Judgment : Common Order W.P.No.14993 of 2012:- 1. The petitioner is a company known as “KTV Health Food (P) Limited. There was yet another company known as “M/s.Pearl Biscuits and Confectioneries Private Limited” which had its factory at Plot No.B-69, SIPCOT Industrial Complex, Gummudipoondi and the said property is a lease hold property. The said company namely M/s.Pearl Biscuits and Confestioneries Private Limited had high tension electricity service connection under HTSC No.1413. The said company namely, M/s.Pearl Biscuits and Confectioneries Private Limited, was alleged to have committed theft of electricity through the said service connection on 21.11.1994. The said theft was detected and based on the same, an assessment notice demanding a sum of Rs.58,21,000/- was issued to M/s.Pearl Biscuits and Confectioneries Private Limited. But, the said company did not pay the amount. The respondents 1 and 2 also could not recover the said amount from the said company. In the mean while, M/s.Pearl Biscuits and Confectioneries Private Limited, had raised loan from the third respondent Indian Bank Limited. The said company did not repay the said loan amount. Therefore, action was taken by the third respondent bringing the property in Plot No.B-69, SIPCOT Industrial Complex, Gummudipoondi for auction through the Debts Recovery Tribunal, Chennai. 2. Yet another company by name M/s.KTV Oil Mills participated in the said auction held by the Debts Recovery Tribunal and emerged as the successful bidder. Finally, the said property was sold through Court auction in favour of M/s.KTV Oil Mills Health Foods (P) Ltd. Thus, M/s.Pearl Biscuits and Confectioneries Private Limited, leased out the rights of the said property in favour of the petitioner by means of an agreement dated 30.12.2007. Thus, from 30.12.2007, the petitioner has been in occupation of the said premises as a lessee under SIPCOT. 3. It needs to be mentioned that for non payment of the above assessed amount of Rs.58,21,000/- by M/s.Pearl Biscuits and Confectioneries Private Limited, the service connection under HTSC No.1413 was disconnected long before the auction. After the petitioner company became the lessee of the premises, it applied for high tension electricity supply. Having considered the said request, the Tamil Nadu Electricity Board gave high tension service connection under HTAC No.1931 with a demand of 450 KVA. The petitioner was peacefully enjoying the same. After the petitioner company became the lessee of the premises, it applied for high tension electricity supply. Having considered the said request, the Tamil Nadu Electricity Board gave high tension service connection under HTAC No.1931 with a demand of 450 KVA. The petitioner was peacefully enjoying the same. While so, the petitioner made an application on 18.11.2011 requesting the Tamil Nadu Electricity Board to grant an additional demand of 250 KVA over and above the existing demand of 450 KVA under the HTAC No.1931. Having considered the said application in Lr.No.SE/CEDC/N/AEE/DEV/AE/D2/F HT 1931/D/88/12 dated 18.02.2012, made a demand of Rs.1,52,51,020/- from the petitioner representing the amount due from the M/s.Pearl Biscuits and Confectioneries Private Limited, on account of the above demand made in respect of theft of electricity supply. As per the said proceeding, a sum of Rs.58,21,000/- was the assessed amount and Rs.94,30,020/- was towards belated payment surcharge. Thus, the total demand from the petitioner was for Rs.1,52,51,020/-. Challenging the said proceeding, the petitioner is before this Court with W.P.No.14993 of 2012. 4. I have heard Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the petitioner and Mr.G.Vasudevan, learned Standing Counsel appearing for the Tamil Nadu Electricity Board and Mr.Prabakar, learned counsel for the Indian Bank and I have also perused the records carefully. 5. The learned Senior Counsel appearing for the petitioner would submit that for the amount due from the erstwhile lessee namely M/s.Pearl Biscuits and Confectioneries Private Limited, the petitioner cannot be held liable. The learned Senior Counsel would further submit that the law on the subject is no more res integra because, the same was settled by this Court in Shajahan v. Superintending Engineer, TNEB ( 2012 (4) MLJ 763 ). The learned Senior Counsel would further submit that in the case on hand also, since, there was no charge created over the property, in respect of the above amount due from the erstwhile lessee namely, M/s.Pearl Biscuits and Confectioneries Private Limited, the petitioner is not liable to pay any amount. Thus, according to the learned Senior Counsel, the impugned demand notice is liable to be set aside. 6. Thus, according to the learned Senior Counsel, the impugned demand notice is liable to be set aside. 6. The learned Senior Counsel appearing for the petitioner would also make reliance on a judgement of the Hon'ble Supreme Court in Haryana State Electricity Board v. Hanuman Rice Mills and Others ( 2010 (9) SCC 145 ) wherein also, similar view has been taken by the Hon'ble Supreme Court after referring to Isha Marbles v. Bihar State Electricity Board ( 1995(2) SCC 648 ). The learned Senior Counsel would therefore, pray for an order setting aside the impugned demand notice. 7. In the counter filed by the Superintending Engineer, CEDC/NOrth/TNEB/ Chennai, it is stated that, it is not in dispute that a sum of Rs.58,21,000/- was due from the erstwhile lessee. In the counter filed by the Superintending Engineer, CEDC/NOrth/TNEB/ Chennai, it is stated that, for the said amount, as per the regulations, a sum of Rs.94,30,020/- should be paid as belated payment surcharge. According to the further stand taken in the counter, as per Clause 6.10 of the Terms and Conditions of Supply of Electricity of Tamil Nadu Electricity Board, the petitioner is liable to pay the same, because, the petitioner has obtained fresh service connection. 8. Referring to the counter, the learned standing counsel for TNEB would submit that though, it is true that there was no charge created over the property in question, even then, as per Clause 6.10 of the Terms and Conditions, the petitioner is liable to pay the impugned demand amount. In respect of the judgement of this Court in Shajahan v. Superintending Engineer, TNEB (cited supra), the learned standing counsel would submit that an appeal has been preferred against the said order and the same is pending before a Division Bench of this Court. 9. I have considered the above submissions. 10. From the narration of facts, as aforesaid, it is crystal clear that no amount is actually due from the petitioner. The amount is due only from the erstwhile lessee namely, M/s.Pearl Biscuits and Confectioneries Private Limited. Now, the question is whether as per Clause 6.10 of the Terms and Conditions, the said amount can be recovered from the petitioner or not. 11. The amount is due only from the erstwhile lessee namely, M/s.Pearl Biscuits and Confectioneries Private Limited. Now, the question is whether as per Clause 6.10 of the Terms and Conditions, the said amount can be recovered from the petitioner or not. 11. Exactly, similar issue came up for consideration before me in Shajahan v. Superintending Engineer, TNEB's case (cited supra) wherein also, a demand was made from the subsequent purchaser who had purchased the property in an auction sale. The Tamil Nadu Electricity Board took shelter under Clause 6.10 of the Terms and Conditions. But, when I heard the said matter, a judgement of DivisionBench of this Court inW.A.No.646 of 2003 dated 23.02.2007 was made reliance by thelearned counsel for the petitioner therein. The Division Bench in the said judgement, had an occasion to consider the scope of Clause 6.10 of the Terms and Conditions of Supply of Electricity and the definition of the terms “debtor” and “dues” very extensively. After having considered the same, the Division Bench has held that the subsequent purchaser is not a debtor and therefore, Clause 6.10 cannot be enforced against the petitioner therein. Following the same, in paragraph Nos.11 and 12 of the judgement in Shajahan v. Superintending Engineer, TNEB's case (cited supra), I had an occasion to hold as follows:- “11. Clause 6.10 of the Terms and Conditions of Supply of electricity Act is sought to be used against the petitioner. In my considered opinion, the said attempt has to necessarily fail. Clause 6.10 can be enforced only against a person, who is a debtor. Suppose the purchaser of the property, either in public auction or at least by private auction also falls within the definition of “debtor”as defined in Section 2(3) of the Act and surely Clause 6.10 will be applicable against him. Clause 6.10 therefore, cannot be read independently. The definition of the term 'debtor' as found in section 2(3) of the Act should be read into Clause 6.10 as per the terms and conditions of supply of electricity. Clause 6.10 should be understood in such a way that if there is any charge created over the property, then as per this clause, unless the purchaser clears off the arrears, he will not be entitled for service connection. Clause 6.10 should be understood in such a way that if there is any charge created over the property, then as per this clause, unless the purchaser clears off the arrears, he will not be entitled for service connection. To put it differently, if there had been no charge over the property, since the purchaser is not a debtor as defined in Section 2(2) of the Act, Clause 6.10 of the Terms and Conditions of supply of electricity cannot be applied against him at all. 12. In the Division Bench judgement in W.A.No.646 of 2003 dated 23.02.2007 referred to above, precisely, the Division Bench went into Clause 6.10 of the Terms and Conditions of Supply of Electricity and the definition of the terms 'debtor' and 'dues' extensively and has held in para 6 that in the absence of any specific provision creating charge over the property, the contention of the appellant that the subsequent purchaser should clear off the dues from the erstwhile owner cannot be accepted. As per the said view taken by the Division Bench, I have no doubt that in the case on hand, the petitioner is not a debtor and therefore Clause 6.10 cannot be enforced against him.“ 12. Thereafter, reliance was made on the Isha Marbles v. Bihar State Electricity Board case of the Hon'ble Supreme Court referred to above. That was a case where the Hon'ble Supreme Court held that unless, there is a charge created over the property, the property shall stand transferred to the subsequent transferee free of any encumbrance. Relying on the same and relying on yet another judgement of the Hon'ble Supreme Court on the same point in Paschimanchal Vidyut Vitram Nigam Limited v. DVS Steels and Alloys Private Limited (2009(2) MLJ 755 (SC)), I had an occasion to hold that the subsequent transferee is not at all liable to pay the dues of the erstwhile owner. 13. In the case on hand also, admittedly, there was no charge created over the property in question. It is also not as though the petitioner was put on notice about the dues from the erstwhile lessee by the Tamil Nadu Electricity Board. The petitioner is an innocent transferee in the auction sale held by the Debts Recovery Tribunal, Chennai. 13. In the case on hand also, admittedly, there was no charge created over the property in question. It is also not as though the petitioner was put on notice about the dues from the erstwhile lessee by the Tamil Nadu Electricity Board. The petitioner is an innocent transferee in the auction sale held by the Debts Recovery Tribunal, Chennai. Therefore, as per the view taken in Shajahan v. Superintending Engineer, TNEB's case (cited supra), in the present case also, the petitioner is not liable to pay the amount which is due actually from the erstwhile lessee namely M/s.Pearl Biscuits and Confectioneries Private Limited. 14. Similar view has been taken by the Hon'ble Supreme Court in Haryana State Electricity Board v. Hanuman Rice Mills (cited supra) wherein, in paragraph Nos.12 to 14, it has been held as follows:- “12.The position therefore may be summarised thus: (i) Electricity arrears do not constitute a charge over the property. Therefore in general law, a transferee of a premises cannot be made liable for the dues of the previous owner/occupier. (ii) Where the statutory rules or terms and conditions of supply which are statutory in character, authorise the supplier of electricity to demand from the purchaser of a property claiming reconnection or fresh connection of electricity, the arrears due by the previous owner/occupier in regard to supply of electricity to such premises, the supplier can recover the arrears from a purchaser. 13. The appellant did not plead in its defence that any statutory rule or terms and conditions of supply authorised it to demand the dues of previous owner from the first respondent. Though the appellant contended in the written statement that the dues of Durga Rice Mills were transferred to the account of the first respondent, the appellant did not specify the statutory provision which enabled it to make such a claim. The decision in Paramount Polymers shows that an enabling term was introduced in the terms and conditions of electricity supply in Haryana, only in the year 2001. 14. The appellant did not demand the alleged arrears, when the first respondent approached the appellant for electricity connection in its own name for the same premises and obtained it in the year 1991. More than three years thereafter, a demand was made by the appellant for the first time on 16.01.1995 alleging that there were electricity dues by the previous owner. More than three years thereafter, a demand was made by the appellant for the first time on 16.01.1995 alleging that there were electricity dues by the previous owner. In these circumstances, the claim relating to the previous owner could not be enforced against the first respondent.” 15. The learned Standing Counsel for TNEB would rely on the judgement of the Hon'ble Supreme Court in Paschimanchal Vidyut Vitram Nigam Limited v. DVS Steels and Alloys Private Limited (cited supra). But, a close reading of the judgement in Haryana State Electricity Board v. Hanuman Rice Mills (cited supra) would go to show that the judgement in Paschimanchal Vidyut Vitram Nigam Limited v. DVS Steels and Alloys Private Limited (cited supra) was taken note off and the views expressed in the said case were also dealt with very elaborately. It is only thereafter, the Hon'ble Supreme Court has summarised the law in paragraph Nos.12 to 14. In view of the above settled position, the petitioner is not at all liable to pay the amount which is due from the erstwhile lessee namely M/s.Pearl Biscuits and Confectioneries Private Limited. In view of the said position, the impugned notice is liable to be set aside. 16. In the result, the writ petition is allowed and the impugned demand notice is set aside. The third respondent is directed to consider the request of the petitioner for additional loan in accordance with law. No costs. Consequently, connected miscellaneous petitions are closed. W.P.No.6033 of 2014:- 1. In this writ petition, the petitioner has challenged the letter of the Superintending Engineer, CEDC (North) in Lr.No.AEE/ O&M/ OPD/AE/Sip-2/ F.KTV/D.665/12 dated 23.7.2012 and the consequential Notices dated 28.5.2013 dated 28.05.2013. The said proceedings came to be issued on the request of the petitioner for shifting of the existing 33KV/11KV/LT OH Line passing through the premises of the petitioner. 2. In the impugned letter, the request of the petitioner has been rejected on the ground that the petitioner had not cleared off the dues which had fallen against the erstwhile lessee namely M/s.Pearl Biscuits and Confectioneries Private Limited. Today, since, the said demand made itself has been set aside in W.P.No.14993 of 2012, the impugned proceedings in this writ petition is also liable to be set aside. 3. Today, since, the said demand made itself has been set aside in W.P.No.14993 of 2012, the impugned proceedings in this writ petition is also liable to be set aside. 3. In the result, the writ petition in W.P.No.6033 of 2014 is allowed and the respondents are directed to consider the request for shifting made by the petitioner afresh, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.