Karnataka High Court
Velankani Information Systems vs Bangalore Electricity Supply Company ... on 12 February, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.18664 OF 2013 (GM-KEB)
Between:
Velankani Information Systems
Private Limited,
A Company registered and governed
by the provisions of the Companies
Act, 1956, having its Registered Office
at 43, II Phase, Electronics City,
Bangalore 560 100.
Represented by its Authorized Representative
Ms.Anju Prakash. ...Petitioner
(By:Mr.Shridhar Prabhu, Advocate)
And:
Bangalore Electricity Supply Company Limited
Represented by its Asst. Executive Engineer (E)
S-8, Sub-Division,
Kudlugate, Hosur Main Road,
Bangalore 560 001
(Represented by its Assistant
Executive Engineer). ...Respondent
(By:Mr.Pavan Sagar, Advocate
for Mr.Prasanna Kumar, Advocate)
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to call for records and
quash the assessment order dated 19th February 2013
Date of Order 12-02-2018 W.P.No.18664/2013
Velankani Information Systems Private Limited
Vs. Bangalore Electricity Supply Company Limited
2/10
passed by the respondent at Annexure-A and consequent
demand letter dated 1st April 2013 at Annexure-B and etc.
This W.P. coming on for Preliminary Hearing this day,
the Court made the following:-
ORDER
Mr.Shridhar Prabhu, Advocate for Petitioner. Mr.Pavan Sagar, Advocate for Mr.Prasanna Kumar, Advocate for Respondent.
This Writ petition was filed with the following prayers:-
"i) Call for records.
ii) Issue a writ in the nature of certiorari
quashing the Assessment Order dated 19th February 2013 passed by the Respondent at Annexure-A bearing No.AEE/S8/AAO/ SA/6502-05 and consequent demand letter bearing No.AEE(E)/S8/AAO/S-1/HT/01-04 dated 1st April, 2013 at Annexure-B.
iii) Issue a writ of mandamus directing the respondent to apply and collect the electricity charges for the entire installation of the petitioner under Revenue Register (RR) No.S8HT30 in respect of the operation Date of Order 12-02-2018 W.P.No.18664/2013 Velankani Information Systems Private Limited Vs. Bangalore Electricity Supply Company Limited 3/10 of Deutsche Bank under category HT2A only;
iv) Issue a writ of mandamus directing the respondent to refund of excess amount deposited by petitioner receipt No.10338 dated 27th July 2009 and collected by the respondent based on agreement under HT- 2(B) tariff dated 25th June 2009.
v) Pass such other orders as this Hon'ble
Court deems fit in the facts and
circumstances of the case, including an order as to costs, in the interest of justice and equity."
2. Heard the learned counsels for the parties on merits.
3. Both the learned counsels fairly submitted that the controversy in the present case is covered by a decision of this Court dated 27.11.2017 passed in W.P.Nos.57324-325/2015 (Talisma Corporation Private Limited Vs. Bangalore Electricity Supply Date of Order 12-02-2018 W.P.No.18664/2013 Velankani Information Systems Private Limited Vs. Bangalore Electricity Supply Company Limited 4/10 Company Limited and connected writ petitions, wherein, this Court has held in the said case as under:-
"15. I have heard the learned counsels at length and perused the records.
16. In the considered opinion of this Court, the present writ petitions deserve to be allowed with costs.
17. It is surprising that the Respondent- BESCOM, a Govt.Company for distribution of power chose to disregard the Certificate issued by the District Industries Centre to the effect that the petitioners-industries were engaged in the Software Development business only. There is no material at all on record brought by the Respondent-BESCOM before this Court or otherwise to indicate that these petitioners were engaged in any other business other than the Software Development.
18. From the facts given above, it is clear that these petitioners had not only obtained the relevant Certificates about their business activities of being engaged in Software Development in the contemporary period when they commenced the business from the District Date of Order 12-02-2018 W.P.No.18664/2013 Velankani Information Systems Private Limited Vs. Bangalore Electricity Supply Company Limited 5/10 Industries Centre but also from the Director of IT & BT even though later in the year 2006 (Cognizant Technology) and in the year 2011 (Talisma Corporation) and in none of these Certificates issued by the Director of IT & BT, he has found anything contrary to the petitioners viz., that they were throughout not engaged in the business of Software Development only or that they were carrying on any other incidental or ancillary business other than the Software Development also, so as to segregate their power consumption into two or more parts to contend that they would be entitled to the concessional Tariff under HT2(a) only partly and not for other categories falling under 'commercial' category under HT2(b) category.
19. Merely insisting upon the petitioners to obtain such Certificate from the Director of IT & BT in the year 2002 itself, when the said Policy was announced by the Government of Karnataka, does not demolish the case of the petitioners when they claim that their industry was through out engaged in the Software Development only. If the benefit of concessional rate of tariff under HT2(a) is sought to be denied by the Respondent-
Date of Order 12-02-2018 W.P.No.18664/2013 Velankani Information Systems Private Limited Vs. Bangalore Electricity Supply Company Limited 6/10 BESCOM to these petitioners industries, the burden was upon them (BESCOM) to bring on record any such evidence and allow the petitioners to controvert the same.
20. Nothing of this sort has been done by the Respondents in this case. No reason has been assigned before this Court by the Respondents-BESCOM to brush aside the Certificates issued by the District Industry Centre in the case of Talisma Corporation in the first instance, much less, there is any justification for them to ignore the Certificate issued to another petitioner namely M/s.Cognizant Technology by the Director of IT & BT himself in the year 2006 as quoted above.
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 Date of Order 12-02-2018 W.P.No.18664/2013 Velankani Information Systems Private Limited Vs. Bangalore Electricity Supply Company Limited 7/10 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 Development 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. This contention of the Respondent- BESCOM has no merit at all and this Court does not find any substance in the same and the same is liable to be rejected.
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 Date of Order 12-02-2018 W.P.No.18664/2013 Velankani Information Systems Private Limited Vs. Bangalore Electricity Supply Company Limited 8/10 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 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.
25. This even reflects badly on the internal working and hierarchical discipline of the Respondent-BESCOM itself, where such policy decisions were also taken by the lower officials, perhaps even without the higher authorities being taken into confidence. Such a casual, non-chalant and arbitrary attitude of the Respondents-Authorities creates more havoc Date of Order 12-02-2018 W.P.No.18664/2013 Velankani Information Systems Private Limited Vs. Bangalore Electricity Supply Company Limited 9/10 rather than doing any public good or public service in the matter.
26. The writ petitions therefore deserve to be allowed with costs to be paid by the Respondent-Asst.Executive Engineer in his personal capacity and the same is quantified at Rs.25,000/- for each of the petition. The impugned orders passed by the Electricity Ombudsman on 24.06.2013 as well as the Asst.Executive Engineer are quashed and set aside and it is further directed that any amount paid under such impugned orders by these petitioners shall be liable to be refunded/adjusted against their future bills in a phased manner with interest at the rate of 9% p.a. from the date of deposit till the date of adjustment/refund. The petitioners Software Development Industries are entitled to concessional Power Tariff under HT2(a) throughout.
27. If the Respondent-BESCOM chose to refund the excess charges paid, it is free to do so, otherwise, to the extent of 50% regular Power Tariff bills against the petitioners industries, the adjustment out of the amount already deposited by them under the impugned Date of Order 12-02-2018 W.P.No.18664/2013 Velankani Information Systems Private Limited Vs. Bangalore Electricity Supply Company Limited 10/10 orders shall be liable to be adjusted with interest and computation in this regard of the entitlement of their refund/adjustment shall be made by the Respondents-Authorities of BESCOM within a period of one month from today, for which, the petitioners may make their claims with the relevant documents before the Respondents-BESCOM, who will determine the amount of adjustment/refund due to the petitioners with the aforesaid simple interest of 9% p.a. within a period of one month from today and costs to be paid by the Respondent- Asst.Executive Engineer (Elec.) shall be paid separately by him from his personal resources to the each of the petitioners within a period of one month from today.
28. The Writ Petitions are accordingly allowed with costs.
4. By agreement of both the learned counsels, this Writ Petition is also disposed of in the aforesaid terms. No costs.
Sd/-
JUDGE VGR