BHARTIYA URBAN PVT. LTD. v. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED.(BESCOM)

(BY SRI. H.V.DEVARAJU., ADVOCATE FOR R1 & 2; SRI. SHARATH.V.M., ADVOCATE FOR SRI. B.N.PRAKASH., ADVOCATE FOR R3) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS. THIS WRIT PETITION IS LISTED FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, AN ORDER IS MADE AS UNDER: ORAL ORDER Smt. Ekta Pradhan, counsel for the petitioner, Sri.H.V. Devaraju, counsel for respondents 1 and 2 and Sri. Sharath. V.M., counsel on behalf of Sri.B.N. Prakash, for respondent No.3, appeared in person.

#2. The short facts are these: It is said that the petitioner is a well-known developer and developed a project, namely Nicoo Homes -1. The project had a total of 2,415 residential flats and is located on Thanisandra Main Road, Bengaluru. The petitioner is covered under the HT-4 Tariff category, which applies to residential - 3 - NC: 2025:KHC:22150 WP No. 9274 of 2021 HC-KAR apartments or colonies. The applicable tariff for the electricity consumption is determined under Section 62 of the Electricity Act, 2003, by the Karnataka Electricity Regulatory Commission in its Tariff Order dated 04.11.2020. It is said that on 19.12.2020, an inspection was conducted, and it was reported that the usage of electricity towards civic amenities amounted to misuse of electricity from residential to commercial [from HT-4 to HT-2(b)], i.e., for Supermarket, Bakery, Medical Shop, Saloon, etc. Hence, the Assistant Executive Engineer, BESCOM - second respondent, recommended back-billing charges to be levied for the same. Thereafter, another inspection was conducted by a team from the office of the second respondent. They arrived at the load to be 433 KW (441.83 KVA) by taking into account all the appliances present in the premises, irrespective of the fact that they were installed or not. Based on the inspection report, back billing charges to the tune of Rs.5,13,79,659/- for 509 KVA were imposed. The petitioner submitted written objections to the demand notice. Taking note of the written objections, an order was passed on 23.02.2021, a demand of Rs.19,12,017/- - 4 - NC: 2025:KHC:22150 WP No. 9274 of 2021 HC-KAR was made for back billing. The authority also informed the petitioner about regularization since there was a misuse of electricity for commercial purposes. However, the petitioner did not regularize the usage of electricity. Hence, the authority was constrained to issue a communication to the petitioner on

13.05.2021 and brought to the notice of the petitioner that they are liable to pay a sum of Rs.60,20,327/- in addition to what was already pending, i.e., Rs.19,12,017/-. Under these circumstances, the petitioner has filed the captioned Writ Petition.

#3. Counsel for the respective parties urged several contentions. Counsel for the petitioner in presenting her arguments strenuously urged that the BESCOM Authority had not considered the relevant Regulations before passing the order. She drew the attention of the Court to Annexure-B to contend that no reasons are assigned and an opportunity of hearing was not accorded. Counsel, therefore, submits that the Writ Petition may be allowed. Counsel for the petitioner placed reliance on the following decisions: - 5 - NC: 2025:KHC:22150 WP No. 9274 of 2021 HC-KAR I. MAGADH SUGAR AND ENERGY LIMITED VS. STATE OF BIHAR AND OTHERS - (2022) 16 SCC 428. II. EXECUTIVE ENGINEER, SOUTHERN ELECTRICITY SUPPLY COMPANY OF ORISSA LIMITED (SOUTHCO) AND ANOTHER VS. SRI SEETARAM RICE MILL - (2012) 2 SCC 108. III. KRANTI ASSOCIATES PRIVATE LIMITED AND ANOTHER VS. MASOOD AHMED KHAN AND ANOTHER - (2010) 9 SCC 496. IV. M.P. SREENATH GUPTA VS. THE ASSISTANT EXECUTIVE ENGINEER (EI), BESCOM TRD, W3 SUB-DIVISION, BANGALORE AND ANOTHER - (2009) 4 KLJ 268. Counsel Sri.H.V.Devaraju., contends that because of misuse of electricity to commercial purpose, the authority concerned was constrained to initiate action for back billing and accordingly, passed an order under Section 126 of the Electricity Act, 2003 on 23.02.2021 and as against the said order, an alternate, efficacious, statutory remedy by filing an appeal under Section 127 of the Act is available. The petitioner, without availing the alternate remedy, has directly invoked the Writ jurisdiction. Counsel further contends that the issue - 6 - NC: 2025:KHC:22150 WP No. 9274 of 2021 HC-KAR involved in the present Writ Petition raises several disputed questions of fact. Hence, the petition may be dismissed.

#4. Heard the arguments and perused the Writ papers with care. The issue falls within a narrow compass and relates to the Assessment Order passed under Section 126 of the Electricity Act, 2003. It is not in dispute that the petitioner is covered under the HT-4 Tariff category, and the tariff applies to the residential apartments. It is also not in dispute that an inspection was conducted and a report was submitted, and there was a misuse of electricity from residential commercial, i.e., HT4 to HT-2(b). Taking note of the facts, the assessment was done, and an order for back billing was passed. The order is furnished along with the Writ Petition, and the same is marked as Annexure-B. It is dated 23.02.2021. In the order, it was made clear that if the petitioner has any grievance, they may file a statutory appeal within the prescribed time. It is significant to note that the petitioner has not availed the statutory remedy and has invoked the Writ jurisdiction. - 7 - NC: 2025:KHC:22150 WP No. 9274 of 2021 HC-KAR

#5. Counsel Smt. Ekta Pradhan, for the petitioner, in presenting her arguments strenuously urged that the existence of an alternate remedy does not by itself bar the High Court from exercising Writ jurisdiction. A good deal of argument is canvassed on alternate remedy. The submission regarding the alternate remedy is noted with utmost care. No doubt, the existence of an alternate remedy is no bar to exercise jurisdiction under Articles 226 and 227 of the Constitution of India. However, what is required to be considered is whether this Court, exercising power under writ jurisdiction, can look into the disputed questions of fact relating to the misuse of electricity from residential to commercial purposes. The answer is No. The reason is simple. In the present case, taking note of the report regarding misuse of electricity by the petitioner, the authorities concerned have initiated action as per the provisions of the Electricity Act, 2003 and passed the order for back billing. The petitioner has a grievance about the misuse of electricity and the order of back billing. In my view, the misuse of electricity and the order of back billing involve disputed questions of fact. In general, a disputed question of fact is not investigated in a proceeding under Article 226, particularly - 8 - NC: 2025:KHC:22150 WP No. 9274 of 2021 HC-KAR where an alternate and efficacious statutory remedy is available. Furthermore, the remedy under Article 226 is, in general, discretionary; the High Court may refuse to grant it where there exists an alternate remedy equally efficient and adequate. It is significant to note that Article 226 is not intended to circumvent statutory procedures. When a right or liability is created by a statute which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226. The law is also well settled that a petition under Article 226 should not be entertained unless the statutory remedies are ill-suited to meet the demands of an extraordinary situation. Hence, the contention of the petitioner that the existence of an alternate remedy is no bar to exercise the power under Writ jurisdiction is satisfactorily hopeless. The order is passed under Section 126 of the Electricity Act, 2003, and as against the said order, an alternate and statutory remedy is available for the petitioner to approach the - 9 - NC: 2025:KHC:22150 WP No. 9274 of 2021 HC-KAR appropriate Forum under Section 127 of the Act. Hence, I decline to exercise power under writ jurisdiction. Counsel for the petitioner has cited decisions referred to supra, but I do not think that the law is in doubt. Each decision turns on its facts. The present case is also tested in light of the aforesaid decisions.

#6. Resultantly, the Writ Petition is dismissed. The petitioner may take recourse under the law seeking appropriate relief before the appropriate Forum, if so advised. Sd/- (JYOTI MULIMANI) JUDGE TKN List No.: 1 Sl No.: 27