Full Judgment
ORDER
SHEET IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE WP1342009 COLD GOLD SYNTEX PVT.LTD.& ANR.
Versus THE CESC LTD.& ORS.----WP1792014; GA29382014 HILGERS PVT.LTD.Versus THE CESC LTD.BEFORE: The Hon'ble JUSTICE ANIRUDDHA BOSE Date : 20th March, 2015.
Mr.P.K.Mukherjee, Sr.Adv., with Mr.B.Bhattacharyya, Adv., Mr.S.Ghosh, Adv., Mr.B Kumar, Adv., For Cold Gold Syntex PVT.LTD.Mr.K.Bhattacharyya, Adv., with Mr.A.Bhattacharyya, Adv., and Mr.B.Biswas, Adv., for Hilgers PVT.LTD.Mr.U.Bose, Sr.Adv., Mr.S.Pal, Sr.Adv., with Ms.V.Meharia, Adv., Mr.A.Ghosh, Adv., Mr.R.Dutt, Adv., for CESC LTD.Mr.Joy Saha, Adv., with Mr.J.Banerjee, Adv., Mr.R.Karmakar, Adv., for NJMC.
Mr.M.Ghosh, Adv., with Ms.M.Sen, Adv., for Official Liquidator.
The Court : These two writ petitions are being taken up for hearing together and are being disposed of by this common judgment considering the fact that both the writ petitions relate to dispute on the question of supply of electricity to premises no.4, Netaji Subhas Road, Kolkata-700001, and the same set of litigants are involved in the disputes on the basis of which the two writ petitions have been instituted.
In W.P.No.134 of 2009, the petitioners are Cold Gold Syntex PVT.LTD.(“Cold Gold” in short) and one of their ManageRs.They claim to be the assignee Negaji of the leasehold Kolkata-700001.
interest of premises no.4, Subhas Road, They had a subsisting dispute over payment of past dues with CESC LTD.in relation to clearance of consumption and other allied charges over use of electricity in the said premises.
In this writ petition, their main prayers are for quashing of bills pertaining to consumption of electricity mainly for the period prior to execution of the deed of assignment in their favour, and also for restoration of supply.
But I am apprised in couRs.of hearing that so far as the controveRs.over past dues is concerned, that has been resolved on payment of rupees ninety lacs to CESC LTD.The latter has agreed to accept the said sum in settlement of the past dues.
The premises in question has three occupants who are all public sector organisations.
In W.P.No.179 of 2014, the petitioners are an existing company.
Heilgers PVT.Ltd., who claim to be a tenant in respect of a portion of the building Manufacturerers in question.
Corporation In LTD.the and impleaded as respondents Nos.4 and 5.
same National writ petition, Insurance Co.National Jute LTD.have been They also claim to be tenants in respect of different parts of the said premises.
Cold Gold, however, disputes the character or status of the aforesaid three organisations as tenants of the said premises.
That proceedings.
issue, occupiers is not in lis before me in these two Admitted position is that they are occupiers of different portions of the said premises.
of however, would So far as these two proceedings are concerned, the status entitle them to receive electricity in terms of the Electricity Act, 2003.
The building in question was running without electricity since the year 2003 on account of dispute between the owners or assignee of the building with CESC LTD.It was submitted in couRs.of hearing of these two proceedings by the learned counsel appearing on behalf of the aforesaid three occupiers that they were running their respective offices using generat ORS.By an order passed on March 28, 2014, I had directed the CESC Ltd., as an interim measure, to provide supply of electricity of 200 KW load to the said three organisations.
These organisations claim to have invested approximately rupees forty one lacs for installation of a transformer in the said building along with other electricity from the licensee.
infrastructural facilities for obtaining I am apprised by the learned counsel appearing for the parties that at present these three organisations are getting supply of electricity through the said transformer.
Now Cold Gold, having resolved their dispute with CESC Ltd., want supply of electricity and the dispute which survives at present is as to whether they shall receive electricity through an independent meter or through the existing transformer which is feeding the aforesaid three organisations.
All the said four entities involved in these proceedings had expressed their willingness to receive supply of electricity through independent meters on which their individual consumption would have reflected and then recorded by CESC Ltd., but in that case the transformer already installed would have had to be abandoned or disposed of.
at present, CESC LTD.are supplying That would have been necessary because high tension electricity to the said transformer, from which voltage is stepped down and supplied to the three individual consumeRs.It appears that CESC Ltd.’s obligation to supply electricity ends at the transformer point, for which a composite bill is raised.
The individual consumers through their own arrangement carry the supply to their offices within the said building, and their consumption is measured by separate sub-meters fixed by them.
They remain collectively responsible for paying the consumption charges reflected at the main meter established at the transformer point.
Thereafter, through consumption recorded in the respective sub-meteRs.they share the consumption charges, which appears to be a private arrangement.
So far as the three organisations are concerned, they are willing to continue with the same arrangement but want separate supply points for Cold Gold.
such proposal was accepted, the result would have been that the If three organisations would have continued to receive electricity through the existing transformer whereas a new low tension line would have to be laid for Cold Gold.
On this proposal for supply, contention of CESC LTD.is that it is not technically feasible to supply high tension and low tension electricity to the same premises.
Mr.Saha, learned counsel appearing for the respondents nos.4 and 5 in W.P.No.179 of 2014, relied on three decisions reported in [(1997) 1 CHN474, [(2003) 4 CHN541 and [(2010) 2 CLJ328 to contend that there is no legal bar in supplying high tension and low tension electricity to the same building.
On this count, submission of Mr.Pal, learned Senior Counsel appearing for CESC Ltd., is that in the cases relied on by Mr.Saha, though the premises bore a single street number, there were independent units or blocks which received supply through different supply modes.
Mr.Pal’s submission is that the said arrangement cannot be effected so far as the subject building is concerned, where dual mode of supply would have to be effected for a single building.
The entitlement of all the four firms before me to receive supply of electricity is recognised under the provisions of the Electricity Act, 2003, as both the owners and the occupiers of a building have the right to receive electricity.
Now, the question arises in what manner such supply ought to be effected, having regard to the factual context of this case.
Mr.Saha’s main objection against sharing the transformer with Cold Gold is that in the past his clients have had several disputes with them and in the event there is future default on the part of Cold Gold in paying their share of consumption charges, either the three organisations would have to share the consumption charges of the defaulting firm or they would have to face disconnection of supply.
The clients of Mr.Kamalesh Bhattacharya, being the writ petitioner in W.P.No.179 of 2014, are willing to accept supply of either electricity through either mode, but they want to be compensated for the transformer and other infrastructural costs in the event they are required to shift the mode of supply, switching on to low tension.
The stand of the writ petitioners in W.P.No.134 of 2009 is that as the assignee of the building, who are practically enjoying the ownership status, they cannot be deprived of supply of electricity after liquidating the past dues concerning consumption of electricity for the building in question.
In my opinion, for resolution of these two writ petitions, a practical solution based on equity will have to be worked out as entitlement of the parties to receive supply of electricity is established under the law.
I will also have to take into account the fact that substantial expenses have already been incurred for the purpose of installation of the transformer by the three public sector organisations.
regard to the load requirement It is the admitted position that having of the individual consumers or potential consumeRs.the subsisting transformer has the capacity to fulfil the supply requirement of all the four entities.
This position has been confirmed by CESC LTD.at the time of hearing.
In such circumstances, I dispose of these two writ petitions with the following directions: (a) Cold Gold Syntex PVT.LTD.shall be entitled to receive supply of electricity from the existing transformer sharing the same with three other occupiers of the building.
(b) For this purpose, Cold Gold shall be required to pay to the three other occupiers a sum of Rs.7.5 lakhs forthwith, which shall be shared by the three occupieRs.This amount is being directed to be paid considering the fact that the aforesaid three organisations have invested in the region of rupees forty one lacs for installation of the transformer and other infrastructural facilities.
The said amount was disclosed to this Court by the learned counsel appearing on their behalf in couRs.of hearing, and this figure was not seriously disputed in couRs.of hearing by any of the parties.
It was argued on behalf of Cold Gold that they would have comparatively lower level of consumption.
On the basis of this submission, instead of directing Cold Gold to pay equal share, they are being required to pay a lesser amount.
(c) Supply shall be effected to Cold Gold only after the aforesaid sum is deposited by Cold Gold in favour of Mr.Bhattacharyya’s client who shall accept the same and then it shall be shared among the three organisations on mutually accepted terMs.(d) After the aforesaid sum is paid, Cold Gold Syntex PVT.LTD.shall be entitled to draw their individual supply line from the said transformer under the supervision of the engineers to be deputed by CESC LTD.But Cold Gold would have to bear the cost of drawing internal transmission line and installation of the sub-meter at their point of supply.
(e) CESC LTD.shall be informed of clearing of the aforesaid sum by Cold Gold and thereafter on a day mutually fixed the task of actual drawing of the line shall be fixed and completed.
(f) CESC LTD.shall, on the basis of the load factor of the individual four firMs.intimate to them the units of electricity which are likely to be consumed by each of them every month.
This exercise shall be completed within a period of four weeks from the date of communication of this order.
For this purpose if CESC LTD.requires any particulars or information from any of the four entities, CESC LTD.shall inform them of such requirement within one week thereafter.
Information shall be furnished by the individual organisations to CESC LTD.within one week thereafter.
(g) On the basis of such consumption pattern and consumption charges, all the four companies shall maintain two months’ consumption charges in an escrow account.
Such account shall be opened in Standard Chartered Bank, N.S.Bose Road Branch, as this bank appears to be the acceptable bank branch for all the parties to these proceedings.
The bills raised by CESC LTD.shall be sent jointly in the names of four consumeRs.with a copy thereof to be sent to the said Bank.
Monthly consumption charges shall be directly remitted to CESC LTD.by the said bank.
On payment of a month’s bill, all the four consumers shall make fresh deposit of agreed amount in the said account every month.
In the case of variation in consumption charges, individual contribution level of the four firms shall also be reworked proportionately.
(h) The individual consumption shall be reflected in the submeters already installed and the fresh one to be installed by Cold Gold Syntex PVT.LTD.Cold Gold Syntex PVT.LTD.shall be treated to be a consumer by CESC LTD.for the purpose of supply of electricity.
(i) In the event there is default in payment of the consumption charges, as may be calculated on the basis of the said submeters for two consecutive months in respect of any of the above four consumeRs.then the defaulting consumer shall lose their right to receive supply of electricity in terms of this order and in that event their supply line shall be disconnected.
(j) If there is any transmission or distribution loss in the process of stepping down of voltage and sending supply to the individual consumeRs.the same shall be borne equally by the parties.
consumption Same of arrangement electricity shall be pertaining followed to in common case area of and common facilities.
(k) All the sub-meters shall be located at accessible places in the building, so that the sub-meters can be visually inspected round the clock.
With the above directions, W.P.No.134 of 2009 and W.P.No.179 of 2014 along with its connected application being G.A.No.2938 of 2014 shall stand disposed of.
(ANIRUDDHA BOSE, J.) tk