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Judgment
The petitioner-Society has filed these writ petitions for a writ of certiorari to quash the order dated 15.7.2016 bearing
No.BESCOM/CEE/BRAZ/SEE(O)/AEE-2/2016-17 passed by the 3rd respondent confirming the earlier revised intimation letter dated 10th June,
2015 bearing No.CEBRAZ/SEO/AEE-2/15-16/1313-18 as per Annexures-A and B and a writ of mandamus directing respondent No.3 to arrange
power supply to the petitioner layout as per the approval letter No. Your approval letter No.CEBRAZ/SEO/AEE-2/F-18(b)/12-13/5128-33 dated 3rd
September, 2012 approval letter No.CEBRAZ/SEO/AEE-2/F-18(b)/12-13/11019-25 dated 30.3.2013 and approval letter No.CEBRAZ/SEO/AEE-2/F-
18(b)/12-13/11027-31 dated 30.3.2013 Annexures-C, D and E respectively.
I - FACTS OF THE CASE
It is the case of the petitioner that it is a Society registered under the provisions of the Karnataka Co-operative Societies Act, 1959. It applied for
sanction of power supply to its three layouts separately to the 2nd respondent. Based on the request made by the petitioner, respondent No.3
sanctioned power supply for its three layouts separately on 3.9.2012, 30.3.2013, 30.3.2013 as per Annexures-C, D and E respectively. The said three
layout plans were approved by the BIAPPA separately. The petitioner-Society had got the administrative approvals for electrification of the three
layouts separately under self Execution. It is further contended that the petitioner-Society in terms of the conditions imposed in the sanctioned letters
has paid a sum of Rupees Fifteen Lakhs as supervision charges towards each of the layouts separately. Respondent No.3 had granted administrative
approval for electrification of the layouts under self execution separately as per Annexures-M, N and P dated 20.7.2013, 26.9.2012 and 11.10.2012
respectively.
Thereafter, the petitioner by a letter dated 28.10.2014 as per Annexure-S requested the authorities to have a physical inspection stating that there
are three different layouts for which separate sanction letters were issued and maximum load of each of the layouts does not exceed 7500 KVA and
hence separate substations are required. The Chief General Manager (Elec) Operations, BESCOM, addressed a letter dated 12th January, 2015 to the
Chief Engineer Electricity, Planning & Co-ordination, Bangalore-9 stating that the subject matter was placed in the 38th BESCOM TCM for
discussion and decision and on detailed deliberations, the Chairman of the Committee opined to make joint inspection to the aforesaid layouts along
with CEE BRAZ, SEE BRC AND EE Yelahanka Division to ascertain the ground reality for taking further action. The Chief General Manager (Ele),
Operations, BESCOM has specifically stated that all the three layouts are formed in three different locations which are situated distinctly and
geographically separated. The layout in Papanahally Village limit (1st layout) is 2 kms away from the layout in Kudaragere Village limit (2nd Layout)
and another layout in Bettanahally Village (3rd Layout) is 400 mts., away from 2nd layout and 2.2 kms., from the 1st layout. All the three layouts are
developed in phased manner and applications for electrification of respective layouts are registered on different dates.
The petitioners further contended that on 10th June, 2015, the 3rd respondent by the intimation letter had withdrawn the earlier sanction letters and
directed them to construct separate sub-stations at their own costs even though there was no provision under the earlier sanctioned letters. Therefore,
they made representation on 26.6.2015 requesting the 3rd respondent to arrange power supply to all the three layouts, but the same was not done by
the 3rd respondent. Therefore, the petitioner-Society filed W.P.No.56261/2015 before this Court for a direction to respondent No.3 to consider its
representation and this Court by the order dated 20.4.2016 disposed of the writ petition with a direction to the 3rd respondent to consider the
representation of the petitioner after giving an opportunity of bearing heard and pass orders.
It is further contended that for layout-1 and 3, new 11KV feeders were proposed from upcoming 66/11 KV Kundana sub-station and for layout-2,
new feeder was proposed from 66/11 KV Vidyanagara sub-station, under self-execution and the approval accorded by BESCOM to all the three
layouts is in order. It has been further stated that in the 39th BESCOM TCM held on 31.12.2014, the committee discussed the observations made
during the inspection and resolved that, the approval is accorded by BESCOM to all the three layouts separately. Inspite of the said report, the 3rd
respondent without considering the entire material on record, has proceeded to pass the impugned orders dated 10.6.2015 and 15.7.2016 as per
Annexures-B and A. Therefore, the present petitioner is before this Court for the relief sought for.
II - RIVAL CONTENTIONS OF THE LEARNED COUNSEL FOR THE PARTIES
I have heard the learned Counsel for the parties to the lis.
Sri Shivaprasad Shantanagoudar, learned Counsel for the petitioner submitted that it is not in dispute the petitioner has formed three layouts
separately and the 3rd respondent-authority, considering the entire material on record after inspecting three layouts by a three separate orders, has
sanctioned power supply to the petitioner as per Annexures-C, D and E respectively, wherein the BESCOM was pleased to sanction power to the
petitioner’s layouts to an extent of 5515 KVA (4688 Kws) measuring an extent of 91 acres 10 guntas as per Annexure-C; an extent of 5373 Kws
(6322 KVA) measuring 72 acres 27 guntas as per Annexure-D; and an extent of 5694 Kws (6699 KVA) measuring 82 acres 4 guntas as per
Annexure-E which clearly depict that the respondents have sanctioned power supply separately to the petitioner-Society in three different locations.
He would further contend that the Technical Committee BESCOM along with CEE BRAZ, SEE BRC AND EE Yelahanka Division and the Chief
General Manager (Ele), Operations, BESCOM have inspected the layouts on 28.12.2014 and has observed that all the three layouts are formed in
different locations which are situated distinctly and geographically separated. He would further contend that in view of the Regulation 3.2.4 of the
Karnataka Electricity Regulatory Commission (Recovery of Expenditure for Supply of Electricity) Regulations, 2004 (for short, hereinafter referred to
as ‘the KERC Regulations’) Gazette Notification dated 16.12.2004 specifically reads in case of layouts/buildings/cluster of buildings/building
block situated in a common site requiring power supply and the total requisitioned load in such cases is more than 7500 KVA, the developer/Applicant
shall provide the space for erection of sub-station and also bear the entire charges of such a sub-station and associated lines/equipments. Therefore,
he submits that since the power sanctioned to the petitioner’s three layouts was less than 7500 KVA, the provisions relied by the learned Counsel
for the respondents is not applicable to the facts and circumstances of the present case. Hence, he submitted that the impugned order passed by the
authority relying upon Regulation 3.2.4 of the KERC Regulation, 2004 is not sustainable and therefore, sought to allow the present writ petitions.
Per contra, Sri H.V. Devaraju, learned Counsel for the respondent Nos.2 to 4 sought to justify the impugned action of the respondents and
contended that in view of the official correspondence between the authorities as per Annexures-R and V, the impugned orders came to be passed,
since three layouts were formed by the petitioner-Society which has to be taken as a common layout and therefore, the petitioner has to provide a
space for erection of sub-stations and also bear the entire cost of such sub-stations and associated lines/equipments. He would further contend that
since the petitioner’s three layouts formed come under the definition of common site, in terms of Regulation 3.2.4 of the KERC (Recovery of
Expenditure for Supply of Electricity) Regulations, 2004, the petitioner is bound to provide space for erection of sub-station and also bear the entire
costs for such sub-station and associated lines/equipments. Therefore, he sought to dismiss the writ petitions.
III THE POINT FOR DETERMINATION
In view of the rival contentions urged by the learned counsel for the parties the only point that arises for consideration is:
Whether the 3rd respondent is justified in passing the impugned orders dated 10.6.2015 and 15.7.2016 as per Annexures-B and A in view of
Regulation 3.2.4 amended version dated 12.1.2006 of the KERC (Recovery of expenditure for supply of electricity) Regulations, 2004 in the facts and
circumstances of the present case?
I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the material on record
carefully.
IV-CONSIDERATION
It is an undisputed fact the petitioner-Society has formed three layouts separately in three different locations viz.,
(a) The first layout to an extent of 91 acres 10 guntas;
(b) Second layout to an extent of 72 acres 27 guntas; and
(c) Third layout to an extent of 82 acres 4 guntas.
Taking into consideration that the layouts formed by the petitioner-society are at three different villages and the 3rd respondent has sanctioned the
power supply to the layouts formed by the petitioner on 3.9.2012, 30.3.2013 and 30.3.2013 separately as per Annexures-C, D and E respectively and
the said layout plans are approved by the competent authorities separately and that the petitioner-Society has done electrification to all the three
layouts separately, the jurisdictional officers/Assistant Engineer by the order bearing No. BESCOM/CEE/BRAZ/SEE(O)/AEE-2/2016-17, has granted
approval under a separate self execution certificates dated 27.7.2013, 11.10.2012 and 20.7.2013 to each of the petitioner’s layouts, after payment
of supervision charges of Rupees Fifteen Lakhs to each layout for sanction of power supply at 10% respectively.
It is also not in dispute that on the basis of the letter issued by the petitioner-society, dated 28.10.2014, the Chief General Manager (Ele),
Operations, BESCOM after inspecting the three layouts separately has recommended as under:
“In view of the above, the subject matter was placed in the 38th BESCOM TCM for discussion and decision. On detailed deliberations, the
Chairman of the Committee opined to make joint inspection to the aforesaid layouts along with CEE BRAZ, SEE BRC and EE Yelahanka Division to
ascertain the ground reality for taking further action.
The Director Technical, BESCOM along with CEE BRAZ, SEE BRC and EE Yelahanka Division have inspected the aforesaid layouts on
28.12.2014. On inspection the following are the observations made;
All the three layouts are formed in different locations which are situated distinctly and geographically separated. The layout in Papanahally village
limit (1st
layout) is 2 km away from the layout in Kundaragere village limit (2nd layout) and another layout in Bettanahally village (3rd layout) is 400 mts away
from 2nd layout and 2.2 km from 1st layout. (sketch is enclosed for your reference).
These three layouts are developed in phased manner and applications for electrification of respective layouts are registered on different dates.
Above proposals are submitted from BESCOM to the KPTCL for necessary TCCM approval as and when the proposals are received from the
CEE, BRAZ.
No decision was communicated from KPTCL to the above subject proposals at that time, hence BESCOM communicated the approval as per the
CEE, BRAZ recommendations.
For the layout-1 & 3, new 11KV feeders were proposed from upcoming 66/11KV kundana sub-station and for layout-2, new feeder was proposed
from 66/11KV Vidyanagara sub-station, under self-execution.
The approval accorded by BESCOM to the all the three layouts is in order.
In the 39th BESCOM TCM held on 31.12.2014, the committee discussed on the observations made during the inspection and resolved that, the
approval accorded by BESCOM to the all the three layouts is in order.
In the above context, it is requested to accord approval for electrification of three layouts in accordance with the approval which was already
communicated from BESCOM to the applicants.â€
Inspite of all these admitted facts, respondent No.3 issued the present impugned orders mainly on the basis of Regulation No.3.2.4 amended
version dated 12.1.2006 of the KERC Regulations, 2004 and also relying upon the internal correspondence as per Annexures-R and V.
V â€" REGULATION 3.2.4. OF THE KERC REGULATIONS
Regulation 3.2.4 amended version of the Karnataka Electricity Regulatory Commission (Recovery of Expenditure for Supply of Electricity)
Regulations, 2004 reads as under:
“3.2.4 Amended Version dated: 12.1.2006.
In case of layouts/ buildings/cluster of buildings/building blocks situated in a common site requiring power supply and the total requisitioned load in such
cases is more than 7500 KVA, the developer/Applicant shall provide the space for erection of sub-station and also bear the entire charges of such a
substation and associated lines/equipments. The work shall be carried out either by the Licensee duly recovering the charges as per estimate or by the
Applicant himself through appropriate class of licensed electrical contractor by paying 10% of the cost at the estimate excluding employees cost
subject to a maximum amount of Rs.15 Lakhs as supervision charges to the Licensee.â€
A plain reading of the said Regulation stated supra makes it clear that in case of layouts/cluster of buildings/building blocks situated in a common
site requiring power supply and the total requisitioned load in such cases is more than 7500 KVA, the developer/applicant shall provide the space for
erection of sub-station and also bear the entire charges of such a substation and associated lines/equipments. The work shall be carried out either by
the Licensee duly recovering the charges as per estimate or by the Applicant himself through appropriate class of licensed electrical contractor by
paying 10% of the cost at the estimate excluding employees cost subject to a maximum amount of Rs.15 Lakhs as supervision charges to the
Licensee.
It is also not in dispute that while sanctioning the power to the petitioner-society, the 3rd respondent as per Annexures-C, D and E dated 3.9.2012,
30.3.2013 and 30.3.2013 had sanctioned power supply separately as under:
i) Sanction of Power to an extent of 5515 kVA (4688Kw) in favour of the petitioner-Society to an extent of 91 acres 10 guntas;
ii) Sanction of Power to an extent of 5373 Kws (6322 kVA) in favour of the petitioner-Society to an extent of 72 acres 27 guntas;
iii) Sanction of Power to an extent of 5694 KWS (6699 kVA) in favour of the petitioner-Society to an extent of 82 acres 4 guntas;
Admittedly in the present case, the 3rd respondent while sanctioning power supply to the petitioner-society separately has stated supra which
clearly depicts that the requisitioned load is not more than the sanctioned power supply of 7500 KVA for each of three layouts.
VI - CONCLUSION
It is not the case of the respondents that at the very initial stage, when the power supply was granted to all the three layouts formed by the
petitioner, the layouts were adjacent to each other in a common site. In the absence of any material documents produced by the respondents that the
petitioner has formed three layouts in a contiguous manner and having granted the sanction separately for separate layouts to a separate extent of
power sanction to a separate measurement of the layouts, the contention of the respondents that, the layouts formed by the petitioner is situated in a
common site, cannot be accepted. When the very authority of the respondents i.e., the Director of Technical, BESCOM along CEE BRAZ SEO and
EE Yelahanka Sub-Division inspected three layouts on 28.12.2014 and has specifically observed that all the three layouts are formed in different
locations which are situated distinctly and geographically separated and one layout and another layout is away from 2 kmts, 400 mts and 2.2. kms and
admittedly, the petitioner has paid an amount of Rs.15 lakhs through demand draft for each of the layouts towards supervision charges to the
respondents-authorities as per Annexures-K, K1 and K2, the contentions of the respondents that the petitioner has to provide space for erection of
sub-station and also bear the entire charges in terms of Regulation 3.2.4 amended version of the KERC Regulation stated supra dated 12.1.2006, is
without any basis.
For the reasons stated supra, the point raised in the petitions has to be answered in negative holding that the 3rd respondent is not justified in
passing the impugned orders relying upon the amended version of the Regulation 3.2.4 of the KERC Regulations. The 3rd respondent while passing
the impugned orders has committed an error in directing the Society to provide sub-stations and for payment of development charges which is contrary
to the very Regulation relied upon by the learned Counsel for the respondents which clearly depicts that in case of layouts/cluster of buildings/building
blocks situated in a common site requiring power supply and the total requisitioned load in such cases is more than 7500 KVA, then
developer/applicant has to provide the space for erection of sub-station. Admittedly, in the present case, the power sanction by respondent No.3 to the
petitioner’s layouts separately is less than 7500 KVA and therefore, question of petitioner providing space for erection of sub-station and also
bearing the entire expenses of such sub-station and associated lines/equipments as per Annexures-A and B would not arise.
VII- DECISION
For the reasons stated above, the impugned orders passed by Respondent No.3 cannot be sustained. Therefore, following order is passed:
O R D E R
(i) Writ petitions are allowed.
(ii) The impugned order bearing No.BESCOM/ CEE/ BRAZ / SEE(O) / AEE - 2/2016-17 dated 15.7.2016 passed by the 3rd respondent as per
Annexure-‘A’ and the letter bearing No.CEBRAZ/ SEO/ AEE-2 / 15-16 / 1313-18 dated 10th June 2015 issued by the 3rd respondent as per
Annexure-‘B’ are hereby quashed.
(iii) Writ of mandamus is issued to the 3rd respondent to restore the power supply to the petitioner - layouts in terms of the approval letters dated
3.9.2012, 30.3.2013 and 30.3.2013 as per Annexures-‘C’, ‘D’ and ‘E’ respectively subject to the condition that the petitioner shall
comply the conditions imposed in the said approval letters and in accordance with law within a period of three months from the date of receipt of copy
of this order.
Ordered accordingly.