Calcutta High Court
Sk. Based Ali And Ors. vs W.B.S.E.B. And Ors. on 16 February, 2004
Equivalent citations: 2004(2)CHN222
Author: Barin Ghosh
Bench: Barin Ghosh
JUDGMENT Barin Ghosh, J.
1. Each of the petitioners, who have filed these writ petitions, seeks supply of electricity from the Board to energies his submersible pump. The petitioners of the writ petitions, being W. P. 13691 (W) of 2000, W. P. 13459 (W) of 2003, W. P. 14461 (W) of 2003, W. P. 15083 (W) of 2003, W. P. 15328 (W) of 2003, W. P. 15410 (W) of 2003, W. P. 15509 (W) of 2003, W. P. 15575 (W) of 2003, W. P. 15784 (W) of 2003, W. P. 16157 (W) of 2003, W. P. 16531 (W) of 2003, W. P. 16532 (W) of 2003, W. P. 17795 (W) of 2003, W. P. 18541 (W) of 2003, W. P. 18541 (W) of 2003, W. P. 2Q085 (W) of 2003 and W. P. 442 (W) of 2004, had applied for supply of electricity, the Board gave a quotation to each one of them, but the petitioners are contending that the quotations are exorbitant. They are contending that the Board is not entitled to claim the cost of the transformer and the expenses connected with installation of the transformer from the consumers. That appears to be the principal dispute in the said writ petitions. Against the applications made by the petitioners in W. P. 14509 (W) of 2003, W. P. 15097 (W) of 2003, W. P. 16033 to 16036 (W) of 2003, W. P. 16289 (W) of 2003, W. P. 16475 (W) of 2003, W. P. 16488 to 16490 (W) of 2003, W. P. 16521 (W) of 2003, W. P. 17557 to 17559 (W) of 2003, W. P. 18581 (W) of 2003, W. P. 2021 (W) of 2003, W. P. 138 (W) of 2004, W. P. 172 (W) of 2004, W. P. 310 (W) of 2004, W. P. 536 (W) of 2004, W, P. 540 (W) of 2004, W. P. 548 (W) of 2004, W. P. 550 (W) of 2004, W. P. 551 (W) of 2004, W. P. 554 to 555 (W) of 2004, W. P. 557 (W) of 2004 and W. P. 1200 (W) of 2004, the Board has issued quotations to the petitioners and the petitioners have discharged their obligations in terms of such quotations but the Board has not effected supply to those petitioners principally on the ground that according to the present policy of the Board each submersible pump shall be connected with one 10 KV transformer and accordingly, those quotations, which had not taken into account the cost of one such transformer and incidental costs for installation thereof, are required to the revised and fresh quotations are required to be issued and the petitioners are required to comply with the terms of such fresh quotations.
2. The principal question that, therefore, falls for consideration is whether the Board can claim from a prospective consumer the cost of transformer and incidental cost for installation of transformer ?
3. During the course of hearing it transpired that it was brought to the notice of the Board that rampant pilferage of electricity is being committed by a few evil people for the purpose of energizing submersible pumps. In order to stop such pilferage the Board decided that steps should be taken to reach electricity to the prospective customers seeking supply of electricity to energies submersible pumps at the bare minimum expenditure. The Board ascertained that in order to run submersible pumps the customer is required to have supply of 3.5 KV to 5.5 KV electricity, inasmuch as the submersible pumps require in between 3.5 H.P. and 5.5 H.P., except for grey areas where the requirement may go upto 7.5 H.P. It is the case of the Board, as submitted to Court by its Engineer, who appeared in person, that on the basis of the specification of the Board, the Board has been able to locate suppliers of 10 KV transformers and efforts are being made to locate suppliers of less than 10 KV transformers. It was thus submitted that the Board has taken a decision to install a 10 KV transformer for each submersible pump connection.
4. The Electricity Act, 2003, hereinafter referred to as "the Act", came into effect from 10th June, 2003. By reason of Section 185 of the Act, the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998 stood repealed with effect from 10th June, 2003. Although Sub-section (2) of Section 185 of the Act saved certain provisions of the Indian Electricity Act, 1910 and kept the same alive until rules are made under Sections 67 and 69 of the Act, but did not save the Schedule to the Indian Electricity Act, 1910. In terms of Clause (VI) of the Schedule to the Indian Electricity Act, 1910, the distribution licensee could demand cost for laying the "service line". Clause (1) of Section 2 of the Indian Electricity Act, 1910 defined "service line". Such definition did not include transformer. The expression "electric supply line" was defined by Clause (f) of Section 2 of the Indian Electricity Act, 1910. In terms of the said definition a transformer was a part of the electric supply line. A distinction, therefore, had been made by the legislature between the "service line" and the "electric supply line". While "electric supply line" included transformer, "service line" did not include a transformer. In terms of Clause (VI) of the Schedule to the Indian Electricity Act, 1910 the distribution licensee was entitled to demand cost of laying "service line" and not the "electric supply line". Therefore, until such time the Indian Electricity Act, 1910 was in force, a distribution licensee could not demand from the prospective customer the cost of providing transformer.
5. Some of these petitioners obtained the quotations before the Act came into force, when the Indian Electricity Act, 1910 was in force. As aforesaid, the quotations included the cost of installation of the transformer. At the time when these quotations were issued, they were invalid and were contrary to law. The question is whether today when the Indian Electricity Act, 1910 is no longer in force, can a direction be given for effecting supply of electricity without claiming the cost of transformer as well as incidental cost for installation of the transformer? I think while deciding these writ petitions it would be appropriate to give such directions, which has the sanction of law in force at present, inasmuch as the rights and obligations inter se the parties created by the legislature by the Indian Electricity Act, 1910 have been expressly given a goby by the legislature by making the Act and by directing that the laws as made by them by the Act would henceforth govern such rights and obligations.
6. I think the following two sections of the Act are apt to answer the questions at issue:
"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:
Provided further that in case of a village or hamlet or area wherein no 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.
46. Power to recover expenditure.--The State Commission may, by regulations, authorize a distribution licensee to charge from a person requiring a supply of electricity in pursuance of Section 43 any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of giving that supply."
7. At this juncture, I think, one has to look at the statutory meanings of the expressions "premises", "supply", "distribution mains"," sub- station", "electric line" and "electrical plant", which are as follows:
"2.(51). 'premises' includes any land, building or structure.
2.(70). 'supply' in relation to electricity, means the sale of electricity to a licensee or consumer,
2.(18). 'distribution main' means the portion of any main with which a service line is, or is intended to be, immediately connected.
2.(69). 'sub-station' means a station for transforming or converting electricity for the transmission or distribution thereof and includes transformers, converters, switch-gears, capacitors, synchronous condensers, structures, cable and other appurtenant equipment and any buildings, used for that purpose and the site thereof.
2.(20). 'electric line' means any line which is used for carrying electricity for any purpose and includes--
(a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and
(b) any apparatus connected to any such line for the purpose of carrying electricity.
2.(22) 'electrical plant' means any plant, equipment, apparatus or appliance or any part thereof used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include--
(a) an electric line; or (b) a meter used for ascertaining the quantity of electricity supplied to any premises; or (c) an electrical equipment, apparatus or appliance under the control of a consumer."
8. I think at this juncture one must also take note of the statutory definition of the expressions "service line", "main" and "transmission lines", which are as follows:
"2(61). 'Service line' means any electric supply-line through which electricity is, or is intended to be, supplied--
(a) to a single consumer either from a distributing main or immediately from the Distribution Licensee's premises; or
(b) from a distributing main to a group of consumers on the same premises or on contiguous premises supplied from the same point of the distributing main.
2.(42). 'main' means any electric supply-line through which electricity is, or is intended to be, supplied.
2.(72). 'transmission lines' means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and other works necessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers, switch-gear and other works."
9. Section 43 of the Act, therefore, imposes an obligation upon the distribution licensee to give supply of electricity to a premises, which includes a bare land, on an application to that effect by the owner or occupier thereof. The obligation to effect such supply must be discharged within one month, from the date of receipt of the application requiring such supply. The time of one month, fixed by the statute to discharge the obligation to supply, is extended until extension of the distribution mains or commissioning of new sub-station, if such extension or commissioning is a requirement for effecting such supply. It is the duty of the distribution licensee to provide electrical plant or electric line, if required, for giving supply of electricity to the premises provided the applicant of such supply agreed to pay to the distribution licensee such price of electricity as determined by the appropriate commission. By putting a penalty clause in Sub-section (3) of the said section the obligations of the distribution licensee under the said section have been made mandatory. As aforesaid, the time to discharge the obligation to supply, as provided in the said section, stands extended till such time a new sub-station is commissioned, if such commissioning is a requirement for effecting supply. The expression "sub-station" means a station for transforming or converting electricity for transmission or distribution. There cannot be any dispute that transformers are used for transforming electricity. By issuing quotations and thereby demanding the cost of transformer the Board has already held out to the petitioners that in order to effect supply to the petitioners, commissioning of new sub-stations are required. By the statutory mandate contained in Section 43 of the Act, until such time a new sub-station is commissioned, the Board is not obliged to give supply of electricity to the petitioners, as have been applied for by them.
10. In such view of the matter, it appears to me that none of the petitioners has any legal right to get supply of electricity until such time the transformers are installed by the Board.
11. Section 46 of the Act has empowered the State Commission to authorize a distribution licensee to charge from a person requiring supply of electricity in pursuance of Section 43 of the Act, any expenses reasonably incurred for providing any electric line or electrical plant used for the purpose of giving that supply. Such authorization can be granted by the State Commission by making regulations. Admittedly, the State Commission has not been able to make any regulation to that effect.
12. Submersible pumps are required for agricultural purpose. Before the Act came into force, submersible pumps, installed for that purpose, were energized by the Board. Those pumps are still being energized by the Board. The demand for such pumps is growing in leaps and bounds. I am told thousands of applications are pending with the Board for supply of electricity to energize submersible pumps. Because the State Commission has not been able to make regulations in terms of Section 46 of the Act, no new applicant will be entitled to supply of electricity for energizing new submersible pumps to be installed, cannot be accepted. Something, therefore, is required to be made till such time the regulations are made by the State Commission in terms of Section 46 of the Act. Because the State Commission has not made the Regulation, the Board will not give any new supply is not the stand of the Board. It is contending that such supply would be given, provided the applicant agrees to pay the cost of 10 K.V. transformer and incidental cost for installation thereof in addition to the cost of electric line. The State Commission has been empowered to ascertain what expenses may be reasonably incurred for providing any electric line or electrical plant. I would, therefore, venture to ascertain whether expenses reasonably incurred for providing any electric line or electrical plant would include the cost of installation of a transformer ?
13. "Electric line", though means any line, which is used for carrying electricity for any purpose, but is not a part of an electrical plant. Transmission lines are comprised of high-pressure cables and overhead lines transmitting electricity from a generating station to another generation station or to a substation, together with any step-up and step-down transformer. It, therefore, appears to me that the cable used for carrying electricity to a transformer is a part of or continuation of the transmission line, for a single transformer would be a sub-station, and not electric line. From the transformer when electricity is carried to the consumer's premises, that is through the electric line. In that view of the matter, it appears to me, as I have seen in some of these matters, when a quotation is prepared, the cost is estimated for three different stages. The first stage comprises of cost for drawing the cable from the existing transmission line to the transformer to be installed, which cable for the reasons as indicated forms parts of the transmission line, the second stage is the cost of installation of the transformer and the third stage is the cost of drawing the electric line, that is to say, the cable to be drawn from the transformer to the place where supply is to be effected. Section 46 of the Act clearly empowers the distribution licensee to claim expenses reasonably incurred for providing electric line. The petitioners, therefore, cannot avoid payment of the cost required for drawing the cable from the transformer to the place where they want the supply.
14. "Electrical plant" means any plant, equipment, apparatus or appliance used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include, inter alia, an electric line. It cannot be disputed that transformer is an equipment, which is necessary for transmission of electricity and similarly transmission line is an apparatus or appliance for transmission of electricity. In such view of the matter, it appears that the expression "electrical plant", used in Section 46 of the Act, would include transformer as well as transmission line and accordingly, distribution licensee is entitled to charge expenses reasonably incurred for providing transformer as well as transmission line in addition to electric line from the applicant seeking supply of electricity. In such view of the matter it appears to me that the present mandate of the legislature is that the distribution licensee is entitled to charge the cost of installation of a transformer and also the cost of laying the cable and other apparatus to energize such transformer.
15. What would be reasonable expense is a question of fact, which cannot be decided by me sitting in this jurisdiction. At the same time in none of these petitions it has been contended that the price of the transformer, as claimed, is exorbitant for a transformer of the same capacity is available at a lower price. None of the petitioners has contended that the cost of the cable for energizing the transformer, as claimed, is unreasonable. Similarly, none of the petitioners has contended that the cost of the electric line, as claimed, is unreasonable. The main thrust of the arguments was that the Board is not entitled to claim the cost of transformer and incidental expenses required for installation thereof. In such view of the matter I hold that those petitioners, who approached this Court contending that they are entitled to supply of electricity without payment of the cost of the transformer as well as the cost of the cable to be provided for energizing the transformer did not take note of the legislative change effected by the Act and, accordingly, their claims have no legal basis. In such view of the mater, W. P. 13691 (W) of 2000, W. P. 13459 (W) of 2003, W. P. 14461 (W) of 2003, W. P. 15083 (W) of 2003, W. P. 15328 (W) of 2003, W. P. 15410 (W) of 2003, W. P. 15509 (W) of 2003, W. P. 15575 (W) of 2003, W. P. 15784 (W) of 2003, W. P. 16157 (W) of 2003, W. P. 16531 (W) of 2003, W. P. 16532 (W) of 2003, W. P. 17795 (W) of 2003, W. P. 18541 (W) of 2003, W. P. 20085 (W) of 2003 and W. P. 442 (W) of 2004 are dismissed without any order as to costs. However, I direct the Board to keep alive the subject quotations for a period of 30 days from today and in the event the petitioners in the said writ petitions discharge their obligations in terms of the quotations, being the subject-matter of the said writ petitions, the Board shall effect supply of electricity to them within 21 days from the date of compliance of the requisites contained in the said quotations.
16. It was urged on behalf of some of the petitioners that a customer of the Board has already installed a submersible pump for which a 10 K.V. transformer has been installed. From that transformer itself at least one more supply can be effected in the vicinity. In other words, they contended that commissioning of a new sub-station for effecting supply as has been applied for is complete in terms of Section 43 of the Act, and, accordingly, the Board is bound to effect such supply. No doubt there is some substance in such submission. When a 10 K.V. transformer has been installed to energize a 3.5 H.P. submersible pump, there is a spare capacity of the transformer to energize at least one more submersible pump. In such view of the matter the requirement of commissioning of the new sub-station is complete for effecting one more such supply. The question is, will it be proper to permit the person coming latter to take advantage of a transformer installed at the cost of the person who came earlier ? I think that will not be proper as the same would give an undue advantage to the person who has come later and per chance got the advantage of the spare capacity of the transformer available. It would also be discriminatory in nature. I think the Commission while framing the regulations will appropriately deal with this aspect. For the time being and until such time the Commission has made the regulation every one should be placed in the same place and no one should be put to any advantageous position and, therefore, each new submersible pump owner would be required to pay for the cost of a 10 K.V. transformer along with the cable required for energizing the transformer and also the cost of the electric line for obtaining supply of electricity. The same would make the dealings of the Board transparent and avoid discrimination. At this juncture it is apt to remember that efforts are being made to locate supplier of transformers having lesser capacity. In the event transformer of 5 K.V. or 6 K.V. can be located in the near future, the reasonable cost for providing such transformer would be reduced and the person applying for supply would be required to pay for such transformer only. In the event such transformers are installed, there will be no spare capacity available for effecting supply to yet another applicant.
17. One of the petitioners urged that one of his near relatives has obtained supply of electricity upon paying the cost of installation of a 10 K.V. transformer and that such transformer has spare capacity to effect supply to the petitioner and the relative of such petitioner has no objection for effecting such supply. The statutory meaning of the electrical plant makes it abundantly clear that in order to be electrical plant, the same cannot belong to or remain under the control of a customer. The definition of "sub-station" read with the definition of "electrical plant" with the statutory mandate contained in Section 43 of the Act makes it abundantly clear that the transformer, which is required for transmission of electricity, is an equipment owned by and remains under the control of the distribution licensee, though paid for by the customer, and, accordingly, the relative of the petitioner, who has paid for installation of such transformer, has no say how that transformer shall be used. At the same time, the distribution licensee, in the instant case, being a public authority, cannot say that it would effect supply to a customer from the spare capacity of the 10 K.V. transformer already installed for energizing the submersible pump of a relative of the applicant and will not do so when the existing customer is not a relative of the prospective applicant.
18. In relation to the writ petitions where quotations have been issued and the petitioners have complied with the requisites contained in such quotations, I do not think that the Board in its capacity as distribution licensee can at all delay in effecting supply of electricity. It is true that in all such cases also demands have been made for payment of cost of the transformer, which in turn shows that to effect supply of electricity to the respective applicants commissioning of a sub-station is a necessity and, accordingly, strictly speaking the mandate of 'one month', contained in Section 43 of the Act, is not applicable, but after having had recovered the charges for installation of the sub-station or the transformer, the Board cannot sit tight over the matter and thereby enjoy the moneys belonging to the prospective customers without rendering reciprocal obligation to such customers. In a situation of that nature although the mandate of 'one month' is not applicable but the same cannot extend beyond a reasonable time after receipt of the payments made by the prospective customers towards the electrical plant to be installed for effecting such supply including payment of costs of electric line. What should be the reasonable time is a matter, which would ultimately be decided by the State Commission. Until such time, however, I think the same may be extended only by one more month having regard to the mandate of 'one month' in the statute. In those circumstances, where the Board had asked the petitioners to pay the cost of the transformer of 10 K.V, capacity and the petitioners have paid the same, within 21 days from today they should: be supplied electricity.
19. It appears from some of the writ petitions that the Board demanded payment of appropriate cost for installation of a transformer having capacity more than 10 K.V. from a number of people, who were proposed to be given supply of electricity from such transformer having more than 10 K.V. capacity. Those people have paid the amounts as demanded by the Board in the quotations. Subsequently the Board decided not to effect supply to them on the basis of the present policy of the Board that each submersible pump must have a sub-station of 10 K.V. capacity. Such a policy could have legal sanction if the same had been implemented in consultation with the State Government when the Electricity (Supply) Act, 1948 was in vogue. Today such policy is of not effect at all. Today the one and the only condition is, reasonable expenses to be incurred for providing electric line or electrical plant. When the Board has already determined that the reasonable expenses for providing the electrical plant is such, as has been mentioned in the subject quotations, and held out the same to the prospective customers by handing over the quotations, it cannot turn around and say today that for my policy has been changed, such expenses cannot be treated to be reasonable, inasmuch as the duty cast upon by Section 43 of the Act is to effect supply on commission of new sub-station and for the purpose of commissioning of the new sub-station the Board has already collected the expenses required to be incurred therefor from the prospective customers.
In such view of the matter in relation to those petitioners, to whom it had been expressly held out by the Board that upon payment of a sum, as mentioned in the quotations, a transformer having a capacity of more than 10 K.V, will be installed by the Board for the purpose of effecting supply of electricity, as has been applied for by a group of people to whom such quotations had been issued if those group of people have discharged their obligations under the quotations, the Board cannot refuse to effect supply of electricity to them, on the contrary the Board is required to install such sub-station having capacity of more than 10 K.V. and to effect supply of electricity to the group of people who had paid for the same and, accordingly, the Board is directed to effect such supply within 21 days from today after installation of such sub-station.
20. In this connection one must also' take note of the following condition contained in the quotations:
"4. ........................................
(iii) an Agreement must be executed with a non-judicial stamp of Rs. 10.00 & a Revenue Stamp of Re. 1.00 at the time of deposition of money".
21. In view of the above clause of the quotations acceptance of the amount of the quotations denotes execution of an agreement with non-judicial stamp of Rs. 10/- and a revenue stamp of Rs. 1/- by the prospective customer. The agreement inter se the parties must, therefore, be deemed to be complete on the date the money in terms of the quotations is accepted. The same must have already been signed by or on behalf of the Board, but because the Board has not signed, the Board cannot say that the agreement has not been entered into by and between the Board and the prospective customers. In such view of the matter for all practical purposes it must be deemed that the agreement stood concluded by and between the parties as on the date of deposition of money as demanded by the quotation and in terms thereof the prospective customers became entitled to supply of electricity from the transformer of a capacity of more than 10 K.V. If, therefore, the moneys pursuant to such quotations have been accepted, the Board cannot refuse to effect supply to the customers who have discharged their obligations in terms of quotations on the ground that in terms of the present policy of the Board a 10 K.V. transformer for each submersible pump is a must, inasmuch as a concluded contract cannot be altered unilaterally by one of the parties to the contract unless such alteration has statutory mandate and, as aforesaid; on and from the date of coming into force of the said Act, the change in the policy of the Board in the matter of effecting supply of electricity in its capacity as a distribution licensee, has no statutory or legal effect.
22. In relation to a few writ petitions it is the case of the Board that the writ petitioners did not make the deposits as had been mentioned in the quotations. The Board is contending that the quotation was issued in favour of others and the payments were, accordingly, made by others and not by the petitioners. This is a disputed question of fact, which I cannot determine. However, in the receipts granted while accepting the deposits, the Board had indicated in the receipts that the money, receipt whereof has been acknowledged thereby, had been deposited by one person named and by others who have not been named. Who are these other persons, who had not been named in the receipts, have not been correctly brought on record. The Board being a public utility authority as well as a public authority is required to act fairly and, accordingly, inform in writing to those petitioners, payment by whom is being disputed, the names and particulars of the persons, who, according to the Board, had paid the moneys as shown in the receipts granted by the Board as quickly as possible but not later than 21 days from today so that those petitioners may take appropriate legal step in accordance with law as they may be advised.
23. Accordingly Writ Petitions, being W. P. 14509 (W) of 2003, W. P. 15097 (W) of 2003, W. P. 16033 to 16036 (W) of 2003, W. P. 16289 (W) of 2003, W. P. 16475 (W) of 2003, W. P. 16488 to 16490 (W) of 2003, W. P. 16521 (W) of 2003, W. P. 17557 to 17559 (W) of 2003, W. P. 18581 (W) of 2003, W. P. 2021 (W) of 2003, W. P. 138 (W) of 2004, W. P. 172 (W) of 2004, W. P. 310 (W) of 2004, W. P. 536 (W) of 2004, W. P. 540 (W) of 2004, W. P. 548 (W) of 2004, W. P. 550 (W) of 2004, W. P. 551 (W) of 2004, W. P. 554 to 555 (W) of 2004, W. P. 557 (W) of 2004 and W. P. 1200 (W) of 2004 are disposed of with the directions as above to the Board.
24. There shall be no order as to costs.
25. Let the urgent xerox certified copy of this judgment, if applied for, be delivered to the learned advocates of both the parties as quickly as possible.