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SCA/4921/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4921 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
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SASHIKALA
VIHAYEK BINEKAR
Versus
TORRENT
POWER LIMITED
======================================
Appearance :
MR
ASHOK N PARMAR for Petitioner
MR KB PUJARA for
Respondent
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 08/09/2008 ORAL JUDGMENT
1 Rule.
Learned counsel, Mr. K.B. Pujara waives service of Rule on behalf of
the respondent. At the request of learned counsel for the parties,
this petition is taken up for final hearing.
2 This
petition under Articles 226 and 227 of the Constitution of India is
filed by the petitioner, who claims to have purchased a flat from one
Rajendrakumar Gokulprashad Aherwal on 9th June 2007 by way
of power of attorney and sale agreement, for the following relief:
?SYour
Lordships be pleased to issue appropriate writ of mandamus,
certiorari, prohibition, or any other suitable writ, order in the
nature of writ of mandamus to direct the respondent to give
electricity supply to the petitioner at the premise.??
3 It
is averred in the petition that the erst-while owner, Rajendrakumar
Gokulprashad Aherwal [old consumer] had illegally utilized
electricity and a case under Section 135(1)(b) of the Electricity
Act, 2003 [for short, ‘the Act’] came to be registered against him,
and, ultimately, the competent Court under the Act sentenced said
Rajendrakumar Gokulprashad Aherwal to undergo R.I. for two years and
fine of Rs.4,50,000/- by judgment and order dated 26th
June 2007 in Electricity Special Criminal Case No.8 of 2007. Against
the order, Rajendrakumar Gokulprashad Aherwal filed Criminal Appeal
No.995 of 2007 with Criminal Misc. Application No.8413 of 2007 in
this Court and Rajendrakumar Gokulprashad Aherwal was granted
conditional bail of depositing Rs.1 lakhs.
4 The
petitioner purchased flat No.48/556, Vaishali Flat, Gujarat Housing
Board, Bapunagar, Ahmedabad, [for short ‘the said flat’] from
Rajendrakumar Gokulprashad Aherwal by virtue of unregistered
agreement to sell dated 9.6.2007 and general power of attorney dated
9.6.2007. Whether the transfer of the said flat by the above mode is
legal or not is a different question, but the fact remains that the
outstanding energy dues of the electricity company relatable to the
said flat remains unpaid by the erstwhile owner.
5 The
learned counsel for the petitioner submits that the petitioner is not
liable to pay the outstanding dues of the erstwhile owner and the
Electricity Company is duty bound to provide electricity connection
to the petitioner who is occupying the said flat by virtue of
unregistered agreement to sell dated 9.6.2007 and general power of
attorney dated 9.6.2007.
6 Upon
a query posed before the learned counsel for the petitioner whether
petitioner has right to seek electricity connection to a flat whose
erstwhile owner has not paid outstanding dues to the electricity
company and, under what provisions of the Act, the petitioner can
challenge the refusal of electricity connection, the learned counsel
for the petitioner is unable to satisfy this Court.
7 Mr.
K.B. Pujara, learned counsel for the respondent-Electricity Company,
has heavily relied upon the affidavit-in-reply filed by the Manager
of the Electricity Company and submitted that the erst-while owner
had committed theft of electricity and was sentenced to undergo R.I.
for two years and fine of Rs.4,50,000/- by judgment and order dated
29th June 2007 in Electricity Special Criminal Case No.8
of 2006 and, in appeal, he was granted bail, but the fact remains
that the dues of the electricity company still remain outstanding.
Mr. K.B. Pujara has relied upon Section 43 of the Act and submitted
that the distribution licencee shall give supply of electricity to
‘the premises’ and, therefore, the energy dues are relatable to the
premise where supply is granted and not certainly to the owner or
occupier of the premises. He further submits that Regulations 4.1.11,
4.8.3 and 8.7.5 of the Supply Code confer certain rights upon the
distribution licensee and, in case of default of electricity dues,
supply of electricity to the said premise may be disconnected. He,
therefore,submits that the petitioner has no right to seek
electricity connection to the said flat whose erstwhile owner has
not paid outstanding dues to the electricity company.
8 It
transpires from the record that the petitioner has got possession of
the said flat by virtue of unregistered agreement to sell and
general power of attorney both dated 9th June 2007,
whereas the the erst-while owner of the said flat was convicted and
sentenced by judgment and order dated 29th June 2007 in
Electricity Special Criminal Case No.8 of 2006. However, the learned
counsel for the petitioner is not able to show any specific
provisions of the Act under which a right accrues to the petitioner
to seek electricity connection, or, under which provisions of the
Act, he can challenge refusal to supply electricity to the said flat,
whose erst-while owner committed theft of electricity and was
sentenced to undergo R.I. for two years and fine of Rs.4,50,000/- by
judgment and order dated 29th June 2007 in Electricity
Special Criminal Case No.8 of 2006. Therefore, the
respondent-Electricity Company cannot be restrained from exercising
its statutory right to disconnect the supply and keep the supply
discontinued until the outstanding dues of electricity remain unpaid.
On a perusal of Regulations 4.1.11, 4.8.3 and 8.7.5, it is clear
that the refusal on the part of the Electricity Company to provide
electricity connection to the said flat of the petitioner is just and
proper and cannot be said to be, in any way, unreasonable, arbitrary
or violative of Articles 14 and 19 of the Constitution of India.
9 The
issue involved in the case of M/s. Isha Marble vs. Bihar State
Electricity Board, JT 1995 (2) SC 626 and M/s. Sarvodaya Corporation
vs. Gujarat Electricity Board, 1995 (1) GLR 196, whether electricity
dues constitute a charge on the property so far as transferor and
transferee of the unit is concerned, is referred to the Larger Bench
of the Apex Court. In the cognate matter, being Special Leave to
Appeal [C] No. 10732 of 2006 in the case of Maharashtra State
Electricity Board vs. MJ/s. Jai Tirath Financiers Private Limited,
the Apex Court has stayed the order of the High Court. Hence the
reliance placed by the learned counsel for the petitioner on the
above-referred decisions is of no help.
10 In
the result, this petition has no substance and is rejected. Rule is
discharged with no order as to costs.
(ANANT
S. DAVE, J.)
(swamy)
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