1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD WRIT PETITION NO.5570 OF 2021 (GM-KEB) BETWEEN MRS. VEENA SHANTHARAM PRABHU AGED ABOUT 53 YEARS W/O. MR. SHANTHARAM RAMDAS PRABHU, R/AT NARASIMHA KRUPA, B/403, MAURISHKA PARK, OPP. SHARADA VIDYALAYA, NEAR NAVABHARATA CIRCLE, KODIALBAIL, MANGALORE 03. ...PETITIONER (BY SRI. VITTAL B R, ADVOCATE) AND: 1 . THE OMBUDSMAN KARNATAKA ELECTRICITY REGULATORY COMMISSON, NO. 16C-1, KAVERAPPA LAYOUT, TANK BED AREA, VASANTH NAGAR, BENGALURU 560052. 2 . EXECUTIVE ENGINEER MESCOM (O AND M) DIVISION ATTAVAR, MANGALORE - 575 001. 3 . ASSISTANT EXECUTIVE ENGINEER MANNAGUDDA SUB DIVISION, MESCOM, MANGALORE -575 003. 4. MAURISHKA PARK APARTMENT OWNERS ASSOCIATION 2 MAURISHKA PARK APARTMENT OPP. SHARADA VIDYALAYA NEAR NAVABHARATA CIRCLE KODIALBAIL, MANGALORE - 3 REPRESENTED BY ITS PRESEIDENT MR. K. DAYANANDA RAI. …RESPONDENTS (By SRI.H.V. DEVARAJU, ADVOCATE FOR R2 & R3; SRI. VIJAYA KRISHNA BHAT M, ADVOCATE FOR R4; NOTICE TO R1 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER IN CASE NO. OMB/M/G-394/2020 DATED 31.08.2020 OF RESPONDENT-1 AS IN ANNEXURE-B WHEREIN OMBUDSMAN HAS NOT INTERFERED WITH ORDER OF CGRP STATING THAT THE TRANSFER IS EFFECTED AS PER KERC; DIRECTION TO RESPONDENT NO. 2 & 3 TO CANCEL THE EFFECTED NAME TRANSFER IN THE YEAR 2018 MAURISHKA PARK APARTMENT OWNERS ASSOCIATION AND RESTORE THE SAME TO THE ORIGINAL CONSUMER. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD 3 CAV ORDER The petitioner has impugned the first respondent's Order dated 31.08.2020 in Case No. OMB/M/G-394/2020/D-1470 [Annexure-B] while seeking directions to the Executive Engineer and the Assistant Executive Engineer, Mangalore Electricity Supply Company [MESCOM], who are arrayed as the second and third respondents, to cancel the transfer of High Tension [HT] connection in MGHT-47 in favour of the fourth respondent, an Association of the owners of the apartments in the complex called Maurishka Park Condominium, Near Nava Bharata Circle, Kodiyalbail, Mangalore. 2. The petitioner is the owner of the Apartment No. B-403, and she has purchased this apartment from the Builder, M/s R K Developers and Builders, a partnership firm which is represented by its Managing Partner, Sri. Ramesh Kumar, under the Sale Deed dated 24.10.2008. The Developer, on 4 16.03.2007, has caused a Deed of Declaration, as contemplated under the Karnataka Apartment Ownership Act, 1972, [referred to as the ‘Karnataka Apartment Ownership Act’] in the name of an association called Maurishka Park Condominium. In the year 2014, after the initial sanction of the Low Tension [LT] connection of 1659 KW, the Developer has got the sanction of a HT connection [in MGHT- 47] for 400 KVA in the name of its Managing Partner. In June 2018, the Developer, as the Consumer of MESCOM has issued No-objection Certificate [NOC], for transfer of the subject HT connection to the fourth respondent. 3. The fourth respondent, after the resolution in the general body, has applied with MESCOM for transfer of this HT Connection enclosing NOC signed by Sri Ramesh Kumar [the Managing Partner of the Developer], a Fresh Agreement and an Indemnity bond. The Assistant Executive Engineer, MESCOM [the third respondent], 5 upon verification of these documents, has recommended transfer, and the Executive Engineer [the second respondent] has issued Work Order dated 28.07.2018 for transfer of the HT Connection to the fourth Respondent. The petitioner has filed a complaint with the second respondent complaining about illegal disconnection of electricity to her apartment, and the second respondent by the Communication dated 16.10.2018 has informed the petitioner that the fourth respondent is the Registered Consumer and that it is not responsible for any disconnection. 4. The petitioner, with this Communication dated 16.10.2018, has applied with Consumer Grievance Redressal Forum, Mangalore [the Grievance Redressal Forum] against the MESCOM authorities under the provisions of the Karnataka Electricity Regulation Commission [the Consumer Grievance Redressal Forum and Ombudsman] Regulations, 2004 [the KERC Regulations, 2004]. The 6 petitioner has complained about the transfer of the HT Connection in favour of the fourth respondent. 5. The Grievance Redressal Forum, by its order dated 07.02.2020, has rejected the petitioner's complaint inter alia because the Consumer [the Developer] and the Transferee [the Apartments' Owners' Association - the Fourth Respondent] are not parties. The petitioner has filed her appeal against this Order dated 07.02.2020 with the first respondent under Regulation 21.2 of the KERC Regulations 2004. The petitioner in the appeal with the first respondent has contended that the Consumer Grievance Forum has failed to consider that: [i] the fourth respondent is not a Cooperative society registered with the Registrar of Cooperative Societies as is required under the provisions of the Karnataka Apartment Ownership Act, [ii] the transfer of the HT connection in MGHT-47 in favour of the fourth 7 respondent violates Regulation 9.10 of the Conditions of Electricity Supply Regulations1 as documents in terms of Regulation 36 thereof are not collected, [iii] even otherwise, the fourth respondent, to be a properly constituted Society or an Association, should be registered under the Registration Act, 1908 and the stamp duty paid under the Karnataka Stamp Act,1957, and [iv] the petitioner, as the owner of the subject apartment, will be a consumer with the MESCOM under the Conditions of Supply Regulations. The petitioner has also alleged that there was some violation of due procedure in the proceedings with the Consumer Grievance Forum as copies were not served. 1 These Regulations are called "Conditions of Supply of Electricity of Distribution Licenses in the State of Karnataka 2006". 8 6. The first respondent, in the light of the contentions as aforesaid, has considered whether it must interfere with the Consumer Grievance Redressal Forum's order dated 07.02.2020 on the ground that such order is illegal or perverse. The first respondent has opined that the Consumer Grievance Redressal Forum's order does not suffer from any such infirmity. The first respondent’ conclusion in these regards is based on its opinion that: [a] the officers of MESCOM cannot go into the question of legality of the constitution of the fourth respondent and if the petitioner has any grievance with the constitution of the fourth respondent, such grievance must be addressed by the competent civil court; [b] the first respondent has also concluded that HT connection transferred in favour of the fourth respondent is based on the consent of the consumer 9 [the Developer] and upon execution of Indemnity Bond and Fresh Agreement. 7. As regards the petitioner's reliance upon Regulation 9.10[b][ii] of Conditions of Electricity Supply Regulations, the first respondent has opined that it is clear from the plain reading of this Regulation that if a Developer does not wish to have any stake in the complex after completion of the project, MESCOM can permit transfer of the service in the name of an Association, or a Society, that is formed to attend to the maintenance of the apartment complex with sub-meters but on the condition there shall be no profit or loss accruing to the society. The first respondent has also opined that the disconnection of the electricity cannot be attributed to the MESCOM and its officers as the HT connection is transferred in favour of the fourth respondent. 8. The petitioner, during these proceedings, has filed civil suits, and she is joined by her husband. The orders of the respective courts in these 10 civil proceedings have been carried in challenge before this Court in Revision Petitions, and this Court has disposed of these petitions answering questions canvassed for consideration. The details of these proceedings as also another pending suit must be mentioned before the rival submissions in support of and against the first respondent’s impugned order dated 31.08.2020. The details are as follows. A Small Causes suit in SC No. 26/20192 on the file of the II Additional Senior Civil Judge and CJM, Mangalore 8.1 The petitioner, joined by her husband - a co-owner of the subject apartment with her - has filed this suit for a mandatory injunction against the fourth respondent’s Office bearers to restore electricity connection for their apartment. The petitioner and her husband have asserted that the fourth respondent is formed illegally by a few owners 2 The suit is initially filed in SC No. 4/2018 with another Court and with this plaint being rejected with liberty to the petitioner and her husband to re-present, the plaint in SC No. 4/2018 is re-presented and is assigned the present number. 11 of the apartments in the complex without complying with the conditions in the Deed of Declaration registered under the provisions of the Karnataka Apartment Ownership Act. However, the first respondent has applied for rejection of the plaint under Order VII Rule 11[a] and [d] of the Code of Civil Procedure, 1908 [CPC]. 8.2 The civil Court has allowed the fourth respondent’s application rejecting the plaint, and the civil Court’s order is called in question in the revision petition in CRP 64/2021. The civil Court’s another order rejecting the petitioner’s application [for restoration of the disconnected electricity to the petitioner’s apartment – IA No. 2] is called in question in CRP No. 96/2021. This Court has disposed of both the civil revision petitions by the Common order dated 08.09.2021 affirming that the civil Court has rightly rejected the petitioner’s suit. 8.3 This Court in CRP No.64/2021 and CRP No.96/2021 has considered the petitioner’s 12 contention that the submission of the apartments to the provisions of the Karnataka Apartments Ownership Act is only to ensure marketable and editable title to the concerned apartments and the responsibility of maintenance and other aspects are covered by the Karnataka Ownership Flats [Regulation of the Promotion of Construction, Sale, Management and Transfer] Act, 1972 [Karnataka Ownership of Flats Act], and that the fourth respondent is not duly constituted because it is not registered under this latter enactment. This Court has examined whether the Karnataka Apartment Ownership Act and the Karnataka Ownership of Flats Act are mutually exclusive or supplementary and when an apartment is submitted to the former Act would the latter apply. The suit in OS No. 221/2022 on the file of the III Additional Civil Judge and CJM, Mangaluru. 8.4 The petitioner, and again joined by her husband, has filed this suit for declaration that certain clauses in the Deed of Declaration dated 13 16.03.2007 are void, that this Deed of Declaration is not in accordance with the Karnataka Apartment Ownership Act and are void ab initio and that the fourth respondent cannot disconnect electricity to her apartment. This suit is pending consideration. 8.5 However, the petitioner has filed Ex. Case No.228/2023 on the file of the III Additional Civil Judge and JMFC, Mangaluru for breaking open of the lock of the Electrical Room and Restoration of electricity supply with the intervention of the jurisdictional police relying on the civil Court’s interim order on IA No. III directing the fourth respondent to restore electricity to the apartment. The Executing Court, on 05.10.2023, has issued directions for restoration of electricity with the assistance of an electrician. 8.6 This Court, on 22.09.2023, has heard the learned counsels for the parties, and when the petition is listed for final submissions on 29.09.2023, Sri. Vittal B R, the learned counsel for 14 the petitioner, is permitted to file a Memo, to ensure that there is no precipitation because of certain orders in the execution proceedings. The learned counsel and Sri Vijaykrishna M Bhat, the learned counsel for the fourth respondent, have stated the following. [a] The fourth respondent can file an application for the release of the amount deposited by the petitioner with the concerned Court in O.S. No.221/2022 under protest, but on the condition that there shall be restoration of electricity to the subject unit forthwith, and the fourth respondent shall receive such amount subject to the outcome of the suit and without prejudice to the petitioner’s rights to claim set off for such amount towards “future liability towards maintenance”. [b] With the restoration of electricity, the petitioner will continue to pay future demands by the fourth respondent towards maintenance subject to the outcome of the suit and to claim set off in that regard for all future maintenance; 15 c) The fourth respondent is willing to restore electricity forthwith upon the orders of this Court in that regard, and also make an application for receipt of the monies in deposit and to receive the amounts payable towards future maintenance subject to the two conditions as aforesaid. 8.7 These statements have not brought about quietus on restoration of electricity with the Executing Court passing orders on 05.10.2023 for breaking open the Electrical Room and restoration of electricity to the petitioner’s apartment with the assistance of the jurisdictional police. This Court, after recording submissions for restoration of electricity, has deferred the execution of the executing Court’s order while calling for a Report. 8.8 Subsequently, the electricity to the petitioner’s Apartment is restored. The fourth respondent is reserved with liberty to receive the sum of Rs.5,32,781/- deposited by the petitioner with the 16 civil Court. On 09.10.2023, the Executing Court has closed the proceedings on a Memo filed by the petitioner after the orders of this Court as aforementioned. The details of the submission by Sri Vittal B R, the learned counsel for the petitioner 9. The fourth respondent could have sought for transfer of the HT connection only if it was constituted by all the owners of 360 Apartments in the complex, and that this would be because of Section 3[d] of the Karnataka Apartment Ownership Act and as seen from the Law Department’s response [allegedly to a query raised by the Department of Co- operation]. The fourth respondent is not formed or registered as contemplated under Regulation 9.10 of the Conditions of Electricity Supply Regulations. 9.1 In view of the expressions 'formed' and 'registered' as found in Regulation 9.10[b][ii] of the Conditions of Electricity Supply Regulations and the definition of a 'consumer' in clause 2.18 of Regulation 17 2 of the aforesaid Regulations the fourth respondent is ‘a service agency’ and the petitioner is ‘the consumer’ insofar as her Apartment. The power to disconnect electricity is under Section 56 of the Electricity Act, 2003 and such power must be exercised by the MESCOM when a consumer is in default. 9.2 The MESCOM can transfer installations/connections according to Regulation 36 of the Conditions of Electricity Supply Regulations and that this Regulation makes it mandatory for the transferee to produce proof of ownership and if the transferee is not an owner, a proper lease deed. In the present case, because the fourth respondent claims to be an Association of Apartment owners, it should have produced a proper Certificate of Registration, but the fourth respondent has not produced the same and the second respondent has transferred the HT connection. 18 The details of the submission of Sri Vijay Krishna M, the learned counsel for the fourth respondent: 10. The fourth respondent is constituted as required under the provisions of the Karnataka Apartment Ownership Act with the Deed of Declaration dated 16.03.2007 and that there is no other mode of registration or certification under this Act. The learned counsel also submits that MESCOM cannot decide on the due constitution of the fourth respondent and therefore has rightly acted upon the Deed of Declaration and other documents such as the consent by the developer, the indemnity bond and other compliances to transfer the HT connection in favour of the fourth respondent. 10.1 The petitioner, having initially relied upon the Karnataka Ownership of Flats Act to undermine the efficacy of the Deed of Declaration in the suit in SC No.26/2019 and calling in question the validity of this Deed in OS No. 221/2022, cannot challenge the merits of the first respondent’s order 19 dated 31.08.2020 contending that the fourth respondent is not duly constituted. As such, all questions [including whether the fourth respondent could rely upon the Deed of Declaration to raise maintenance charges with electricity charges] must be decided by the concerned Civil Court in the suit in OS No. 221/2022 based on the decision in CRP No.64/2021 and CRP No. 96/2021, 10.2 The Regulation 36.01[a] of the Conditions of Electricity Supply Regulations, which refers to the title documents and lease deed for the purposes of transfer of connections, do not apply to the fourth respondent. The transfer of the HT Connection in favour of the fourth respondent is under Regulation 9.10 of these Regulations, which contemplate transfer of connection from a Promoter/Developer. The transfer of the connection in favour of the fourth respondent is rightly made under this Regulation with the Developer providing the Consent/NOC and the fourth respondent complying with all the requirements. 20 The details of the submission of Sri H V Devaraj, the learned counsel for MESCOM / its Officers: 11. The learned counsel does not join the debate on whether the fourth respondent is a duly constituted Association/ Society under the Karnataka Apartment Ownership Act but he relies upon the circumstances in which LT Connection is sanctioned and later a HT Connection is approved and transferred to the fourth respondent. The learned counsel places on record the following details: On 9.12.2011: The concerned Chief Engineer sanctioned 1695 KW power under LT- 2A Tariff upon an application filed by the Developer for power supply under LT tariff. On 28.01.2013 & 25.09.2013: The developer was required to furnish a Completion Certificate but before that he submitted his applications to avail HT Connection. 21 On 16.11.2013: The HT for 400 KVA connection is sanctioned. On 05.04.2014: The Developer has furnished the Completion Certificate. On 11.04.2015: The HT power is serviced by Installation bearing RR No. MGHT 47. The learned counsel next emphasizes the following on the merits of the decision of sanctioning HT connection. 11.1 The power sanction as aforesaid is subject to Regulation 4.02 of the Conditions of Electricity Supply Regulations which contemplate providing, “for the power supply to building/premises either HT or LT or combination of HT and LT through separate distinct service mains from a single source with the provision for a common isolation point”. The initial sanction is under Regulation 9 of the Conditions of Electricity Supply Regulations, and the request for 400 KVA [which is for 320 KW] is also considered under Regulation 9 of the Regulations. 22 11.2 The Regulation 9 of the Regulations3, when read in its entirety along with the Notes appended, a Consumer must avail HT supply for load 100 KW and above. The power sanction as aforesaid is subject to Regulation 4.02 of the Conditions of Electricity Supply Regulations which contemplate providing, “for the power supply to building/premises either HT or LT or combination of HT and LT through separate distinct service mains from a single source with the provision for a common isolation point”. Further, the Electricity Tariff 2018 - Schedule HT- 4 provides for tariff payable by the Residential Colonies/ Apartments. This Court’s reasoning: 12. The petitioner’s case, as canvassed in this application with the Grievance Redressal Forum is encapsulated thus. 3 These submissions are both by Sri H V Devaraju and Sri Vijay Krishna Bhat in response to the clarification sought for by this Court vide the order dated 06.11.2024 23 [a] The submission of the apartments to the provisions of the Karnataka Apartments Ownership Act is only to ensure marketable title to the concerned apartments and the responsibility of maintenance and other aspects are covered by the Karnataka Ownership of Flats Act, and the fourth respondent is not duly constituted because it is not registered under this latter enactment. [b] The fourth respondent, taking advantage of the transfer of HT Connection in its name, has raised unauthorized charges for electricity as part of the Maintenance Charges payable by her. The MESCOM has not raised any Bill, but she has paid to the fourth respondent electricity charges based on the average consumption over the relevant six months and that she is only liable to pay such amount and not any other amount that the fourth respondent may claim. 24 [c] As an Apartment Owner she will be the consumer of such apartment as contemplated under the provisions Section 43 of the Electricity Act, 2003 [referred to as ‘the Electricity Act’] and Regulation 9.10 of the Conditions of Electricity Supply Regulations. 12.1 The merits of the petitioner’s grievance against the first respondent’s order dated 31.08.2020, in the peculiarities of this case, are examined as against the touchstone of these questions: [i] Whether this Court, with the petitioner raising question about the due incorporation of the fourth respondent in the pending suit in OS No. 221/2022 on the file of the III Additional Civil Judge and JMFC, Mangaluru, should render any finding in that regard or should the parties be relegated to work out their remedies in the suit in view of this 25 Court’s decision in CRP No.64/2021 connected with CRP No.96/2021. [ii] Whether the change of the initially sanctioned LT supply to HT supply is permissible under the Conditions of Electricity Supply Regulations, and whether the first respondent should have considered this facet. This Court’s reasoning and conclusion on Question No. 1 13. This Court, in CRP No.64/2021 and CRP No. 96/2021, has considered the petitioner’s contention that the submission of the apartments to the provisions of the Karnataka Apartment Ownership Act is only to ensure marketable title to the concerned apartments and the responsibility of maintenance and other aspects are covered by the Karnataka Ownership of Flats Act, and that the fourth respondent is not duly constituted because it is not registered under this latter enactment. 13.1 This Court has considered the petitioner’s aforesaid case in the backdrop of whether 26 the Karnataka Apartment Ownership Act and the Karnataka Ownership of Flats Act are mutually exclusive or supplementary, and when an apartment is submitted to the former Act, would the latter apply. This Court has summarized its conclusion on the different questions, including the questions as aforesaid, as follows: • The Karnataka Apartment Ownership Act and the Karnataka Ownership of Flats Act are not mutually exclusive nor can they be said to be supplementary to each other inasmuch as both the enactments cannot apply at the same time. • Once an apartment is submitted to the Karnataka Apartment Ownership Act by execution of a Declaration and Deed of Apartment under such Act, the Karnataka Ownership of Flats Act will not apply. It is only the provisions of the Karnataka Apartment Ownership Act, which would apply. • Declaration, Deed of Apartment and Bye- laws in respect of an apartment building or 27 a property can be executed at any point of time and not necessarily when the apartment complex is ready or is sold. As and when the Declaration, Deed of Apartment and Bye-laws are executed under the Karnataka Apartment Ownership Act, the said apartment building and property would come out of the purview of the Karnataka Ownership of Flats Act and be subject to the Karnataka Apartment Ownership Act. Admittedly, this Court’s opinion has attained finality, and therefore, every question must be examined in the light of this opinion. 13.2 The petitioner further contends that the fourth respondent, taking advantage of the transfer of HT Connection in its name, has raised unauthorized charges for electricity as part of the Maintenance Charges payable by her, that the MESCOM has not raised any Bill, but she has paid to the fourth respondent electricity charges based on the average consumption over the relevant six 28 months and that she is only liable to pay such amount and not any other amount which the fourth respondent may claim. 13.3 These are aspects which are rooted in factual matrix, and the petitioner [joined by her husband] has sued the fourth respondent in OS No. 221/2022 for declaration that the Deed of Declaration dated 16.03.2007 is void and for other relief/s. The fourth respondent relies upon certain clauses in this Deed of Declaration to assert the right not just to take care of the maintenance of the Apartment Complex, but also to raise Bills for electricity consumption. The petitioner and the fourth respondent must lead evidence on the true import of the clauses that are contained in the Deed of Declaration and a host of other circumstances based upon which the civil Court will have to decide on the merits in the light of this Court’s exposition in the revision petitions in CRP Nos. 64/ 2021 and 96/2021. 29 13.4 When the first respondent’s opinion that the Courts must examine whether the fourth respondent is constituted in accordance with the law, is thus examined this Court cannot take any exception, and the petitioner must work out remedies in such suit. The first question is answered accordingly, and all questions are left open to be considered by the Civil Court in OS No. 221/2022 subject to this Court’s opinion in CRP Nos. 64/ 2021 and 96/2021. This Court’s reasoning and conclusion on Question No. 2 14. The Electricity Supply Companies [ESCOMS], as required under the KERC [Conditions of Licence to ESCOMS] 2004, have furnished ‘Model Conditions Of Supply Of Electricity’ describing the operating practices and connection policies with the Commission for approval. The Commission by its Order dated 02.06.2006 has communicated its approval for the Conditions of Supply of Electricity 30 which is notified on 17.06.2006. These Conditions govern the terms upon which electricity is supplied even by the MESCOM. If the expression 'a consumer' is defined under clause 2.184, the supply of electricity to Multi-storied Buildings [both Commercial and Residential] is governed by Regulation 9 of these Conditions. The subject apartment complex, 'Mourishka Park Condominium' is entirely a residential complex with about 360 units. Therefore, the relevant Regulation will be 9.09c5. This Regulation is for metering of power supply to 'Purely Residential Apartments/ Complex[es], and it reads as under. c) METERING OF PUREY RESIDENTIAL APARTMENTS/COMPLEX (ES) 4 CONSUMER‟ means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under the Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be. 5 The service of electricity for "Mixed Loads" too is also under Regulation 9.08 and as discussed in this Order. The expression "Mixed Loads" refer to both supply of power to residential and commercial uses. 31 L.T. Power supply shall be arranged at the request of the Applicant with the facility of LT metering to individual installations subject to observing all other Conditions as per provisions under note (b) & (c) of Clause 3.1.1 of the K.E.R.C (Recovery of Expenditure for supply of Electricity) Regulations 2004 and its amendments from time to time {Annex-2}. a) Power supply to common areas like lifts, water supply, staircase lighting etc., if metered separately, shall be billed under either residential or commercial Tariff as per the classification of the building as defined under note (b) & (c) of Clause 3.1.1 of the K.E.R.C (Recovery of Expenditure for Supply of Electricity) Regulations 2004 and its amendments from time to time {Annex-2}. b) For building having requisitioned load of combined residential and commercial loads less than 100 KW, the power supply shall be arranged on LT basis with individual meters to each of the installations irrespective of whether it is commercial or domestic installation. Billing shall be done at appropriate Tariff. c) For commercial buildings having requisitioned load less than 100 KW, the power supply shall be arranged on LT basis with individual meters to each of the installations. Billing shall be done at the appropriate Tariff. Note: i) In the case of existing commercial buildings already under service, where the requisitioned load is less than 100 KW and Consumer opts for individual meter, the same can be arranged if the 32 Consumer gets the wiring done through LEC at his cost duly making provision to fix up the meter by the side of the existing bulk meter. However, the sanctioned load of the bulk meter shall be automatically reduced to the extent of the load of the installation bifurcated for individual meter. ii) If additional load is requested over and above the total load already sanctioned, the same shall be sanctioned within 100 KW only. For loads of 100 KW and above, the Consumer shall avail himself of HT supply. 14.1 This Court, upon reading of these Regulations, must opine that the clustering of additional clauses [a] to [c] after Regulation 9.09c could lead to a reading that these clauses will be applicable to even "Purely Residential Apartments/Complex[es]". However, whether it must be read so will have to examined. When Regulation 9.09c is read along with the Heading, it would be that LT Power supply shall be arranged at the request of an applicant for Residential Apartments/Complexes subject to observance with the conditions mentioned therein. Crucially, when LT Power supply is thus arranged, there will be LT Metering to individual 33 installations as against one Bulk Energy Meter as contemplated under Regulation 9.09[a] and [b] for the 'Mixed Loads'. The decision to extend LT power supply with individual LT Meter brings about a relationship of consumer and the company supplying electricity between the owner of the concerned unit and the company unlike when Bulk energy Meter is installed where such relationship is between the company and an intermediary as is the case. 14.2 The subsequent Clauses i.e. [a] - [c] relate to metering and billing of power supply to [i] common areas for both residential and commercial building, [ii] buildings with residential and commercial loads less than 100KW and [iii] commercial buildings with less than 100KW. Even in case of buildings with only commercial and both commercial and residential loads, there will be Individual Meters as in the case of 'purely residential Apartments/Complexes'. Under Note [i], an existing building with commercial load less than 100KW can 34 be serviced with Individual Meters if the concerned opts for the same subject to bearing 'the cost' as stipulated therein. The Note [ii] stipulates, without specifying whether it is for residential or commercial or mixed [both residential and commercial] loads, the additional load can be up to 100KW, and beyond that the consumer must apply under HT supply. 14.3 The Scheme under this Regulation, as it emerges from the reading as above, is that in case of commercial load and mixed load [both commercial and residential] subject to a minimum of 100KW Individual Meters will be available with even the existing building with commercial load up to 100KW being given this option of Individual Meters, but in the case of Load for 'purely residential Apartments/Complexes' notwithstanding the load, the metering of consumption will be by Individual Meters. The terms of Note [ii] will be applicable when there is a request for additional load, if the request for additional load is up to 100KW, it will be as a LT 35 supply with Individual Meters, and if the request for additional load is for a load over 100 KW, the supply must be as a HT supply. The supply through HT supply will be metered by Bulk Energy Meters. 14.4 This Court must reiterate that the significance of this, apart from the tariff that will apply, indubitably is that the owners of the premises to which there is Individual Meters are the consumers unlike when there is a Bulk Energy Meter with Sub-meters. When there is Bulk Energy Meter, the applicant, who is given this facility, will be the consumer and this consumer can provide for Sub- meters to individual premises subject to "no profit" and other conditions. The Owner/Occupier of the premises with Sub-meters will not be the consumer. This enables in the applicant who avails "Bulk Energy Meters" certain obligation and rights with no relationship between the ESCOMS and the Owner/Occupier. 36 14.5 A residential apartment, if the Note [ii] is made applicable, despite the Scheme and consequences as aforesaid only because the Electricity Tariff - 2018 [with its amendments] provide for HT tariff for residential apartments, is provided with HT Supply, the entire Scheme under this Regulation will be vitiated. This Court opines, with the Regulations as they are, that every residential complex which is entirely so must be initially given, irrespective of the load; LT supply with Individual Meters, and if subsequently there is a request for increase in the load, subject to a maximum of additional load of 100KW, the supply must be LT supply with Individual Meters. However, if the request is for an additional load which is above 100KW, the supply must be HT supply with Bulk Energy Meters and Sub-meters. 14.6 Further, this Court opines that if despite this Scheme, a residential complex, which is entirely so, is given HT supply with Bulk Energy 37 Meter facility, unwittingly or otherwise, the Owner/Occupier of a unit in a purely residential complex will be denied the status of being consumer of the concerned ESCOMS leading to denial of obvious advantages. The present case perhaps exemplifies the same, and that will have to be examined in the pending suit. 14.7 In the present case, the initial sanction is for LT supply with a load of more than 100 KW, but it is later changed to HT Supply again with a load more than 100KW [though reduced]. It is only stated that this is done because the Developer requested for the same and nothing is placed on record to justify that this decision was taken on a minutiae reading of the Regulations and upon examining the repercussions. The decision to give HT supply and the servicing is in the year 2015 and there have been multiple proceedings which are mentioned. The first respondent has not considered 38 any of these circumstances, and should have as this facet lies at the core of the dispute. 14.8 This Court, in the peculiarities of the case, opines that the Managing Director, MESCOM must call for all the details and take such decision as would be necessary to undo the deleterious effect of the decision to grant HT supply with Bulk Energy Meter notwithstanding the Regulations as the controversy over the change in the HT connection from the Developers' name to the fourth respondent's name will also be addressed by the said consideration in the light of this Court's opinion on the object of the Regulation 9.09 of the Conditions of Supply of Electricity Regulations. The second question is answered accordingly. ORDER [a] The petition is disposed of directing the Managing Director, MESCOM to call for all the details and the records and take such decision 39 as would be necessary to ensure that the Maurishka Park Condominium, Opposite Sharada Vidyalaya, Near Bharat Circle, Kodialbail, Mangaluru has LT supply with Individual Meters for each of the Apartment in the Complex working out the modalities therefor. [b] All questions inter se the petitioner and the fourth respondent as regards the Deed of Declaration dated 16.03.2007 and the action by the fourth respondent in terms thereof are left open to be decided in the suit in O.S. No.221/2022 on the file of the III Additional Civil Judge and JMFC, Mangaluru subject to this Court's opinion in CRP No.64/2021 and CRP No.96/2021. [c] The fourth respondent is reserved with liberty to seek disbursement of Rs.5,32,781/- deposited by the petitioner in the suit subject to 40 the outcome in the afore suit in O.S. No.221/2022. SD/- (B M SHYAM PRASAD) JUDGE nv*