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ESE Lightning protection and its legality in India

Updated: Aug 6

During the last days of December 2022, M/S Lightning Protection India Association (LPIA) circulated documents under the name “Karnataka High Court rules in favor of Lightning Protection India Association (LPIA)”. This blog explains the facts behind the case and the legal validity of ESE Lightning Protection in India.

 

1. ESE, Court case and Claims by LPIA.


Sub: High court case, NBC-2016 & ESE Lightning Protection System

Ref: KARNATAKA HIGH COURT ORDER DATED 23RD NOVEMBER 2022 (LPIA VS UOI -BIS) & the subsequent claims by ESE suppliers.


a. Lines from court order:


“this Court is of the view that the specific stand of the Respondent-Bureau with which the 1st Respondent - Central Government is in agreement, does substantiate that the subject Code and its provisions including what is impugned herein do not have proprio vigor enforceability, the same being 'a voluntary model code' and a 'guiding document' to use the terminology of the 2nd Respondent. Therefore, the Petitioner need not have the apprehension that in the run of its business, it has to comply with what is recommended in the Code per se and therefore, even if there is any contravention thereof, it shall not be actionable against the Petitioner, till after the same is incorporated in some statutory instrument to make it a binding rule of conduct”.


KARNATAKA HIGH COURT ORDER DATED 23RD NOVEMBER 2022 – LPIA VS UOI - BIS-c[1]
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b. BIS undertaking to court.


“National Building Code of India 2016 (NBC 2016) is a voluntary model code which may be considered for utilization/suitable adoption by concerned authorities (such as municipal administrations, construction departments, etc) and others concerned. The NBC is a guiding document formulated by the concerned technical committee based on scientific and technical know-how. It lays down a set of minimum provisions designed to protect the safety of the public with regard to structural sufficiency, fire hazards and health aspects of buildings.


Compliance to the provisions of NBC 2016 becomes binding only if the code is specified/referred in a regulatory document or in an agreement between two contracting parties. The implementation of the NBC is within the purview of the body adopting the Code. For example, if a local body/municipality adopts the NBC as a mandatory requirement for construction of buildings in the area within its jurisdiction and there is a violation of the code, it is the municipality that has to initiate penal action against the offender”.


Also, Rule 24 of the BIS Rules, 2018, states, "Indian Standards to be binding in certain cases. - (1) Save as otherwise provided in sub-rule (2), the Indian Standards are voluntary and their implementation depends on adoption by concerned parties. (2) An Indian Standard shall be binding if it is stipulated in a contract or referred to in a legislation or made mandatory by specific orders of the Government".


BIS UNDERTAKING TO KARNATAKA HIGH COURT SUBMITTED ON JUDGEMENT DATE 23 NOV 2022 WP129921-c
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c. Conclusion of points a and b


From the undertaking it is clear that BIS standards are voluntary. Standards are voluntary, not only in India, but globally. Standards becomes mandatory if they are stipulated in a contract or referred in a legislation or made mandatory by specific orders of the Government.


a. NBC in regulatory documents.


NBC-2016 is already accepted by several state/central government agencies/departments as a requirement, thus compliance to NBC-2016 become mandatory in the respective area/legislations.


b. NBC in agreement between two contracting parties.


Indian Standard shall be binding if it is stipulated in a contract means, in a tender specification or in a purchase order or in any contract documents if NBC is referred, then it is mandatory.


E.g. In a municipality or in a state where NBC is not made mandatory and is not referred in any contractual agreements while constructing a building, requirement as per NBC is not mandatory. This also means the builder, the owner, the industry etc, shall not claim that the building is as per NBC-2016.


Conclusion: It is clear from the court order that the petition filled by LPIA is disposed of without any action.

 

2. National safety regulations and validity of ESE as per the regulation.


Safety regulations of Government of India.

Based on act 53 of The Electricity Act 2003, Electricity safety regulations called as Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations 2010, are made. The following regulations are to be read to understand the subject.


Measures relating to safety and electric supply regulations 2010
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Regulation 12 (3)


The material and apparatus used shall conform to the relevant specifications of The Bureau of Indian Standards or International Electrotechnical Commission where such specifications have already been laid down.


Conclusion: Both IS/IEC 62305 or IEC 62305 did not accept the claims of enhanced protection radius of ESE. It is clear from the above regulation (12(3)) that using ESE in India is a violation of the safety regulation.


Regulation 37 (vii)


If at any time after connecting the supply, the supplier is satisfied that any provision of these regulations are not being observed he shall give notice of the same in writing to the consumer and the Electrical Inspector, specifying how the provisions have not been observed and to rectify such defects in a reasonable time and if the consumer fails to rectify such detects pointed out, he may discontinue the supply after giving the consumer a reasonable opportunity of being heard and recording reasons in writing and the, supply shall be discontinued only on written orders of an officer duly notified the supplier in this behalf and shall be restored with all possible speed after such defects are rectified by the consumer to the satisfaction of the supplier.


Conclusion: It is clear from the above regulation (37(7)) that the supplier shall disconnect the supply in case of violation of regulation is found. (e.g. SOLAR PV with ESE lightning protection shall be disconnected from the grid)


Note: State ERC or Electrical Inspectorate shall be informed about this violation to initiate appropriate action. Readers are also requested to understand the requirements of PART XIV OFFENCES AND PENALTIES of The Electricity Act 2003.


 

3. ESE’s and CSE’s installed in India.


ESE sold in India are with one rod claiming up to 100-meter radius of protection, one down conductor and one or two earth pits. The ESE vendors claim this as per NFC 17-102. Refer the picture in annexure -1 (which is fig 1 under clause 1.4.3 of NF C 17-102, Components of LPS).


Fig: Typical ESE promotions in India with one down conductor and one earth electrode.



Fig: Actual ESE installation as per NFC 17-102, (Which is not practiced in India)


Conclusion: ESE’s sold in India are not based on NFC 17-102 (French code) but are based on illogical claims and hogwash, with an aim to make financial benefit. In simple terms, “ESE installations in India with one down conductor and earth electrode are mere business, utilizing the unawareness of the user”.


NBC-2016 has not accepted ESE/DAS/CSE lightning protection and recommended not to use it.

 

4. Acceptance by ESE manufacturer, that consultants in India do not ensure correct installation.


During the fifth meeting of CED 43: P13, panel for electrical installations dt 31 May 2018, the ESE manufacturers were invited to present their comments about NBC-2016 to the committee. Representative from Indelec SA (France and India) and LPI (Australia and India) presented ESE technology in India. The following points from minutes of meeting to be noted.


Minutes of Meeting at BIS on 2018
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“Shri Gopa Kumar however informed that in most of the installations (to the order of 99 percent), provisions in the NFC 17-102 are also not being followed. Shri Nair argued that it was the responsibility of the consultant to ensure the correct installation of any technology”.

Shri Franco (Indelec SA) agreed that the system does not provide guidelines of side flash and mentioned that this was not an important aspect as side flash/strike are very rare.


The above comment from Shri Vinod Nair of M/S INDELEC SA shows that the ESE installations in India are not following NFC 17-102 and cannot protect against side flash. According to Shri. Vinod Nair, the consultants are not carrying out their responsibility properly and hence the company INDELEC SA is not responsible for wrong installation (to the tune of 99%).


More information on nonstandard LPS by ESE can be found at




Written by

S. Gopa Kumar

Member


IEC TC64: MT 3, MT 12, MT 40, MT 41, PT 60364-8-3, WG 43

TC81: ahG 19, MT 3, MT 14, MT 21, WG 18

SC 37 A: WG3 & WG05

BIS National Building Code-2016 (electrical committee),

ETD 20 (NEC, IS732, IS3043, IS/IEC 62305), ETD 30 & ETD50


The author is also the respondent no 4, of the case referred in Sl no 1 (petition filed by LPIA)

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