Calcutta High Court (Appellete Side)
Cesc Limited & Anr vs Sk. Ansar Ali on 12 August, 2021
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
CAN 1 Of 2021
MAT NO. 117 of 2021
With
WPA 11107 of 2020
[Via Video Conference]
CESC Limited & Anr.
-Vs.-
Sk. Ansar Ali
Before:
The Hon'ble Justice Subrata Talukdar
The Hon'ble Justice Saugata Bhattacharyya
For the Appellants : Mr. Subir Sanyal, Ld. Adv.
Dr. Madhusudan Saha Roy, Adv.
For the Respondents : Mr. Bidyut Kumar Halder, Ld. Adv.
Mr. Indranil Halder , Adv.
Heard On : 08.07.2021
Judgment On : 12.08.2021
Saugata Bhattacharyya, J.:
The present mandamus appeal has arisen out of the order dated 20th
January, 2021 passed by the Hon'ble Single Bench on the writ petition
2
being WPA 11107 of 2020 (Sk. Ansar Ali Vs. CESC Limited & Anr.). The
said appeal and the connected stay application are taken up together with
the consent of the parties upon treating the same on day's list since the
parties to this appeal through their learned Counsel submitted before this
Court that the issue involved in this appeal can be finally adjudicated upon
without calling for affidavits on placing reliance on the report of the District
Engineer, West Suburban District, CESC Ltd. prepared on the basis of the
inspection carried out on 9th January, 2021 and was placed before the
Hon'ble Single Bench which is also made part of the record of this appeal.
Whether the writ petitioner/respondent is entitled to get supply of
electricity from a new meter to be installed by the appellants herein or from
the existing meter already installed by the Calcutta Electricity Supply
Corporation Limited (hereinafter referred to as "CESC") is the fulcrum which
can be gone into by placing reliance upon Section 43 of the Electricity Act,
2003 (hereinafter referred to as "the Act of 2003") vis-a-vis Regulation 14 of
West Bengal Electricity Regulatory Commission (Recovery of Expenditure for
Providing New Connections) Regulations, 2013 (hereinafter referred to as
"the Regulations of 2013").
The writ petitioner/respondent filed connected writ petition, inter alia,
stating that he is one of the co-sharers of the premises No. W-159/5, S.A.
Farooque Road, Kolkata - 700018 which is presently described as W-159/5,
Akra Road (Metiabruz), Kolkata - 700018, P.S.-Rajabagan, where he resides
with his family. The respondent applied for new electric connection for
domestic use to his premises. Based on such application made by the
3
respondent the CESC Authority inspected premises of the respondent on 4 th
December, 2020 and subsequently by letter dated 5th December 2020
rejected the application of the respondent on the ground that the premises
of the respondent has already been provided with facilities of getting electric
connection and further application for new connection would lead to
splitting of electricity load for deriving the benefit of lower charges on placing
reliance upon Regulation 14 of the Regulations of 2013. However, the
respondent was advised to approach the concerned Regional Manager of
CESC within 7 days from the date of communication of the said letter dated
5th December, 2020 if he is aggrieved by such refusal on the part of the
CESC Authority.
In the writ petition the respondent made following prayers:
"a) Writ in the nature of Mandamus commanding the
respondents to give electric connection to your petitioner
by installing a new meter in the said premises
immediately.
b) Writ in nature of Certiorari directing the respondents to
produce the records of the case so that on perusal of such
records the letter dated 5.12.2020 may be quashed
and/or set aside and/or conscionable justices may be
done between the parties."
Mr. Subir Sanyal, learned Counsel representing the appellants in
support of the case made out in the appeal has submitted that the premises
where the respondent resides with his family is a two-storied building
together with one asbestos shaded structure alongside such two-storied
4
building containing four rooms. There are already three meters for the said
two-storied building and two meters for the asbestos shaded four rooms and
the respondent is desirous to have a separate LT meter for electric supply to
one of the four asbestos shaded rooms. In course of submission advanced
by Mr. Sanyal, reliance has been placed on a report prepared based on an
inspection carried out on 9th January, 2021 in terms of the order of the
Hon'ble Single Bench dated 6th January, 2021 signed by the District
Engineer, West Suburban District, CESC Ltd. dated 14th January, 2021, at
page 40 of the Stay Application. From the said report it transpires as also
submitted on behalf of the appellants that already three meters were
installed for the two-storied building and two meters for the asbestos shaded
four rooms and in one of these four rooms the respondent along with his
family members reside. The said inspection report also reveals that the
asbestos shaded portion of the premises does not have any separate kitchen
facility. Mr. Sanyal echoed the concern which has been expressed in the
said report of the District Engineer, West Suburban District, CESC Ltd. that
further installation of meter in the said premises wherein already five meters
have been installed, may lead to cause fire hazard and loss of lives and
property and electrical accidents. The said report also states the sorry state
of affairs in maintenance of electrical wires without any proper insulation
and unauthorized shifting of meter-board where five meters have already
been laid to a place which is under polythene sheet.
On behalf of the appellants upon placing reliance on Regulation 14 of
the Regulations of 2013 a specific submission has been made that further
5
installation of meter based on the application made by the respondent will
amount to splitting of electrical load for deriving undue benefits in terms of
charging of units consumed by the consumer at a lower rate which is not
permissible under the Regulations of 2013.
On behalf of the appellants in addition to Section 43 of the Act of 2003
reliance has also been placed on Section 45 and Section 181(2)(u) of the Act
of 2003 in order to bring to the attention of this Court that the benefit of
Section 43 as envisaged under the said Act of 2003 is circumscribed by
Section 45 and Section 181(2)(u).
On behalf of the appellants further submission has been made that
since the application of the respondent was rejected upon placing reliance
on Regulation 14 of the Regulations of 2013 the appropriate course left open
to the respondent is to approach the Ombudsman as contemplated under
the Regulations of 2013 and it is the onus of the respondent to prove that
application for new connection is not for the purpose of splitting the load.
In support of the contention raised on behalf of the appellants,
reliance has also been placed on an unreported judgment of the Hon'ble
Division Bench dated 5th February, 2021 passed on MAT 73 of 2021
(C.E.S.C. Ltd. & Anr. Vs. Asifa Bibi), wherein it has been held that splitting
of electrical load upon installation of new meter where the consumer is
already in receipt of supply of electricity from the existing meter installed in
the premises is contrary to the scheme as propounded under the Regulation
14 of the Regulations of 2013.
6
Per contra Mr. Bidyut Kumar Halder, learned Counsel representing on
behalf of the respondent submitted that there is no electrical meter existing
in his name in the premises where the respondent along with his family
reside which makes him entitled to have a new meter for getting supply of
electricity in terms of the provisions of Section 43 of the Electricity Act of
2003 notwithstanding existence of five other meters in the said premises
and receipt of supply of electricity by him from one of such meters since the
respondent is residing with his family separately in the said premises-in-
question. It has also been contended on behalf of the respondent that
Section 43 confers him unfettered right to get electricity in view of the
scheme of the Act of 2003 which cannot be curtailed upon placing reliance
on Regulation 14 of the Regulations of 2013 and in case of repugnancy in
between Section 43 and Regulation 14 the provision of Section 43 would
prevail over the said Regulation 14. The respondent has also relied upon the
order of the Hon'ble Single Bench dated 2 nd February, 2021 passed on WPA
8290 of 2020 (Gobinda Bhuniya Vs. CESC Ltd. & Anr.) and it has been
contended that on similar facts the Hon'ble Single Bench granted relief to
the writ petitioner by giving direction upon the distribution company to take
steps for supply of electricity upon installation of new meter.
We have heard the learned Counsel representing the appellants and
the respondent and considered the report of District Engineer, West
Suburban District, CESC Ltd. dated 14th January, 2021 and the legal points
raised by the respective parties before this Court upon placing reliance on
7
the relevant provisions of the Electricity Act of 2003 as well as the
Regulations of 2013 framed under the said Act of 2013.
This Court finds it apposite to quote below Section 43, Section 45 and
Section 181(2)(u) of the Electricity Act of 2003 as well as Regulation 14 of
West Bengal Electricity Regulatory Commission (Recovery of Expenditure for
Providing New Connections) Regulations, 2013:
"43. Duty to supply on request.--(1) [Save as otherwise
provided in this Act, every distribution] licensee, shall, on an
application by the owner or occupier of any premises, give
supply of electricity to such premises, within one month after
receipt of the application requiring such supply:
Provided that where such supply requires extension of
distribution mains, or commissioning of new sub-stations, the
distribution licensee shall supply the electricity to such
premises immediately after such extension or commissioning
or within such period as may be specified by the Appropriate
Commission:
Provided further that in case of a village or hamlet or
area wherein no provision for supply of electricity exists, the
Appropriate Commission may extend the said period as it may
consider necessary for electrification of such village or hamlet
or area.
[Explanation.--For the purposes of this sub-section,
"application" means the application complete in all respects in
the appropriate form, as required by the distribution licensee,
along with documents showing payment of necessary charges
and other compliances.]
(2) It shall be the duty of every distribution licensee to
provide, if required, electric plant or electric line for giving
electric supply to the premises specified in sub-section (1):
8
Provided that no person shall be entitled to demand, or
to continue to receive, from a licensee a supply of electricity
for any premises having a separate supply unless he has
agreed with the licensee to pay to him such price as
determined by the Appropriate Commission.
(3) If a distribution licensee fails to supply the electricity
within the period specified in sub-section (1), he shall be liable
to a penalty which may extend to one thousand rupees for
each day of default.
45. Power to recover charges.--(1) Subject to the provisions
of this section, the prices to be charged by a distribution
licensee for the supply of electricity by him in pursuance of
section 43 shall be in accordance with such tariffs fixed from
time to time and conditions of his licence.
(2) The charges for electricity supplied by a distribution
licensee shall be -
(a) fixed in accordance with the methods and the
principles as my be specified by the concerned State
Commission;
(b) published in such manner so as to give adequate
publicity for such charges and prices.
(3) The charges for electricity supplied by a distribution
licensee may include--
(a) a fixed charge in addition to the charge for the actual
electricity supplied;
(b) a rent or other charges in respect of any electric meter
or electrical plant provided by the distribution
licensee.
9
(4) Subject to the provisions of section 62, in fixing charges
under this section a distribution licensee shall not show
undue preference to any person or class of persons.
(5) The charges fixed by the distribution licensee shall be in
accordance with the provisions of this Act and the regulations
made in this behalf by the concerned State Commission.
181. Powers of State Commissions to make regulations.--
(1) The State Commissions may, by notification, make
regulations consistent with this Act and the rules generally to
carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the
power contained in sub-section (1), such regulations may
provide for all or any of the following matters, namely:--
(a) ...................;
(b) ...................;
........................;
(u) methods and principles by which charges for electricity
shall be fixed under sub-section (2) of Section 45;
......................................
(zp) ......................................."
From the case made out by the parties to this appeal it is undisputed
that the respondent/writ petitioner is in receipt of electricity from one of
existing five meters which were installed in the said premises where the
respondent is residing with his family members in one of the four rooms of
asbestos shaded structure. The respondent made application for supply of
electricity through a new meter in excess of five meters already installed in
the premises which was turned down by the appellants vide letter dated 5 th
December, 2020 upon placing reliance on Regulation 14 of the said
Regulations of 2013. Within a span of six days thereafter the respondent
filed connected writ petition questioning the refusal of the CESC to supply
electricity through new meter as applied for without approach being made to
the Ombudsman as contemplated under Regulation 14.
We are not oblivious to the provisions of Section 43 of the Act of 2003
which definitely confers right upon the citizen to approach the distribution
licensee for commencement of supply of electricity to the applicant through
new meter but in the present case the respondent is already in receipt of
electricity from one of the existing five meters installed in the premises in
question where he is residing in one of the four asbestos shaded rooms as
co-sharers. Had the respondent not been in receipt of electricity from one of
the existing five meters installed in the said premises the issue could have
been assessed from a different perspective. Here in the present case the
benefit of Section 43 can only be extended in favour of the respondent
keeping in mind the provisions of Section 45 and Section 181(2)(u) as
quoted above. It is trite law that in case of repugnancy in between plenary
law and the regulations made under the said law the plenary law shall
prevail over the regulations but the case at our hand does not suggest any
repugnancy rather the said Regulations of 2013 have been framed under
section 181 in tune with the Act of 2003 and such Regulations were framed
to carry out the provisions of the said Act. The State Commission in tune
with one of the objects of the said Act of 2003 namely rationalization of
electricity tariff made the Regulations of 2013 and this Court does not find
any repugnancy in between Section 43 of the Act of 2003 vis a vis
Regulation 14 of the Regulations of 2013 in absence of any challenge being
thrown to the said Regulations.
Keeping note of the report dated 14th January, 2021 prepared by the
District Engineer, West Suburban District, CESC Ltd. this Court is also
expressing concern about the safety of the inhabitants of the premises in
question where asbestos shaded four rooms are provided with already two
meters and there are altogether five electrical meters installed by the
distribution licensee which are kept at a place under the cover of polythene
sheet without proper maintenance of live electrical wires which as reported
are not properly insulated. Considering these hazardous state of electrical
arrangements made at the said premises it would definitely raise a question
in the mind of a prudent person whether further installation of meter for
supplying electricity to a particular asbestos shaded room upon accepting
the application made by the respondent on the strength of Section 43 of the
Act of 2003 may lead to fire hazards. Therefore, the benefit of Section 43
definitely is available to a consumer of electricity but extension of such
benefit can only be granted if situation so demands considering the
prevailing circumstances and it needs to be examined on case to case basis.
From the letter dated 5th December, 2020 which is neither annexed to
the writ petition nor made part of the record before the Appellate Court,
during course of hearing copy of the said letter is handed over by the
learned Counsel representing the appellants, it appears that relying upon
Regulation 14 of the Regulations of 2013 the concerned authority of the
appellants rejected the application of the respondent for supply of electricity
through a new meter in accordance with the provisions of Regulation 14
could have been questioned before the Ombudsman since Regulation 14 is
not under challenge in the writ petition but the respondent in his turn
straightway approached the High Court by invoking writ jurisdiction which
cannot be countenanced. In this regard reliance is placed on unreported
judgment dated 5th February, 2021 passed in Asifa Bibi (Supra) whereby
the Hon'ble Division Bench of this Court has held on an identical issue that
if the application of the consumer is rejected on the ground that installation
of new meter would lead to splitting of electrical loads for availing of the
benefit of paying electricity bill at the lower rate under Regulation 14 the
appropriate course is to approach the Ombudsman instead of invoking of
writ jurisdiction since the onus to prove the application for new connection
is not for the purpose of splitting the load is on such applicant which is a
matter of evidence in some cases as the facts might be disputed by the
parties to the proceedings. The relevant part of the said judgment and order
dated 5th February, 2021 is quoted below:
"As far as the stand taken by the learned counsel for the
appellants regarding splitting of connection and the remedy
available to the respondent/writ petitioner, if application for
release of new connection is rejected on that ground, we find
merit therein. Regulation 14 of the Regulations clearly
provides that in case any application is rejected on the ground
of splitting of load, the remedy available to an applicant is to
file application before the Ombudsman. The onus to prove
that the application for new connection is not for the purpose
of splitting the load is on such applicant, which may be matter
of evidence also in some cases as facts will be in dispute.
Instead of availing that remedy the respondent/writ petitioner
hurriedly approached this Court without even waiting for one
month, the period is available to the licensee for release of
connection."
The respondent cited an order dated 2nd February, 2021 passed by the
Hon'ble Single Bench in Gobinda Bhuniya (Supra) may not be relied upon
in the case at our hand since the said Hon'ble Single Judge did not have the
occasion to rely on the judgment and order dated 5th February, 2021 passed
by the Hon'ble Division Bench in Asifa Bibi (Supra).
In view of the above discussion the order under appeal dated 20th
January, 2021 passed by the Hon'ble Single Bench is set-aside and the
appeal is allowed.
However, this order shall not preclude the respondent to approach the
Ombudsman in accordance with the Regulation 14 questioning the rejection
of the application of the respondent for installation of new electrical meter
provided the respondent upgrades the electrical arrangement at the said
premises including the place where electrical meters are installed ensuring
safety measures. If such application is made before the Ombudsman by the
respondent within a reasonable period same shall be decided in accordance
with law.
All parties to act on a server copy of this order downloaded from the
official website of this Court.
Urgent photostat certified copies of this order shall be supplied to the
parties, if applied for, upon compliance of all formalities.
I agree,
(SUBRATA TALUKDAR J.) (SAUGATA BHATTACHARYYA J.)
