I. Mahanty, J.
1. The Krishna Garden Welfare Association a registered society under the Societies Registration Act, 1860 which has been established with an object of looking after welfare and development of the house owners of Krishna Garden Community, Phase-II situated at Barbari, Khandagiri, Bhubaneswar in the District of Khurda, has filed the present writ petition seeking various reliefs, but in course of hearing of this matter, the petitioner has confined its prayer to Clause b of the prayer which is quoted herein below:
(b) Direct O.P. No. 1 to take over the HT & LT installations of Krishna Garden Complex (phase-II) including the service connections and supply electricity directly to the individual consumers and submit bill as per the approved rate for domestic consumers and O.P. No. 1 be restrained from disconnecting the 'single point' H.T. supply till a final decision is arrived at in the present writ application.
2. From the pleadings in the present proceeding, it is clear that one M/s. Krishna Estate Construction Pvt. Ltd. (opposite party No. 3) promoted the development of an area at Barabari, Khandagiri, Bhubaneswar, which is known as Krishna garden Phase-II and invited the public to purchase the plots in the said complex. Pursuant to that advertisement, about 100 persons who are now members of the petitioner-Association had applied for plots in the aforesaid complex in the year 2000. In terms of the advertisement, the promoter (opposite party No. 3) entered into agreement with all allottees to construct core houses on their plots and in terms of their agreement, promoter (O.P. No. 3) transferred and registered the respective lands in favour of the allottees at various times, and upon completion of the construction of the core houses on the plots of various allottees, opposite party No. 3 handed over the possession of the same to the allottees.
3. The promoter (O.P. No. 3) constructed the 11 K.V. line, a 500 K.V. Substation as well as LT lines in the housing complex and entered into an agreement with CESCO (O.P. No. 1) for supply of bulk domestic power to the promoter (O.P. No. 3) who in turn is supplying the said power to various allottees.
4. The allottees and the promoter (O.P. No. 3) had serious disagreement on account of alleged excess charge towards power supply, with which we are presently not concerned in view of the limited prayer made on behalf of the petitioner. It is an admitted fact, that in order to resolve the dispute between the allottees and the promoter (O.P. No. 3), the said O.P. No. 3 addressed communication to CESCO (O.P. No. 1) vide letter No. 253/04 dated 26.7.2004 which is annexed as Annexure-12 to the writ petition and the same is quoted hereunder for reference:
SRIKRISHNA ESTATE &
CONSTRUCTION PVT. LTD.
1189, NILAKANTHA NAGAR, BHUBANESWAR-12
Ref: 253/04
Dt/- 26.7.04
To
The Chief Executive Officer, CESCO, Bhubaneswar.
Sub : Requesting your honour to effect power supply directly by CESCO to the consumers of Krishna Garden, Phase-II.
Sir,
With due respect and humble submission I Sri. Pabitra Routray, Managing Director, Srikrishna Estate & Construction (Pvt.) Ltd. Nilakanthanagar, Bhubaneswar, do hereby bring to your kind notice the followings for favour of your information and sympathetic consideration as well as favourable order.
1. That on execution of an agreement dated 20.10.03 with CESCO (on whose behalf Manager (Elect) has signed the agreement) power supply was made to the consumers of Krishna Garden, Phase-II through me w.e.f. February 04. The monthly electricity bills are prepared at my level on receipt of total demand communicated by CESCO and are then handed over to the consumers for payment.
2. It was seen during previous months that the billed amount prepared at my end is double/more than double the amount had the power supply been made by CESCO directly and the electricity bills would have been prepared accordingly. Because, in accordance with the payment tariff I have to pay Rs. 2.30 (Rupees Two and paise thirty only) to CESCO per unit of power in addition to other charges like E.D. Customer charges etc. alongwith supervision charges of my own as a result the cost per unit of power automatically goes high viz. Double/more than double.
3 On account of such high cost/unit of power supply the concerned consumers have been approaching me time and again from the month of March '04 to ensure power supply directly through CESCO as has been provided to the consumers of Krishna Garden, Phase-I situated adjacent to Phase-II. In this regard they have given me a comparative statement in respect of different houses with Xerox copies of the bills, which are enclosed herewith for favour of your information and reference.
4. In fact the grievances of the consumers of Phase-II are quite genuine as far as financial burden is concerned. Besides, there is growing dissatisfaction among those consumers because of the fact that they are deprived of getting electricity at the domestic rates fixed by CESCO for all the consumers within its jurisdiction and particularly the benefit availed by the consumers of Phase-I.
(a) Under those above circumstances, I pray your honour to be good and kind enough to consider their genuine grievances sympathetically in order to reduce their financial burden and to remove inequality between the consumers of Phase-I and Phase-II.
(b) To make me free of my burden/tension in handling this aspect of the project as I am overburden with my various engagements for construction work in other projects and other official works as well.
(c) To cease the validity of agreement forthwith and to ensure power supply directly by CESCO soon.
(d) To continue power supply as usual unless and until arrangement is made to directly supply of electricity by CESCO.
With this, I remain with my regard to you.
Yours faithfully,
Sd/-
Managing Director.
ENCL : Comparative statement with Xerox copies of bills.
Memo No... Date...Copy with copy of the comparative statement along with Xerox copies of the bills submitted-to the Manager (Elect) CESCO for favour of information and necessary, action with reference to agreement signed on 21.10.03.
Sd/-Memo No.... Date...Copy forwarded to the consumers of Krishna Garden, Phase-II for their information and necessary action with reference to their application dated....
Sd/-Apparently. CESCO (O.P. No. 1) has not acted in terms of the request made by the promoter (O.P. No. 3) as contained in their letter dated 26.7.2004 as noted above.
5. Subsequent to the aforesaid request of the promoter (O.P. No. 3), out of 100 house owners who are members of the petitioner society, two house owners have already been supplied with individual power connection by CESCO and 33 individual house owners had made individual applications to CESCO vide Annexure-22 series for supply of individual power connection which are still pending and 38 house owners made fresh applications for individual power supply vide Annexure-32 in terms of affidavit dated 3.8.2006 filed on behalf of the petitioner society making the total individual applicants 72 in number.
6. In the light of the aforesaid fact, Sri N.C. Panigrahi, learned Senior Counsel for the petitioner society placed reliance upon Section 43 of Electricity Act, 2003 (in short 'the Act') which is quoted hereunder:
43. Duty to supply on request.-(1) Every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply:
Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.
(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in Sub-section (1):
Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.
(3) If a distribution licensee fails to supply the electricity within the period specified in Sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default.
7. Sri Panigrahi, apart from relying upon Section 43, also placed reliance upon the tariff order dated 22.3.2005 passed by the Orissa Electricity Regulatory Commission (in short 'the OERC) pertaining to financial year 2005-06 and in particular on Paragraph 5.10 of the said order which is quoted hereunder:
5.10. Power Supply to Apartment
5.10.1 CESCO in its application submitted that single point power supply to all apartments and market complexes, colonies of different departments and developers may be allowed. No individual connection may be provided by CESCO to the above category of consumers.
5.10.2 Some of the objectors pleaded in favour of individual supply to all occupants of the apartments. The Commission clarifies that in accordance with the provision under the OERC Distribution (Conditions of Supply) Code, 2004 supply to lawful occupier/owner of the flats should be provided in case the concerned owner/occupier desires to receive power at a single point and also the concerned occupier/owner cannot be denied the individual connection, if they so desire.
Relying upon the aforesaid legal provisions and directions of the OERC, learned Counsel for the petitioner submitted that CESCO (O.P. No. 1) being a retail licensee under the Electricity Act was under a legal obligation to effect direct individual supply to various allottees in terms; of their applications submitted as per Annexure-22 series and Annexure-32 to the writ petition, especially, in view of the request of the promoter (O.P. No. 3) as contained in Annexure-12 dated 26.7.2004.
8. The next contention raised by the learned Counsel for the petitioner was that the case of the petitioner society was that its case was similar to the case of Vyjointo Kumar Ray and Ors. v. Life Insurance Corporation of India and Ors. in W.P.(C) No. 2715 of 2004, wherein the Division Bench of this Court, by order dated 14.12.2004 had allowed the writ petition and directed the CESCO to grant individual power connection to individual owners or the applicants in terms of the condition contained in the said order. The learned Counsel for the petitioner submitted that as the facts of the present case were akin to the facts of the said case, similar relief be granted in favour of the petitioner.
9. Sri S.C. Dash, learned Counsel for opposite party Nos. 1 & 2 vehemently objected to the submissions advanced on behalf of the petitioner and by placing reliance on the submission made on behalf of CESCO as contained in their counter affidavit, raised the question of maintainability of the present writ petition. Sri Dash contended that the petitioner society does not have any direct agreement with opposite party No. 1 (CESCO). In fact CESCO (O.P. No. 1) has an agreement for supply of bulk domestic power to the promoter (O.P. No.3) and the petitioner society has no locus standi to question the same. Sri Dash further contended that the present writ application is not maintainable inasmuch as the petitioner is bound by the order dated 18th November, 2004 and 20th June, 2005 passed by the OERC in Case No. 112 of 2004 whereby the petitioner society's petition was rejected as well as their review application was similarly rejected and further on account of the fact that OERC, has in specific terms, directed the petitioner society to approach the Grievance Redressal Forum, Bhubaneswar.
10. Sri S.P. Mishra, learned Senior Counsel appearing for the promoter (O.P. No. 3), also objected to the present writ application on the question of maintainability and relied on the averments made on behalf of O.P. No. 3 as contained in the counter affidavit, and submitted that the petitioner society and allottees failed to cooperate with the promotor. He further submitted that in the event a direction is passed by this Court to give individual power supply to individual house owners, then such house owners also be directed to pay the arrear electricity dues, since it is the house owners, who have consumed the electricity supplied to the opposite Party No. 3. It was further submitted that in the event, such order is passed, then the interest of the promoter (O.P. No. 3) as protected by this Court had done in the case of Vyjointo Kumar Ray (supra) relied upon by the petitioner, similar protection be given to the promoter (O.P. No. 3).
11. Sri N.C. Panigrahi, learned Senior Counsel for the petitioner submitted that the writ application is maintainable inasmuch as the statutory licensee, i.e. CESCO (O.P. No. 1) having failed to act in terms of the duty cast upon it by a statute, the filing of the present writ petition is quite maintainable. The learned Counsel for the petitioner submitted that the failure on part of the CESCO to respond to the applications made to it for individual connection is a lawful ground for the purpose of deeming that failure in compliance of the statutory provisions, justifies filing of the present writ petition. The petitioner further submits that it had gone before the OERC in case No. 112 of 2004 which rejected its application and its review application by order dated 18th November, 2004 and 20th June, 2005 respectively, which the petitioner annexed as Annexures 16 & 17 to the writ petition and drew the attention of this Court to the directions contained in order dt. 18.11.2004 which is quoted herein below:
(i) M/s. Krishna Estate and Construction Pvt. Ltd. may receive power supply at a single point and supply power to the willing occupants in the Krishna Gardens but shall charge no profit as provided in regulation 49(i)(iv) of OERC (Conduct of Business) Regulations, 2004.
(ii) Amount, if any, is being charged as profit by Respondent No. 2 for such supply to the consumers in Krishna Garden may be got verified by the Grievances Redressal Forum, Bhubaneswar provided an application is filed by the petitioner before the Grievances Redressal Forum. Accordingly, the GRP will hear the case and pass appropriate orders.
(iii) Persons willing to receive electricity from the supply company (Respondent No. 1) can also request the Respondent No. 1 for power supply who shall make it available following the norms presented in the Regulation.
Sri Panigrahi submitted that while the present writ petition Is concerned with the non-compliance of direction (iii) as referred herein above, vis-a-vis direction (i), the same is of no relevance since the promoter (O.P. No. 3) has itself requested CESCO vide its communication dated 26.7.2004 under An-nexure-12 to grant direct connection to the individual allottees and direction (11) of the OERC to the petitioner society to approach the Grievance Redressal Forum relates only to the allegation of the petitioner society that the promoter (O.P. No. 3) was charging profit on supply of electricity effecting each member of the allottees. Sri Panigrahi further submits that he is not raising a dispute pertaining to direction No. (ii) in the present writ petition and since direction No. (iii) has not been complied with by CESCO (O.P. No. 1), no objection can be raised either to the locus standi petitioner or to the maintainability of the present writ petition.
12. The petitioner society is a registered society under the Societies Registration Act, 1860 and therefore, is a legal entity capable of representing the interest of its members. We are further of the view that the CESCO (O.P. No. l) has a statutory obligation both under1 Section 43 of the Electricity Act, 2003 as well as a further obligation in terms of the order of the OERC dated 22.3.2005 (Annexure-20) as well as order dated 18.11.2004 (Annexure 16) and further, the lack of response on the part of CESCO to respond to the applications made by the individual allottees has compelled the petitioner society to file the present writ petition. Hence, we are of the view that the petitioner society thus, possesses the necessary locus stand! to file the present writ petition and further hold that the present writ petition is also maintainable and no legal infirmity or bar exists In entertaining the same. Therefore, the objections raised by the opposite parties in that regard are hereby rejected.
13. In the light of the aforesaid rival submissions, the first aspect that needs adjudication in the present case relates to interpreting the rights and obligations that flow from Section 43 of the Electricity Act, 2003. On reading of the aforesaid section quoted In extenso hereinabove, it is clear that the said provision casts an obligation on a distribution licensee (such as CESCO-Opp. party No. 1) to give supply of electricity to such premises of the owner within one month after receipt of the application requiring such supply and the said Sub-section (1) contains the mandatory term 'shall'. The proviso to that sub-section has no application to the present case inasmuch as for supply of power to the present petitioner-Society and its members, no extension of distribution mains is required nor the location of the petitioner is in the village or hamlet or area wherein no provision for supply of electricity exists.
Sub-section (2) of Section 43 further amplifies such obligation by mandating that It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises of an applicant provided of course the applicants agrees to pay such price of supply to the licensee. Here again the proviso has no application inasmuch as there is no dispute that the allottees of the petitioner-Society have made individual applications as well as have agreed to pay the licensee the price of such supply and the supply mains already exist.
In fact, the obligation under Section 43 is further highlighted by the 'default clause' contained in Sub-section (3) thereof which clearly stipulates that if a distribution licensee fails to supply the electricity within the period specified in Sub-section (1), i.e. within one month after receipt of the application, such license shall be liable to penalty for each day of default.
On an analysis of all the sub-sections of Section 43 and on a conjoint reading of the same, we are of the view that Section 43 of the Electricity Act, 2003 casts an obligation on distribution licensee (O.P. No. 1) to provide individual power connection to such applicants. The statutory right is further established from the order of the OERC and in particular order of the OERC dated 22.3.2005 and in particular Paragraph 5.10 thereof, which has been quoted above, subject, of course to other provisions of the statutory regulation.
14. Another matter of some concern which has come to the notice of this Court in the course of hearing of the present writ application, relates to the apparent inaction of CESCO pursuant, to the request made by the promoter (O.P. No. 3) vide its letter dated 26.7.2004 which is quoted in extenso in Paragraph 4 above. On perusal of the contents of the said letter, it would be clear that while the CESCO (O.P. No. 1) did have an agreement with the promoter O.P. No. 3 and further the promoter in turn was supplying power to its various allottees, the consequence of such type of supply had resulted in doubling the cost of power supply i.o the allottees. The promoter on consideration of such facts and also on consideration of the fact that the CESCO had provided individual connection to the occupants of neighbouring Krishna Garden Phase-I requested grant of individual power connection to the allottees of Krishna Garden Phase-II The CESCO-O.P. No. 1 in his counter affidavit has not whispered a word why such a request of the promoter was not acted upon and further has not pleaded a word as to why it had on one hand given individual power connection to the residence of Krishna Garden Phase-II. We are of the firm view that since the CESCO had provided individual power connection to the allottees of Krishna Garden Phase-I, no Justifiable reason has been put forward by the CESCO to show discrimination against members of the petitioner-society who are residents of Krishna Garden Phase-II. It would also be important to point out here that two allottees of Krishna Garden Phase-II have also been granted individual power connection and no justifiable reason had been advanced by the CESCO for not granting the similar request of other allottees of Krishna Garden Phase-II.
15. We have perused the order dated 14.12.2004 passed in W.P.(C) Nos. 2715 & 1346 of 2004 in case of Vyjointo Kumar Ray (supra) which is relied upon by the petitioner and are also of the view that the facts of the said case are akin to the facts of the present case and the petitioners therein who are allottees of houses constructed by the Life Insurance Corporation of India and who sought for a similar direction to the CESCO for individual power connections.
16. On consideration of the obligations under Section 43 of the Electricity Act, 2003, the orders of the OERC referred to herein above and the apparent discriminatory treatment, we are of the view that the writ application should be allowed in terms of the following directions:
(1) The CESCO is directed to provide Individual power connection to all the allottees in Krishna Garden Phase-II who are members of the Petitioner-society.
(2) CESCO (O.P. No. 3) is directed to carry cut and evaluate the electrical installations made by f O.P. No. 3 including the 500 KVA, Substation in Krishna Garden Phase II in order to verify the viability of supply of power to individual owners. Value of such installation shall be borne by the CESCO and the shortfall, if any, is to be borne by the consumers pro rata in terms of the regulation. The promoter shall be compensated in terms of the said regulation. This determination shall be done within a period of two months from today.
(3) Individual power connection and meter shall be installed in each individual house within a period of one month thereafter subject to the applicants signing the necessary agreement with the CESCO-Opp. party No. 1.
(4) CESCO is directed to compute the arrear bills on the basis of 'domestic tariff until the date of this order and the said arrear bills shall be paid by the individual allottees in three monthly installments from the date of raising of such bills. The petitioner-society shall be responsible to ensure that its members make payment in terms of this direction and make the necessary deposit.
(5) The bills for the next three months, i.e. the period directed for the purpose of implementing this order shall be raised on the basis of 'domestic tariff and not 'bulk domestic tariff. The petitioner society shall collect from its members and deposit in terms of the bills raised.
17. The writ petition is disposed of In terms of the aforesaid direction and in the circumstances without costs.
A.K. Ganguly, J.
18. I agree.