Hanif Haque vs The West Bengal State Electricity ...
2023 Latest Caselaw 2765 Cal

                      In the High Court at Calcutta

                    Constitutional Writ Jurisdiction

                              Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya



                          W.P.A. No.7255 of 2023

                            Hanif Haque
                                  Vs.
             The West Bengal State Electricity Distribution
                    Company Limited and others


     For the petitioner                :   Mr. Falguni Bandyopadhyay,
                                           Ms. Riya Ballav


     For the WBSEDCL               :       Mr. Mihir Kundu


     Hearing concluded on          :       30.03.2023

     Judgment on                   :       20.04.2023




     Sabyasachi Bhattacharyya, J:-



1.

As recorded in the order dated March 30, 2023, a limited question has

arisen for consideration in the present case. The licensee has placed

reliance on an Office Order dated May 5, 2012, which has relied on

Clauses 4.4.1 to 4.4.5 of Regulation 46 of the West Bengal Electricity

Regulatory Commission (WBERC), to ask for an amount of

Rs.2,65,319.65 p from the petitioner for constructing a sub-station

which would be necessary to give electricity connection to the

petitioner.

2. It is seen from Clauses 4.4.1 to 4.4.5 of Regulation 46 that the same

apply to cases where a techno economic study is required to be

undertaken for ascertaining the feasibility to erect or commission a

new sub-station which would be necessary to give electricity

connection to an applicant.

3. The modality of such study has been indicated therein, which is

prefaced by a mandatory requirement to conduct such a study for

such purpose.

4. In the present case, the specific technical stand taken by the

WBSEDCL is that a new sub-station is required to be commissioned to

give the electricity connection to the petitioner.

5. The rest of the provisions under the said segment of clauses follow

automatically, inasmuch as the petitioner is required to pay the

necessary estimated amount for conduct of such study. In the event

such earnest money is paid and remains with the licensee, such a

study would be conducted by the licensee and it would be

communicated to the petitioner whether it is feasible to commission

such sub-station.

6. In the absence of the deposit of such amount, however, the process of

erecting/commission of such sub-station would not be initiated at all.

In the alternative, even if the applicant opts to take back the earnest

money, no such techno economic study would be undertaken and the

earnest money would be refunded.

7. Section 181 of the Electricity Act, 2003 (hereinafter referred to as, "the

2003 Act") empowers the State Commissions to make necessary

Regulations on the subjects covered by the sub-sections of Section

181. Under such provisions, the conditions of license, methods and

principles by which charges for electricity shall be fixed under Section

45(2), the Electricity Supply Code under Section 50, Standards of

Performance of a Licensee under Section 57(1) of the Act and the

terms and conditions for determination of tariff under Section 61 all

are broadly covered. Hence, the WBERC has ample power to

formulate Clauses 4.4.1 and 4.4.5 of Regulation 46. Once framed, the

regulations have the force of law behind them.

8. Office Order No.52 dated May 5, 2012 issued by the licensee company

only reiterates such Regulations and, as such, cannot be said to be de

hors the law. Hence, the limited scope of consideration is whether the

charges levied the petitioner by the licensee in the present case on are

duly sanctioned by law, keeping in balance the right of a consumer to

get electricity supply to his premises under Section 43 of the 2003 Act

and the authority of the licensee in fixing modalities.

9. Section 43(1) of the 2003 Act mandates every distribution licensee, on

an application by the owner or occupier of any premises, to give

supply of electricity to such premises within one month after receipt of

the application after requiring such supply. The first proviso thereto

stipulates that where such supply requires extension of distribution

mains or commissioning of new sub-stations, the licensee shall give

the electricity to such premises immediately after such extension or

commissioning or within such period as may be specified by the

Appropriate Commission.

10. Sub-section (2) of Section 43 provides that it shall be the duty of every

distribution licensee to provide, if required, electric plant or electric

line for giving electric supply to a premises as specified in sub-section

(1).

11. Section 45 of the 2003 Act empowers the licensee to recover charges

for the supply of electricity under Section 43. Thus, Sections 43, 45

and 181 of the 2003 Act, read in conjunction, clearly empower the

licensee to demand as a pre-requisite the payment of amounts as

stipulated by Regulations by the State Commission as a pre-condition

for giving the electricity supply to the applicant.

12. In the present case, the technical assessment made by the licensee

fixed the estimated amount for constructing new sub-station at

Rs.2,65,319.65 p.

13. There is no scope of the petitioner to contest the veracity of such

calculation, in the absence of any rebuttal thereto being produced by

the petitioner.

14. A perusal of the scheme of the 2003 Act, as discussed above, clearly

shows that the licensee acted within its power to claim such amount

from the petitioner, since the right under Section 43(1) of the 2003 Act

is not unfettered but circumscribed by the other provisions of the

2003 Act, including Sections 45 and 181, read with the WBERC

Regulations.

15. In fact, in the present case, keeping in view the economic condition of

the petitioner, the licensee acted graciously enough in agreeing to

waive the cost of Rs.2,00,000/- and to take only Rs.65,000/- from the

petitioner as the necessary cost for constructing the sub-station,

thereby agreeing to bear a portion of such costs.

16. It would be entirely against the law for this Court, sitting in judicial

review under Article 226 of the Constitution of India, to direct the

WBSEDCL to spend further public money by unnecessarily decreasing

the amount payable further, merely to serve the purpose of an

individual. Hence, there is no scope for interference in the present

writ petition. However, in view of the fair offer made by the WBSEDCL

to waive the cost of Rs.2,00,000/- and take only Rs.65,000/- from the

petitioner for constructing new sub-station, it would only be

appropriate if liberty is given to the petitioner to deposit the amount.

17. Accordingly, WPA No.7255 of 2023 is disposed of by granting liberty to

the petitioner to deposit an amount of Rs.65,000/- with the

WBSEDCL within a fortnight from date, upon which the WBSEDCL

shall take expeditious steps for erection/commission of the new sub-

station necessary to give electricity connection to the petitioner and

thereafter shall proceed to give such connection to the petitioner

expeditiously, subject to compliance of all due formalities by the

petitioners.

18. However, it is made clear that the decision in the present case shall

not operate as a precedence and has been passed only due to the fair

approach of the WBSEDCL in waiving Rs.2,00,000/- out of the total

technical costs estimated.

19. There will be no order as to costs.

20. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )