Karnataka High Court
Just Dial Limited vs Bangalore Electricity Supply Company ... on 1 September, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:31506
WP No. 9276 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 9276 OF 2019 (GM-KEB)
BETWEEN:
1. JUST DIAL LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956
HAVING ITS OFFICE NO 20,
A1-YUSUF TOWERS, CUNNINGHAM ROAD,
BENGALURU - 560052
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
MR NOORUDDIN M
ALSO HAVING ITS OFFICE AT NO 29,
OPP VLCC CUNNINGHAM ROAD,
BENGALURU - 560052.
Digitally 2. MRS ANWAR BASITH
signed by
NARASIMHA WIFE OF LATE MAQSOOD AHMED
MURTHY
VANAMALA AGED 74 YEARS
Location: RESIDING AT 16,
HIGH DR OMER SHARIEFF ROAD,
COURT OF
KARNATAKA BASAVANAGUDI
BENGALURU - 560004.
3. MR MOHAMAD MUNAVAR ALAM
SON OF MR MOHAMMED YUSUF
AGED 40 YEARS
RESIDING AT NO 178,
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NC: 2023:KHC:31506
WP No. 9276 of 2019
C M H ROAD, OPP M K RETAIL
INDIRANAGAR,
BENGALURU - 560038.
...PETITIONERS
(BY MS. NALINA MAYEGOWDA, SENIOR ADVOCATE
FOR SRI. MANJUNATH H., ADVOCATE)
AND:
1. BANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED (BESCOM)
K R CIRCLE,
BENGALURU - 560001
THROUGH ITS MANAGING DIRECTOR.
2. ASST EXECUTIVE ENGINEER
(ELECTRICAL)
E - 2 SUB DIVISION BESCOM,
QUEENS ROAD,
BENGALURU - 560052.
3. POLICE INSPECTOR
BESCOM VIGILANCE
CELL MALLESHWARAM
POLICE STATION ,
NO 297, M N R COMPLEX,
17TH CROSS, SAMPIGE ROAD,
MALLESHWARAM
BENGALURU - 560003.
...RESPONDENTS
(BY SRI. H V DEVARAJU, ADVOCATE FOR R1 TO R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
DEMAND NOTICES DATED DECEMBER 18, 2018
(ANNEXURES-P AND R) ISSUED BY R-2; QUASH THE
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NC: 2023:KHC:31506
WP No. 9276 of 2019
IMPUGNED ORDER DATED JANUARY 24, 2019
(ANNEXURE-V) PASSED BY R-2; QUASH THE NOTICES
DATED FEBRUARY 02, 2019 (ANNEXURE Y AND Z)
ISSUED BY R-2; QUASH THE INSPECTION REPORTS
BEARING N C NO.B NO.16628 AND N C NO.B NO.16629
DATED NOVEMBER 17, 2018 (ANNEXURES-M AND N)
ISSUED BY R-3 AS ILLEGAL, ARBITRARY AND
UNSUSTAINABLE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is by the landlord and the tenant of the Unit No.1 [bearing No.29] and Unit No. 2 [bearing No.20] in the property in A1- Yusuf Towers, Cunningham Road, Bengaluru in the property of Cunningham Road, Bengaluru [the Subject Properties]. The petitioners are aggrieved by the notices dated 18.12.2018 [Annexures - P and R] addressed to the second and third petitioners alleging that misuse of installations in RR Nos. 2EHT21 and 2EHT113 as ascertained by the vigilance staff of inspection of the subject property, and these notices -4- NC: 2023:KHC:31506 WP No. 9276 of 2019 raise a demand for Back Billing Charges contending that tariff applicable to 'IT enabled' industries is being availed when the first petitioner is engaged in a commercial activity which attracts a higher tariff. The petitioners have responded to such notices ultimately leading to the impugned order dated 24.01.2019 [Annexure-V]. The impugned Notices dated 02.02.2019 [Annexure - Y and Z] are issued reiterating Back Billing Charges in terms of the earlier Notice dated 18.12.2018 and the subsequent order dated 24.01.2019.
2. At the first instance in the year 2010, the first petitioner has obtained Registration Certificate from the then competent authority - the Joint Director, District Industries Centre, and this certificate is issued certifying that the petitioner is an enterprise engaged in 'IT enabled service'. However, for the reasons best known to the first petitioner, it has not availed the concessional tariff that is -5- NC: 2023:KHC:31506 WP No. 9276 of 2019 extended to an IT enabled enterprises until the year 2017. In the month of September 2017, on the first petitioner's request, the Director of the Directorate of Information Technology and Biotechnology has issued Certificates dated 01.09.2017 and 26.12.2017 addressed to the jurisdictional Assistant Executive Engineer [Elec.], BESCOM. These Certificates are issued to enable the first petitioner to avail the HT2[a] concessional rate that is extended to an 'IT enabled service' as against the HT2[b] tariff for commercial enterprises. The Department of Information Technology and Biotechnology has also issued the requisite Amended Registration Certificate in the month of December 2017.
3. The petitioner contends that notwithstanding these circumstances and the fact that the Official Memorandums are issued in the light of these Certificates, the proceedings are initiated to recover alleged arrears on the basis of HT2[b] tariff. -6-
NC: 2023:KHC:31506 WP No. 9276 of 2019 Ms. Nalina Maye Gowda, the learned Senior Counsel for the petitioners, submits that, with the General Manager [IT], Karnataka Innovation and Technological Society, which works under the aegis of the Department of Information Technology and Biotechnology, Government of Karnataka filing an affidavit on 30.03.2021 in the writ appeals in W.A. Nos.4-5/2018 and connected matters, it cannot be disputed that the Government has indeed introduced different policies and in terms of these policies, every Enterprise engaged in IT enabled services would be entitled to HT2[a] tariff.
4. Ms. Nalina Maye Gowda submits that the impugned notices [as per Annexure - P and R] are issued to the petitioners in the premise that the first petitioner is functioning as a 'Call Centre' and therefore would not be entitled to concessional tariffs permitted to IT enabled services, but this is also clarified in the affidavit stating that 'Call Centers', -7- NC: 2023:KHC:31506 WP No. 9276 of 2019 amongst others, would be IT enabled services for the purposes of availing the concessional HT 2[a] tariff. In this regard, Ms. Nalina Mayegowda draws the attention of this Court to the following in paragraph 6 in this affidavit:
6. Under the 2020-25 Policy Information Technology (IT) is defined as the technology involving the development, maintenance and use of computer systems, hardware, software and networks for the processing and distribution of data. IT enabled Services (ITeS) is defined as information technology IT that enables the business by improving the quality of service is IT enabled services. IT enabled services covers the entire spectrum of operations which exploit information technology for improving efficiency of an organisation.
This will include:
a. Call centres;
b. Medical transcriptions;
c. Back office operations/Business Process Outsourcing (BPO)/ Knowledge Process Outsourcing (KPO):
d. Cloud service providers; -8-
NC: 2023:KHC:31506 WP No. 9276 of 2019 e. Data processing; f. Engineering and design; g. Remote maintenance;
5. Ms. Nalina Mayegowda also relies upon the decision of this Court in the writ petitions in W.P. Nos.57324-325/2015 and connected matters disposed of on 27.11.2017, the operative portion of which reads as under to argue for refund:
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 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 -9- NC: 2023:KHC:31506 WP No. 9276 of 2019 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."
6. Sri H V Devaraju, the learned counsel for the contesting respondents, does not dispute that even if the first petitioner were to be considered as an 'enterprise' engaged in the business as a 'Call Centre', with the clarification by way of affidavit in the pending writ appeal, the first petitioner would be entitled to HT2[a] tariff. Further, he does not dispute that if the Amended Registration Certificate prevails, the petitioner a certified IT enables services company will be entitled to HT2[a] tariff, but he contends that the second respondent must have an opportunity verify the same in an enquiry because the petitioner has not availed such concession until the year 2017 though the Registration Certificate is issued in the year 2010 at the first instance.
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NC: 2023:KHC:31506 WP No. 9276 of 2019
7. This Court must opine that with the affidavit dated 30.03.2021 being placed on record in the aforesaid writ appeals on behalf of the Department of Information Technology and Biotechnology, the Government policy in vogue as of the date of the impugned first Notice in the year 2018 [as detailed in paragraph 4 of this affidavit], and the policy in existence as of today, the petitioners would be entitled to concessional HT2[a] tariff . As such, the impugned order dated 24.01.2019 [Annexure-V] as also the subsequent Demand Notice dated 02.02.2019 [Annexures-Y and Z] will have to yield. The demand for back billing charges would only be justified if the second respondent can reasonably doubt the genuineness of the Registration Certificate relied upon by the petitioner to assert that it has been an enterprise in IT enabled services from the year 2010 but has availed concession only from the year 2017. Therefore, the notices dated 18.12.2018 [Annexure P and R] must be saved for consideration
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NC: 2023:KHC:31506 WP No. 9276 of 2019 only to this limited extent but after due opportunity to the petitioners.
8. This Court, to ensure that there is complete adjudication without precipitation, reiterate that the enquiry pursuant to the notices dated 18.12.2018, in the light of the submissions before this Court must be confined to examining whether the first petitioner has been certified as an enterprise engaged in IT Enabled Services from the year 2010 and the question of consequential refund in the light of the directions issued in W.P. Nos.57324-325/2015 and connected matters, and nothing beyond. Hence, the writ petition stands disposed of by the following:
ORDER [a] The writ petition is allowed in part, and the second respondent's impugned order dated 24.01.2019 [Annexure-V] and the consequential Demand Notice dated 02.02.2019
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NC: 2023:KHC:31506 WP No. 9276 of 2019 [Annexures-Y and Z] are quashed, and the proceedings in terms of the Notices dated 18.12.2018 [Annexures P and R] are restored for consideration on the limited aspect as aforesaid.
[b] If the second respondent proposes to proceed on such notice, there shall be fresh notice to the petitioners and the decision taken after due opportunity as would be required under Section 126 of the Electricity Act, 2003.
Sd/-
JUDGE AN/-