Sri Dipankar Saha vs Cesc Limited And Another
2022 Latest Caselaw 4971 Cal

                    IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRITJURISDICTION
                               APPELLATE SIDE
                                       ****

     PRESENT: THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA



                           WPA NO. 18989 OF 2021

                  SRI DIPANKAR SAHA                  ...      Petitioner

                                       Vs.

                 CESC Limited and another            ...      Respondents


     For the petitioner      : Mr. Abhrotosh Majumdar,
                               Mr. Srijib Chakraborty,
                               Mr. Subhom Kumar Das

     For the respondent      : Mr. Subir Sanyal,
                               Mr. Debanjan Mukherjee

     Heard on                : July 08, 2022

     Judgment on             : August 02, 2022


     SABYASACHI BHATTACHARYYA, J.

1. The writ petitioner sought an individual metered electricity connection

for his advocate's chamber at Room No. 105, 4th Floor, 10 Old Post

Office Street, Kolkata-700 001.

2. The CESC Limited declined to give the same and indicated that it was

willing to give such connection if an application is made for a block

meter which would cater to the needs of several persons.

3. It is contended by learned counsel for the petitioner that Section 43 of

the Electricity Act, 2003 (for short, "the 2003 Act") casts a duty on the

distribution licensee to give electricity supply on an application being

made by an owner or occupier of a premises within one month after

receipt of the application for such purpose. The first proviso to Section

43, it is argued, makes it abundantly clear that the distribution

licensee would have to supply the electricity even if it requires

extension of distribution mains or commissioning of new sub-stations.

4. Learned counsel cited the judgment of Brihanmumbai Electric Supply

and Transport Undertaking vs. Maharashtra Electricity Regulatory

Commission (MERC) and othersreported at (2015) 2 SCC 438 in support

of the proposition that, in case an application is made by an owner or

occupier of a premises for supply of electricity, Section 43 requires the

licensee to provide electricity from its own network. For this purpose, if

it is not having its network, it will have to lay down its network, if

required, in order to supply electricity to a consumer.

5. By addressing an inspection report produced by the CESC Ltd., it is

contended that the CESC Ltd. is required either to install additional

service line or refurbish, repair or reinstall the existing service lines for

the purpose of providing electricity to the petitioner.

6. Clause 18 of Regulation No. 53 of 2013, framed by the West Bengal

Electricity Regulatory Commission (WBERC), it is contended, provides

for installation of block meters in bustees, markets, etc. where it may

not be possible to segregate one consumer from an adjacent consumer

because of existence of alarge number of consumers in a relatively

small premises and where because of multiplicity of a wiring, there

may arise fire and safety hazards. Thus, it is submitted, only when the

twin conditions of inability to segregate and multiplicity of wirings are

satisfied, Clause 18 can be pressed into service for insisting upon

block meters. Since it is not the case of CESC that the premises-in-

question contain wires which cannot be segregated between the

consumers, the said provision is not applicableto the present case.

7. It submitted by learned counsel for the petitioner that installation of

block meters and sub-meters will not decrease but increase the

multiplicity of wirings. Regulation 14 of the WBERC Regulation, which

prohibits splitting of load, has to be read with Clause 18. Since

splitting of load is not permissible, conversely, owners or occupiers of a

premises cannot be compelled to apply for a block meter.

8. Even if the petitioner applies for block meter along with others, the

wiring would never decrease, since each of those persons would have

to install sub-meters to quantify individual consumption.

9. By placing reliance on a Coordinate Bench judgment dated February

18, 2021 rendered in WPO 39 of 2021 (Partha Ghosh vs. CESC Ltd. and

others), it is argued that the petitioner cannot be made to wait for

getting electricity connection in his name for his chamber, which will

affect his livelihood, till the CESC Ltd. takes safety measures for

supplying electricity or for installing block meters.

10. Such order was passed in respect of 9, Old Post Office Street, which is

the premises adjacent to the one where the petitioner seeks electricity

connection.

11. It the CESC Ltd has accepted the direction for installation of individual

metered connection in respect of 9, Old Post Office Street, it is not

open to the CESC Ltd. to take a discordant stand in respect of the

petitioner, who is similarly circumstanced at 10, Old Post Office Street.

12. It is well settled, learned counsel contends, that the court generally

adopt a "hands-off" policy when the question of public safety arises for

consideration. However, on a conjoint reading of Section 43 of the

2003 Act and Clause 13 of the WBERC Regulation, the CESC Ltd. is

duty-bound to give individual metered connection to the petitioner.

13. Learned counsel further points out that in case the petitioner is

required to obtain the electricity supply through a block metered

connection, if any of the other joint consumers defaults in making

payment, either the petitioner would have to pay on behalf of such

defaulting joint consumer to enjoy continued supply of electricity or

face disconnection of supply for no fault on his part. The petitioner, it

is argued, cannot be subjected to such fortuitous circumstances in

view of the statutory mandate contained in Section 43 of the 2003 Act.

14. Learned Counsel appearing for the CESC Ltd. argues that the report of

the District Inspector produced by the CESC Ltd clearly indicates that

there is lack of sufficient and technically feasible available space at the

premises-in-question for installing any further meter with the

connected Main Switch.

15. Since the portico, where multiples wirings have already passed, is also

being used as a parking lot for all two-wheelers, the meter installation

space is not easily accessible to the technical persons of the CESC Ltd.

and easily susceptible to fire hazards, which constitutes violation of

Clause 9(2) of the 2006 Regulations.

16. In the event an additional metered connection is given individually to

the petitioner, there is every chance of fire hazards.

17. Learned counsel further submits that at least ten others applications

for separate metered supply are pending in respect of the self-same

premises-in-question. Such situationnecessitatesinstallation of block

meter(s) to enable the CESC Ltd to cater to supply of electricity to the

intending new consumers. In the event the petitioner is to be given

such connection, the pending application has to be dealt with first.

18. It is further argued by the CESC Ltd that the installation of block

meter(s) would reduce the number of cables, crisscross of internal

wiring and other related problems since only two cables from the block

meter installed at the Meter Room would go to the Junction Box of the

concerned floor of the premises, from which wire/cable would go to the

respective rooms/sub-meters of each of the rooms of the concerned

floor.

19. Hence, installation of block meter will decrease the multiplicity of

wires, thereby reducing the fire and electrical hazards. In case of

installation of individual separate meters, independent respective four

cables/wires (2 incoming and 2 outgoing) of each of such meter would

go all the way from the meter board space at the ground floor to the

respective rooms of the consumers at different floors, which is not

possible.

20. The question of the installation of block meter(s) increasing the load

factor to the existing service mains is misconceived, it is argued. Load

factor means how much energy was used in a time period vis-à-vis

how much energy would have been used during peak period. At

present there areseven service mains installed in respect of the

premises-in-question, which would permit installation of one block

meter which may cater to 25 to 35 sub-meters/consumers depending

on the strength of the cable of the service mains. The CESC Ltd. has

never taken a stand that the service mains are fully loaded or

saturated.

21. Learned counsel for the CESC Ltd.further submits that safety

standards have not been compromised by the CESC Ltd at all. As per

Clause 13 of the 2010 Regulations, the licensee is to ensure safe

condition of all its wires, fittings, apparatus and supply lines placed on

the consumer's premises.

22. Clause 7.2 of the WBERC (Electricity Supply Code) Regulations, 2013

stipulates that the service lines between the main switch and the

meter will be owned by the consumer and shall have to be maintained

by the consumer as well. Therefore, it is argued, after the main switch

position, the licensee has no responsibility to maintain the cable and

apparatus fitting of the consumers, which are to be maintained by the

consumers themselves.

23. Procurement of electricity supply from an existing consumer by others

person is beyond the point of supply of the licensee, that is, the main

switch.

24. To get supply of electricity under Section 43 of the 2003 Act is not an

absolute right, it is submitted, but is subject to compliance of all other

requirements and formalities. It is clarified that the CESC Ltd has not

refused supply of electricity but in view of the congestion in the

premises-in-question leading to multiplicity of wirings of a large

number of consumers in a relatively small premises, it has agreed to

provide block meter so as to cater to supply of electricity to the

petitioner in terms of the Clause 18 of the 2013 Regulations.Thus, the

twin conditions of the said clause are fully satisfied in the instant case,

it is argued.

25. Learned counsel for the CESC Ltd. distinguishes the judgment cited by

the petitioner, rendered by the Supreme Court and reported in (2015)

2 SCC 438, and contends that the said citation is misconceived in the

present context as the CESC Ltd is ready to provide electricity to the

petitioner from its own network but through a block meter.

26. The unreported judgment in Partha Ghosh vs. CESC (supra) is also not

applicable to the present case as the premises are different and the

condition of the premises are different and distinguishable.

27. Clause 18 has no connection with clause 14 of the WBERC

Regulations as the concept of splitting of loads to prevent avoidance of

the tariff slab and the concept of block meter in order to avoid fire

hazard in the given situation are two different concepts.

28. It is the settled position that the technical feasibility of supply of

electricity must be left to the decision of the technical persons of the

licensee/ supplying authority and the court should not embark upon

an enquiry to decide such technical feasibility. In support of such

contention, learned counsel placed reliance on the judgment reported

at AIR 1989SC 788, (200) 2 CHN, 637 and (2002) 1 CHN 24.

29. Upon considering the submission of the parties, it transpires that the

inspection report authored by the District Inspector, Calcutta Central

District of the CESC Limited is succinct and relevant. It is elucidated

from the said report that seven service mains are feeding 225 meters

installed at the meter board of 10, Old Post Office Street, Kolkata

700001.

30. It is evident that the meter boards are in good condition but the

consumer wirings are in a poor condition. That report specifically

mentions that the existing service cables are almost at saturation level

and may break down with continuous increase of load.

31. It is further mentioned in the report that there is no place for taking

further service mains to the premises and/or for installation of even

one additional meter.

32. The meter board is congested and already full, leavingonly space for

heat dissipation. Additional meters, if installed, will take away such

space for heat dissipation, causing multiplicity of wiring and increased

criss-cross of electricity wires which may cause severe fire hazards and

would be unsafe for the premises and its occupiers.

33. Large number of consumer, the report states, are enjoying electricity

connection jointly to the said meters.

34. The said report suggests installation of block meter as a solution to

cater to several connections at the said premises for the sake of

security and safety.

35. There is nothing on record to rebut the presumption of correctness

attached to the official report submitted by the CESC Ltd., which is

authored by an expert in the field.

36. The three judgments cited by the CESC Limited, as recorded above,

clearly reiterate the proposition that the Court should not readily

interfere in technical matters to override expert opinion.

37. In the present case, Section 53 of the 2003 Act is also attracted. The

said provision stipulates measures relating to safety and electricity

supply.

38. Clause 13 of the Safety Regulations of 2010 provide that the licensee is

to ensure safe condition of all its wires, fittings, apparatus and supply

lines placed on the consumer's premises and to take precaution to

avoid dangers. However, as rightly contended by the CESC Limited,

the licensee cannot be responsible for the wirings and apparatus

belonging to the consumers, beyond the main switch area.

39. Also, clause 7.2 of the WBERC (Electricity Supply Code) Regulations,

2013 stipulates that service line between the main switch and the

meter will be owned and maintained by the consumer.

40. Learned counsel for the CESC limited is justified in contending that

the right given under Section 43 of the 2003 Act is not an unfettered

right but is qualified by the others provision of the Statute and the

Regulations, which have statutory force.

41. The safety and security of consumers and others with regard to the

electricity installation and cables is within the domain in the

distribution licensee. The Court ought not to override the specific

opinion of the CESC expert to the effect that installation of a block

meter is absolutely essential due to the huge number of connections at

10, Old Post Office Street having already reached the last straw. The

CESC limited is justified in arguing that the installation of even one

more additional meter would tip the balance beyond the safety zone.

The already existent multiple wirings,that is evident from the

photograph annexed to the pleadings and the averments in the

opposition of the CESC Limited, clearly indicates that the existent

wirings are already in a criss-cross mess. If additional meters are

started to be given not only to the petitioner, but also the others

pending applicants, the balance would be tilted against safety.

42. Clause 14 of the WBERC Regulations in respect of splitting of load

pertains to avoidance of tariff and is not directly relatable to the

concept of a block meter.

43. In such view of the matter, since the CESC Limited has taken a

specific stand that a block meter is the necessity of the hour at the

premises-in-question, the Court ought not to interfere with such

decision, since it is not supposed to have any expertise whatsoever on

the subject.

44. Hence, there is no scope of interference in the present writ petition.

Accordingly, WPA No. 18989 of 2021is disposed of without any order

as to costs, granting liberty to the petitioner to approach the CESC

Limited for installation of a block meter, along with other consumers

at 10, Old Post Office Street, Kolkata 700001. If such an approach is

made, nothing in this order shall prevent the CESC Limited from

giving such connection to the petitioner and the other pending

applicants by installing block meter(s) for them as well as the existing

consumers at the premises, without being prejudiced in any manner

by the findings arrived at by this Court.

45. Urgent photostat certified copy of this order be supplied to the

respective parties upon compliance of usual formalities.

(SABYASACHI BHATTACHARYYA, J.)