicant shall be dedicated to the premises of such applicant. Accordingly, a clear space of 3 meters' x 5 meters, open to sky in the premises for installing transformer and switch gear is required to be provided by the applicant, as per Clause 3.1.5 (b) of these Regulations. Further, at Note 6 of the Clause 3.1.5 of these Regulations, it is clearly specified that the conditions of Clause 3.1.5 are not applicable to a single dwelling house where the requisitioned load is less than 35 kW, irrespective of built up area of the building.

3. Whereas, "Clause 3.1.3 (A) (New) of KERC (Recovery of Expenditure for Supply of Electricity) Regulations, 2017 (9th Amendment)" dated 27.12.2017 provides at Sub- clause (i) that in the case of new buildings where the requisitioned load is 25 kW or more but less than 35 kW, or built up area of the buildings exceed 500 Sq. meters but less than 800 Sq. meters, the applicant shall provide the required space at free of cost in his premises for erection of distribution line and transformer and associated equipment at its cost by the licensee. Sub- clause (ii) of Clause 3.1.3 (A) (New) of these Regulations also provides that, in the case of new buildings availing power supply with requisitioned load of less than 25 kW or built up area of less than 500 Sq. meters, subsequently when the additional requisitioned load including the existing sanctioned load exceeds 25kW or more but less than 35 kW or additional built up area including the

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024 existing built up area exceeds 500 Sq. meters but is less than 800 Sq. meters, the conditions specified in the above sub-clause shall also be applicable. The copies of the KERC (Recovery of Expenditure for supply of Electricity) Regulations, 2004 (7th Amendment) and KERC (Recovery of Expenditure for supply of Electricity) Regulations, 2017 (9th Amendment) are hereby produced as Annexure-R-1 and R-2.

4. The Respondent-Commission hereby submits clarifying on the query raised by this Hon'ble Court that "as per Clause 3.1.5 Note.6 of KERC (Recovery of Expenditure for supply of Electricity) Regulations, 2004 (7th Amendment)"

if the application for power supply where the built up/constructed area of the premises is more than 800 Sq. meters and the demand load is not more than 35 KW and if it is a single dwelling house, then, there is no need to provide required space in his premises by the Applicant for erection of transformer and associated equipment in the said premises as specified in this Clause. In such a situation, the applicant can avail power supply from a common transformer erected by the Distribution Licensee at its cost, duly paying the necessary charges to the Distribution Licensee as specified in these Regulations, based on the requisitioned load.

I do swear that the contents of this Affidavit is true and correct to the best of my knowledge, belief and information, in token whereof I have signed this reply by way of Affidavit on this day at Bengaluru.

9. The petitioner had sought for time to file his affidavit and the matter adjourned. After seeking for two more adjournments, an affidavit of the petitioner was also filed. The affidavit filed by the petitioner, which reads as under;

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024 AFFIDAVIT I, Veerabadra S/O Chandram Salimani, Age: 53 Years, Occ:

Executive Engineer, CSC, GESCOM< Kalaburagi, do here by state on oath as under,

1. That, I am petitioner in the above case as such i know the facts of the case,

2. That, as per clause 3.1.3(A) of KERC (Recovery of Expenditure for supply of electricity) 9 th amendment Regulations 2017 it is clear that "In case of new buildings where the requisitioned load is 25 KW or more but less than 35 KW, or built up area of the building exceeds 500 Sq. Mts but less than 800 Sq. Mts. The applicant shall provide the required space of 3 MTs X 5 MTs open to sky in the consumer premises for installing transformer by free cost by the licensee.

3. It is made clear that the buildings constructed by the respondents No 2 to 5 consists of 3 floors each there by total built up area is more than 500 Sq. Mts. including staircase area and balcony area (50% area taken in to consideration).

Therefore the consumer respondent No 2 to 5 shall have to provide open space for installing transformer to their building by the licensee in free of cost. Hence it is just and proper to consider the writ petition as per the 9 th amendment KERC (Recovery of Expenditure for supply of electricity).

Hence this affidavit I do swear in the name of God that this is my name and the contents of this affidavit are true and correct. Thus, this affidavit is sworn on this the 19 th day November 2024, at Kalaburagi.

10. In terms of the affidavit filed by respondent No.6 it is clearly stated that in terms of Clause 3.1.5 of the 7th

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024 Amendment dated 25.8.2014, where the requisition load is 35 kilowatt or more, or built-up area of the premises exceeds 800 square meteres, the applicant shall provide the required space in the premises and also provide at his cost electricity line, distribution transformer and associated equipment, and the transformer so provided by the applicant would be dedicated to the premises of the applicant for which a clear space of 3 meters x 5 meters open to sky would be required.

11. It is however categorically stated that the condition of Clause 3.1.5 are not applicable to a Single Dwelling House where the requisition load is less than 35 kilowatt irrespective of the built-up area of the building.

12. It is further stated that in terms of the 9th Amendment a modification has been made and in terms of Clause 3.1.3 (A) of the 9th Amendment in case of new buildings where the requisition load is 25 kilowatt or more but less than 35 kilowatt or built-up

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024 area of the building exceeds 500 square meters but less than 800 square meters. The applicant shall provide the required space free of cost at its premises for erection of distribution line and transformer and associate equipment at the cost of the licensee.

13. In terms of Clause 2, it is stated that in case of new buildings availing power supply less than 25 kilowatt or built-up area of less than 500 square meters, subsequently when the additional load including the existing sanctioned load exceeds 25 kilowatt or more, but less than 35 kilowatt, the above condition would be still applicable.

14. Thereafter a clarification has been issued that where the demand is not more than 35 kilowatt and it is a Single Dwelling House, then there would be no need to provide required space in the premises of the applicant for erection of the transformer and associated equipment.

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024

15. It is further stated that in such a situation, the applicant can avail power supply from a common transformer erected by the distribution licensee at its cost, duly paying the necessary charges to the distribution licensee like the petitioner-GESCOM.

16. In the affidavit filed by GESCOM, it is stated that since the building constructed by Respondents No.2 to 5 consists of three floors, the total built-up area being more than 500 square meters, including the staircase and balcony area, Respondents No.2 to 5 had to provide open space for installing the transformer free of cost. Thus, the petitioner continues to contend that it is because of the quantum of construction that a transformer has to be installed and the land for the same is to be provided free of cost.

17. Heard Sri. Shivakumar Malipatil, learned counsel for the petitioner, Sri. Nandakishore Boob, learned counsel for Respondents No. 2 to 5 and Sri.

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024 Sudharshan M learned counsel for Respondent No.6 and perused the papers.

18. The question that would require determination of the hands of this Court is "Whether a owner of a building seeking for electricity connection is required to make available land free of cost for installation of a transformer, merely on account of the built-up area being 500 square meters, as contended by GESCOM".

19. GESCOM is seeking to implement the KERC (Recovery of Expenditure for supply of Electricity) Regulations, 2004 (7th Amendment) and subsequently the 9th Amendment. These regulations have been made by Respondent No.6-KERC.

20. The KERC is therefore the author of the said Regulation. The author of the Regulation has categorically stated that, if the application for power supply where the built-up constructed area of the premises is more than 800 square meters and the demand load is not more than 35 kilowatt, then if it is a Single Dwelling House there would be no need to

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024 provide required space in the premises by the applicant for erection of transformer and associated equipment when this is the stand of the KERC, who is the author of the Regulation.

21. The petitioner-GESCOM who is the implementing authority has sought to go beyond what is stated by the author to contend that, if the construction is more than 500 square meters a open-to-sky space of 8 feet x 8 feet i.e., 64 feet is required to be provided, free of cost.

22. Such a contention, to my considered opinion is a completely malafide contention on part of GESCOM, 500 square meters would be approximately 5382 square feet. Thus, any site measuring 2700 square feet with a Floor area Ratio of 2, would have a construction of 5400 square feet or above and as regards each of these sites, merely because the construction is 5000 square feet or above, a transformer would have to be installed.

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024

23. The purpose of installation of a transformer is for Regulation of the electricity in a proper manner for purpose of use in the premises. This Regulation of power would be required depending on the load as rightly indicated by the KERC and it is only if the load were more than 35 kilowatt that a transformer is required to be installed in the premises. Normal domestic load is much lesser and in the present case as regards all the three floors which have been constructed by the respondents No.2 to 5 the load is less than 25 kilowatt.

24. Thus, the insistence on part of the petitioner-GESCOM that respondents No.2 to 5 will provide 64 square feet free of cost for installation of the transformer which transformer would be provided by GESCOM is contrary to the 9th amendment extracted hereinabove. If the said submission were to be accepted, then GESCOM would be required to provide a transformer for each of the houses in Kalaburagi, which measures more than 5000 square feet, which is not possible or acceptable let alone practicable.

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024

25. There is a complete misreading of Regulation 3.1.3 (A) of the KERC (Recovery of Expenditure for Supply of Electricity) (Ninth Amendment) Regulations, 2017 by the GESCOM and it is this misread and misinterpreted regulation which is sought to be enforced by GESCOM. The respondent No.1 has rightly come to a conclusion that such an interpretation is not permissible and there is no requirement for a transformer to be installed in the premises, if the load is less than 25 kilowatt.

26. Thus, I answer point formulated by holding that merely because the construction is more than 500 square meters would not require the landowner to make available 64 square feet of area free of cost for installation of a transformer. It is only if the load requested for sanction is more than 25 kilowatt that such an area is required to be made available.

27. In view of the above, I do not find any infirmity in the order passed by the respondent No.1, no grounds have been made out in the petition. The petition stands dismissed.

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NC: 2024:KHC-K:10010 WP No. 202016 of 2024

28. Though, the above petition is a fit case where costs to be imposed, this court refrains from doing so.

Sd/-

(SURAJ GOVINDARAJ) JUDGE List No.: 19 Sl No.: 2

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