Karnataka High Court
M/S. Intent Design Pvt. Ltd. vs The Managing Director on 12 February, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.1325 OF 2017 (GM-KEB)
BETWEEN:
M/S INTENT DESIGN PVT. LTD.
NO.21E, II PHASE
KIADB, GERUPALYA, KUMBALGODU
KENGERI(H), BENGALURU-560 097
REPRESENTED BY ITS DIRECTOR
SRI A. SRINIVASAN
S/O LATE V.ASHWATHANARAYANA
AGED ABOUT 50 YEARS
R/O NO.2921, CARD ROAD
RPC LAYOUT, VIJAYANAGAR, 2ND STAGE
BENGALURU-560 040 ...PETITIONER
(BY SRI. SREEDHARA H.R., ADVOCATE)
AND:
1. THE MANAGING DIRECTOR
BESCOM, K.R.CIRCLE
BENGALURU-560 001
2. APPELLATE AUTHORITY
CONSUMER APPELLATE TRIBUNAL
BESCOM, K.R.CIRCLE
BENGALURU-560 001
3. THE ASST. EXECUTIVE ENGINEER (EL)
BESCOM, K-1 SUB DIVISION
KENGERI, BENGALURU-560 060
... RESPONDENTS
(BY SRI. SRIKANTH PATIL K., ADV. FOR R1;
R2 & R3 ARE SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 03.12.2016 PASSED BY R2 IN ORDER AT
ANNEXURE-G AND DECLARE THAT THE BACKBILL DATED
2
24.05.2011 AND 21.09.2011 ARE ILLEGAL, ARBITRARY AND
CONTRARY TO RULE AND WITHOUT THE AUTHORITY OF LAW
AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner who claims to be a Software Industry is invoking the writ jurisdiction of this Court for assailing the order dated 03.12.2016 issued by respondent No.2 at Annexure-G, whereby it is asked to pay a sum of Rs.3,29,657/- by way of back billing on the premise that it was not entitled to concessional Tariff Rates in the absence of production of a prescribed certificate issued by the competent authority.
2. After service of notice, respondents having entered appearance through their Panel Counsel have filed the Statement Of Objections resisting the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants relief to the petitioner for the following reasons: 3
a) The impugned order dated 03.12.2016 at Annexure-G is structured on the non-production of a certificate issued by the competent authority specified in the Policy Circulars;; the production of this certificate is treated as a pre-condition for availing the concessional Tariff Rates for power supply in terms of BESCOM Policy Circular dated 10.11.2006 issued pursuant to Government Policy Circular dated 10.11.2002;
true it is that at paragraph No.5 of the Government Circular a certificate to be issued by the Director of IT/BT is contemplated; however, this paragraph cannot be construed as a statutory requirement; if there is other similar certificates issued by the concerned authorities to the effect that a particular IT/BT company is an 'INDUSTRIAL CONSUMER', the same needs to be treated as the substantial compliance of requirement; it is more so because these subject circulars are not shown to have been issued pursuant to any statutory power;
(b) A co-ordinate Bench of this Court in more or less a similar fact matrix in W.P.No.57324-325/2015 between Talisma Corporation Private Limited v/s BESCOM has granted relief to the litigant therein vide judgment dated 4 27.011.2017; it is profitable to reproduce hereunder paragraph Nos.21, 22 & 24 of the same:
"21. This Court cannot appreciate the reasons assigned by the Ombudsman of Electricity in his order dated 24.06.2013 nor by the Asst. Executive Engineer in the impugned orders passed against these petitioners. These authorities have not at all cared to give any reasonable, plausible or sufficient reason to ignore or brush aside the Certificates issued by the other Departments of the State Government which itself has issued the Millennium Policy 2002. The authorities of the Respondent-BESCOM cannot be permitted to take arbitrary stands in the matter, contrary to the documents and Certificates issued by other Departments of the State Government in an arbitrary manner.
22. There was no dispute from the side of the Respondent-BESCOM that Software Department Industry as an 'industry' falls within the category of HT2(a) of Tariff Schedule, but the only submission made before the Court was that since the petitioners did not produce the Certificates issued by the Director of IT & BT initially, soon after the announcement of the Millennium Policy by the Circular of 2002, they cannot be held entitled to the said concessional rate of power Tariff.
23. .....
24. This kind of typical bureaucratic attitude on the part of the Authority at the level of Asst. Executive Engineer (Elec.) of Respondent - BESCOM of turning the tables of the concessional rates of Tariff on the petitioners after so many long years and raising huge demands against the petitioners, which definitely has an impact of discouraging and dampening of the industries in the State, not to talk of the unnecessary litigation landing on the Boards of this Court, wasting precious public time of the Courts, man hours and litigation expenses. Before taking such a stand of 5 reversal of policy of the State itself in the impugned orders, the Respondent-Asst. Executive Engineer (Elec.) did not even take care to seek any approval from his own higher authorities, so that such orders could reflect a responsible stand taken by the Respondent-BESCOM as an Organization, rather than the individual view of an Officer at the lower echelon like that of Asst. Executive Engineer."
(c) in the above decision the co-ordinate Bench has held that mere absence of the certificate prescribed under the subject Circulars may not be a sufficient ground for refusing to treat the IT/BT company as an "industrial consumer"; the learned co-ordinate judge goes a step further and holds that the burden of showing that the company in question used the power for a purpose other than IT/BT rests on the shoulders of the BESCOM; this view is consistent with the policy embodied in the subject Circulars that such incentives/concessions attractively facilitate establishment of IT/BT industries in the State, and eventually revenue and employment generation takes place;
(d) the contention of the Learned Panel Counsel for the respondents that the subject decision of the co-ordinate Bench is put in challenge in W.A.No.4/2018 before the Division Bench and therefore, that may not be followed does not impress this Court in the absence of any stay order 6 granted therein; the Principle of Parity needs to be invoked in this case, of course subject to the result of said Writ Appeal; this apart, the contention of the petitioner that even independent of the said decision too, relief needs to be granted in view of specific admission of the respondents in their cross-examination has some force; in the event the appeal is allowed, it is open to the respondents to seek revival of this writ petition by moving a memo.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order; a Writ of Mandamus issues directing the respondents to treat the petitioner - company as an "INDUSTRIAL CONSUMER"
under the extant policy for the purpose of power billing;
whatever amount in excess of the concessional Tariff rates has been recovered hitherto from the petitioner pursuant to the impugned order shall be appropriated to the future consumption bills to be issued under the concessional Tariff Rates.
It is open to the petitioner to make appropriate representation to the respondents, if there are any other 7 relative grievances, which shall immediately be addressed by the answering respondents in accordance with law.
No costs.
Sd/-
JUDGE KG