JUDGMENT
The Court
1. The husband and wife are the petitioners in this and have
Jointly prayed for two separate new electric connections in the premises No.
33. Rabindra Saranl, Liluah, Howrah. There is no dispute that applications
of the petitioners have been received by the CESC and at certain stage It
had agreed to give connection in usual course. However, dispute has arisen
as CESC demanded for payment of the alleged outstanding dues of Rs.
14,723/- in respect of electric energy consumed in past by the third parties
at the same premises.
2. The grievance of the petitioners is that the petitioners are not liable
to pay the same as they were not consuming electric energy nor they are
consumers for the above outstanding dues. Therefore, under any circum
stances they are not obliged to pay any amount in this respect for obtaining
new separate connection.
3. In affidavtt-in-opposition, the case of the CESC in substance, is that the petitioners were the beneficiaries in respect of the supply line previously
given to one M/s. Shyam Steel Corporation which was surrendered subsequently. The said Shyam Steel Corporation was a tenant in respect of the said premises, therefore, the petitioners are obliged to pay the aforesaid amount in order to get separate supply connection. Another technical point has been taken that the petitioner No. 2 Rlna Shaw is not the lawful occupant, so she cannot obtain separate connection.
4. The learned lawyer for the writ petitioners contends that the agreement between the consumer and the CESC being the licensee, is always governed by the Contract Act and the mutual rights and obligation always emanate from the contractual terms and conditions. The petitioners were not consumer not ever took any obligation to pay off the dues in relation to the agreement entered into by the previous tenant. So, CESC cannot claim the above amount as a condition precedent to give new separate connection. Neither Indian Electricity Act, 1910 nor Electricity (Supply) Act, 1948 does not enjoin any such right or power upon the CESC.
5. Mr. Subir Sanyal, learned advocate appearing for the CESC contends that petitioner No. 2 under the law cannot get any supply line as she is neither a tenant nor lawful occupant nor owner of the premises. At the first Instance, I have no hesitation to reject this contention’ of locus standi of the petitioner No. 2 as she is the wife of the petitioner No. 1. The marital obligation of Hindu husband amongst other is to give shelter and maintain his wife. This is almost indefeasible right of lawfully married wife originate from marital relationship. So, the petitioner No, 2 has right of residence with her husband at the premises in question a fortiori a lawful occupant. As such she is eligible to get electric supply line.
6. Mr. Sanyal next contends that the petitioners were the beneficiaries of the previous electric supply line which stood in the name of the tenant. Therefore, they were the: de-facto consumer. The petitioners are really as.klng for restoration of electric supply line in a circuitous way. The petitioners are obliged to pay the outstanding dues to get supply line.
7. He has also drawn my attention to the provision of section 49B of the Electricity (Supply) Act, 1948 being the West Bengal State amendment and contends that the CESC is entitled to recover this amount by virtue of the aforesaid provision. In support of his submission he has also referred to a decision of the learned single Judge of this Court reported in 1995 (II) CHN page 4.
8. The learned lawyer for the petitioners contends that the aforesaid Judgment of the learned single Judge is not an authority in view of the fact that on the identical point of law the earlier decision of the Supreme Court was not considered by the learned Judge while rendering the said Judgment. Therefore, the aforesaid judgment of the Hon’ble Justice Gitesh Ranjan Bhattacharjee (as His Lordship then was) should not be relied on by this Court.
9. Having heard respective contentions of the learned lawyers, in this matter the only issue that has fallen for consideration is that whether the petitioners are under obligation under the law to pay off the alleged outstanding dues of the erstwhile tenant, viz. M/s. Shyam Steel Corporation or not in order to get new separate connection.
10. Once I thought that the amended provision of section 49B would help the CESC. however, upon close examination of section 49B it appears to me that it does not give any right to CESC to deny the prospective consumer to get new electric connection on account of the alleged outstanding dues in respect of the selfsame premises. Section 49B of the said Act as amended is quoted hereunder:
“49-B. Recovery of dues as public demand in certain circumstances.–Where any sum is due from a consumer on account of supply of electricity or other charges and where such defaulting consumer, being an industrial or commercial concern or establishment, becomes sick financially or otherwise and is wound up or closed or put to sale, or transfers its ownership or management, or is amalgamated with any other Industrial or commercial concern or establishment, or where any scheme is drawn up for re-opening or revitalizing or restricting such Industrial or commercial concern or establishment, either under its own ownership or management or under any new ownership or management, whether in the former name or in a new name, for continuing the same process or function or production as was in vogue prior to its becoming sick or for any other purposes, either on its own or by the order of any Court, Tribunal or other authority, then, notwithstanding the foregoing provisions of this section or the order of the Court, Tribunal or other authority, the sum due to the Board or a licensee shall stand recoverable and shall be recovered from the sale proceeds or from the former owner or Manager or new owner or Manager, as the case may be, as being a charge recoverable as a public demand under the Public Demands Recovery Act, 1913, and the authority under whose order such industrial or commercial concern or establishment is wound up, closed or put to sale, or the ownership or management is transferred, or is amalgamated, or any scheme is drawn up for its re-opening or revitalization or restructuring, as the case may be, shall take such steps as may be necessary for expeditious recovery and payment of the dues of the Board or the licensee, as the case may be. from such sale proceeds or from the owner or manager together with interest at the rate of current bank rate on the outstanding sum as aforesaid for the period commencing from the date on which such sum became due till the date of payment.”
11. The contract for electric supply to the prospective consumer is governed by section 22 of the Indian Electricity Act. 1910 which is also quoted hereunder:
“22. Obligation on licensee to supply energy.-
Where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and conditions of the licence, be entitled, on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply:
provided that no person shall be entitled to demand, or to continue to
receive, from a licensee a supply of energy for any premises having a
separate supply unless he has agreed with the licensee to pay to him
. such minimum annual sum as will give him a reasonable return on the
capital expenditure, and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable Lo be determined in case of difference or dispute by arbitration.”
12. It will appear from the aforesaid section 22 that every person who is lawful occupant is entitled to get any supply line if he agrees to the terms and conditions as stipulated by the licensee. However, the licensee cannot put in such terms and conditions which are not permissible under the law. Clause VI of Schedule has authorized the licensee to put in terms and conditions for giving supply line to the prospective consumer. The terms and conditions as mentioned in the clauses 1 (a) and (b) of the proviso of Schedule VI are quoted hereunder:
“VI. Requisition for supply to owners or occupiers in: vicinity.-
(1) Where, after distributing mains have been laid down under the . provisions of clause IV or clause V and the supply of energy through those mains or any of them has commenced a requisition is made by the owner or occupier of any premises situate within the area of supply requiring the licensee to supply energy for such premises, the licensee shall, within one month from the making of the requisition or within such longer period as the Electrical Inspector may allow supply, and, save in so far as he is prevented from doing so by cyclones, floods, storms or other occurrences beyond his control, continue to supply, energy in accordance with the requisition:
Provided, first, that the licensee shall not be bound to comply with any such requisition unless and until the person making It-
(a) within fourteen days after the service on him by the licensee of a notice in writing in this behalf, tenders to the licensee a written contract, in a form approved by the State Government, duly executed and with sufficient security, binding himself to take a supply of energy for not less than two years to such amount as will assure to the licensee at the current rates charged by him. an annual revenue not exceeding fifteen per centum of the cost of the service-line required to comply with requisition, and
(b) if required by the licensee so to do, pays to the licensee the: cost of so much of any service-line as may be laid down or placed for the purposes of the supply upon the property in respect of which the requisition is made, and of so much of any service-line as it may be necessary for the said purposes to lay down or place beyond one hundred feet from the licensee’s distributing main, although not on that property.”
13. From the aforesaid provision it does not appear that the licensee is entitled to. put forward any terms and conditions for realization of the outstanding dues albeit in respect of the same premises as against the previous consumer. The aforesaid provision of 49B of the Act to my mind enables at the highest to collect outstanding electricity dues from successor-in-interest in case of transfer of property served with electric supply line. The contract between the consumer and the licensee under the aforesaid Act does not stand on a separate footing from that of the ordinary contract. The contracting parties
are bound to perform contractual obligation under the provisions of the
Contract Act. The contractual obligation of one party cannot be discharged
by third party, unless he or she has expressly undertaken to do so and that
Is why the contract of guarantee is provided for. If the previous consumer
has not discharged his obligation tt is for the licensee to compel him to
perform by taking recourse to law under the law of the Contract Act and
for this reason a third party cannot be compelled to perform unless agreed
upon. The owner of the premises, cannot be treated to be a.guarantor of
his/her tenant for discharge of the contractual obligation or vice-versa. The
stand and/or step which has been taken by the CESC here is almost akin
to this principle of law of guarantee. Here the petitioners have been in
substance, treated to be a guarantor for paymen of the alleged outstanding
dues of the tenant who was a consumer with a separate contract. Under
the law this is not permissible, even the above amended provision of section
49B does not help in this case as the petitioners are not successor in Interest
of property. Mr. Sanyal has relied on the decision of the learned single Judge
of this Court to bring home his point. I am of the view that the aforesaid
Judgment is no longer a good law in view of the earlier decision of the
Supreme Court appropriately cited by the
learned lawyer for the petitioners. In the said decision of the Supreme Court,
an auction purchaser of an industrial unit was denied restoration of electric
supply line of the previous owner of the unit and the line was not restored
therein as there was alleged outstanding dues and were payable by the
previous owner. In that case, the Supreme Court has held amongst other
as follows:-
“Where that premises comes to be owned or occupied by the auction purchaser, when such purchaser seeks supply of electric energy he cannot be called upon to clear the past arrears as a condition precedent to supply. There is no charge over the property- What matters is the contract entered into by the erstwhile consumer with the Board. The Board cannot seek the enforcement of contractual liability against the third party. …..”
14. It seems to me that legislature of the State of West Bengal in order to circumvent the above Judicial pronouncement has brought about amendment incorporating section 49B intending, amongst other to create statutory charge over the property in relation to outstanding electricity dues in case of transfer. In this case the tenant was a consumer with a separate contract and the owners have now applied for separate connections. So, following the aforesaid decision of the Supreme Court I am of the view that the CESC cannot ask for payment of the dues of the erstwhile tenant from the landlord and vice versa. It was open for the CESC to realize the outstanding dues as and when it fell due either by legal proceedings or should have asked for additional and sufficient security when it was detected that the value of consumption had exceeded the amount of security. The licensee CESC was absolutely callous and indifferent not taking appropriate, action for realizing or for not guarding interest of the CESC by demanding the outstanding dues inappropriate time. Because of this .negligent act and callousness a third party cannot be made responsible. This stand of CESC in my view is not only a futile attempt to cover up negligence of Its staffs and officials, but arbitrary and unreasonable exercise too.
15. Under such circumstances, I am of the view it would be open for the CESC to realize the same from defaulting person. If it is otherwise permissible. I wonder to find that how the CESC could allow the erstwhile tenant to go scot free without asking for payment of electricity dues when it fell due. Therefore, the contention of Mr. Sanya] is not accepted by me.
Thus, the writ petition is allowed. I direct the CESC to give separate supply line in the name of the petitioners in accordance with law, however, without realizing alleged outstanding dues of the tenant.
Mr. Sanyal prays for stay of operation of this Judgment and order. Such prayer is considered and refused.
Let xerox certified copy of this Judgment and order be made available
to the parties on urgent basis. If applied for.
All parties concerned are to act on a signed copy of the minutes of the operative portion of this Judgment and order on the usual undertaking.
16. Petition allowed