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2022 DIGILAW 1125 (CAL)

Dipankar Saha v. CESC Limited

2022-08-02

SABYASACHI BHATTACHARYYA

body2022
JUDGMENT Sabyasachi Bhattacharyya, J. - 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. 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. 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. 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. 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. 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. 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. 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.