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2005 DIGILAW 531 (CAL)

SOURAV GHOSH v. WEST BENGAL STATE ELECTRICITY

2005-08-16

GIRISH CHANDRA GUPTA

body2005
Girish Chandra Gupta ( 1 ) THE petitioners No. 1 and 2 are the tenants. The petitioner No. 3 is the landlady. The petitioners No. 1 and 2 applied for new electric connection on 24th September, 2003 and 5th November, 2003 respectively. Their case is that the West Bengal State Electricity Board (hereinafter referred to as the board) insisted that the application for supply of electricity should be made by the landlady. It is also their case that at their insistence an application by the landlady, the petitioner No. 3 herein, was filed on 24th November, 2003. The Board after necessary inspection has issued a quotation dated 24th november, 2003 by which payment of a sum of Rs. 1,28,387/- has been demanded as a prerequisite for providing electric connection. It is in these circumstances that the present writ petition was filed by the tenants and the landlady praying for an order directing the State Electricity Board to give connection to the petitioners No. 1 and 2 without insisting upon payment of the said sum of Rs. 1,28,387/ -. ( 2 ) THE Board has filed an affidavit-in-opposition and thereafter, has filed a supplementary affidavit which was affirmed by one Sri S. P. Kusari on 12th August, 2005. The sum and substance of the case of the Board is to be found in the various sub-paragraphs of paragraph 13 of the said supplementary affidavit. Briefly stated their case is that there are four 100 kva transformers in the locality, where the commercial complex under construction of which the petitioners No. 1 and 2 are the stallhoders, is situate. According to the Board, all the four transformers have exhausted their capacity. Five of the existing shoprooms have already been electrified from out of one of the transformers and there is no scope for giving any electric supply to any of the petitioners from the existing tansformers. The commercial complex wherein the petitioners. The commercial complex wherein the petitioners No. 1 and 2 have taken stalls is at present one storied building, but the Board is of the view that there is scope for further construction and it is likely to become a two storied shopping complex. ( 3 ) MR. The commercial complex wherein the petitioners. The commercial complex wherein the petitioners No. 1 and 2 have taken stalls is at present one storied building, but the Board is of the view that there is scope for further construction and it is likely to become a two storied shopping complex. ( 3 ) MR. Panja, learned Advocate appearing for the Board submitted that unless a new transformer is installed it is not possible to meet the requirement of the shopping complex regard being had to the foreseeable increase in the demand once the building is completely constructed. He, therefore, submitted that a transformer has to be installed and for such installation, the quotation has been issued. As and when the requisite payment is made, the supply of electricity shall commence. ( 4 ) MR. Chakraborty, learned Advocate appearing for the writ petitioners submitted that the Board being a licensee is obliged under Section 43 of the Electricity Act, 2003 to give supply of electricity within one month from the date of application. He submitted that this statutory obligation of the Board has not been fulfilled in this case. He further submitted that the demand for a sum of Rs. 1,28,387/- is patently contrary to Section 46 of the electricity Act, 2003, which provides as follows :-"46. Power to recover expenditure- The State Commission may, be regulations, authorize a distribution licensee to charge from a person requiring a supply of electricity in pursuance Section 43 any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of giving that supply. " ( 5 ) HE submitted that the Board can insist upon payment of such expenses which have been authorized by the State Commission. The State commission in this case has not authorized the Board to insist upon payment of the aforesaid sum of Rs. 1,28,387/- not is there any indication in the quotation submitted by the Board that it is on the basis of authorization issued by the State Commission. He accordingly submitted that the entire exercise of the Board is illegal and should be set aside. ( 6 ) MR. Panja, learned Advocate appearing for the Board in reply submitted that in the case of Sk. Based Ali v. W. B. S. E. B. and Ors. He accordingly submitted that the entire exercise of the Board is illegal and should be set aside. ( 6 ) MR. Panja, learned Advocate appearing for the Board in reply submitted that in the case of Sk. Based Ali v. W. B. S. E. B. and Ors. reported in (2004)1 Cal LJ (Cal) 234, a learned Single Judge of this Court has held as follows :-"14. "electrical plant" means any plant, equipment, apparatus or applicance used for, or connected with the generation, transmission, distribution or supply of electricity but does not include, inter alia, an electric line. It cannot be disputed that transformer is an equipment, which is necessary for transmission of electricity and similarly transmission line is an apparatus or appliance for transmission of electricity. In such view of the matter, it appears that the expression "electrical plant", used in Section 46 of the Act, would include transformer as well as transmission line and accordingly, distribution lincesee is entitled to charge expenses reasonably incurred for providing transformer as well as transmission line addition to electric line from the applicant seeking supply of electricity. In such view of the matter, it appears to me that the present mandate of the legislature is that the distribution licensee is entitled to charge the cost of installation of a transformer and also the cost of laying the cable and other apparatus to energies such transformer. 15. What would be reasonable expense is a question of fact, which cannot be decided by me sitting in this jurisdiction. At the same time, in none of these petitions it has been contended that the price of the transformer, as claimed, is exorbitant for a transformer of the same capacity is available at a lower price. None of the petitioners has contended that the cost of the cable for energizing the transformer, as claimed, is unreasonable. Similarly, none of the petitioners has contended that the cost of the electric line, as claimed, is unreasonable. The main thrust of the arguments was that the Board is not entitled to claim the cost of transformer and incidental expenses required for installation thereof. Similarly, none of the petitioners has contended that the cost of the electric line, as claimed, is unreasonable. The main thrust of the arguments was that the Board is not entitled to claim the cost of transformer and incidental expenses required for installation thereof. In such view of the matter, I hold that those petitioners, who approached this Court contending that they are entitled to supply of electricity without payment of the cost of the transformer as well as the cost of the cable to be provided for energizing the transformer did not take note of the legislative change effected by the Act and, accordingly, their claims have no legal basis. In such view of the matter, WP 13691 (W) of 2000, WP 13459 (W) of 2003, WP 14461 (W) of 2003, WP 15083 (W) of 2003, WP 15328 (W)of 2003, WP 15410 (W) of 2003, WP 15509 (W) of 2003, WP 15557 (W)of 2003, WP 15784 (W) of 2003, WP 16157 (W) of 2003, WP 16531 (W)of 2003, WP 16532 (W) of 2003, WP 17795 (W) of 2003, WP 18541 (W)of 2003, WP 20085 (W) of 2003 and WP 442 (W) of 2004 are dismissed without any order as to costs. However, I direct the Board to keep alive the subject quotations for a period of thirty days for today and in the event, the petitioners in the said writ petitions discharge their obligations in terms of the quotations, being the subject matter of the said writ petitions, the Board shall effect supply of electricity to them within 21 days from the date of compliance of requisites contained in the said quotations. " ( 7 ) HE, therefore, submitted that the contention advanced by the writ petitioners is devoid of any merit and the writ petition should be dismissed. ( 8 ) AFTER considering the rival submissions made by the learned advocates, this Court is of the view that the submissions advanced by the learned Advocate appearing for the petitioners must prevail. The question of realizing charges from the applicants for supply of electricity is of no doubt covered by Section 46 of the Act, but the Board can insist upon such payment which has been authorised by the State Commission. Mr. The question of realizing charges from the applicants for supply of electricity is of no doubt covered by Section 46 of the Act, but the Board can insist upon such payment which has been authorised by the State Commission. Mr. Panja in unequivocal terms admitted before this Court that the State Commission has not yet framed any regulations and therefore, there is no authorization by the State Commission for realization by the State Commission for realization of this kind of charges. If there is no authorization by the State commission, then the demand is without the authority of law. This conclusion is on the basis of the admitted facts. The judgment cited by Mr. Panja does not lend any assistance to him because this question was neither raised nor decided therein. ( 9 ) MR. Panja submitted that for giving connection to the owners and occupiers the Board has to incur expenses and unless these expenses are borne by the consumers themselves, this is well nigh impossible for the board to continue its business. If the Board is unable to continue its business, then the Board has to find out its own alternative. But no amount cannot be recovered, from any citizen, except in accordance with law. With a view to resolving the deadlock, this Court offered that so long as the regulations are not framed by the State Commission, the Board should, if at all, insist upon proportionate payment. For instance, suppose Rs. 1,00,000/- is required for installation of a transformer which has the capacity to route supply of 100 Kilowatt of energy, then 100,000 divided by 100 = 1,000 rupees per KW may be realized from the consumers on account of apparatus etc. , so that there is no burden on any apparatus etc. , so that there is no burden on any particular consumer and at the same time the burden, if any, is evenly distributed. ( 10 ) MR. Panja on instruction submitted that his client is not agreeable to any such formula. The attitude adopted by the Board is most unreasonable to say the least. In the present case, it was submitted by the learned Counsel that the supply of electricity can be given to the petitioners No. 1 and 2 as soon as they deposit a sum of Rs. 1,28,387/ -. Now, these two petitioners, are small stallholders. The attitude adopted by the Board is most unreasonable to say the least. In the present case, it was submitted by the learned Counsel that the supply of electricity can be given to the petitioners No. 1 and 2 as soon as they deposit a sum of Rs. 1,28,387/ -. Now, these two petitioners, are small stallholders. It is impossible for them to deposit a sum of rs. 1,28,387/ -. Insistence upon payment of this exorbitant amount is bad and illegal for many reasons. Firstly it is harsh and oppressive, secondly it tends to negate the right of the citizen to life and to earn livelihood as guaranteed under the Constitution, thirdly this sum of Rs. 1,28,387/- is admittedly required for installation of a transformer so that needs of all future consumers can also be taken care of. On what logic or reasoning can it be said that for the purpose of facilitating supply of electricity to others these two persons should pay ? Mr. Panja submitted that the petitioner No. 3 should be directed to be paid. She is not interested to take connection for her benefit nor is she willing to incur this expenditure. Can it then be said that the right given to the occupier to apply for connection under Section 43 of the aforesaid Act is no longer open to him ? Therefore, the entire move of the Board is irrational, illogical, violative of the Constitutional mandate and illegal. ( 11 ) THIS application is, therefore, disposed of by setting aside the demand, a copy whereof is annexure P/7 to the writ petition. The West Bengal state Electricity Board is directed to supply electricity to the petitioners within four weeks from the date of communication of this order. The Board shall be entitled to insist upon such payment as is legally payable to them. ( 12 ) LET the typographical error in the cause title of the writ petition be corrected and the same be countersigned by the Assistant Registrar (Court ).