JUDGMENT : B.R. SARANGI, J. Bijay Kumar Padhi, a permanent resident of Asurali, had set up a small scale industry named and styled as “M/s Barunei Paper Boards and Mill Pvt. Ltd.” in the premises appertaining to khata no.40, plot no.43 measuring Ac.5.00 dec. corresponding to Hal khata no.788, plot no.50/3575 measuring Ac.3.22 dec. and plot no.776 measuring Ac.1.78 dec. The said property was mortgaged to Orissa State Financial Corporation (OSFC), along with all industrial assets standing thereon, as the industry was financed by it. Electricity connection was given to the industry by the erstwhile Orissa State Electricity Board (OSEB) by entering into an agreement with the Managing Director of the industry. The industry having become sick could not be able to pay the electricity dues of the OSEB upto November, 1993, as a result of which an amount of Rs.19,60,000/- (Rupees Nineteen Lakh and Sixty Thousand) was outstanding against it. Due to non-payment of loan, the industry was seized under Section 29 of the State Financial Corporation Act, 1951 (for short “SFC Act, 1951”) by the OSFC. After the industry was seized, the property and industrial assets including the building standing thereon was transferred by the OSFC to a new company, i.e., “M/s Renby Paper Industry Pvt. Ltd.” in the year 1994. 1.1. After such transfer, OSEB demanded the arrear dues outstanding against the previous owner, namely, “M/s Barunei Paper Boards and Mill Pvt. Ltd.”, from the new owner as a condition precedent for connection of electricity supply to such newly owned industry. The Superintending Engineer (Commercial-II) of the OSEB vide letter dated 17.01.1995 communicated to the Superintending Engineer, Electrical Circle Balasore that the arrear energy charges payable by previous owner should not be realized from the transferee as provided in para-14.2 of the Industrial Policy Resolution (IPR), 1992. It was also further clarified that the loss so sustained by OSEB should be included in the claim of IPR subsidy from the Government in Industries Department within one month. Accordingly power supply was given to the new entrepreneur, i.e., “M/s Renby Paper Industry Pvt. Ltd.” But subsequently, the new industry was also not able to clear up the loan amount of OSFC and consequentially the same was seized under Section 29 of the SFC Act, 1951. Accordingly power supply was given to the new entrepreneur, i.e., “M/s Renby Paper Industry Pvt. Ltd.” But subsequently, the new industry was also not able to clear up the loan amount of OSFC and consequentially the same was seized under Section 29 of the SFC Act, 1951. After seizure, the electric connection to the premises was disconnected and proclamation was made by the OSFC for auction of the seized property along with all infrastructures standing thereon. Consequence thereof, the petitioner, being an educational trust represented through its trustee, applied for purchase of the assets of the seized industry on outright basis with an earnest money of Rs.9,00,000/- (Rupees Nine Lakh). But after negotiation on 30.07.2007 the petitioner agreed to enhance the offer price to Rs.33,00,000/- (Rupees Thirty Three Lakh) and such offer price was accepted by the OSFC as the sale price of the premises in question along with the existing assets and sale letter was issued on 22.08.2007. Complying the conditions mentioned in the said letter, the Dy. General Manager, OSFC vide letter dated 24.12.2007 delivered physical possession of the available assets of “M/s Renby Paper Industry Pvt. Ltd.” by annexing the schedule of land and the civil construction standing thereon. After such delivery of possession, pursuant to letter dated 24.12.2007, a sale deed was executed between OSFC and the petitioner represented by its managing trustee in respect of the property on 23.04.2008. Consequentially, the petitioner became the absolute owner over the property and assets standing thereon. 1.2. After taking of possession, the petitioner trustee, having decided to establish a new diploma engineering school in the said premises in the name and style “Bhadrak Engineering School”, applied to the Executive Engineer, NESCO for power supply, as a domestic consumer, to the premises for maintenance of property and accordingly, as per estimation of the authority, the petitioner deposited Rs.3104/- (Rupees Three Thousand One Hundred and Four) on 19.12.2008 and power supply was given to the premises of the petitioner. Subsequently, the petitioner again applied before the Executive Engineer, NESCO on 12.12.2008 for supply of three phase electric connection with 35 KV load to the premises and deposited requisite fees of Rs.500/- (Rupees Five Hundred) on 20.12.2008 as per clause-4 (1) of Chapter-III of Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004. Subsequently, the petitioner again applied before the Executive Engineer, NESCO on 12.12.2008 for supply of three phase electric connection with 35 KV load to the premises and deposited requisite fees of Rs.500/- (Rupees Five Hundred) on 20.12.2008 as per clause-4 (1) of Chapter-III of Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004. On receipt of such application, the Executive Engineer, NESCO vide letter dated 18.02.2009 intimated the petitioner that his application for 35 KV load to meet the requirement of proposed engineering school at Asurali is under process and he may be allowed to avail the power supply after obtaining permission from the competent authority within the guidelines of Orissa Electricity Regulatory Commission (OERC). But subsequently, the Superintending Engineer Electrical Circle, Bhadrak accorded approval for issuance of permission for supply of electric connection with 35 KV load to the premises of the petitioner with the condition that the petitioner would bear the expenditure towards installation of 63 KVA S/S and 11KV line of 0.02 Km. The cost of S/S metering was also to be deposited by the petitioner and the transformer was to be purchased at the cost of the petitioner from the factories having Central Power Research Institute (CPRI) Certificate and with the fulfillment of the aforesaid condition, the petitioner was advised to avail the full load of 35 KV within three months from the date of according permission. Such approval was accorded with the total estimation of apparatus for connection of electric supply with an estimated value of Rs.3,37,319/- (Rupees Three Lakh Thirty Seven Thousand Three Hundred and Nineteen). In the sanction order, it was directed that Rs.19,094/- (Rupees Nineteen Thousand Ninety Four) was to be charged towards supervision charges. 1.3. Having complied all such conditions, the petitioner approached the Executive Engineer to give power supply to his premises, but the Executive Engineer intimated that a sum of Rs.20,91,173.03/- (Rupees Twenty Lakh Ninety One Thousand One Hundred Seventy Three and Three Paise) was outstanding against the pervious owner towards consumption charges of electric energy relating to the said premises and without obtaining clarification with regard to payment of such arrear dues from the higher authority, no power supply to the premises could be given. Accordingly, the Executive Engineer sought for clarification on 06.04.2009 from the Chief Executive Officer-opposite party no.2, NESCO. Accordingly, the Executive Engineer sought for clarification on 06.04.2009 from the Chief Executive Officer-opposite party no.2, NESCO. Thereafter, the petitioner, vide letter dated 11.06.2009, submitted representation to opposite party no.2 narrating all the facts and also cited the judgment of this Court passed in OJC No.438 of 2002 wherein this Court dealing with an identical dispute directed that the dues outstanding against the previous owner towards the electricity charges cannot be recovered from the prospective owner, and requested that power supply may be given to his premises as he has already invested huge amount in setting up of the educational institution. On 04.07.2009, the Chief Executive Officer (CEO), NESCO in response to the representation filed by the petitioner on 11.06.2009 intimated that the petitioner should deposit a sum of Rs.20,91,173.03/-, which is dues of energy consumption in the said premises by the previous owner. Hence this application. 2. Mr. N.K. Sahu, learned counsel for the petitioner strenuously urged that there are deliberate lapses on the part of the authority not to give power supply as per the conditions stipulated in the regulation itself and more so the petitioner, being a subsequent purchaser of the property in question, is not liable to pay the outstanding dues of the previous owner. Therefore, the communication made by the CEO on 04.07.2009 cannot sustain in the eye of law and is liable to be quashed. To substantiate his contention, he has relied upon judgments of the apex Court in Isha Marbles v. Bihar State Electricity Board, 1995 (2) SCC 648 and Paschimanchal Vidyut Vitran Nigam Ltd. v. DVS Steels and Alloys Pvt. Ltd., AIR 2009 SC 647 ; and of this Court in Ajay Kuamr Agarwal v. OSFC, 2006 (Supp.II) OLR 407. 3. Mr. P.K. Mohanty, learned Senior Counsel appearing along with Mr. P.K. Pasayat, learned counsel for the opposite parties contended that the letter dated 04.07.2009 issued to the petitioner is a conditional one and, as such, deposit of demanded amount of Rs.20,91,173.03/- (Rupees Twenty Lakh Ninety One Thousand One Hundred Seventy Three and Three Paise) being a condition precedent to grant permission for new three phase electric connection, unless the same is satisfied, power supply to the premises cannot be given. To substantiate his contention, he has relied upon the judgment of the apex Court in Paschimanchal Vidyut Vitran Nigam Ltd. v. DVS Steels and Alloys Pvt. Ltd., AIR 2009 SC 647 . 4. Having heard learned counsel for the parties and after perusing the records, since pleadings between the parties have been exchanged, with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 5. On the basis of the pleadings available on record, the only question that falls for consideration by this Court is whether the subsequent purchaser is liable to pay the outstanding electricity dues of previous owner for giving power supply to the same premises. 6. The Parliament in its Fifty-fourth Year of the Republic of India enacted the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalization of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal called “The Electricity Act, 2003”. Part-VI of said Act deals with distribution of electricity, which makes provision with respect to distribution licensees. Sections 43, 44, 45 and 46 of Part-VI, being relevant for the purpose of the instant case, are extracted hereunder: “Section 43. (Duty to supply on request): ---(1) every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply: Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission: Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area. (2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1) : Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission. (3) If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default. Section 44. (Exceptions from duty to supply electricity): Nothing contained in section 43 shall be taken as requiring a distribution licensee to give supply of electricity to any premises if he is prevented from so doing by cyclone, floods, storms or other occurrences beyond his control. Section 45. (Power to recover charges): ---(1) Subject to the provisions of this section, the prices to be charged by a distribution licensee for the supply of electricity by him in pursuance of section 43 shall be in accordance with such tariffs fixed from time to time and conditions of his licence. (2) The charges for electricity supplied by a distribution licensee shall be – (a) fixed in accordance with the methods and the principles as may be specified by the concerned State Commission ; (b) published in such manner so as to give adequate publicity for such charges and prices. (3) The charges for electricity supplied by a distribution licensee may include (a) a fixed charge in addition to the charge for the actual electricity supplied; (b) a rent or other charges in respect of any electric meter or electrical plant provided by the distribution licensee. (4) Subject to the provisions of section 62, in fixing charges under this section a distribution licensee shall not show undue preference to any person or class of persons or discrimination against any person or class of persons. (5) The charges fixed by the distribution licensee shall be in accordance with the provisions of this Act and the regulations made in this behalf by the concerned State Commission. Section 46. (5) The charges fixed by the distribution licensee shall be in accordance with the provisions of this Act and the regulations made in this behalf by the concerned State Commission. Section 46. (Power to recover expenditure): The State Commission may, by regulations, authorize a distribution licensee to charge from a person requiring a supply of electricity in pursuance of section 43 any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of giving that supply.” 7. In exercise of powers conferred by Section 181 (2) (t) (v) (w) and (x) read with Part-VI of the Electricity Act, 2003 (Act 36 of 2003), Orissa Electricity Reform Act, 1995 and all other powers, the Orissa Electricity Regulatory Commission made the Regulations, to govern distribution and supply of electricity and procedures thereof such as the system of billing, modality of payment of bills, the powers, functions and obligations of the distributions licensees and/or suppliers and the rights and obligations of consumers, called “Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 (hereinafter referred to as “Code, 2004”). Chapter-III deals with power supply and the said chapter envisaged the modality of application for giving power supply and different stages to be followed by the consumer and also by the supplier so as to give power supply to the industry linked consumer and the same clearly provides that every distribution licensee on receipt of the application, give power supply to the premises within the time stipulated as per clause-5 of Regulation-13 of the Code, 2004. Similarly, sub-section (3) of Section 43 of the Electricity Act, 2003, as mentioned above, clearly indicates that in case of failure to supply the electricity within the period stipulated under sub-section (1), the distribution licensee shall be liable to pay penalty which may extend to Rs.1000/- (Rupees One Thousand) for each day of default. More particularly, Section 43 clearly indicates that for supply of electricity to be given to the owners or occupiers premises by the distribution licensee within one month, or within six months where such supply requires extension of distribution mains, commissioning of new sub stations. If a distribution licensee fails to supply electricity within the period specified above, he shall be liable for penalty which may extend to one thousand rupees for each day of default. If a distribution licensee fails to supply electricity within the period specified above, he shall be liable for penalty which may extend to one thousand rupees for each day of default. The purpose of enactment of such provisions is to ensure power supply to the owners or occupiers of the premises so that the authority cannot play any hide and seek to give power supply to a bona fide and lawful occupier of the premises. 8. As per the factual matrix available in the present case, the petitioner has complied with all the requirements as per the provisions of the Electricity Act, 2003 read with Code, 2004, but power supply has not been given to the premises of the petitioner on a flimsy ground, as indicated in letter dated 04.07.2009 issued by opposite party no.2, that the petitioner has to deposit Rs.20,91,173.03/- (Rupees Twenty Lakh Ninety One Thousand One Hundred Seventy Three and Three Paise), which was due on the previous owner of the said premises. It is pertinent to mention here that this fact has already been considered by the authority earlier vide communication made on 17.01.1995 by the Superintending Engineer (Commercial-II) to the Superintending Engineer, Electrical Circle, Balasore, wherein it has been clarified that the arrear electricity charges payable by previous owner should not be realized from the transferee as provided in para-14.2 of the IPR, 1992. 9. Mr. N.K. Sahu, learned counsel for the petitioner relied upon the judgment in Isha Marbles (supra) wherein the apex Court, considering the question as to whether the auction purchaser was liable to meet the liability of old consumer of electricity to the premises which was purchased by him in the auction sale from the State Financial Corporation under Section 29 (1) of the State Financial Corporation Act, 1951, held that where a 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. Of course, the bona fides of the sale may not be relevant. The Board cannot make the auction purchaser liable. It is true that it was the same premises, to which reconnection is to be given. There is no charge over the property. What matters is the contract entered into by the erstwhile consumer with the Board. Of course, the bona fides of the sale may not be relevant. The Board cannot make the auction purchaser liable. It is true that it was the same premises, to which reconnection is to be given. Otherwise, with the change of every ownership new connections have to be issued does not appear to be the correct line of approach as such a situation is brought about by the inaction of the electricity board in not recovering the arrears as and when they fall due or not providing itself by adequate deposits. What the Corporation sought to recover under Section 29, were the loans advanced by enforcement of a mortgage and such sale cannot affect the right of the board to recover its dues. The failure of the board to recover the dues, as and when such dues arose, is a point to be put against it. Therefore, it is impossible to impose on the purchasers a liability which was not incurred by them. Though the auction purchasers came to purchase the property after disconnection but they cannot be “consumer or occupier” within the meaning of the above provisions till a contract is entered into. Therefore, it has been held that the previous owners/consumer would be liable for the past arrears. 9.1 The correctness of the said judgment had come up for consideration before the apex court in Ahmedabad Electricity Co. Ltd. v. Gujarat Inns Pvt. Ltd., (2004) 3 SCC 587 , wherein it has been held that in case of a fresh connection though the premises are the same, the auction purchaser cannot be held liable to clear the arrears incurred by the previous owners in respect of the power supply to the premises in the absence of there being a specific statutory provision in that regard. 9.2 A Division Bench of this Court in Ajay Kumar Agrawal (supra) relying upon the above two judgments, namely, Ahmedabad Electricity Co. Ltd. and Isha Marbles (supra) reiterated the said propositions holding that subsequent purchasers are not liable to pay the outstanding dues of the previous owners. 10. 9.2 A Division Bench of this Court in Ajay Kumar Agrawal (supra) relying upon the above two judgments, namely, Ahmedabad Electricity Co. Ltd. and Isha Marbles (supra) reiterated the said propositions holding that subsequent purchasers are not liable to pay the outstanding dues of the previous owners. 10. Both the counsel have relied upon the judgment in Paschimanchala Vidyut Vitran Nigam Ltd (supra) wherein, while answering the question “whether the supplier can recover the electricity dues from the purchaser of a sub-divided plot”, the apex Court in paragraphs-9 and 10 held as follows: 9. The supply of electricity by a distributor to a consumer is ‘sale of goods'. The distributor as the supplier, and the owner/ occupier of a premises with whom it enters into a contract for supply of electricity are the parties to the contract. A transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor in title or possession, as the amount payable towards supply of electricity does not constitute a ‘charge' on the premises. A purchaser of a premises, cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises. The supplier can therefore neither file a suit nor initiate revenue recovery proceedings against a purchaser of a premises for the outstanding electricity dues of the vendor of the premises, in the absence of any contract to the contrary. 10. But the above legal position is not of any practical help to a purchaser of a premises. When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper, to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them. But factually that case is different from the present one, in view of the fact that there was no condition stipulated when the property was purchased by the petitioner so far as payment of arrear dues of the electricity is concerned. More so, the correspondence of the Superintending Engineer (Commercial-II) to the Superintending Engineer, Electrical Circle, Balasore clearly indicates that subsequent purchaser is not liable to pay the electricity dues of the previous owner of the premises, particularly when the property is being occupied by the petitioner pursuant to an auction sale held by the OSFC under Section 29 of the SFC Act, 1951 there was no condition precedent to pay the dues of the previous owner. In absence of any such material, the law laid down by the apex court in Isha Marbles and Ahmedabad Electricity Co. Ltd. (supra) is applicable to the present case. Consequentially, this Court is of the considered view that the petitioner is not liable to pay the electricity dues of the previous owners, namely, “M/s Barunei Paper Boards and Mill Pvt. Ltd.” and “M/s Renby Paper Industry Pvt. Ltd.” 11. Mr. N.K. Sahu, learned counsel for the petitioner contended that the petitioner has already furnished bank guarantee of Rs.5.0 lakhs pursuant to the order passed by this Court on 29.07.2009 in Misc. Case No.8055 of 2009. If that be so, the said bank guarantee amount shall be refunded to the petitioner as no recovery can be made from the petitioner towards previous outstanding electricity dues. 12. In the result therefore, the communication dated 04.07.2009 in Annexure-14 is quashed. The writ petition is accordingly allowed. There shall be no order as to cost.