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2023 DIGILAW 1393 (AP)

Andhra Pradesh Southern Power Distribution Company Limited v. Segu Siva Kumari

2023-10-13

DHIRAJ SINGH THAKUR, R.RAGHUNANDAN RAO

body2023
JUDGMENT DHIRAJ SINGH THAKUR, J. - The present appeal under clause 15 of the Letters Patent has been preferred against the judgment and order dtd. 31/10/2019 passed in W.P.No.9383 of 2019. The writ court, by virtue of the judgment and the order impugned, has directed the respondents in the writ petition to give a new service connection to the petitioner. 2. Briefly stated, the material facts are as under: The petitioner purchased a godown situate in Guntur District, through online auction on 20/10/2018. The auction was conducted by the Punjab National Bank through its branch office at Guntur. The auction was conducted by the Bank on account of the fact that the erstwhile owner was unable to repay the loan amount obtained from the said Bank. A sale certificate was then issued by the Bank to the petitioner and the possession of the property handed over to her. 3. Needless to say that the Bank accepted and acknowledged the bid submitted by the petitioner inter alia on the following terms and conditions: "1. The assets are being sold to you on "As is where is basis and As is what is basis". ....... ....... 8. All statutory dues/attendant charges/other dues including registration charges, stamp duty, taxes etc., shall have to be borne by you only. ....... The intending bidder is advised to make their own independent inquiries regarding the encumbrances on the property including statutory liabilities, arrears of property tax, electricity dues etc." 4. Thereafter, vide communication dtd. 20/10/2018, the respondent Bank confirmed the sale of the petitioner. The petitioner then approached the Southern Power Distribution Company of Andhra Pradesh Ltd., for new service connection. This application was submitted online. The Superintending Engineer concerned, however, in his communication dtd. 23/4/2019 which became the order impugned in the writ petition noticed that there was a huge outstanding amount of Rs.80, 44, 199.00 under service connection No.1113102001096 and therefore rejected the request of the petitioner for a new service connection on account of the huge outstanding amount in regard to the property in question. This communication was challenged by the petitioner in W.P.No.9383 of 2019 which was allowed by virtue of judgment and order impugned with a direction to the respondent Nos.1 to 4 in the writ petition to give a new service connection to the petitioner. The said writ petition was allowed following an earlier decision rendered in W.P.No.28271 of 2018. This communication was challenged by the petitioner in W.P.No.9383 of 2019 which was allowed by virtue of judgment and order impugned with a direction to the respondent Nos.1 to 4 in the writ petition to give a new service connection to the petitioner. The said writ petition was allowed following an earlier decision rendered in W.P.No.28271 of 2018. 5. Learned counsel for the appellant contends that the view expressed by the learned Single Judge is unsustainable in law inasmuch as it ignored the general terms and conditions of supply of distribution and retail supply licenses framed vide Order dated 06. 01.2006 by the Andhra Pradesh Electricity Regulatory Commission. 5.1 Reliance was placed upon clause 8.4 of the aforesaid general terms and conditions which reads as follows: "8.4 Transfer of Service Connection The seller of the property should clear all the dues to the Company before selling such property. If the seller did not clear the dues as mentioned above, the Company may refuse to supply electricity to the premises through the already existing connection or refuse to give a new connection to the premises till all dues to the Company are cleared." 5.2 Reliance was also placed upon judgment of the Apex Court rendered in the case of Paschimanchal Vidyut Vitran Nigam Limited and Others Vs. DVS Steels and Alloys Private Limited and Others., (2009) 1 SCC 210 The Supreme Court in paragraph Nos.12, 13 and 14 held thus: "12. 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 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. 13. 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. 14. 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. 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." 6. In a recent judgment of the Apex Court in K.C.Ninan Vs. 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." 6. In a recent judgment of the Apex Court in K.C.Ninan Vs. Kerala State Electricity Board and Others; and connected appeals, the Apex Court summarized its conclusions as under: "a. The duty to supply electricity under Sec. 43 of the 2003 Act is not absolute, and is subject to the such charges and compliances stipulated by the Electric Utilities as part of the application for supply of electricity; b. The duty to supply electricity under Sec. 43 is with respect to the owner or occupier of the premises. The 2003 Act contemplates a synergy between the consumer and premises. Under Sec. 43, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided by the Electric Utilities; ......... d. A condition of supply enacted under Sec. 49 of the 1948 Act requiring the new owner of the premises to clear the electricity arrears of the previous owner as a precondition to availing electricity supply will have a statutory character; e. The scope of the regulatory powers of the State Commission under Sec. 50 of the 2003 Act is wide enough to 2 Civil Appeal Nos.2109 and 2110 of 2004 stipulate conditions for recovery of electricity arrears of previous owners from new or subsequent owners; .......... i. The implication of the expression "as is where is" basis is that every intending bidder is put on notice that the seller does not undertake responsibility in respect of the property offered for sale with regard to any liability for the payment of dues, like service charges, electricity dues for power connection, and taxes of the local authorities; and .........." 7. Testing the facts of the present case on the touchstone of the ratio of the aforementioned judgments, it can be seen that the refusal to supply the electricity through a new connection to the premises of the petitioner was absolutely legal and in line with the general terms and conditions prescribed by the Andhra Pradesh Electricity Regulatory Commission framed in terms of Sec. 50 of the Electricity Act, 2003. 8. 8. We find that the view expressed by the Writ Court was contrary to the well established principles of law laid down in the judgments mentioned hereinabove and therefore we find that the judgment and order impugned is unsustainable. 9. Be that as it may, we allow the present appeal and set aside the order impugned dtd. 31/10/2019 passed in W.P.No.9383 of 2019. No costs. Pending miscellaneous applications, if any, shall stand closed.