Ranjit Mall Kothari and Others vs Cesc Limited and Others

Aloke Chakrabarti, J.—Facts as found in the writ petition are as follows. The petitioners are all co-owners in respect of buildings and land at premises Nos. 16A and 16B, Shakespeare Sarani, Calcutta. Mr. B.K Associates, constructed the buildings and on completion of such construction B.K. Asssociates sold different flats to different co-owners. The premises No. 16B, was developed by B.K. Real Estate the respondent No. 2 which owns and occupies the entire 4th and 5th floors of the building. The building at premises no. 16A, maintained by Building Maintenance Organisation and the petitioners are to bear the maintenance charges payable to the said organisation. The C.E.S.C. Ltd. the respondent No. 1 used to provide electricity to all consumers through a transformer (high tension) installed at the said premises in favour of B.K. Real Estate, the respondent no. 2 who in turn provided electricity to all co-owners and/or occupiers. The respondent No. 3 used to raise bills against the petitioners according to their respective consumption reflected in their individual sub-meters at a rate higher than the tariff stipulated by CESC Ltd. In October 1997, the respondent No. 3 stopped raising bills. Special Officers appointed by Court in a proceeding said to be initiated by reason of internal disputes among the partners of the respondent no. 2, started preparing bills. Petitioners raised objection against such bills as not commensurate to the actual electricity consumption. On a representation made by the respondent no. 3 the petitioner did not make payment of electricity bills. Electric supply was stopped in April 2000 as CESC Ltd. disconnected the supply. The petitioner ascertained that the respondent no. 3 filed two writ petitions being W.P. No. 26393(W) of 1997 and W.P. No. 14833 (W) of 1997 which were heard together and disposed of by a learned Single Judge of this Court on March 29, 2000 directing the petitioners to take immediate steps to pay the dues of the CSEC Ltd. by paying 50 per cent of the dues within two weeks and further 50 per cent without a month thereafter. CESC Ltd. was directed not to disconnect for a fortnight and upon payment of 50 per cent of the dues not to take steps for disconnection for a month thereafter. Liberty was there to effect disconnection in case of failure of the petitioners to pay the amount as directed. It was further made clear by the court that if the petitioners paid the dues of CESC Ltd. and surrendered high tension supply and if the petitioners and occupiers apply for separate meters, the CESC Ltd. to take steps in the matter on urgent basis and after completion of all formalities by the petitioners and other occupiers. CESC Ltd. was to take necessary steps in accordance with law to effect new supply to the petitioners and to the occupiers who applied for separate meters.

It has been, stated in this writ petition that there were admitted dues on account of electricity consumption and the petitioners made applications serially for allotment of separate meters which were not allowed. It has also been submitted in the writ petition that for resolving the disputes regarding the disputed claim the matter should be referred to the Chief Electrical Inspector for proper adjudication. In such facts prayer has been made for appeariate order for restoration of supply of electricity at premises Nos. 16A and 16B, Shakespeare Sarani. upon payment of undisputed electricity charges by the petitioners and to command the C.E.S.C. Ltd. to grant separate meters in favour of the petitioners and for consequential reliefs.

On the writ petition, initially interim order was granted for restoring electric connection to the petitioners on condition of payment of a sum of Rs. 60 lakhs along with necessary restoration charges to the CESC authorities and the petitioners were also to pay a sum of Rs. 4 lakhs for each completed month by 7th of every succeeding month with a default clause.

By a further order District Engineer of the Central District of C.E.S.C. Ltd. was directed to hold an inspection of the disputed premises to find out actual position at the locale and submit a report in respect thereof in view of the nature of dispute available on pleadings in respect of granting separate connection to each consumer.

As no agreed arrangement could be made even after the report was obtained as above, the writ petition was heard Anally on the pleadings available.

The contention of the petitioners as argued by their learned Advocates at the time of hearing and recorded in their written notes of arguments, it is apparent that admittedly there were dues lying pending on account of electricity consumption in the said two premises and such accumulation of dues appears to be by reason of dispute between the occupiers and the respondent Nos. 2 and 3. Disconnection was effected. Thereafter the writ petition was filed and in terms of the interim order the petitioner deposited a sum of Rs. 68 lakhs in September. 2000.

The learned counsel for the petitioners contended that CESC Ltd. unlawfully entered into ah agreement with the respondent no. 2 in respect of supply of electricity to the occupiers of the disputed premises and the petitioners have complained that CESC Ltd. is refusing illegally separate electric connection to each occupier, although, similar arrangements have been made effective in respect of several other such multi storied buildings and in respect of the disputed premises such separate meters have been allotted to two co-owners.

It is further stated by the petitioners that by reason of the judgment of a learned Single Judge in respect of the supply of electricity in same premises. CESC Ltd. is required to take steps for allotment of separate meters upon such receipt of applications and the said judgment having been assumed finality. CESC Ltd. acted wrongfully.

Law has been referred to as decided in the cases of Bronendra Nath Samanta vs. CESC Ltd., reported in AIR 1997 Cal. 353 , Peerless General Finance and Investment Co. Limited and Another Vs. Reserve Bank of India, , Mahesh Chandra Vs. Regional Manager, U.P. Financial Corporation and others, , M/s. Jain Exports Pvt. Ltd. and another Vs. Union of India and others, , Mediwell Hospital and Health Care Pvt. Ltd. Vs. Union of India and others, and Analyst Management Pvt Ltd. vs. CESC Ltd., reported in 2000(2) CHN 637.

The learned counsel appearing for the respondent Nos. 2 and 3 supported the contentions of the petitioners and stated that the CESC Ltd. has unreasinably demanded surcharge on account of delay in payment of bills both illegally on facts and at a higher rate than prescribed by the statute. It is contended that collection of respective contribution having been delayed there was no occasion for demanding such surcharge and demand of such surcharge at a rate of 6 percent is also beyond the statutory permission.

The learned counsel for CESC Ltd. made his contention that there was no illegality in charging of the surcharge as admittedly payments were delayed by the consumer in respect of the disputed premises and in such cases delayed provision is for demanding surcharge at the rate of half percent per week. Law in this connection has been relied on as contained in Section 28 of the Indian Electricity Act and the law as decided in the case of Maheshwar Prasad Srivastava Vs. Suresh Singh and Others, .

After considering the aforesaid contentions and perusing the materials available, I find that admittedly the occupiers entered into an arrangement of supply of electricity through the respondent Nos. 2 and 3. This was a private arrangement between the occupiers of the premises and the respondent Nos. 2 and 3. It was also apparent that payments could not be made in lime under the said arrangement and arrears accumulated towards charges for electricity consumption which ultimately compelled CESC Ltd. to disrupt the supply. I do not find any fault with this action of the CESC Ltd.

The petitioners being the actual consumers of the electricity are liable to pay such arrear charges. With regard to surchage chargeable for delayed payment, the quantum has been disputed. Rate of charge is six percent on the total dues. The petitioners have contended that the said rate is very high, but on behalf of the petitioners no provision has been shown as regards rate at which such surcharge for delayed payment can be demanded by the CESC Ltd. On behalf of the CESC Ltd. the schedule of rates produced shows that delayed payment surcharge can be charged at half per cent per week of the total billed amount. In such circumstances, charging of delayed payment surcharge at a fixed rate of six per cent on the total dues, cannot be said to be an excessive charge.

With regard to supply of electricity, through separate meters to each occupier, on behalf of CESC Ltd. inspection was held and the report of the District Engineer, Calcutta Central District of CESC Ltd. was obtained. The said inspection was held under the order of the Court and in presence of the representatives of the concerned parties. The report has categorically recorded that the premises in question comprises of three blocks in premises Nos. 16A and: 16B, Shakespeare Sarani, and high voltage bulk supply at commercial rate ''B'' has been provided by CESC Ltd. in the name of B.K. Associates to cater to the entire load. Individual sub-meters have been installed by the occupants for recording consumption at their different establishments for quite a long time. Considering the requirements as regards number of meters in case of separate connection and the spaces shown as available in the said premises were considered and it is reported that the arrangement suggested is not possible as it will involve fire hazards leading to loss of life and property. It also reported that in the facts and circumstances involved it will be extremely hazardous and not possible to provide separate meters to such a number of occupants in the two blocks of buildings.

But in the said report it has been suggested that if the said two blocks of building are mutated separately than each block may be construed as a separate building and separate service may be provided in the said two buildings keeping in mind the load requirement of both the blocks.

Though on behalf of the petitioners, affidavit has been filed disputing the findings in the report, on consideration of the contention of the respective parties and the report itself it does not appear that such technical matter can be decided by the writ court particularly when the report of the District Engineer of the CESC Ltd. has expressed apprehension about fire hazard involving loss of life and property. On consideration of the contentions of the respective parties, I do not find any ground to reject the report so obtained on inspection.

In such circumstances, admittedly there are arrears in respect of earlier consumption of electricity. Though dispute has been raised as regards correctness of the bills raised by the respondent No. 3 but as regards claim by CESC Ltd. for consumption of electricity, no dispute has been raised. In any event even any dispute exists, in the writ petition itself the petitioners have expressed that such disputes can be resolved by referring the matter to the Chief Electrical Inspector for appropriate adjudication. The petitioners therefore, are at liberty to avail such remedy in accordance with law. But if such remedy is not availed within a period of fortnight from today, the petitioners and other occupiers are liable to clear all dues in accordance with law to CESC Ltd. within a period of six weeks from date, paying 50 per cent thereof within two weeks and balance 50 percent within next four weeks. The respondent CESC Ltd. is restrained from effecting any disconnection of such claim of arrears for a period of six weeks and in case dispute is referred to the Chief Electrical Inspector for adjudication, such adjudication is to be made within a period of two months from the date of reference and in such cases, arrears if any is found in such reference is to be paid by the occupiers of the disputed premises within the period as may be granted in the said order.

With regard to the separate meters, the petitioners are at liberty to approach the CESC Ltd. in accordance with law and in accordance with the suggestion given in the report or in any manner as may be found acceptable by the CESC Ltd. But until any such arrangement is made, the occupiers will be entitled to get supply of electricity through the existing arrangement and upon payment of all dues in accordance with law. In case any arrear falls due with regard to current consumption, CESC and its authorities will be entitled to take any appropriate action in accordance with law;

The writ petition is disposed of with the aforesaid direction. Later: Xerox certified copy of the judgment delivered today, if applied for, be supplied on priority basis.