MD HASNUDDIN S/O MD RUKNUDDIN vs. THE STATE OF KARNATAKA AND ORS

1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No. 102060/2013 (GM-RES) BETWEEN: Md Hasnuddin S/o Md Ruknuddin Age; 58 years, Occ: Private Purpose R/o. H.No. 11-1041/45/7/D2, Galib Colony, Gulbarga - 585 101. …Petitioner (By Sri. Shivanand Patil, Advocate & Sri. Prashant Biradar, Advocate) AND: 1. The State of Karnataka Represented by The Principal Secretary, Vidhan Soudha, Bangalore – 560 001. 2. The Karnataka Electricity Regulatory Commissioner Mahalaxmi, Chamber, M.G. Road Bangalore, by its Secretary-560 001. 3. The Gulbarga Electricity Supply Co. Ltd., Corporate Office, GESCOM, Station Road, Gulbarga, by its Executive Engineer–585 102. R

2 4. The Gulbarga Electricity Supply Co. Ltd., O & M CSD-II GESCOM, Gulbarga by its Asst. Executive Engineer – 585 102. …Respondents (By Sri. A. Syeed Habeeb, AGA for R-1 Sri. Ashok R. Kalyan Shetty, Advocate & Sri. M.M.Mamadapur, Advocate & Sri. Ravindra Reddy, Advocate for R-2 to R-4) This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to issue a writ of certiorari or any other order or direction, quashing the impugned Notification No. of 22.07.2010 K.E.R.C./COS/D/07/10 dated 01.07.2010 published in the Karnataka Gazettee in as much as it pertains to inserting of clause 4.02(V) of the respondent No.2 as per Annexure-B and the condition No.13 and 16 as per impugned sanction letter dated 25.02.2013 in file No. AEE/AE(T)CSWD-II/GLB/PS/2012-13/9494 of the respondent No.4 in as much as it pertains to condition No.13 and 16 as per Annexure-A to this Writ Petition. This petition coming on for preliminary hearing ‘B’ group this day, the court made the following; O R D E R The petitioner has challenged the notification dated 1.7.2010, published in the Karnataka Gazette in as much as it pertains to insertion of clause 4.02 (vi) interalia seeking for a direction to quash the mutation sanction letter dated

3 25.2.2013 of the respondent No.4 relating to condition Nos.13 and 16 stipulated therein. 2. The petitioner is the owner and possessor of house bearing H.No.11-1041/45/D2 situated at Galib Colony, Gulbarga. The said house is constructed over a plot size of 30’ X 40’. The petitioner applied for electricity connection and the respondent No.4 has issued sanction with a condition that use of solar water heater is mandatory and the petitioner is required to submit a certificate of installation. The same is said to be based on the notification at Annexure-B and the Circular at Annexure-C. The same is challenged in this writ petition as unreasonable, discriminatory and violative of Articles 14, 19 (1)(e) of the Constitution of India. 3. The learned counsel Sri. Shivanand Patil, appearing for the petitioner would contend that the impugned notification at Annexure-C and the Notice/Order at Annexure-B are discriminatory and in violation of the

4 fundamental rights guaranteed under the Constitution of India. The object of the amendment of conditions of supply of electricity of the distribution licencees is obviously to save electricity by opting for alternative forms or source of energy if available. If that being so, then it must flow that all users of electricity for water heater must switch on to solar water heaters and no exception whatsoever can be made. However, the amendment of clause 4.02(vi) seeks to restrict only to residential premises about 600 Sq. ft. over a plot size of 1200 Sq. ft falling within the limits of Municipalities and the Corporations, but the construction of bigger house in the town or village limits is deemed to be exempted which is discriminatory and not in conformity with the obvious intent or object and thus such an amendment is contrary to the spirit of Article 14 of the Constitution of India and deserves to be struck down. It is further contended that the installation of solar water heater would further add to the miseries of low- income groups with additional financial burden for the investment on solar heater system. Hence, the restriction

5 imposed is unreasonable in the light of the financial status of persons opting for residence in a plot size of 1200 Sq. ft. 4. The learned counsel appearing for the contesting respondent Nos.2 to 4 justifying the Government Notification and the notice/order submitted that, it is the laudable object with which the amendment is made in terms of clause 4.02 (vi) to save the electricity by opting for solar energy. This is the policy decision taken by the Government imposing the condition to install solar water heater in all residential buildings with built up area of 600 Sq. ft. and above constructed on sites, measuring 1200 Sq. ft. falling within the limits of Municipalities/ Corporation and Bangalore Development Authorities Sectors which cannot be considered as discriminatory as contended by the petitioner. 5. Adverting to the rival submissions advanced by the learned counsel appearing for the parties, the settled legal position is that the challenge to the notification

6 can be made only on two grounds, i.e., (I) legislative incompetency, (ii) violation of fundamental rights guranteed in the Constitution of India. There is no dispute regarding the competency of the Government issuing the notification. The dispute revolves around the violation of fundamental rights. Article 14 mandates that the State shall give equal treatment to similarly situated persons and no indigenous discrimination can be made among the same class/group without any rational basis. Reasonable classification is not prohibited. The residential buildings with built up area of 600 Sq. ft and above constructed on sites measuring 1200 Sq. ft. falling within the limits of Municipalities/ Corporation and Bangalore Development Authority Sectors forms a class by itself. What is prohibited in law is the discrimination in that group/ class. No such discrimination within the group is pointed out by the petitioner. 6. The Hon’ble Apex Court in the case of Khandige Sham Bhat and another –vs- Agricultural Income Tax

7 Officer, Kasaragod and another reported in 1963 (48) ITR 21, while dealing with the doctrine of classification, after making reference to its judgment in Ram Krishna Dalmia – vs- Shri Justice S.R. Tendulkar (1959) S.C.R. 279 quoted observations therefrom as under: “ It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statue in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established…… that article 14 condemns discrimination not only by a substantive law but also by a law of procedure”. 7. It is well settled that where the Government in its sincere attempt to meet a situation, issue a circular making

8 certain conditions to be mandatorily valid if the overall scenario indicates that the method work fairly well on all similarly situated, it cannot be struck down as arbitrary or capricious, merely because some hardship may be caused for implementation of the said condition, which is inevitable in such circumstances. The learned counsel for the petitioner has not pointed out any discrimination within the class of buildings in which they fall. As could be seen from the judgment cited supra, this Court is satisfied that there exists a rational nexus with the object sought to be achieved and the classification as observed by the Hon’ble Apex Court is reasonable founded on intelligible differentia. 8. The advantage of using solar energy is more. It reduces environment pollution avoiding the use of fuel, economically is also viable as the solar energy is available freely. It is in order to reduce the use of electrical energy which requires to be generated depending upon various favours other easily available energy is solar energy. The

9 process of generation of electricity is complex and the electricity tariff is increasing day by day which otherwise can be suitably reduced by using the solar energy, with this avowed object a paradigm shift is necessary by way of imposing the condition of installing the solar water heater in the buildings. This decision cannot partake the character of extraneous consideration or discrimination in violation of fundamental rights under Articles 14 and 19(1)(e) of Constitution of India. No doubt, it is the dream and ambition of the citizens to own a housing of their own. In the venture of building a home, installing of solar water heater mandatorily, would not in no way add to their miseries. On the other hand, it sub-serves the object of reducing the electricity bills besides protecting environment. The policy decision of the Government cannot be interfered by the courts more particularly, when the policy is projected in the interest of the public.

10 9. Similarly, directing the particular class/ group of buildings to install solar water heater system mandatorily cannot be constructed as violative of Article 19(1) (e) of the Constitution of India. 10. For the reasons aforesaid, the writ petition is misconceived. No merits in the writ petition. Accordingly, writ petition is dismissed.

Sd/- JUDGE BL Ct: RRJ