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2017 DIGILAW 704 (ALL)

KALAWATI RANA v. U. P. POWER CORPORATION LTD.

2017-03-06

ASHOK KUMAR, V.K.SHUKLA

body2017
ORDER : 1. Smt. Kalawati Rana wife of Sri Man Singh Thakur is before this Court with the grievance that she has purchased the premises in question from Naresh and Sumesh, but her application for grant of new electricity connection has not at all been entertained on the premises that there is electricity dues against the aforementioned erstwhile owners of the house in question. 2. Petitioner has submitted that she has purchased the house in question from Naresh and Sumesh by way of registered sale deed dated 13.12.2012 and as per the terms and conditions of the sale deed, electricity dues is liable to be paid by the erstwhile owner and petitioner has no liability to pay any due towards electricity charges. 3. Petitioner has proceeded to make a mention that she intended to have new electricity connection, in view of this, she has been approaching the authority concerned, but as there was already electricity connection in the name of Naresh and Sumesh of the said house, and there has been huge outstanding dues of electricity dues against them, in view of this, application of petitioner for grant of new electricity connection is not being entertained and thus petitioner is before this Court. 4. Sri K.D. Tripathi, learned counsel for the petitioner has contended that once liability inter-se party has been settled in the sale deed, then such liability cannot be fastened upon the petitioner and petitioner cannot be forced to deposit the outstanding dues toward electricity connection of erstwhile owner of the house. 5. Sri Rahul Pandey, learned counsel for the respondent no.2 on the other hand contended that as per paragraph 4.1 of the Electricity Supply Code, 2005, 3rd proviso, in case of arrears of electricity dues in respect of any of old consumers/premises where ownership has changed, the new connection shall be released to the new owners only after submission of No-Dues Certificate as provided in Clause 4.3(f), and in view of this, it has been contended that whatever objections, and petitioner is obligated to ensure payment. 6. In order to appreciate respective arguments, paragraph no. 6. In order to appreciate respective arguments, paragraph no. 4.1 of the Electricity Supply Code, 2005 is being extracted below:- 4.1 Licensee's obligation to supply :- The Licensee shall on an application by the owner or occupier of any premises, located in his area of supply, give supply of electricity to such premises within the one month after receipt of completed application showing payments of necessary charges and other compliance. Provided 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 specified by the Commission in Clause 4.8. Provided also in case of application for supply from a village or hamlet or area wherein no provision for supply of electricity exists, the Commission shall extend the time period for provision of supply appropriately on a case to case basis. Provided further that in case of arrears of electricity dues in respect of any of old consumers/premises where ownership has changed, the new connection shall be released to the new owners only after submission of No-Dues Certificate as provided in Clause 4.3(f). And provided that if there are arrears of electricity dues on a premises, a new connection shall not be released to a new applicant/or the old consumer on the same premises. The connection shall also not be released if. (i) The applicant (being an individual is an associate or relative (as defined in Section 2 and 6 respectively of the Companies Act, 1956) of the defaulting consumer, (ii) Or where the applicant being a company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person, is controlled, or having controlling of interest in the defaulting consumer, provided, the licensee shall not refuse electric connection on this ground, unless an opportunity to present his case is provided to the applicant and a reasoned order is passed by an officer as designated by the licensee. 7. 7. Perusal of provision quoted above would go to show that on an application being moved by the owner or occupier of any premises, located in his area of supply, licensee is obligated to give supply of electricity to such premises within one month after receipt of contemplated application showing payments of necessary charges and other compliances and further in case of arrears of electricity dues in respect of any of old consumers/premises where ownership has changed, the new connection shall be released to the new owners only after submission of No-Dues Certificate as provided in Clause 4.3 (f). 8. Said statutory provision, has been subject matter of interpretation by Co-ordinate Bench in the case of Smt. Pawan Jha alias Priya Jha v. State of U.P. and others 2011 (5) All WC 5176. Relevant paragraph nos. 2 and 3 are being extracted below:- 2. So far as the first prayer of the writ petition to quash the Clause 4.3 of the U.P. Electricity Supply Code, 2005 as ultra vires is concerned, the petitioner has given up the same. However, since the learned counsel made a distinction between transactions amongst two private parties and allotment of flat by Allahabad Development Authority to an individual, and the Allahabad Development Authority was not made party, we have directed to incorporate it as party respondent and serve a notice. Pursuant to such notice, learned counsel appearing for such authority contended that the authority is only empowered to cancel the allotment, in case of default but not to do any thing with regard to supply of electricity. We find so. The recovery of electricity bill amount will be made by the electrical authorities from its consumers. Whether it will be collected from the consumer for her consumption or for consumption of erstwhile owner/occupier is a matter between themselves. According to us, there is no basic difference in sale and purchase of flat/plot between the two private individuals and allotment of a flat/plot by a development authority to any private individual to that extent. Whether it will be collected from the consumer for her consumption or for consumption of erstwhile owner/occupier is a matter between themselves. According to us, there is no basic difference in sale and purchase of flat/plot between the two private individuals and allotment of a flat/plot by a development authority to any private individual to that extent. Now, let us consider two recent judgments of the Supreme Court reported in A.I.R. 2009 SC 647 (Paschimanchal Vidyut Vitran Nigam Ltd. & others v. M/s. DVS Steels & Alloys Pvt. Ltd. & others) & (2010) 9 SCC 145 (Haryana State Electricity Board v. Hanuman Rice Mills, Dhanauri & others) to decide question of recovery of arrears of electricity charges from the petitioner on account of the erstwhile owner/occupier. The ratio of the first judgment i.e. Paschimanchal Vidyut Vitran Nigam Ltd. (supra) is 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. 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 fulfilment 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. 11. A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues. Having regard to the very large number of consumers of electricity and the frequent moving or translocating of industrial, commercial and residential establishments, provisions similar to clause 4.3(g) and (h) of Electricity Supply Code are necessary to safeguard the interests of the distributor. We do not find anything unreasonable in a provision enabling the distributor/supplier, to disconnect electricity supply if dues are not paid, or where the electricity supply has already been disconnected for non-payment, insist upon clearance of arrears before a fresh electricity connection is given to the premises. It is obviously the duty of the purchasers/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises. It is obviously the duty of the purchasers/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises. They can also incorporate in the deed of sale or lease, appropriate clauses making the vendor/lessor responsible for clearing the electricity dues up to the date of sale/lease and for indemnity in the event they are made liable. Be that as it may." 9. The ratio of the second judgment i.e. Haryana State Electricity Board (supra) is as follows: "12. The position therefore may be summarized 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, authorize the supplier of electricity, to demand from the purchaser of a property claiming re-connection 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." In the later judgment recovery is with regard to other State when the earlier judgment is in respect of State of Uttar Pradesh where clear Rules, Regulations or Bye-laws for recovery of such amount is available. However, principles laid down by the Supreme Court about recovery of dues on account of electricity are more or less identical. 10. In view of the statutory provision that has been holding the field, and in view of the dictum laid down by Co-ordinate Bench, we can not take a contrary view, as such, we are of the view that Electricity Department is absolutely right in not according electricity connection till in consonance with the 3rd proviso of the Electricity Supply Code, 2005 "No-Dues Certificate" is produced before authority concerned. 11. Learned counsel for the petitioner at last contended that whatever electricity dues are there, recovery citation is in favour of erstwhile owner of the house and she intends to make aforementioned deposit, as such liberty be accorded so that payments are made and the moment No-Dues Certificate is submitted, then consequential action be undertaken. 12. 11. Learned counsel for the petitioner at last contended that whatever electricity dues are there, recovery citation is in favour of erstwhile owner of the house and she intends to make aforementioned deposit, as such liberty be accorded so that payments are made and the moment No-Dues Certificate is submitted, then consequential action be undertaken. 12. Consequently, in case entire recovery dues is deposited of erstwhile owner, and authorities on the spot are satisfied that entire electricity dues has been deposited, then No-Dues Certificate be issued as provided in clause 4.3.(f) of Electricity Supply Code, 2005 and further follow up action be taken. 13. With the above, writ petition stands disposed of.