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5. Heard Learned Counsel Mr. Ravindra Shah for the Appellant and Learned Senior Counsel Mr. Mihir Thakore with Ms. Lilu K.Bhaya, Learned Counsel for the respondent in LPA No. 1583 of 2019, LPA No. 1582 of 2019 & LPA 1584 of 2019; whereas, Learned Senior Counsel Mr. Mihir Thakore with Ms. Lilu K.Bhaya, Learned Counsel for the Appellant and Ms. Sonal D.Vyas, Learned Counsel for the respondent No.1 in LPA No. 74 of 2014.

6. Learned Counsel Mr. Ravindra Shah for the Appellant has referred Chapter 3 of the State Act and Section 65(1) of the State Act pertains to Licensees's power to recover expenditure incurred in providing supply and other miscellaneous charges) Regulations, 2005. He has referred Section 46 :-Power to recover expenditure of the Central Act and Regulation. It is further submitted that the State Commission may, by regulations, authorize a distribution license to charge from a person requiring a supply of electricity in pursuance of Section 43 any expenses reasonably incurred in providing any electric C/LPA/74/2014 CAV JUDGMENT DATED: 30/06/2021 DAKSHIN GUJARAT VIJ COMPANY LIMITED Vs. LAND MARK CORPORATION & 1 other(s) line or electrical plant used for the purpose of giving that supply. 6.1 He has further referred Chapter 3 :- Duty of the Distribution License to supply electricity on request and recovery of expenditure. It is further submitted that licensee is allowed to be recovered from the applicant, requiring supply of electricity, any expenses to reasonably incur to provide any electric line or electrical plant specifically for the purpose of giving such supply to the Appellant. That, respondent No.1 has classified different categories of consumers according to the types of premise namely residential, commercial, industrial institution, agricultural and others under the provision of Section 3 of the Supply Code. The GERC has permitted it to classify its consumers in any category apart from the above. That, respondent No.1 was required to charge the Appellant on the basis of per kilo watt of contracted load. Under clause 4.2(II)(c), respondent No.1- Company cannot recover cost from the appellant and its members being domestic consumers. However, apart from recovering such a huge amount for 52 bungalows individually on kilo watt basis as well as for the common light connection and water works on kilo watt basis, by flouting and violating the provision of Regulation of GERC (Licensee's Power to Recover Expenditure) Regulations, 2005 and in defiance of the directions dated 30th December, 2010, 23rd February, 2011 and 21st April, 2011 calculated C/LPA/74/2014 CAV JUDGMENT DATED: 30/06/2021 DAKSHIN GUJARAT VIJ COMPANY LIMITED Vs. LAND MARK CORPORATION & 1 other(s) sum of Rs.16,55,665/- and Rs.40,713/- from the Appellant. It is further submitted that respondent No.1 is not legally entitled to charge or retain any such amount of Rs.16,96,373/- from the Appellant, as infrastructure is developed and new transformer was erected as well as new high tension line was laid by the Respondent No.1. That, Appellant, in fact, is domestic consumer of respondent No.1, however, in-correct misleading averments were made as "developer". That,GERC issued direction/ guidelines to charge in line with Torrent Power which was charged its consumers on a fixed charge basis on kilo watts as per the schedule of charges approved by the GERC and such fixed charges included the cost of transformer, service lines, service connection charges etc. incurred by the DISCOM. It is further submitted that "GUVNL"parent Company while incorporated the schedule of charges in the tabular form decided by GERC sent communication dated 30.12.2010 to all its subsidiary Company including the respondent No.1-Company requiring them to charge accordingly. Further request was made by GUVNL to GERC permitting "DISCOMS" to recover charges towards service lines, transformer and service connection for new connection by modifying approval dated 30th December, 2010 of the GERC by writing letter dated 12th January, 2011. It is further submitted that GERC while replying on 23rd February, 2011 refused C/LPA/74/2014 CAV JUDGMENT DATED: 30/06/2021 DAKSHIN GUJARAT VIJ COMPANY LIMITED Vs. LAND MARK CORPORATION & 1 other(s) request made by GUVNL specifically directing not to recover any separate charges relating to distribution transformer and HT line. Inspite of specific directions issued by GERC, DISCOMs flouted the same. GERC was compelled to issue another directions specifically directing GUVNL on 21st April, 2011 not to charge separate transformer charges, separate HT/LT charges or other charges. On, 11th May, 2011, GUVNL addressed to its subsidiary company with respect to the aforesaid directives of the GERC again and sent communication to all DISCOMs including the respondent No.1- Company to charge only according to the tabular charge approved by the GERC on per kilo watt basis towards fixed charges. 6.2 Learned Advocate for the Appellant Mr. Ravindra Shah has submitted that "Transformer charges" cannot recover from the Appellant as transformer is a part of "transmission line" . He has referred Section 2(72) of the Central Act which defines transmission line. He has further submitted that respondent No.1-Company had already an established network of its above defined transmission lines in the area of the Appellant-Society. Transformer is part of the said transmission line and not a part of "service line" as defined under Section 2(61) of the Central Act . That, learned Single Judge has committed a grave error in not appreciating that the transformer being a part of transmission line and not a service line and the C/LPA/74/2014 CAV JUDGMENT DATED: 30/06/2021 DAKSHIN GUJARAT VIJ COMPANY LIMITED Vs. LAND MARK CORPORATION & 1 other(s) respondent No.1 has no legal authority or right to claim or charge any amount whatsoever towards the "transformer" much less the amount of Rs.18,89,081/-.That, order passed by respondent No.2 - Ombudsman may not be interfered by the learned Single Judge. He has further submitted that there is no provision whatsoever either under the Central Act or State Act or the Supply Code or any of the Regulations recognizing the classification of consumer as "Infrastructure Development" for a new connection. That, findings of learned Single Judge concluded in Special Civil Application are contrary to the facts and law. The Appellant-Society made applications for infrastructure development and electric connection for the purpose of commercial activities, are contrary to the facts on record. That, respondent No.1 was prohibited charging any amount towards infrastructure development charges and the said directives were tendered across the bar by the respondent No.1 itself. That, in compliance with the said directive/order dated 3rd June, 2014, respondent No.1 had discontinued charging any amount towards "infrastructure development" which necessarily includes "transformer charges". That, directives/orders dated 30th December, 2010, 23rd December, 2011, 21st April, 2011, and 3rd June, 2014 were not properly considered by the learned Single Judge in Special Civil Application 4668 of 2016.

7. From the other side, learned Counsel appearing for the respondent No.1 has supported the findings and reasons arrived at by the learned Single Judge in Special Civil Application No. 4668 of 2016 and allied matters submitting that there is no error committed by learned Single Judge in allowing Special Civil Application in C/LPA/74/2014 CAV JUDGMENT DATED: 30/06/2021 DAKSHIN GUJARAT VIJ COMPANY LIMITED Vs. LAND MARK CORPORATION & 1 other(s) favour of respondent No.1 He has further submitted that Appellant is a Developer for its scheme and as per their scheme, they have purchased huge chunk of land where they wanted to construct bungalows which would provide common facilities and amenities. Therefore, the Appellant had asked for huge load of 517 KG, which was without meter, and therefore, for development of line from 66 KV sub-station to outskirt the society work which was to be done and transformer was to be installed as mentioned in the estimate. He has further submitted that different amounts were recovered so that development of infrastructure can be made and consumers can get connection. The Application in A1 Form was submitted by the Appellant- Society for the purpose of development of infrastructure. That, the Appellant was agreed to pay and in fact paid the amount of estimate with full knowledge. That it is estimate for development of infrastructure and the Appellant had also filed an undertaking on stamp paper notarized to pay the infrastructure development charges. It is further submitted that after making payment of estimate and completion of work, separate application for new connection were made and thereafter, after passing of two years, appellant made an application for refund of the amount to "CGRS". It is further submitted that u/s. 43 of the Electricity Act connection is to be given, which is always subject to the terms and conditions. He has also C/LPA/74/2014 CAV JUDGMENT DATED: 30/06/2021 DAKSHIN GUJARAT VIJ COMPANY LIMITED Vs. LAND MARK CORPORATION & 1 other(s) referred Section 45(2) which permits to recover charges. It is further submitted that Section 46 authorizes respondent No.1 regarding power to recover expenditure reasonably incurred in providing the electricity lines for electrical plant. Learned Senior Counsel appearing for respondent No.2 has referred Section 2(20) and 2(22) of the Electricity Act, 2003 which defines electrical line and electrical plant. It is further submitted that development of the infrastructure which is not for electrical connection but for development of infrastructure reasonable expenditure incurred by Respondent No.1 is to be recovered and it is accepted and agreed by the Appellant by giving undertaking on stamp paper duly notarized and thereafter, amount was paid. He has also referred Notification No. 9/2005 of GERC and submitted that Respondent No.1 is permitted to charge reasonable expenditure from the Appellant. That, the Appellant cannot be treated as domestic consumer as rightly held by learned Single Judge. Since this was not an application from domestic consumer but it was for development of infrastructure. It is further submitted that application for infrastructure for service connection without underground distribution systems confined to the premises of the Appellant and it was demanding estimate for development of infrastructure.

(iv) The Distribution Licensee shall always endeavour to procure adequate power of appropriate quality for supply to consumers.

12. It appears from record that GERC has categorized the prospective consumers in the following 6 (Six) categories according to the type of premises (1) Residential (2) Commercial (3) Industrial (4) Institutional (5) Agricultural and (6) Others. The application made by the Appellant -Society marking in Col 6 showing "infrastructure development" is not category and apart from not being recognized as such by the GERC in the supply code. It is not so recognized in any of the enactments being the Central Act, State Act, supply Code or any of the Regulations framed by the GERC. It appears that application printed by the Respondent No.1 -Company is not as per Form A-I of the Supply Code. The Form A-I does not contain the words "ma>g`Ino hetu AO2oigk hoy to ]2ogno p/kar"

Respondent No.1-Company has deliberately included such words in its printed application form. The Appellant Society did not ask for an Industrial connection and thus the check box of "Industrial connection" was unchecked. The words "infrastructure development"

written against the words " ma>g`Ino hetu AO2oigk hoy to ]2ogno p/kar" do not make any sense. As per the requirement of the Form A-

C/LPA/74/2014 CAV JUDGMENT DATED: 30/06/2021 DAKSHIN GUJARAT VIJ COMPANY LIMITED Vs. LAND MARK CORPORATION & 1 other(s) I to demand the electricity supply in terms of KW as well as the approval given by GERC dated 30.12.2010, the Appellant -Society has demanded the same by not only clearly stipulating and mentioning specifically for 52 residences but also given breakup of such demand of load in KW for such residences as per their requirement. Even otherwise, mere mentioning of the said word only in the application of Appellant-Society was not relevance to the action of the Respondent No.1-Company in recovering the amounts of Transformer and HT line charges from the Appellant -Society in total absence of any authority much less legal and in the teeth of the aforesaid prohibitory direction dated 21.4.2011 reiterated by the GERC vide its impugned direction dated 3.6.2014. We are not agreement with the findings given by learned Single Judge in Special Civil Application No. 4668 of 2016; Special Civil Application No. 4311 of 2016 and Special Civil Application No. 5229 of 2016. Herein, We are in complete agreement with the findings and reasoning arrived at by the learned Single Judge in its order dated 22 nd October, 2012 in Special Civil Application No. 3739 of 2012.