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DBar Code Restro Bar & Club LLP & Another v/s CESC Limited & Others

    W.P. No. 23338 (W) of 2019 with CAN 1 of 2021

    Decided On, 15 February 2022

    At, High Court of Judicature at Calcutta


    For the Petitioners: Sarvesh Chandra Shrivastava, Advocate. For the Respondents: Debanjan Mukherjee, Krishnakant Thaker, Chayan Gupta, Rajesh Upadhyay, Sudipto Panda, Munmun Tiwary, Debasish Mondal, Advocates.

Judgment Text

1. The petitioners, being the lessees in respect of the disputed premises under the private respondent nos. 6 and 7, have filed the present writ petition on the allegation that the lessors/respondent nos. 6 and 7 are disrupting electric supply to the tenanted premises regularly. The petitioners are running a bar and restaurant as well as a club from the said premises and are, thus, suffering serious loss of business and goodwill due to such alleged disruptions.

2. It is contended by the petitioner that the petitioner entered into a lease agreement dated July 19, 2016, wherein the lease rent was fixed at Rs.16,00,000/- per month, for user of a commercial space.

3. However, due to alleged disruption of power supply by the lessors, the petitioners were constrained to apply for fresh electric connection in their own name. However, when the CESC personnel came for inspection for the purpose of giving such new connection in the name of the petitioners, they were raised by the private respondents and their men and agents, thereby preventing the CESC personnel from giving such electric connection to the petitioner and/or holding inspection in that regard.

4. Learned counsel appearing for the private respondents submits that the writ petitioners have suppressed relevant facts. As such, the writ petition ought to be dismissed since the petitioners have approached the writ court with unclean hands.

5. It is submitted that the lessors and the petitioners entered into not one but as many as three agreements, all dated July 19, 2016. As per the lease deed disclosed in the writ petition, the commercial space was to be enjoyed at a lease rent of Rs.60,000/-. It is further pointed out that the said deed entitled the petitioners to enjoy power load capacity of 2 kVA only from one electric meter.

6. The second deed entered into between the private parties on the same date as the first provided that, for scheduled maintenance, amenities, utilities and other purposes in respect of the said commercial space, the petitioners would be entitled to 60 kVA power load capacity, also to be provided by the lessors. The total rent payable as per the said agreement was Rs.1,90,000/- per month.

7. The third agreement between he lessors and the lessees provided that, for signboard display, the petitioner would pay a monthly amount of Rs.1,20,000/-.

8. Hence, it is argued by the respondent nos.6 and 7 that the entire lease agreement between the lessors and the lessees comprised of not only the agreement disclosed in the writ petition but all the three agreements, referred to above, dated July 19, 2016. Learned counsel for the private respondents places reliance on photocopies of the said documents, annexed to their pleadings by way of the application for dismissal of the writ petition as well as exception to the report filed by the CESC Limited in the present writ petition.

9. It is further argued by learned counsel for the respondent nos.6 and 7 that, in terms of the first two agreements, the petitioners are already enjoying 62 kVA power load capacity, upon payment of the composite monthly amount of Rs.2,50,000/- (60,000/-+1,90,000/-).That apart, for display of the signboard of petitioner no.1, the petitioners are to pay Rs.1,20,000/- per month.

10. Thus, it is submitted that the petitioners are already entitled to 62 kVA power load capacity as per the three subsisting agreements between the private parties, but are using a lesser load at present.

11. Moreover, it is contended that the petitioners have even applied for a power load capacity less than that actually used at present by the petitioners and much less than 62 kVA which they are entitled to use as per the first two agreements.

12. It is further submitted that the entire rent of the premises is comprised of the composite monthly amount of Rs.3,70,000/- (60,000/- + 1,90,000/- + 1,20,000/-).

13. It is argued that the lessee is seeking to modify the terms of the three agreements by obtaining an order from the writ court. It is further insinuated that the CESC Limited is acting hand-in-glove with the petitioners in suppressing the bar to the petitioners in taking another electric connection at the premises-in-question, since a new electric connection, if given to the petitioners at the same premises, would not be feasible and would definitely amount to splitting of loads, which would ultimately reduce the revenue of the CESC Limited itself.

14. Learned counsel for the respondent nos. 6 and 7 argues that such oblique attempt of the petitioners ought not to be encouraged by permitting the petitioners to take a new electric connection at the premises of the private respondents de hors the law and in gross and unlawful modification of the subsisting three agreements between the parties.

15. The plinth of the submissions of the petitioners is the right of a person to get electric supply, as embedded in Section 43 of the Electricity Act, 2003 (hereinafter referred to as “the 2003 Act”). However, such right is not unfettered and has to be exercised in such a manner which does not violate the rights of others and/or defies any law or legal contract entered into by the prospective consumer.

16. The CESC, in its report dated February 8, 2021 filed in the writ petition, stated that previously the writ petitioner used to enjoy electric supply for Meter No. 4716700 under Consumer No. 20033120041 (standing in the name of Respondent no. 6 Amitabh Kejriwal) and Meter No. 5005940 under Consumer No. 85202008064 (standing in the name of Accuphase Property Development Pvt. Ltd.). However, the former, that is, Meter No. 4716700 got burnt the year before, that is, in 2020 which was reported to the CESC Ltd. On June 26, 2020. The burnt meter, according to the CESC, lay disconnectedand the petitioner was enjoying electric supply from the latter, that is, Meter No. 5005940 as on the date of the report, that is, February 8, 2021.

17. In the application taking exception to the said report, respondent nos. 6 and 7 allege that the functional meter, that is, Meter No. 5005940 is providing uninterrupted and sufficient electric supply to the entire second floor, occupied by the writ petitioner no. 1-bar and that the meter load of the same is 58.8 kVA. It is also alleged that the said meter is a Current Transformer (CT) meter, which is installed only where there is a high demand of electricity load, and is a dedicated, exclusive electricity cable line from the CESC junction box on the public road to the meter.

18. In its affidavit-in-opposition to the exception, the CESC takes a stand that the meter of Amitabh Kejriwal has a sanctioned load of 24.29 kW, but that the said meter was found burnt and disconnected at the time of inspection. The CESC does not deny the allegation in the exception that the meter in the name of Accuphase was dedicated exclusively to the petitioner no. 1. Rather, it is admitted by the CESC that the sanctioned load for supply to the Accuphase meter is 50kW.

19. However, respondent nos. 6 and 7, in their reply to the CESC opposition, avers that the burnt meter had already been replaced before the opposition was affirmed.

20. It is conspicuous from the affidavit-in-opposition of the CESC Limited itself that the writ petitioner DBar Code Restro Bar & Club has applied for a separate meter connection against a connected load of 40 kW.

21. Thus, the following relevant details are borne out by the agreements and the CESC pleadings :

(i) The comprehensive lease agreement between the parties is comprised of the three agreements, all dated July 19, 2016.

(ii) As per the three agreements, the petitioners are entitled, upon a monthly payment of Rs.3,70,000/- (including signboard) in total and at least 2,50,000/-, to have 2kVA power load capacity plus an additional 60 kVA from a sub-meter, totalling 62 kVA.

(iii) The petitioners, however, applied to CESC for a new connection having sanctioned supply load of 40 kW only. [It is relevant that Real Power (in kW = kiloWatts) is expressed as the Apparent Power (in kVA = kiloVolt-Amps) multiplied by the Power Factor]

(iv) CESC version : Accuphase meter, dedicated to petitioner no.1- bar, has a meter load of 58.8 kVA and Respondent No. 6’s meter has a sanctioned load of 24.29 kW.

22. Thus, the petitioners are already enjoying electric supply having a meter load of about 58.8 kVA (as per CESC’s admission) from a dedicated meter at the premises-in-question, whereas they are entitled, only upon payment of Rs.3,70,000/- per month, to have 62 kVA. Over and above such existing supply, the since-repaired electric meter of the respondent no. 6 has a sanctioned load of 24.29 kW.

23. Hence, Section 43 of the 2003 Act is not violated at all in the present case, since, as per the three agreements themselves, the petitioners are entitled, upon payment of a monthly contractual amount of Rs. 3,70,000/-, to more power than they are currently using. Such power is being supplied by none other than the private respondent nos. 6 and 7 from at least two electric meters, one which stands in the name of the respondent no. 6 and the other in the name of Accuphase, a company owned and controlled by the private respondents.

24. Moreover, the other meter standing in the name of the respondent no. 6, from which the petitioner no. 1-bar also enjoys electricity, has an additional sanctioned load of 24.29 kW.

25. Hence, there is no scope of the petitioners suffering from any dearth of electricity at the premises-in-question. One meter is exclusively dedicated to the petitioner no. 1, thus ruling out any disruption to electric supply therefrom by the respondent nos. 6 and 7. The other meter is also available, if required.

26. Thus, as borne out by the records, in the name of infraction of Section 43 of the 2003 Act, the petitioners seek the blessings of a court order to modify the terms of the existing agreements between the parties as well as to avoid paying the substantial electric charges which are ex facie components of the total lease rent, that is, the total amount payable by the lessees/petitioners for enjoyment of the property and its amenities in the capacity of lessees.

27. Such an effort ought not to be sanctioned by the writ court, particularly, in view of the current pendency of a civil suit instituted by the petitioners themselves claiming similar reliefs, including a relief protecting the enjoyment of essential services, including electricity, by the petitioners, to be provided by the respondent nos. 6 and 7.

28. Moreover, the private respondents are justified in arguing that the petitioners have suppressed vital and relevant facts, particularly, in respect of the other two agreements subsisting between the parties, apart from the only agreement disclosed in the writ petition, the substant

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ial amounts of money payable by the petitioners to the private respondents in view of the other two agreements and the power load capacity of 62 kVA being sanctioned by the terms of the three agreements, in respect of which already a civil suit is pending at the behest of the petitioners. 29. In such view of the matter, the petitioners are not entitled to the reliefs as claimed in the writ petition. 30. Accordingly, W.P. No.23338 (W) of 2019 is dismissed on contest, without, however, any order as to costs. CAN 1 of 2021 also stands disposed of accordingly. 31. However, this order will not prevent the petitioners from approaching the civil court in the suit pending between the parties for pursuing the relief in respect of the petitioners’ contractual rights to enjoy 62 kVA power load capacity upon payment of the contractual dues, or as per direction of the civil court, to the respondent nos. 6 and 7. The civil court shall independently decide such questions without being influenced in any manner by any of the observations made herein. 32. Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.