Calcutta High Court (Appellete Side)
Dbar Code Restro Bar & Club Llp And ... vs Cesc Limited And Others on 15 February, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P. No. 23338 (W) of 2019
With
CAN 1 of 2021
DBar Code Restro Bar & Club LLP and another
Vs.
CESC Limited and others
For the petitioners : Mr. Sarvesh Chandra Shrivastava,
For the CESC Limited : Mr. Debanjan Mukherjee,
For the
private respondents : Mr. Krishnakant Thaker,
Mr. Chayan Gupta,
Mr. Rajesh Upadhyay
For the State : Mr. Sudipto Panda,
Ms. Munmun Tiwary,
Mr. Debasish Mondal
Hearing concluded on : 04.02.2022
Judgment on : 15.02.2022
Sabyasachi Bhattacharyya, J:-
1. The petitioners, being the lessees in respect of the disputed premises
under the private respondent nos. 6 and 7, have filed the present writ
petition on the allegation that the lessors/respondent nos. 6 and 7
are disrupting electric supply to the tenanted premises regularly. The
petitioners are running a bar and restaurant as well as a club from
the said premises and are, thus, suffering serious loss of business
and goodwill due to such alleged disruptions.
2. It is contended by the petitioner that the petitioner entered into a
lease agreement dated July 19, 2016, wherein the lease rent was fixed
at Rs.16,00,000/- per month, for user of a commercial space.
3. However, due to alleged disruption of power supply by the lessors, the
petitioners were constrained to apply for fresh electric connection in
their own name. However, when the CESC personnel came for
inspection for the purpose of giving such new connection in the name
of the petitioners, they were raised by the private respondents and
their men and agents, thereby preventing the CESC personnel from
giving such electric connection to the petitioner and/or holding
inspection in that regard.
4. Learned counsel appearing for the private respondents submits that
the writ petitioners have suppressed relevant facts. As such, the writ
petition ought to be dismissed since the petitioners have approached
the writ court with unclean hands.
5. It is submitted that the lessors and the petitioners entered into not
one but as many as three agreements, all dated July 19, 2016. As
per the lease deed disclosed in the writ petition, the commercial space
was to be enjoyed at a lease rent of Rs.60,000/-. It is further pointed
out that the said deed entitled the petitioners to enjoy power load
capacity of 2 kVA only from one electric meter.
6. The second deed entered into between the private parties on the same
date as the first provided that, for scheduled maintenance, amenities,
utilities and other purposes in respect of the said commercial space,
the petitioners would be entitled to 60 kVA power load capacity, also
to be provided by the lessors. The total rent payable as per the said
agreement was Rs.1,90,000/- per month.
7. The third agreement between he lessors and the lessees provided
that, for signboard display, the petitioner would pay a monthly
amount of Rs.1,20,000/-.
8. Hence, it is argued by the respondent nos.6 and 7 that the entire
lease agreement between the lessors and the lessees comprised of not
only the agreement disclosed in the writ petition but all the three
agreements, referred to above, dated July 19, 2016. Learned counsel
for the private respondents places reliance on photocopies of the said
documents, annexed to their pleadings by way of the application for
dismissal of the writ petition as well as exception to the report filed by
the CESC Limited in the present writ petition.
9. It is further argued by learned counsel for the respondent nos.6 and 7
that, in terms of the first two agreements, the petitioners are already
enjoying 62 kVA power load capacity, upon payment of the composite
monthly amount of Rs.2,50,000/- (60,000/-+1,90,000/-).That apart,
for display of the signboard of petitioner no.1, the petitioners are to
pay Rs.1,20,000/- per month.
10. Thus, it is submitted that the petitioners are already entitled to
62 kVA power load capacity as per the three subsisting agreements
between the private parties, but are using a lesser load at present.
11. Moreover, it is contended that the petitioners have even applied for a
power load capacity less than that actually used at present by the
petitioners and much less than 62 kVA which they are entitled to use
as per the first two agreements.
12. It is further submitted that the entire rent of the premises is
comprised of the composite monthly amount of Rs.3,70,000/-
(60,000/- + 1,90,000/- + 1,20,000/-).
13. It is argued that the lessee is seeking to modify the terms of the three
agreements by obtaining an order from the writ court. It is further
insinuated that the CESC Limited is acting hand-in-glove with the
petitioners in suppressing the bar to the petitioners in taking another
electric connection at the premises-in-question, since a new electric
connection, if given to the petitioners at the same premises, would not
be feasible and would definitely amount to splitting of loads, which
would ultimately reduce the revenue of the CESC Limited itself.
14. Learned counsel for the respondent nos. 6 and 7 argues that such
oblique attempt of the petitioners ought not to be encouraged by
permitting the petitioners to take a new electric connection at the
premises of the private respondents de hors the law and in gross and
unlawful modification of the subsisting three agreements between the
parties.
15. The plinth of the submissions of the petitioners is the right of a
person to get electric supply, as embedded in Section 43 of the
Electricity Act, 2003 (hereinafter referred to as "the 2003 Act").
However, such right is not unfettered and has to be exercised in such
a manner which does not violate the rights of others and/or defies
any law or legal contract entered into by the prospective consumer.
16. The CESC, in its report dated February 8, 2021 filed in the writ
petition, stated that previously the writ petitioner used to enjoy
electric supply for Meter No. 4716700 under Consumer No.
20033120041 (standing in the name of Respondent no. 6 Amitabh
Kejriwal) and Meter No. 5005940 under Consumer No. 85202008064
(standing in the name of Accuphase Property Development Pvt. Ltd.).
However, the former, that is, Meter No. 4716700 got burnt the year
before, that is, in 2020 which was reported to the CESC Ltd. On June
26, 2020. The burnt meter, according to the CESC, lay
disconnectedand the petitioner was enjoying electric supply from the
latter, that is, Meter No. 5005940 as on the date of the report, that is,
February 8, 2021.
17. In the application taking exception to the said report, respondent nos.
6 and 7 allege that the functional meter, that is, Meter No. 5005940 is
providing uninterrupted and sufficient electric supply to the entire
second floor, occupied by the writ petitioner no. 1-bar and that the
meter load of the same is 58.8 kVA. It is also alleged that the said
meter is a Current Transformer (CT) meter, which is installed only
where there is a high demand of electricity load, and is a dedicated,
exclusive electricity cable line from the CESC junction box on the
public road to the meter.
18. In its affidavit-in-opposition to the exception, the CESC takes a stand
that the meter of Amitabh Kejriwal has a sanctioned load of
24.29 kW, but that the said meter was found burnt and disconnected
at the time of inspection. The CESC does not deny the allegation in
the exception that the meter in the name of Accuphase was dedicated
exclusively to the petitioner no. 1. Rather, it is admitted by the CESC
that the sanctioned load for supply to the Accuphase meter is 50kW.
19. However, respondent nos. 6 and 7, in their reply to the CESC
opposition, avers that the burnt meter had already been replaced
before the opposition was affirmed.
20. It is conspicuous from the affidavit-in-opposition of the CESC Limited
itself that the writ petitioner DBar Code Restro Bar & Club has
applied for a separate meter connection against a connected load of
40 kW.
21. Thus, the following relevant details are borne out by the agreements
and the CESC pleadings :
(i) The comprehensive lease agreement between the parties is
comprised of the three agreements, all dated July 19, 2016.
(ii) As per the three agreements, the petitioners are entitled, upon
a monthly payment of Rs.3,70,000/- (including signboard) in
total and at least 2,50,000/-, to have 2kVA power load capacity
plus an additional 60 kVA from a sub-meter, totalling 62 kVA.
(iii) The petitioners, however, applied to CESC for a new connection
having sanctioned supply load of 40 kW only. [It is relevant that
Real Power (in kW = kiloWatts) is expressed as the Apparent Power (in
kVA = kiloVolt-Amps) multiplied by the Power Factor]
(iv) CESC version : Accuphase meter, dedicated to petitioner no.1-
bar, has a meter load of 58.8 kVA and Respondent No. 6's
meter has a sanctioned load of 24.29 kW.
22. Thus, the petitioners are already enjoying electric supply having a
meter load of about 58.8 kVA (as per CESC's admission) from a
dedicated meter at the premises-in-question, whereas they are
entitled, only upon payment of Rs.3,70,000/- per month, to have 62
kVA. Over and above such existing supply, the since-repaired electric
meter of the respondent no. 6 has a sanctioned load of 24.29 kW.
23. Hence, Section 43 of the 2003 Act is not violated at all in the present
case, since, as per the three agreements themselves, the petitioners
are entitled, upon payment of a monthly contractual amount of Rs.
3,70,000/-, to more power than they are currently using. Such power
is being supplied by none other than the private respondent nos. 6
and 7 from at least two electric meters, one which stands in the name
of the respondent no. 6 and the other in the name of Accuphase, a
company owned and controlled by the private respondents.
24. Moreover, the other meter standing in the name of the respondent no.
6, from which the petitioner no. 1-bar also enjoys electricity, has an
additional sanctioned load of 24.29 kW.
25. Hence, there is no scope of the petitioners suffering from any dearth
of electricity at the premises-in-question. One meter is exclusively
dedicated to the petitioner no. 1, thus ruling out any disruption to
electric supply therefrom by the respondent nos. 6 and 7. The other
meter is also available, if required.
26. Thus, as borne out by the records, in the name of infraction of
Section 43 of the 2003 Act, the petitioners seek the blessings of a
court order to modify the terms of the existing agreements between
the parties as well as to avoid paying the substantial electric charges
which are ex facie components of the total lease rent, that is, the total
amount payable by the lessees/petitioners for enjoyment of the
property and its amenities in the capacity of lessees.
27. Such an effort ought not to be sanctioned by the writ court,
particularly, in view of the current pendency of a civil suit instituted
by the petitioners themselves claiming similar reliefs, including a
relief protecting the enjoyment of essential services, including
electricity, by the petitioners, to be provided by the respondent nos. 6
and 7.
28. Moreover, the private respondents are justified in arguing that the
petitioners have suppressed vital and relevant facts, particularly, in
respect of the other two agreements subsisting between the parties,
apart from the only agreement disclosed in the writ petition, the
substantial amounts of money payable by the petitioners to the
private respondents in view of the other two agreements and the
power load capacity of 62 kVA being sanctioned by the terms of the
three agreements, in respect of which already a civil suit is pending at
the behest of the petitioners.
29. In such view of the matter, the petitioners are not entitled to the
reliefs as claimed in the writ petition.
30. Accordingly, W.P. No.23338 (W) of 2019 is dismissed on contest,
without, however, any order as to costs. CAN 1 of 2021 also stands
disposed of accordingly.
31. However, this order will not prevent the petitioners from approaching
the civil court in the suit pending between the parties for pursuing
the relief in respect of the petitioners' contractual rights to enjoy
62 kVA power load capacity upon payment of the contractual dues, or
as per direction of the civil court, to the respondent nos. 6 and 7. The
civil court shall independently decide such questions without being
influenced in any manner by any of the observations made herein.
32. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
