Karnataka High Court
Bangalore Electricity Company Ltd vs M/S Orient Bell Ltd on 25 November, 2022
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WP No. 8009 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
WRIT PETITION NO. 8009 OF 2020 (GM-KEB)
BETWEEN:
1. BANGALORE ELECTRICITY COMPANY LTD
A COMPANY INCORPORATED UNDER THE PROVISIONS OF
THE COMPANIES ACT 1956 HAVING ITS REGISTERED
OFFICE AT KAVERI BHAWAN K R CIRCLE,
BANGALORE - 560001
REP HEREIN BY ITS GENERAL MANAGER
HR AND ADMIN
2. ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL
O&M SUB DIVISION, BESCOM
HOSAKOTE SUB DIVISION - 562114
...PETITIONERS
(BY SMT MEDHA, ADVOCATE FOR
SMT. SUMANA NAGANAND.,ADVOCATE)
AND:
1. M/S ORIENT BELL LTD
Digitally CHOKKAHALLI VILLAGE HOSAKOTE TALUK
signed by
NIRMALADEVI BANGALORE RURAL -562114
Location:
HIGH COURT REPRESENTED BY ITS MANAGING DIRECTOR
OF
KARNATAKA
2. ELECTRICITY OMBUDSMAN
NO.16, C- 1
MILLER'S TANK BED AREA,
VASANTH NAGAR
BENGALURU - 560052
KARNATAKA
...RESPONDENTS
(R1 & R2 ARE SERVED)
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WP No. 8009 of 2020
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER IN CASE
DATED 21.2.2019 PASSED BY THE R-2 IN ANNEXURE-A AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The above Writ Petition is filed seeking the following reliefs:
"1) Quash the order in Case No. OMB/B/G-309/2018 dated 21.2.2019 passed by the Respondent No.2 in (Annexure A)
2) Declare that the 1st Respondent is not entitle to any refund of any security deposit in view of the specific provisions of Regulation 4 of KERC (Security Deposit) Regulation 2007 as well as Regulation 11(xii) KERC (Terms and Conditions for open access) 2004.
3) Pass such other orders as this Hon'ble Court may deem fit in the facts and circumstances of the case, and"
2. It is the case of the Petitioners - Bangalore Electricity Company Ltd., that the first Respondent requested for refund of a sum of Rs.54,32,048/- from the Petitioners contending that its power consumption from the Petitioners had reduced and that it had deposited excess amount than what was prescribed under the K.E.R.C. (Security Deposit) Regulations, 2007 (hereinafter referred to as 'Regulations, -3- WP No. 8009 of 2020 2007'). Since the request of the first Respondent was not acceded to by the Petitioners, the first Respondent had filed a complaint in Case No.CGRF/02/2018 before the Consumer Grievance and Redressal Forum ('CGRF' for short), Bangalore Rural. The CGRF, after hearing both the parties, vide order dated 15.10.2018 had dismissed the complaint filed by the first Respondent. Being aggrieved, the first Respondent had filed an Appeal/Application under Regulation 21.3 of the Karnataka Electricity Regulatory Commissioner (Consumer Grievance Redressal Forum and Ombudsman) Regulations, 2004 read with Section 42(6) of the Electricity Act, 2003 in Case No.OMB/B/G- 309/2018/3438 before the Electricity Ombudsman, Bangalore. The Electricity Ombudsman, vide his order dated 21.2.2019 had directed the Petitioners to process the first Respondent's application for refund in accordance with Rule 6.2 of the Regulations, 2007. Being aggrieved, the present Writ Petition is filed.
3. The notice issued to Respondent Nos.1 and 2 is served and they are unrepresented.
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4. The learned Counsel for the Petitioners submits that the order passed by the Electricity Ombudsman is contrary to Regulation 11(xii) of Regulations, 2004, inasmuch as, Regulations, 2004 do not make an exception if a consumer draws power through an open access and as long as a consumer is contracted with the Petitioners for supply of power, they are required to maintain the deposit as prescribed by Regulation 4 of the Regulations, 2007.
5. I have considered the submissions made by the learned Counsel for the Petitioners and perused the material on record. The question that arises for consideration is "Whether the relief claimed in this Writ Petition is liable to be granted?"
6. The first Respondent is a HT consumer of the Petitioners with a contract demand of 2500 KVA. The first Respondent is buying power from the Petitioners as well as through an open access. It is the case of the first Respondent that since it is also buying power through an open access, its consumption of power from the Petitioners has been reduced and hence, requested for refund of Rs.54,32,048/- contending -5- WP No. 8009 of 2020 that it had deposited excess amount than what is prescribed in Regulations, 2007. The CGRF, considering the case of the first Respondent and the objections of the Petitioners, has recorded the following findings and conclusion, which read as under:
"The FORUM during its course of hearing has verified all the above stated recordings and documents. The findings of the FORUM are as follows.
1. The complainant is a company under Company Act 1956, and has availed HT Power supply under RR No:
HKHT-161 with a contract demand of 2500 KVA.
2. The consumption has reduced due to the fact that the power is availed from the OPEN ACCESS SYSTEM, and that the MD Recorded remains the same.
3.The Respondent has not followed the laid out procedures as per regulations while giving paragraph replies.
Conclusion:
1.The consumption has reduced since the consumer, has opted for OPEN ACCESS SUPPLY.
2. At the time of framing clauses under KERC notification, No: D/07/7 dated 1.10.2007 on KERC (Security Deposit) and gazette dated 11.10.2017, the OPEN ACCESS SYSTEM was not existing.
3. Clause No.9 which states: "The Licensee, on termination of the agreement by either party shall refund ISD ASD & Meter Security Deposit (if any) after adjustments of dues. any, within two months from the date of termination failing which interest at 1% per month shall be payable on the ISD, ASD & Meter Security Deposit for the actual days of delay. But it does not give any guide lines or policies when the -6- WP No. 8009 of 2020 consumption reduces due to the consumer availing power through OPEN ACCESS SYSTEM.
4. The present connected power of 2500 KVA is retained by the consumer, even after availing additional power through OPEN ACCESS SYSTEM.
5. The statement of the Counsel for the complainant that, the present connected power is required and that they may even apply for additional power implies the possibilities of the consumer coming back to the system always remains.
6. At present, there are no fixed policies or guide lines framed or laid out in writing on the usage of the OPEN ACCESS system and that whether this system will continue for ever.
7. The consumption means all the units consumed through the supply point and the total MD recorded.
8. The KERC regulation Order No. Y/03/4 dated 31-05-
2006 wherein The KERC Regulation on Terms and conditions for Open Access Regulation 2004 on 12-11- 2004 published in the Karnataka Gazette on 16-12-2004 is considered along with its amendments, Clause 11(xii) - On the open access system "An open access consumer shall pay 2 Months charges as security deposit to the appropriate licensee as applicable to secure the licensee against default in payments"
and Clause 18 - "Collection and disbursement of charges" - the charges may be collected either by the distribution licensee, the transmission licensee or the STU, depending on whose facilities are used by the consumer for availing open access. In all cases the amounts collected from a particular consumer should be given to the distribution licensee in whose area the consumer is located. In case of two licensees supplying in the same area the licensee from whom the consumer was availing supply shall be paid the amounts collected. Provided -7- WP No. 8009 of 2020 further that transmission charges shall be payable to the concerned transmission licensee."
7. Having recorded the aforementioned conclusions, the claim for refund made by the first Respondent was rejected. The Electricity Ombudsman, on an erroneous appreciation of the fact situation directed the application of the first Respondent to be processed in accordance with clause 6.2 of the Regulations, 2007 and refund the additional security deposit of the first Respondent within 30 days.
8. Clause 4.1 of Regulation 4 of Regulations, 2007 reads as under:
"4.1 All the Consumers shall at all times maintain with the Licensee an amount equivalent to fixed charges/demand charges plus energy charges corresponding to consumption for two months (2 MMD) in case of monthly billing and three months (3 MMD) in case of bi-monthly billing as Security Depsoit towards the electricity supplied/to be supplied to them against any default in payment during the period the Agreement for supply of energy is in force."
Clause (xii) of Regulation 11 of Regulations, 2004 reads as under:
"11(xii) An open access consumer shall pay 2 months' charges as security deposit to the concerned Nodal agency, as applicable, to secure the nodal agency against default in payments."-8- WP No. 8009 of 2020
9. It is to be noticed that despite the first Respondent buying power through an open access, as long as, it has contracted with the Petitioners with a particular demand, the Petitioners will be required to be ready to supply the power as per the contracted demand as and when the first Respondent requires the same.
10. Admittedly, it is not the case of the first Respondent that it has surrendered the power availed from the Petitioners. Hence, it is clear that the first Respondent has continued to remain contracted with the Petitioners to supply the requisite demand of 2500 KVA of power.
11. In view of the aforementioned, the question framed for consideration is answered in the affirmative and the order passed by the Electricity Ombudsman is liable to be interfered with.
11. Hence, I pass the following:
ORDER i. The Writ Petition is allowed;-9- WP No. 8009 of 2020
ii. The order dated 21.2.2019 passed in Case No.OMB/B/G-
309/2018 by the Electricity Ombudsman, Bangalore, is quashed.
No costs.
SD/-
JUDGE nd List No.: 1 Sl No.: 37