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2018 Supreme(Kar) 425
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
E S.SUJATHA, J.
D.SUBRAHMANYA BHAT S/O D.BHEEMA BHAT – Appellant
Vs.
KARNATAKA ELECTRICITY REGULATORY COMMISSION – Respondent
W.P. No.9110 of 2008 (GMKEB)
Decided on : 07-06-2018
Advocate Appeared:
For the Appellant : SRI SHRIDHAR PRABHU, ADV.
For the Respondent: SRI M.S.RAJENDRA, ADV. FOR SRI VIVEK HOLLA, SRI S.SRIRANGA, ADV. A/W SRI VIKRAM U.R., ADV
Headnote:CONSTITUTION OF INDIA - Articles 226 & 227 - Economic regulations - Judicial restraint - In the utilities tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference to legislative judgment - Legislature after all, has the affirmative responsibility - Courts have only the power to destroy, not to reconstruct - When these are added to the complexity of economic regulation - Uncertainly, the liability to error, the bewildering conflict of experts and the number of times the Judges have been overruled by events - In such circumstances, self-limitation can be seen to be the path of judicial wisdom and institutional prestige and stability.
ELECTRICITY ACT, 2003 [C.A. No. 36/2003] - Section 47 & Karnataka Electricity Regulatory Commission (Security Deposit) Regulations, 2007 - Regulations 6.2(a)(ii) & 7 - Demand notice for additional security deposit - petition challenging Regulation 6.2 in so far as imposing the limit of Rs.3,000/- relating to refund of security deposit is concerned on the ground that petitioner's entitlement to refund of Rs.260/- against security deposit of Rs. 740/- maintained by him is denied/made ineligible owing to minimum limit of Rs.3,000/- prescribed under Regulation 6.2(d) - In factual matrix - Cause of action- Existing 3 MMD Security Deposit maintained by petitioner with respondent 2-MESCOM being Rs.740, he is deprived of getting the refund of excess security deposit of Rs.260/-, in view of the limit of minimum of Rs. 3,000/- prescribed in impugned Regulation 6.2(d) -However, in respect of RR No.K-02741 of petitioner, now a sum of Rs.1,370/- is the present deposit - In such changed circumstances, held, the essential quality of existence of an actual controversy of a living issue being absent - Deciding the issue involved herein, would become purely academic-Any decision, one way or the other, would have no impact on the position of petitioner, due to subsequent changed circumstances-Therefore, writ petition does not survive for consideration.
The prayer sought in the writ petition reads thus:
“[a] Declare that the words – “However, the Licensee can hold Security Deposit up to Rs.3000/at the credit of any Consumer and refund the excess Security Deposit when it is over and above Rs.3000/” contained in Regulation 6.2 of the KERC (Security Deposit) Regulations, 2007, and “However, the limit of Rs.3000/for refund of the excess Security Deposit as per clause 6.2 shall be adhered to” contained in Regulation 6.2(a)(ii) of the K.E.R.C (Security Deposit) Regulations, 2007, at Annexure-A, are arbitrary, discriminatory, unconstitutional, ultra vires to Section 47 of the Electricity Act, 2003, framed without following the principles of natural justice, suffered from legal malice, null and void and consequentially for striking down the same in so far as the petitioner is concerned;
[b] Declare that Regulation 7 of K.E.R.C (Security Deposit) Regulations, 2007, restricting the mode of payment of Security deposit either to cash or Bank Guarantee only is arbitrary, discriminatory, unconstitutional, ultra vires to Section 47 of the Electricity Act, 2003 and consequentially issuance of appropriate writ or direction to the 1st respondent to frame appropriate regulations enabling the consumers of electricity in Karnataka to maintain the required security under Section 47 of the Electricity Act, 2003, in any liquid form other than cash or Bank guarantee also, in so far as the petitioner is concerned.” [Emphasis supplied]
2. The petitioner has confined to the prayer [a] and prayer [b] is not pressed.
3. The petitioner is one of the registered consumers of the second respondent under R.R.No.K.02741 maintained in the 1st Subdivision of Attavar, Mangalore of the second respondent. It is the contention of the petitioner that 3 monthly minimum deposit [3 MMD] was made as deposit with the second respondent as provided under Sections 30.02, 30.03 and 30.05 of the then prevailing KERC [ES & D] Code, 200001. That Regulation 6.2 of the KERC [Security Deposit] Regulations, 2007 [‘Regulations’ for short] deals with the demand notice for Additional Security Deposit which provides that based on the general review, demand for shortfall in Security Deposit or refund of excess Security Deposit shall be made by the licensee. However, the licensee can hold security deposit up to Rs.3000/at the credit of any consumer and refund the excess security deposit when it is over and above Rs.3000/. In terms of 6.2(a), in the case of existing consumers, from whom 3 MMD had been collected by the Licensee where the monthly billing cycle is in vogue:
(i) Additional Security Deposit shall not be collected till deposit held at credit falls short of the average bill amount corresponding to two months [2 MMD] in case of monthly billing and three months [3 MMC] in case of bimonthly billing calculated based on the consumption in the preceding year.
(ii) If the deposit held is more than 120% of the average bill amount corresponding to two months (2 MMD) in case of monthly billing and three months (3 MMD) in case of bimonthly billing of the preceding year, the Licensee shall refund excess deposit held over and above 120% of the average bill amount corresponding to two months (2 MMD) in case of monthly billing and three months (3 MMD) in case of bimonthly billing of the preceding year, within 12 months of the notification of these Regulations in the first instance and during the first quarter in the subsequent years, through adjustments in the energy bill of the Consumer. However, the limit of Rs.3000/for refund of the excess Security Deposit as per clause 6.2 shall be adhered to.
4. It is the grievance of the petitioner that the aggregate of previous years electricity bills including tax [for the period April 2007 to March 2009] in respect of his installation No.K02741 was Rs.2,398/and average monthly bill was Rs.200/that means to 120% of 2 MMD to be maintained by the petitioner would be Rs.480/. However, existing 3 MMD securit
