IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (C) No. 6557 of 2005
...
Anup Kumar Choudhary ... ... Petitioner
-V e r s u s-
1. Jharkhand State Electricity Board, Ranchi
2. The Chief Engineer (Electrical), J.S.E.B., Ranchi.
3. The Executive Engineer, Electric Supply Division, J.S.E.B., Kokar
Rural Area, Ranchi.
4. The Assistant Electrical Engineer, Electric Supply Sub-Division,
J.S.E.B., TatiSilway/Namkum Rural Area, Ranchi ... Respondents
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioner : - M/s. L.K. Bajla & R.K. Bhargava, Advocates.
For the Respondents : - Mr. V.P. Singh, Sr. Advocate
& Mr. Mukesh Kumar, Advocates.
...
C.A.V. On: - 11/08/2009 Delivered On: - 03/09/2009
...
6/ 03.09.2009
Petitioner, in this writ application, has prayed for issuance of an
appropriate writ in the nature of certiorari for quashing the order dated-
19.08.1995 (Annexure-8), by which the Respondents have rejected the
petitioner’s application for providing electric connection to his premises situated
within Plot No. 1253 to 1262 at Mihilong, Namkom in the district of Ranchi. The
grievance of the petitioner is that in spite of his application submitted together
with requisite fee, the Respondents have failed to provide electric connection to
his premises.
2. Earlier, with the same prayer, the petitioner had preferred a writ
application vide W.P. (C) No. 3055 of 2005. While disposing of the said writ
application, this Court by its order dated 29.06.2005, instead of deciding the case
on merits, gave liberty to the petitioner to approach the Executive Engineer,
Electric Supply Division, Kokar Urban Area, Ranchi and with a corresponding
direction to the Respondents to decide the petitioner’s claim within two months
by taking into consideration, the decision rendered by the Supreme Court in the
case of Isha Marbles-versus-Bihar State Electricity Board & others reported in
(1995) 2 SCC 682, wherein the Supreme Court held that the electric connection
cannot be refused to the subsequent owner on the ground of outstanding dues
against the erstwhile owner and to communicate to the petitioner, if any adverse
decision is taken by the concerned authorities. The representation having been
rejected by the impugned order, the petitioner has filed the instant writ petition.
3. The petitioner’s case is that he had purchased the land alongwith
residential house situated over the aforementioned plots, comprising a total area
of 6.48 acres, from one M/s. Sahu Gupta Industries, under a registered sale deed
dated 11.09.2000. The name of the petitioner was mutated in the Government
Revenue Records vide an order dated 23.03.2001, passed in Mutation Case No.
787-R/2000-2001. After mutation, the petitioner had deposited rent and had
obtained rent receipt.
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[W.P. (C) No. 6557 of 2005]
The petitioner thereafter submitted his application
alongwith requisite fee, before the Respondent-Electricity Board, praying for
giving electric connection to his premises. His prayer was however, refused by the
Respondents-authorities on the ground that some dues towards electricity charges
against the erstwhile owner of the land, have remained unpaid.
4. Pursuant to the directions contained in the order passed in the
earlier writ application, the petitioner submitted his detailed representation,
enclosing therewith a copy of the sale deed, copies of the rent receipts and other
particulars as well as the requisite fees.
5. However, despite the directions contained in the earlier order
passed in the writ application, the Respondents have failed to follow the ratio
decided in the judgment of the Supreme Court in the case of Isha Marbles
(Supra), and have rejected the petitioner’s application to provide the new electric
connection to his premises on the same ground that the electricity dues, payable
by the erstwhile owner of the land, has not been cleared.
6. Learned counsel for the petitioner submits that the refusal of the
Respondents to provide a new electric connection to the petitioner, on the ground
of non-payment of electricity dues by the erstwhile owner, is totally illegal and
contrary to the ratio decided by the Supreme Court in the case of Isha Marbles
(Supra).
Learned counsel explains further, that the reliance placed
by the Respondents in the case of M/s. Swarn Rekha Enterprises is not applicable
to the facts of the present case, as because in the M/s. Swarn Rekha Enterprises’
case, the claim for a new electric connection was made by one of the partners of
the original Firm against which the electric dues had remained uncleared and the
liability was therefore cast upon the partner to pay the dues of the Firm. Referring
to the case of Isha Marbles (Supra), learned counsel would argue that on
considering the facts of the case that there was no charge over the property, the
purchaser of the property could not be called upon to clear the dues of electric
consumption charge owed by the previous consumer/owner.
Learned counsel submits further that the same ratio was
followed by a Bench of this Court in the case of Kanaklata Sharma-versus-
Jharkhand State Electricity Board & Others reported in 2005 (4) J.L.J.R. 267 and
earlier in the case of Smt. Rekha Gupta-versus-Bihar State Electricity Board &
others reported in 1999 (3) P.L.J.R. 22 and also in a recent judgment of this Court
in the case of Smt. Maya Devi-versus-State of Jharkhand & Others, passed in
W.P. (C) No. 4443 of 2007.
7. Per contra, the stand taken by the Respondents-Electricity Board is
as follows: –
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[W.P. (C) No. 6557 of 2005]
(i) The land in question belonged originally to
M/s. Sahu Gupta Industries, which was a
partnership Firm. The Firm sold away the property
to the present petitioner without clearing the
charges towards electric consumption by more than
Rs. 18 Lakhs till the year 1998-99. A Certificate
Case was initiated against the Firm and its partners
for realization of the amount vide Certificate Case
No. 1 (M) 95-96/34/98-99, which is still pending.
(ii) At the time of purchase of the property, the
petitioner had acknowledged the debt which the
Firm had owed to the Bank and had sold away the
Machines and the Scrap materials of the Firm to
clear off the loan dues of the Bank, which was
pending against the erstwhile owner.
(iii) The petitioner had purchased the property in
a private negotiation after being fully acquainted
with the liability of the Firm, including the financial
liability towards the Respondents-J.S.E.B. for the
electricity dues.
(iv) In the Certificate Proceedings, the
Certificate Court had ordered the erstwhile owner,
not to dispose of the property without prior
permission and inspite of such order, the petitioner
had proceeded to purchase the premises from the
erstwhile owner through the sale deed.
(v) It was the duty of the purchaser to satisfy
himself that there was no electricity dues before
purchasing the premises.
(vi) The ratio decided in the Isha Marble’s case
(Supra) does not apply to the facts of the present
case, because in Isha Marble’s case (Supra), the
property was purchased in auction by the auction
purchaser and under such circumstances, it was held
that the auction purchaser could not be saddled with
any responsibility of liquidating the debt of the
erstwhile owner.
(vii) On the other hand, this Court in the case of
Prashant Kumar Gupta-versus-Bihar State
Electricity Board & Others reported in 2001 (2)
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[W.P. (C) No. 6557 of 2005]
J.C.R. 103 (Jhr.), and the Supreme Court in the case
of M/s. Hyderabad Vanaspati-versus- AP
Electricity Board reported in (1998) 2 SCR 620, had
declared that the ratio in the case of Isha Marbles
would not apply in cases of private sale between the
parties. The present purchaser therefore, has to pay
the dues of the erstwhile owner and without
clearance of the dues, the Electricity Board cannot
be called upon to extend a new electric connection
to the new purchaser.
8. From the rival submissions, the following admitted facts emerge: –
(i) The petitioner had purchased the property
from the erstwhile owner by virtue of a sale deed.
(ii) The deal was apparently a private deal
between the erstwhile owner and the petitioner.
(iii) For realization of the electricity dues, the
Respondent-J.S.E.B. has initiated a Certificate
Proceeding against the erstwhile owner.
(iv) The petitioner had submitted his application
for electric connection alongwith the requisite fee
and all the relevant documents to confirm that he
was the new owner of the property, since after the
date of its purchase.
(v) Admittedly, the prohibition, if any, made by
the order of the Certificate Officer in the Certificate
Proceedings against the erstwhile owner from
selling away the property, did not create any charge
over the property in favour of the Respondent-
Board. The violation of the order may at best invite
penal or other consequences as laid down under the
law against the erstwhile owner only.
9. In Isha Marbles’ case (Supra), while considering the various
provisions under the Electricity Act, relating to the supply of electricity to the
owner or occupiers of land, the Supreme Court had observed that the provisions
under the Act, declared that the supply of electric energy, would be governed
under the terms of a contract executed by and between the licensee and the
prospective consumer. The conditions, which could be imposed as per the
provisions of the Act, to bind the consumer, do not provide for imposing any
liability upon the prospective consumer in respect of the dues towards electric
consumption owed by the previous owner of the property. The Court had also
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[W.P. (C) No. 6557 of 2005]
observed on the facts of the case, that there was no charge on the property
acquired by the prospective consumer.
Following the ratio as decided in the Isha Marble’s case,
(Supra), this Court in the case of Kanaklata Sharma (Supra), had declared that
there cannot be an electric energy dues against a premises, but it could be against
an occupant or the consumer. The outstanding dues, as claimed by the
Respondents, being in the name of the erstwhile owner, the liability cannot be
thrust upon the purchaser of the property.
In the case of Smt. Rekha Gupta (Supra), in which the facts
are almost identical to the facts of the present case, the Court had observed that
the supply of electric energy, being guided on a personal contract between the
parties, namely, the licensee and the consumer, the obligations under such
contracts cannot be enforced upon the third party. A Party to the contract has the
remedy to recover the dues from the party thereof for the non-fulfillment of the
contractual obligations by filing a suit or by initiating a Certificate proceeding
under the Bihar & Orissa Public Demand Recovery Act. It is a personal liability
of a contracting party and such personal liability cannot be fastened with the
landlord or the bona fide purchaser who is not in any manner connected with the
erstwhile consumer/vendor as it is not charge over the property.
10. The question as to whether the Board can refuse to grant electric
connection on the ground that the erstwhile occupier of the premises defaulted in
payment of the dues, came up for consideration before this Court, in the case of
Smt. Maya Devi (Supra).
After discussing the relevant provisions of the Electricity
Act, 2003, relating to supply of electric connection, and following the ratio laid
down by the Supreme Court in Isha Marble’s case (Supra), this Court had
observed that the Regulations framed under the Electricity Act, specifically
provides that the authority cannot deny supply of electricity on the ground that the
old consumer committed default in payment of dues and left the premises,
provides that the new incumbent is not in any way connected with previous
occupier of the premises, who had committed default. Rejecting the grounds
advanced by the Electricity Board, this Court had directed the Board to accept the
application of the writ petitioner, for giving a fresh electric connection to his
premises.
11. In the instant case, the Respondents has not come up with any such
material from which an inference can be drawn that the present petitioner/the new
purchaser, was in any way connected with the previous owner or occupier of the
premises or that the petitioner had the knowledge of the dues owed by the
previous owner to the Electricity Board and had undertaken any responsibility to
clear the dues of the Board by way of any indemnity. The judgments referred to
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[W.P. (C) No. 6557 of 2005]
by the learned counsel for the Respondents-Board in the cases of (i) Prashant
Kumar Gupta and (ii) Hyderabad Vanaspati (Supra), would not apply to the facts
of the present case, since the facts in both the cases are different and indicate that
there was nexus between the previous owner and the new purchaser and that the
sale and purchase of the property of the previous owner was with intent to defraud
the Electricity Board with the connivance of the purchaser who also had the
knowledge about the Electricity dues owed by the previous owner.
12. In the light of the above discussions, I find merit in this writ
application. Accordingly, this application is allowed. The Respondents-Board is
directed to accept the application of the petitioner for giving fresh connection to
the premises in question and to supply electricity to the petitioner’s premises
within 30 days from the date of receipt/production of a copy of this order, if the
application of the petitioner, is otherwise in accordance with the Rules and
procedure as laid down under the Electricity Act and the Regulations there under.
13. Let a copy of this order be given to the learned counsel for the
Respondent-Board.
(D.G.R. Patnaik, J.)
APK/A.F.R.