CESC Limited & Anr. vs The Ombudsman & Ors.

Ajay Kumar Gupta, J.: -

By filing this writ petition, the CESC challenged the impugned order dated 11^th December, 2008 passed by the Learned Ombudsman constituted under West Bengal Electricity Regulatory Commission (Guidelines for Establishment of a Forum for Redressal of Grievances of Consumers and Time and Manner of Dealing with such Grievances by the Ombudsman) Regulations, 2006.

By the said impugned order, the petitioner No.1 herein was directed to effect direct meter supply to the complainant’s stall within 30 days and to report compliance of the order within 15 days thereafter.

The learned counsel appearing on behalf of the CESC Ltd submitted that individual connection or direct meter supply cannot be allowed to a stall holder or sub-owner at the S.S. Hogg Market, Kolkata – 700 087. The licensee can supply an electricity connection or sub-meter through the block meter standing in the name of Kolkata Municipal Corporation. All the sub-owners of the S.S. Hogg Market (New Market) are receiving electricity supply through one of the block meters, existing in the marketplace. The petitioner no.1 is maintaining bulk MVAC supply in the said market blocks.

It was further submitted that the petitioner no. 1 was not in a position to accommodate the request of the respondent no. 2 for a separate commercial meter supply in the said S.S. Hogg Market where the users/occupiers, including the respondent no. 2, have already been catered through the existing block meter standing in the name of KMC.

It was further submitted that the learned Ombudsman, without considering the regulation and facts of the case, whimsically passed an order on 11^th December, 2008 in which it was held that as per the regulation no. 19 of West Bengal Electricity Regulatory Commission (Recovery of Expenditure for Providing New Connection) Regulations, 2005, the consumers are to get power supply directly from the petitioner no. 1. However, supply of power to consumers through a third party, i.e., the KMC, is not analogous to supply through block meter as per the said regulation.

The Learned Ombudsman further held that the Stall holders were getting supply from KMC’s service connection through sub-meters and are clearly segregated from each other. Accordingly, the condition of said Regulation is not applicable here. Given that the Regulation specifically restricts installation of separate meters in extremely congested places like bustees, markets, etc. to avoid fire and safety hazards, the petitioner no. 1, as per the Regulation, 2005, supplies electricity to all the consumers/intending consumers through a suitably located common meter of adequate capacity, to be known as a Block Meter.

The petitioner no. 1 has no objection if the private respondent no. 2 applies for his requirement for enhancing the electricity consumption through KMC.

The KMC, in turn, may also supply electricity after enhancing the required load, i.e. 17 KW, through a sub-meter from block meters. This Court’s attention was drawn to the Regulations of 2005 and 2013 to convince that the private respondent can receive power supply from KMC through a sub-meter through the Block Meter to prevent fire and safety hazards in the marketplace in S.S. Hogg Market. Other stall holders/sub-owners of the marketplace receive electricity supply through the Block meter.

It is very difficult on the part of the petitioner no. 1 to supply electricity to an individual shop owner in the marketplace as it is not feasible and suitable for the shop owners of the S.S. Hogg Market where there is a very large number of consumers within a premise, i.e. S.S. Hogg Market. The supply of electricity under Section 43 of the 2003 Act is not an absolute right, but is subject to compliance of all other requirements and formalities. The Petitioner no. 1 has not refused to supply electricity. However, the congestion on the premises in question would lead to the proliferation of wiring for a large number of consumers in relatively small premises, posing fire and safety risks. It would be suitable for the licensee to provide electricity, which was catered to the private respondent from the block meter. The stall holders of the KMC can ask for enhancement of the load as required by the shop owners/consumers.

Learned counsel appearing on behalf of the petitioners has placed reliance upon the following judgments to support his contentions: -

Smt. Anjana Samaddar Vs. Calcutta Electric Supply Corporation & Ors.^{11.MAT 144 of 2023 with CAN 1 of 2024 with CAN 2 of 2024;};

Sri Dipankar Saha Vs. CESC Limited and Anr.^{22.WPA No. 18989 of 2021;};

Arijeet Doss Mullick & Anr. Vs. CESC Limited & Ors.^{33.WPA No. 12267 of 2019;};

Indranil Chandra Vs. CESC Limited and Ors.^{44.WPO No. 2228 of 2022;};

CESC Limited and Anr. Vs. State of West Bengal & Ors.^{55.WPA No. 14266 of 2022.}.

Learned counsel appearing on behalf of the KMC, On the other hand, submitted that the private respondent no. 2 is receiving power supply from block meters of the KMC, and now he is asking for more load and direct connection from the licensee. Therefore, KMC has not objected to the private respondent no.2 if the provision allows a separate meter to him. The issue is between the owner of the shop and the licensee. The KMC has nothing to say if CESC Ltd. provides the electric connection separately to the private respondents. The KMC also has not objected to supplying electricity via a sub-meter from the block meter.

Learned counsel appearing on behalf of the respondent no. 1/the Ombudsman, vehemently opposed the submissions made by the learned counsel appearing on behalf of the petitioners and further submitted that there is no question of fire and safety hazards in the marketplace. Even though electricity supply was catered through a block meter, a separate sub-meter could be provided.

The CESC has given several separate meters to the shop owners as well as the Masjid within the marketplace and only deprived the private respondent no. 2. The regulation cited by the learned counsel appearing on behalf of the petitioner is not mandatory. The CESC may provide a separate meter to the shop owners according to their requirement. The respondent no. 2 requires a load of 17 KW. Therefore, he applied for a separate meter on 27^th February, 2007. When his grievance was not solved by the KMC or the petitioner no.1, the respondent no. 2 approached the Office of the Ombudsman and sought relief under section 42(6) of the Electricity Act, 2003.

After hearing the parties, the Ombudsman passed the order holding that if a direct meter connection is effected in favour of the private respondent no. 2 by the CESC directly from the existing service connection in the building, connecting wirings etc. would hardly change. Moreover, the KMC had not objected if direct meter connection was effected in favour of the private respondent no. 2. There is no specific bar to supply an individual meter to a consumer by the CESC when the KMC did not object, nor is there any bar as per the regulation. The Petitioner no. 1 has already provided separate meters to other shop owners. Those meters are specifically indicated in the communication dated 15^th October, 2008 to the learned Ombudsman. It appeared that other owners were provided separate meters, and even after the regulation came into force, two meters were provided on 08.04.2006 and 13.09.2006 to the shop owners of stall nos. 38, 39, 46 and 47. Therefore, there is no bar to the supply of electricity with additional load instead of advising to take supply from the block meter of the KMC. Therefore, the Learned Ombudsman had rightly passed the order, and may not calls for no interference by this Court.

None appears on behalf of the private respondent no.2 despite service of notice.

Having heard the submissions of the learned counsels appearing on behalf of the respective parties and on perusal of the order passed by the learned Ombudsman and Regulations 2005 and 2013, this Court finds that the issue involved in the present case is whether the petitioner no.1 can supply electricity connection to the individual sub-owner in the marketplace.

Before deciding this issue, this Court would like to quote Regulation 18 of 2013 and Regulations 18 and 19 of 2005 for convenience and ready reference. which read as under: -

A plain reading of Regulation 19 of 2005/Regulation 18 of 2013 shows that the provision is enabling and not prohibitory in character. It permits the licensee to supply electricity through a Block Meter "in bustees, markets, etc. where it may not be possible to segregate one consumer from an adjacent consumer" and "where because of multiplicity of the wirings of such a large number of consumers, there may arise fire and safety hazards." The Regulation is thus a safety-driven measure, and the discretion it confers is one that must be exercised on a genuine, case-specific assessment of congestion and fire risk, not as a blanket rule of universal application, and equally not one that can be lightly overridden by an adjudicating authority without displacing that technical assessment on cogent grounds.

The judgments relied upon by the petitioner no. 1 simply reiterate and reaffirm the Regulation that in congested marketplace conditions where segregation of individual consumers is not practicable and multiplicity of wiring may give rise to fire and safety hazards, the licensee is entitled to effect supply through a common Block Meter rather than through direct, individual connections. To that extent, the said decisions lend consistent judicial support to the construction of Regulation 19 of 2005/Regulation 18 of 2013 adopted in this judgment, without departing from or adding to the text of the Regulation itself.

In view of the above, this court is of the opinion that the learned Ombudsman should have considered that it is not technically feasible for the Petitioner no. 1 to cater to the supply of electricity by installing a separate meter in the market complex, where the private respondent’s shop is situated.

It is also not possible or technically feasible for the applicant(s)/intending consumer(s) to provide the required space in their shops for installation of separate meters and associated equipment(s) at his/their own cost. Furthermore, it will be pertinent to mention that Regulation 18 of 2005 and 19 of 2013 clearly indicate installation of Block meters in extremely congested places like bustees, markets etc. The Regulation states that in bustees, markets, etc. where it may not be possible to segregate one consumer from an adjacent consumer because of existence of a very large number of consumers in a relatively small and a single premises, and where because of multiplicity of the wirings of such a large number of consumers, there may arise fire and safety hazards, the licensee may effect supply of electricity to all the consumers/intending consumers through a suitably located common meter of adequate capacity, to be known as a Block Meter.

This has been reaffirmed and reiterated in the aforesaid judgments relied upon by the Petitioner no. 1.

It is undisputed fact that the shop of the private respondent no.2 is situated at congested place i.e. S.S Hogg Market (New Market) and the same was assessed in the tune of Regulations as aforesaid and found there is technically not feasible to provide separate meter connection to each of the shop rooms and therefore, the connection is to be given from a block meter available and catered supply to the Private Respondent no.2.

Now, a question arises so far as the enhancement of the requirement of load of 17 KW is concerned; the KMC may apply to the Petitioner no.1, who in turn take care of it. It is also relevant to mention here that the petitioner no.1/licensee is obligated not only to supply electric connection but also to see that such supply will not cause fire or other hazards in the marketplace, where huge customers usually gather.

Accordingly, WPA No. 1299 of 2009 stands allowed without order as to costs. Connected applications, if any, are also, thus, disposed of.

The private respondent no. 2 shall be at liberty to apply to the KMC for enhancement of his load to 17 KW through the existing Block Meter/sub-meter arrangement, and the KMC shall consider and dispose of such application, if made, in accordance with the applicable Regulations and further with consultation of the Petitioner No.1.

Consequently, the Impugned order dated 11^th December, 2008 passed by the learned Ombudsman is hereby set aside.

Parties shall act on the server copies of this Judgment downloaded from the official website of the High Court at Calcutta.

Urgent Photostat certified copies of this Judgment, if applied for, be supplied to the parties upon compliance of all the necessary and legal formalities.