Sri Sanath Kumar Shetty Vs Mangaluru Electricity Supply Company Limited

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, 1956 PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER DATED 22.07.2022 PASSED BY THE CHAMUNDESHWARI ELECTRICITY SUPPLY AUTHORITY LTD., (APPELLATE AUTHORITY THE 3RD RESPONDENT IN ITS ORDER NO.ZÁ«¸À¤¤/PÀAªÉÄÃ/2022-23/8773-79 VIDE ANNEXURE-A BY WHICH ORDER THE ORDER OF ASSISTANT EXECUTIVE ENGINEER (E) THE 2^ND RESPONDENT, ATTAVARA SUB-DIVISION DATED 11.10.2021 IN ORDER NO.¸ÀPÁEA(«)/¸À¯É(PÀAzÁAiÀÄ)/»¸É-1/21-22/37193723 VIDE ANNEXURE-B HAS BEEN AFFIRMED AND ETC.

¶23

THIS WRIT PETITION PERTAINS TO PRINCIPAL BENCH BENGALURU HAVING BEEN HEARD AND RESERVED ON 21.04.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS AT KALABURAGI BENCH THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING :

¶24

CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

¶25

3 -

¶26

WP No. 19895 of 2022

¶27

C.A.V. ORDER

¶28

Heard the learned counsel appearing for the petitioner and the learned Senior counsel appearing for the respondents.

¶29

This petition is filed assailing the order dated 22.07.2022 passed by 3^rd respondent/Appellate Authority vide Annexure-A. In terms of which, the order dated 11.10.2021 at Annexure-B, passed by the Assistant Executive Engineer-2^nd respondent is confirmed. In terms of the earlier demand, the petitioner was directed to pay Rs.16,23,656/- towards back billing charges. Impugned order at Annexure-B, directed the petitioner to pay Rs.4,36,230/- excluding amount of Rs.11,87,426/- already deposited (in previous rounds of appeal before the Appellate Authority) out of total demand of Rs.16,23,656/referred to above.

¶30

The order dated 11.10.2021 passed by 2^nd respondent is confirmed by the Appellate Authority.

¶31

4 -

¶32

WP No. 19895 of 2022

¶33

The brief facts necessary for adjudication of the petition are stated as under:

¶34

(a) Petitioner claims to be the owner of residential apartment known as ‘Home Space Apartment’ comprising 11 residential units in Mangalore. The competent authority had issued permission to construct residential units in the said apartment. Likewise electricity connection is also obtained for residential use which attracts LT2 tariff. Petitioner claims that the flats in the building are used for residential purpose by the tenants under him who have taken the premises on long term lease basis.

¶35

(b) Vigilance squad claims to have inspected the premises in question on 15.04.2013 and it is alleged that the premises was found to be used as service apartment and according to the respondents, said use attracts LT3 tariff.

¶36

(c) Vigilance squad claims to have recovered certain documents and claims to have prepared a mahazar at the time of inspection.

¶37

5 -

¶38

WP No. 19895 of 2022

¶39

(d) First respondent on 08.05.2013 issued notices to the petitioner demanding electricity charges applying LT3 charges.

¶40

(e) Petitioner states that he applied under the Right to Information Act, 2005, seeking certain information to reply to the notices dated 08.05.2013, and alleges that the information sought was not furnished to the petitioner.

¶41

(f) On 16.07.2013, the petitioner appeared before the Authority and addressed oral argument, and on 05.08.2013, filed application to summon the witnesses alleged to have been present at the time of spot inspection. However, the application was not considered and 13 different confirmation orders were passed on 27.08.2013, holding that the petitioner is liable to pay the amount quantified in the notices dated 08.05.2013.

¶42

(g) Appeal filed by the petitioner against the said order was dismissed. W.P.Nos.31549-31562/2018 filed by the petitioner challenging aforementioned orders

¶43

6 -

¶44

WP No. 19895 of 2022

¶45

were allowed and the aforementioned orders passed by 2^nd respondent as well as the Appellate Authority were quashed and matter is remitted to the competent authority for fresh disposal in accordance with law. Later original Authority permitted the petitioner to file statement of objections and on 19.08.2019, passed the order confirming the demand

¶46

and the petitioner’s appeal against the said order dated 19.08.2019, was also dismissed. It is stated that before the Appellate Authority, statement of Assistant Executive Engineer, Vigilance Squad was recorded and said witness was cross-examined. The petitioner filed W.P.No.10251/2020 assailing the orders passed after the first remand. In terms of order dated 31.03.2021, the Writ Petition was disposed of and the matter was remitted to 2^nd respondent to dispose of the matter by taking into consideration, the observations made in the order dated 20.02.2019 in W.P.No.31549-31562/2018.

¶47

7 -

¶48

WP No. 19895 of 2022

¶49

(h) After the remand, again the petitioner’s objections were overruled and the Authority confirmed the demand. Petitioner’s appeal against the said order is also dismissed by the Appellate Authority and these two orders, post second remand by this Court are under challenge.

¶50

Learned counsel for the petitioner would submit

¶51

that 2^nd respondent as well as the Appellate Authority has not considered the materials placed on record and passed an erroneous order despite there being no materials to hold that the petitioner was running a service apartment in the premises in question.

¶52

Referring to the stand of the respondents in earlier Writ Petition No.31549-31562/2018, wherein it is stated before the Court that no documents/goods were seized at the time of inspection, it is urged that the documents produced later are concocted. Attention of this Court is invited to the said statement in paragraph No.4 of the order in W.P.No.31549-31562/2018 to urge that the

¶53

8 -

¶54

WP No. 19895 of 2022

¶55

impugned orders are based on the documents said to have been allegedly seized during spot inspection are not sustainable.

¶56

It is also urged on behalf of the petitioner that

¶57

after the remand by this Court, a compact disc containing videograph is produced to establish the spot inspection of the premises in question and based on this, respondents are erroneously contending that the premises is used as service apartment. It is urged that in the crossexamination, the witness on behalf of respondent No.3 has admitted that the compact disc is incomplete. Thus, the impugned order could not be have been passed at all.

¶58

Learned counsel would also contend that the

¶59

lease agreements are produced before the Authority to substantiate the contention that the petitioner had let out the premises on lease, and those lease agreements have not been considered at all and the same resulted in miscarriage of justice.

¶60

9 -

¶61

WP No. 19895 of 2022

¶62

Learned Senior counsel appearing for the

¶63

respondents on the other hand would contend that the allegations levelled against the petitioner are duly established. He would contend that the respondent - Authorities have produced the documentary evidence to show that the petitioner was collecting luxury tax which is applicable to the service apartment, and the petitioner had maintained the register to enter the details of the customers and the videograph of the premises would clearly disclose that the premises was not in occupation of the tenants as alleged by the petitioner.

¶64

It is also contended that bills, day register and cash are also recovered from the premises and these facts would clearly establish that the petitioner was running a service apartment and the electricity connection taken to the premises was for residential use, as such, there is a misuse of electricity.

¶65

It is also urged by the learned Senior counsel that the documents in fact were seized at the time of spot

¶66

10 -

¶67

WP No. 19895 of 2022

¶68

inspection and the event has been videographed and part of the videography is also available and photographs and the videograph were produced before the competent authority and hardly there is any dispute relating to the authenticity of the said photographs and videograph. Thus, he would urge that impugned orders have to be upheld by dismissing the petition.

¶69

Learned Senior counsel would also urge that the alleged lease of the premises by the petitioner is not established. The lease deeds produced are admittedly unregistered and insufficiently stamped consequently, and inadmissible in evidence, as such the defence of alleged lease and use of the premises by the tenants for residential purpose cannot be accepted.

¶70

Learned Senior counsel would also submit that the respondents have filed an application to impound the alleged lease agreements produced by the petitioner as they are insufficiently stamped.

¶71

11 -

¶72

WP No. 19895 of 2022

¶73

Learned counsel for the petitioner by way of reply would submit that the lease agreements produced by the petitioner being the Xerox copies cannot be impounded. It is also submitted that the petitioner does not rely on the said lease agreements.

¶74

This Court has considered the contentions raised at the bar and perused the records.

¶75

During the course of hearing, this Court specifically asked the learned counsel for the petitioner to submit as to whether the structures and other articles found in the photographs at Annexures-R1 series and the videograph in the pendrive produced by the respondents are pertaining to the petitioner’s premises. And in this regard, order is passed on 25.02.2025 to file affidavit on three queries posed in the said order. Those three queries are as under:

¶76

(a) Whether the petitioner is the proprietor of the ‘SKS Group’?

¶77

12 -

¶78

WP No. 19895 of 2022

¶79

(b) Whether the building shown in the photographs at Annexures-R1 series is the building belonging to the petitioner?

¶80

(c) Whether the building featured in the videography which is copied in the pendrive belongs to the petitioner?

¶81

As a response to the said order, the petitioner on 28.02.2025 has filed an affidavit. The response to the

¶82

aforementioned queries submitted in the form of an

¶83

affidavit are as under:

¶84

(1) I am the managing partner of SKS Group.

¶85

(2) The building shown in the photograph belongs to me.

¶86

(3) The building shown in the video belongs to me.

¶87

Considering the affidavit referred to above, it is very much evident that the structure in the photographs and the videograph produced by the respondent are owned by the petitioner. The building does not belong to any partnership firm. The petitioner in his petition has also stated that he is the owner of Home Space Apartment.

¶88

13 -

¶89

WP No. 19895 of 2022

¶90

This Court has perused the videograph

¶91

produced in the pendrive. On perusal of the said videograph, it can be certainly inferred that the premises is not in occupation of tenants as claimed by the petitioner. During the visit, none of the tenants were found to be in occupation of the premises. Certain features appearing in the videograph would clearly suggest that the premises was not in use by a long term user like a tenant. The features captured in the videograph as well as photographs suggest that the premises was used as a service apartment. Some of the sign plates like “Do not disturb”, “Clean the room” and “Leave the towels on the rack to dry & reuse by not asking us for changing your towels & linens daily you are helping to avoid chemical detergents and use of water needed for their washing” are noticed in the videograph.

¶92

It is relevant to notice that no tenant is examined on behalf of the petitioner to prove the tenancy.

¶93

14 -

¶94

WP No. 19895 of 2022

¶95

This Court takes the view that the premises was not used by the tenants keeping in mind, the defence raised by the petitioner that the petitioner has let out the premises to the tenants on long term lease basis, which is not established by leading evidence.

¶96

This Court has also considered the contentions relating to the long term lease said to have been created in respect of the petition premises. The counsel for the petitioner during the course of hearing has submitted that the petitioner does not intend to rely on the agreements of lease produced by the petitioner marked at Annexures-C to J. Except the aforementioned documents, no documents are produced to establish the alleged lease.

¶97

Admittedly, the alleged lease agreements purport to create lease beyond 11 months and in such event, the lease deeds require compulsory registration. In addition to that, the lease deeds attract stamp duty depending on the rental value as well as security deposit if any. Hardly there is any difficulty in holding that the

¶98

15 -

¶99

WP No. 19895 of 2022

¶100

alleged lease agreements are inadequately stamped as all the lease agreements are drawn on a stamp paper of Rs.50/-. Hence, the said documents cannot be considered as proof of alleged lease.

¶101

It is also relevant to note that except those documents which are inadmissible in evidence for want of registration and for want of payment of stamp duty, no materials are placed to hold that the property in question was let out for residential purpose.

¶102

It is relevant to bear in mind that the petitioner has not claimed that the premise was vacant or unoccupied. It is not his case that he was using the premises for his individual use or use by his family. The defence is that the petitioner has let out the premises in favour of 3^rd parties for residential purpose. When the said defence is not established, the inference that can be drawn from undisputed photographs and the videograph would be that the premise was used for commercial purposes at relevant point of time.

¶103

16 -

¶104

WP No. 19895 of 2022

¶105

Though, it is urged that no documents and no articles were seized at the time of the spot inspection, based on the statement made at the bar in the previous round of litigation before this Court, given the fact that the building in the photographs and the contents of the videograph lead to the inevitable conclusion that the premises was not used for residential purposes and it is not the case of the petitioner that it was kept vacant and was not in use. Hence, the Court inevitably has to draw conclusions from the admitted videograph. There is no scope in this case to hold that the premise was kept vacant and not used for any purpose as there is no such defence.

¶106

It is also relevant to note that the documents at Annexure-R2, R3 and R4 have not been seriously disputed. May be, it is true that there may not be perfect evidence to hold that the said documents are seized in the premises of the petitioner. Even excluding the said documents at Annexures-R2, R3 and R4, this Court

¶107

17 -

¶108

WP No. 19895 of 2022

¶109

considering the defence of lease raised by the petitioner which is not established, the Court has to hold that the respondents have established the contention that the premises was used for commercial purpose.

¶110

Though the petitioner claims that he has received rent in respect of the premises, the statements of accounts have not been produced. The contention relating to long term lease appears to be a fabricated story given the fact that petitioner has not chosen to examine any of the persons who are said to be the tenants in the premises.

¶111

Even the documents at Annexures-C to J which are the alleged lease agreements are referred to, keeping aside the objection relating to its admissibility for want of registration and stamp duty, it is to be noticed that in those agreements, lessor is described as M/s S.K.S. Group – a registered partnership firm. Whereas, the petition is filed by an individual who does not claim to have held the petition on behalf of the partnership firm.

¶112

18 -

¶113

WP No. 19895 of 2022

¶114

In the affidavit dated 28.02.2005, the petitioner

¶115

has asserted that he is the partner of S.K.S. Group. However, Writ Petition is not filed by the partnership firm. In paragraph No.2 of the Writ Petition, the petitioner states that he is the absolute owner of the premises in question. Even in earlier Writ Petitions, the petitioner never took a stand that the premises belong to the partnership firm. In the reply dated 29.04.2019 before the Authority, the petitioner has never stated that partnership firm owns the premises. On the other hand, petitioner in paragraph No.10 of the reply dated 29.04.2019 has stated that he has rented the apartments on long term lease on monthly rent to various parties. In addition, the petitioner has also stated that he is one of the partners in M/s S.K.S. Netgate LLP, Mangalore. Even in paragraph No.12 of the reply, the petitioner has stated that he has provided accommodation (free of cost) in Home Space Apartment (the building in question) to the Engineers working for the project of M/s S.K.S. Netgate LLP, Mangalore. Thus, it is very much apparent that M/s. S.K.S. Group never owned

¶116

19 -

¶117

WP No. 19895 of 2022

¶118

the premises in question which is named as ‘Home Space Apartment’. Thus, the lease agreements could not have been executed by M/s. S.K.S. Group. These being the facts, the defence relating to the lease of the premises for residential use by the tenants cannot be accepted at all.

¶119

In the facts and circumstances already discussed, it is not possible to hold that the premises was vacant or under the personal use of the petitioner as such defence was not raised at any point of time. Under these circumstances, more particularly in view of the admission relating to the photographs and the videograph, this Court does not find any reason to interfere in the orders passed by the Competent Authority and the Appellate Authority which have concluded that the premises was used as service apartment. Given the fact that the photographs and the videograph are admitted in the spot inspection is also established. Hence, the finding relating to use of the premises as service apartment cannot be interfered with.

¶120

20 -

¶121

WP No. 19895 of 2022

¶122

Though various grounds are urged in the Writ Petition to contend that the mahazar is not drawn, the witnesses are not examined to prove the mahazar or seizure of goods or the inspection of the premises, said grounds cannot be upheld given the fact that photographs and the videograph referred to above establish the fact that the premises was inspected by the officials of the respondent No.3.

¶123

It is also noticed that the petitioner has urged that witnesses examined do not support the case of the respondents relating to seizure and spot inspection or the use of the premises for commercial use. Again this Court has to observe that the inspection of the premises is very much established. In the instant case, considering the defence raised by the petitioner, there are only two possibilities. Either the premises must have been used by the tenants for residential use or must have been used by the petitioner for commercial purposes. The third mode of use is not the contention of either of the parties. The

¶124

21 -

¶125

WP No. 19895 of 2022

¶126

residential use by the tenants is not established at all for the reasons already discussed above. Thus, by logical deduction and with reference to the photographs and the videograph referred to above, the nature of use of the premises has to be inferred as commercial use.

¶127

Though ground relating to the amount demanded by way of back billing is raised in the petition, during the course of hearing, it is not urged as to how the amount demanded is erroneous.

¶128

In so far as the application to impound the inadequately stamped lease agreements are concerned, the learned counsel for the petitioner has relied on the judgment of the Hon’ble Apex Court in Hariom Agrawal vs. Prakash Chand Malviya¹ to contend that there is no scope to impound the Xerox copies.

¶129

This Court has considered the contentions raised at the bar in this regard. In the aforementioned

¶130

1 (2007)8 SCC 514

¶131

22 -

¶132

WP No. 19895 of 2022

¶133

case, the Apex Court was dealing with production of a Xerox copy of inadequately stamped lease agreement in a suit. And the Apex Court referring to the provisions of Madhya Pradesh Stamp Act and Rules, concluded that there is no provision to impound the Xerox copy of inadequately stamped instrument. It is also noticed that in the aforementioned case, before the Trial Court, the person who sought to produce the Xerox copy of the lease agreement pleaded that the original agreement is lost.

¶134

It is relevant to note that the petitioner does

¶135

not say that the original lease agreements are lost. And these lease agreements are produced in a Writ Petition. The Writ proceeding rules do not contemplate production of original documents. Under the rules, the parties to the proceeding are enabled to produce the true copies of the original. The verifying affidavit dated 25.09.2022 annexed to the Writ Petition would reveal that the documents produced along with the Writ Petition are the true copies of the original. This being the position, the facts in the

¶136

23 -

¶137

WP No. 19895 of 2022

¶138

present case do not attract ratio in Hariom Agrawal supra.

¶139

However, it is to be noticed that this Court has taken a view that the alleged lease agreements are not established as the lease agreements are allegedly executed by a partnership firm M/s S.K.S. Group which is not the owner of the property in question even according to the petitioner. Hence, the said agreements are not the agreements of lease and no lease is created under the said agreements. Hence, the question of paying stamp duty on the said agreements does not arise.

¶140

Hence, the following:

¶141

ORDER

¶142

(i) Writ Petition is dismissed.

¶143

(ii) The petitioner shall pay the amount due after deducting the amount already deposited, within 45 days from today failing which the petitioner shall pay 6% interest on the said amount from

¶144

24 -

¶145

WP No. 19895 of 2022

¶146

11.10.2021 i.e., the date of the impugned order at Annexure-B.

¶147

(iii) No order as to cost.

¶148

Sd/(ANANT RAMANATH HEGDE) JUDGE

¶149

GVP/CHS

Sri Sanath Kumar Shetty v. Mangaluru Electricity Supply Company Limited

Case brief

What is this about?

What did the court decide?

Sri Sanath Kumar Shetty v. Mangaluru Electricity Supply Company Limited

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt. Virupamma and Ors. Vs Smt. Rachamma and Anr.

Padmavathi Vs Ramesh

Shivaraya Vs Mallappa

Vithalreddy and Ors. Vs Gyanreddy

Shobha Vs Sudhakar

Govind and Ors. Vs Devasing and Ors.