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Judgment
D.V. Shylendra Kumar, J.—Writ petitioner is a Limited Company, who is a service provider as Tele Services to its subscribers and for the purpose of its business as Telecom Dealer, have erected telecom towers at-different Base Trans Receiver Stations all over Karnataka and 67 such towers in Bangalore city itself.
Such Base Service Stations are all provided with power connections by the first respondent, Bangalore Electricity Supply Company Limited and the permitted load is indicated in the agreement executed between the petitioner and the first respondent company.
It appears, the officials of the first respondent company on an inspection carried out on several dates during the month of January 2009, found that all such Base Service Stations with telecom towers erected as part of service stations have been making use of excess load over and above the authorised load and therefore have indicated that unless the petitioner takes corrective measures to get unauthorised part of the load regularised by making commensurate payments etc; the petitioner will be liable to pay power charges at penal rates as per the existing regulations and if such regularisation is not availed of within the permitted time as per the statute, power connection may also be disconnected.
It appears the respondents had also in this context apprised the petitioner the possible back-billing charges and the infrastructural charges, also known as service line charges is required to be paid by the petitioner for regularising the unauthorised excess load etc.
The officials of the respondents Electricity Company finding that the petitioner has not compiled with such requirement, it appears, have resorted to disconnection of power supply to four of the service stations and it to at this stage the petitioner has rushed to this court apprehending like adverse action against the petitioner in respect of all other Base Service Stations also.
Petitioner in this background lifts produced a communication issued by the Executive Engineer (Ele) MT Division, BMAZ, BESCOM, dated 3.4.2009, copy of which is produced at Annexure-A to the writ petition, indicating inter alia that the provisional computation of the payments required to be made in respect of the excess load on the communication towers of the petitioner company is as under:
Bangalore Electricity Supply Company Limited No. EEE/MT/BMAZ/AEE(O)/09-10/07
Office of the Executive Engineer (Elec.,) MT Dvn., BMAZ, BESCOM, Bhavani Nagar, Bangalore-19 Date: 3.4.2009.
To
The Manager M/s Tata Tele services Limited SJR PRIMUS, 7th Block, Koramangala Industrial Layout, Bangalore-560095.
Sir,
Sub: Issue of provisional bills
Ref: Your letter No. Nil dt. 31st March 2009.
I am herewith issuing the provisional bills pertaining to the installations rated and having excess loan on the communications of your company.
--------------------------------------------------------------------------- Rated Back Billing Infrastructure Total Installations Charges Charges --------------------------------------------------------------------------- 67 Nns. Rs. 3,42,371 Rs. 72,90,000 Rs. 76,32,371 --------------------------------------------------------------------------- Amount may be paid at respective sub-divisions and intimate to this office.
Sd/- Executive Engineer (Ele) MT Division, BMAZ, BESCOM
It appears, this is in response to a query made by the petitioner to furnish the details regarding the respondents having resorted to disconnection of power supply to four of the towers of the petitioner.
It is in such situation the petitioner has approached this court seeking for quashing of the communication at Annexure-A contending inter alia that the petitioner is taken by surprise by this communication; that the petitioner has not been misusing any power supplied to them by the first respondent company; that while four of the installations have been, even without any opportunity and without following any due procedure have already been disconnected, such disconnection notices have been issued in respect of another 67 installations.
Emergent notice had been issued to the respondents and Mr. N.K. Gupta, learned Standing Counsel for the respondents taken notice for the respondents.
Submission of Mr. Gupta, learned Standing Counsel for the respondents is that the action taken by the respondents is in accordance with law, that it had been factually found that all the base service stations of the petitioner wherein such telecom towers have been erected, it was found there was excess load connection beyond the authorised load and therefore commensurate action had been taken; that while individual notices in respect of each of the power connection which has been given a separate R.R. number is examined and notices have been issued to the petitioner in respect of each of the meter by the respective Sub-Division Officers apprising the nature of the violation and penal charges and the infrastructural charges required to be paid by the petitioner, disconnection was necessitated due to non-payment in respect of four meters and if payment is not made within the prescribed time, the same pattern will be followed in respect of other installations also.
Mr. Jayadeva, learned Counsel appearing for the petitioner submits that the petitioner has not been issued with such individual notices in respect of each of the meters; that the petitioner has not received any such demand nor details of the demand; that even in respect of four meter numbers for which the power has already been disconnected, ho such notices nor any opportunity had been given nor the demand raised till now; that there is absolutely no justification for disconnecting the power supply; that in terms of Regulation 42.5 of the Regulations, even assuming that there is any excess load, opportunity should be given to a consumer to have the excess load regularised by giving three months notice period and it is only thereafter that action can be taken for disconnection of power supply and not abruptly without giving notice to the petitioner. Mr. N.K. Gupta, learned Counsel for the respondents submits that notices have been issued.
While it may be true that individual notices have been issued, there is nothing forthcoming on record or even as submitted by Sri N.K. Gupta, learned Standing Counsel for the respondents as to the actual adjudication of the notices and after giving opportunity to the petitioner and determining the amount and having raised a demand for determined amount thereafter for non-payment disconnection of power could have been resorted to.
Supply of power by a licensee is regulated by the provisions of the Electricity Act and Regulations. Disconnection or stoppage of supply of power cannot be without following the due procedure as contemplated under Regulation 4 of the Regulations. In the instant case, even prima facie, it does not appear that the respondents have followed the procedure required before resorting to extreme action of disconnection of power supply. It is only for this reason the matter has to go back to the respondents for taking action in accordance with law, but the power connection, disconnected as of now, may have to be restored to the petitioner subject to a proper determination of the amount liable to be paid by the petitioner and also the need for payment of the charges as indicated in Annexure-A.
In this regard, Sri Gupta, learned Standing Counsel for the respondents would submit that subject to the petitioner depositing 50% of the amount of the infrastructural charges and back-billing charges in its entirety, the power connection can be restored as of now pending final determination of the liability of the petitioner.
Sri Jayadeva, learned Counsel appearing for the petitioner submits that infrastructural charges would become payable only if the petitioner opts for regularisation and that if the petitioner opts for restricting the load to a particular level, the same is required to be examined by the respondents.
Be that as it may, it is not necessary to go into such dispute, but if the petitioner is agreeable to pay at least the back-billing charges and also continues to pay the charges as are required to be paid in respect, of unauthorised use of the load during the pendency of the matter to be adjudicated or determination by the competent authority of the respondent and as per the Act and Regulations, the respondents shall restore power connection on such compliance forthwith.
In so far as infrastructural charges are concerned, a demand for this amount having not been raised so far and mere issue of notice indicating the possible payment of the amount not making a demand after determination of the dues, the liability for payment of this can be first adjudicated and thereupon a demand should be raised. Therefore, I do not find any justification in compelling the petitioner to pay 50% of this amount also as insisted by the learned Counsel for the respondents.
The respondent company is at liberty to issue fresh notice if the petitioner is not served with individual notices in respect of each of the installations indicating the details of the liability towards the excess load by way of back-billing charges or it is to be retained by way of infrastructural charges and examine the response of the petitioner by giving 30 days time to the petitioner to explain after receipt of the notice and pass orders on merits of the matter. Pending adjudication the respondents shall not only restore power supply but retain the power supply, subject to the petitioner paying power charges as indicated above.
Writ petition disposed of as above.
Mr. N.K. Gupta, learned Standing Counsel, is permitted to file power within six weeks from today.