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Madhya Pradesh High Court · body

2006 DIGILAW 861 (MP)

Durgesh Agarwal v. M. P. State Electricity Board

2006-07-14

RAJENDRA MENON

body2006
ORDER 1. As common questions are involved in all these three petitions pertaining to refusal of the respondent Board to grant electricity connection on the petitioners' premises, all these cases are being heard and decided by this common order. 2. The facts of the cases are as under: 2.1 In W.P. No. 1117/03, petitioner is the owner of a shop situated in Kushwaha Mohalla, Gwalior, and has purchased the shop from one Nandram Kushwaha, vide registered sale deed dated 10.1.2003. After purchasing the property, petitioner got his name mutated in the Corporation records and thereafter applied for a new electricity connection from the Board. New connection is denied to him on the ground that against the previous owner certain electricity dues are outstanding and until and unless the dues outstanding is not paid, no connection can be granted to the petitioner. 2.2 In the case of WP No. 5063/05 and WP No. 9058/03, the petitioners are the purchasers of flats constructed by a builder and after purchase of the flats they have moved applications for grant of fresh connection in the premises purchased by them. The electricity connection is refused to them only on the ground that against the builder, who was previous owner of the premises on which flats have been constructed, certain electricity dues are outstanding and, therefore, electricity connection cannot be granted to the petitioners' establishment. 3. Shri S.L. Gupta, learned counsel, Shri N.K. Gupta, learned counsel and Shri Mahendra Sharma, learned counsel, inviting my attention to the following judgments argue that when the consumer seeks fresh electricity connection and is willing to comply with all the statutory formalities required for grant of such a connection, Board cannot refuse connection on the ground that there are certain previous dues against the original owner from whom the present petitioner has purchased the property. The judgment relied upon are : (i) Ms. Vee Enn Enterprises v. State of M.P. and others [ 2004 (2) JLJ 377 = 2004 (3) MPHT 366 ], (ii) Ahmedabad Electricity Co. Ltd. v. Gujarat Inns Pvt. Ltd. and others [(2004) 3 SCC 58] and two unreported judgments of this Court delivered in WP No. 1121/02 [Bhagwandas v. M.P. Electricity Board, Jabalpur] and Pramod Gupta v. M.P. State Electricity Board. 4. Ltd. v. Gujarat Inns Pvt. Ltd. and others [(2004) 3 SCC 58] and two unreported judgments of this Court delivered in WP No. 1121/02 [Bhagwandas v. M.P. Electricity Board, Jabalpur] and Pramod Gupta v. M.P. State Electricity Board. 4. Refuting the aforesaid contentions and placing reliance on clause 22-A of the General Terms and Conditions for Supply of Electricity, Shri Jain argues that once the premises is transferred, the Board can always refuse to restore the electricity connection to the premises, in case there are dues against the owner of the premises. In support of his contentions, he has placed reliance on judgments rendered by a Division Bench of this Court in the cases of Sanjay Dhingra and another v. MPEB, Jabalpur [1990 (II) [MPWN 114 = 1990 MPLJ 481 and Isha Marbles v. Bihar State Electricity Board and another [ (1995) 2 SCC 648 ] and the judgment of Supreme Court in the case of Amit Products (India) Ltd. v. Chief Engineer (O and M) Circle and another [2006 (I) MPWN 5 = (2005) 7 SCC 393 ]. 'That apart, inviting my attention to the amended provisions as contained in clauses 4.17 and 4.18 of the M.P. Electricity Supply Code, 2004, Shri Jain argues that petitioners are not entitled to restoration of electricity connection or grant of fresh electricity connection in view of the aforesaid provisions. 5. Having heard learned counsel for the parties at length and on going through the facts and circumstances of the case and the material available on record I am of the considered view that all the three petitions have to be allowed for the reasons to follow hereinunder. 6. As far as applicability of the M.P. Electricity Supply Code, 2004 is concerned, the said Code came into force with effect from 10.6.2004 and in all the three petitions the premises were purchased by the petitioner well before the said date and the connections were also sought for and refused before the said date. As the said Code does not have any retrospective effect, the said Code does not apply in any of the cases. 7. As the said Code does not have any retrospective effect, the said Code does not apply in any of the cases. 7. As far as applicability of clause 22-A is concerned, while considering the applicability of said clause, this Court in W.P.No.1121/02, Bhagwandas (supra) has held as follows: "Reading of the aforesaid provision indicates that it relates to commencement of supply or discontinue of supply in a premises where dues are outstanding. The said clause will apply only if supply is being asked for on the meter which is already in existence in the premises. In my opinion the said clause will have no application in cases where a person asks for fresh connection from the Board. In this regard the judgment relied upon by Shri K.N. Gupta, in the case of Sanjay Dhingra v. MPEB [1990 (II) MPWN 114] also indicates the same position. Board can refuse to restore supply or disconnect supply in a premises where dues are outstanding. But when a person makes an application for grant of fresh connection and for the said purpose is willing to abide by the terms and conditions for the same, the question is can the Board still refuse for the same. As already indicated hereinabove, the provisions of rule 22-A and the judgment in the case of Sanjay Dhingra (supra), referred to by Shri K.N. Gupta, are not applicable in the facts and circumstances of the present case. The Board as indicated hereinabove under section 22 is bound to give electricity connection to individual in accordance with the said provisions. In the case of Gopalachari v. Chief Secretary to Government Trivandrum [AIR 1959 Kerala 201] a question which arose for consideration was as to whether the Board can refuse supply of energy to a person who had purchased a premises in a auction sale on the ground that certain dues of the previous owner were outstanding. The facts in that case are similar to the present petition. It is observed in the said case as under : 'The purchaser of the premises in revenue sale held for the purpose of recovering dues from a defaulting consumer is not a person from whom any amount is or can be deemed to be due and he is not in the position of one on whom premises have devolved by succession or voluntary transfer. The amount due from consumer to the licensee is not a charge on the premises used by such consumer and the purchaser of the premises in revenue sale gets a clear title, subject to such encumbrances as may have existed on the date of the attachment under the Revenue Recovery Act.' Subsequently similar question was considered by a Division Bench of this Court in the case of Mis Kishandas Bhagwandas v. MPEB in M.P. No. 413/78 vide order dated 13.9.1978, reference to which is made in 1978 MPLJ 78. In this case also it has been observed that non-payment of dues of each and every consumer cannot be a ground for refusing supply of electricity to a premises. If the aforesaid principle is applied in the said case and if the statutory duty imposed on the Board by the provisions of Electricity Act is considered, there cannot be any doubt that the Board does not have power to refuse grant of supply to a person on the ground that dues of some other person in connection with the premises is outstanding. In my view, such an action of the Board discharging public duties and public needs is unsustainable. The Board has to be reasonable, fair and just and in that view of the matter the condition imposed cannot be sustained." 8. Apart from considering the effect of clause 22-A, the applicability of the judgment in the case of Sanjay Dhingra (supra) was also considered as indicated hereinabove and for the reason mentioned therein, the arguments advanced by Shri Jain, learned counsel for the respondents, have to be rejected. 9. After the aforesaid judgment was rendered by this Court in the case of Bhagwandas (supra), decided on 3.9.2002, the matter was again considered by Bench of this Court in the case of Vee Enn Enterprises (supra) and after taking note of the observations made by the Supreme Court in the case of Isha Marbles (supra), reliance on which was placed by Shri Jain, learned Court in paras No.6 and 7 has held as under: "In view of the judgment of apex Court, facts of the present case may be seen. The previous unit owner had the benefit of electricity supply, it borrowed from the Madhya Pradesh Electricity Board. The Electricity arrears in relation to these premises had fallen due since it had neglected to pay. The previous unit owner had the benefit of electricity supply, it borrowed from the Madhya Pradesh Electricity Board. The Electricity arrears in relation to these premises had fallen due since it had neglected to pay. The respondents No.3, 4 and 5 because of non-payment of dues disconnected the electricity supply of respondent No.7. The respondent No.6 M.P. Financial Corporation also took steps under section 29 of the Act and transferred the property in favour of respondent No.8. Thereafter with the concurrence of respondent No.6, the property was transferred by respondent No.8 in favour of petitioners and now the premises is owned and occupied by petitioners after purchase from auction purchaser respondent No. 8 and from respondent No.2. When the petitioners sought supply of electricity energy from respondents No.3, 4 and 5 they insisted to recover the dues on the premises. In fact the recovery of charges is a matter of contract between respondents No.3, 4 and 5 and respondent No.7. This will be covered by the contract entered into by respondent No.7 and Electricity Board. The Board cannot seek enforcement of contractual liability of third party. The petitioners cannot be held liable, though it was the same premises to which connection is sought. The apex Court considering the similar situation held that it is impossible to impose on the purchasers the liability, which was not incurred by them. Though the property was purchased by respondent No.8, after disconnection, but they cannot be "consumers or occupiers". The electricity is public property. Law in its majesty, benignly protects public property and behoves everyone to respect public property. But the law, as it stands, is inadequate to enforce the liability of previous contracting party against the auction purchaser who is a third party and is in no way connected with the previous owner/occupier. It may be correct to state that if it is held as above, then it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lakhs and lakhs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness. In view of the aforesaid settled law by the apex Court, the respondents No.3, 4 and 5 cannot insist recovery of dues of respondent No.7 against the petitioners. As a result of which, the order (Annexure P-1) asking petitioners to deposit arrears of respondent No.7, before getting new electricity connection cannot be sustained under law." (emphasis supplied) 10. The aforesaid observations by the learned Court in the case of Vee Enn (" Enterprises (supra), are a complete answer to the dispute involved in this petition. As far as judgment of the Supreme Court in the case of Amrit Products (supra) is concerned, the same is distinguishable on facts as that was a case where it was found that the composition if of company was changed by removing some Directors and inducting new Directors for the purpose of evading payment of previous dues and it was in such circumstances that the if judgment was rendered by the Supreme Court. In the present case, there is no such dispute with regard to the present petitioner it being hand in glove with the previous owner for evading payment of electricity dues. That being so, the said judgment will not apply. That apart, the Supreme Court in the case of if Ahmedabad Electricity Co. Ltd. (supra) has considered the judgment in the case of Isha Marbles and has held that for the purpose of giving fresh connection, Board cannot insist upon clearance of arrears incurred by the previous owner in respect of power supplied to the premises. 11. Considering the legal principles in the circumstances indicated hereinabove, I am of the considered view that action of the respondent Board in refusing fresh electricity connection to the petitioner's establishment is unsustainable, on the ground that dues of previous owner is not cleared, fresh electricity connection to petitioner's establishment cannot be denied in case petitioners are willing to comply with all the requisite requirement for seeking new or fresh connection. 12. Considering the same, all the three petitions are allowed. Orders passed by the respondent Board, refusing fresh electricity connection to the petitioners establishment, are quashed. 12. Considering the same, all the three petitions are allowed. Orders passed by the respondent Board, refusing fresh electricity connection to the petitioners establishment, are quashed. Respondent Board is directed to grant fresh electricity connection to the petitioners' establishment on the petitioner making payment of requisite amount and complying with the requirements for grant of said connection. In case any amount has been paid by any of the petitioners in pursuance of the interim order passed by this Court, the said amount shall be adjusted for making payment with regard to fresh connection or shall be adjusted in the bills to be paid by the petitioners for the electricity consumed by them. 13. All the three petitions stands allowed and disposed of without any orders as to cost.