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2019 Supreme(Pat) 2149
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD, J.
CWJC No. 4141 of 2019
(16.8.2019)
M/s Jalan Polytubes Pvt.
Ltd. & Anr. – Petitioners
vs.
South Bihar Power Distribution
Company Ltd. & Ors. – Respondents
For the Petitioner: Mr.Suraj Samdarshi.
For the Respondent: Mr.Vinay Kriti Singh, Sr. Adv.
Headnote:
Electricity Act 2003 – Sections 42(6) and 43 – Bihar Electricity Supply Code, 2007 – Third proviso of clause 4.1 – Denial of fresh electric connection on the ground of outstanding dues over premises – Electricity dues is not a charge over property rather it is a charge over consumer – New entrant in premises has to be allowed a fresh electricity connection and cannot be deprived of same on the ground of outstandings lying upon previous occupier of premises – Company is a 'Persona Designata' a person in eye of law – Status of a private limited company in the nature of a family company is totally different from that of a Public Limited Company – In whole writ application neither there is any averment that petitioner no. 1 company had executed a sub-lease with consent of Lesser nor any document has been brought on record to demonstrate the same – Under lease deed petitioner no. 1 was granted right to carry on trade and industry and as it appears presently it was lessee who was permitted to take electric connection on its own – Legislatures had never intended that a person like petitioner no. 1 who is lessee of a premises will allow a business entity in which its own directors had an interest to enter into lease premises, take electricity connection in their name and then after electricity connection is disconnected due to non-payment of outstanding bills, lessee will come forward to say that now he is applying for afresh electricity connection – Any such approach would be contrary not only to provisions of Act of 2003 but would also be against public policy – Order passed by Ombudsman directing respondent company to provide electricity connection to petitioners on deposit of 50% of due amount for present and then in case opposite parties fail to prove certificate case as claimed as dues on premises of business, amount deposited by petitioners shall be adjusted against consumed bills, is wholly erroneous and is contrary to statutory scheme of Act of 2003 and Supply Code, 2007 – Writ application disposed of with observations and directions. (Paras 26, 28, 32, 36, 37, 43 and 50)
Constitution of India – Article 226 – Writ of Certiorari – High Court sitting in its writ jurisdiction is not sitting in appeal over judgments of court and tribunals – Unless it is found that order passed by a court or tribunal is perverse or otherwise against public policy, High Court would not be justified in exercising its discretionary power of issuance of a writ in nature of Certiorari. (Paras 38)
Rajeev Ranjan Prasad, J. – The petitioners in the present case are challenging the order dated 12.12.2018 passed in Appeal Case No. 09 of 2018 by the Ombudsman under Section 42(6) of the Electricity Act 2003 (hereinafter referred to as the ‘Act of 2003’) as according to them the impugned order is being wholly illegal, contrary to the provisions of the Act of 2003 and the Bihar Electricity Supply Code, 2007 as amnded by its 4th Amendment (hereinafter referred to as the ‘Supply Code 2007’); Further prayer has been made to quash the order dated 30.07.2018 passed by the Consumer Grievance Redressal Forum (hereinafter referred to as the ‘CGRF) in Case No. 22 of 2018 under Section 42(5) of the Act of 2003 whereby the petitioners have been denied fresh electric connection on the ground of outstanding dues over the premises in question.
2. The petitioners are looking for a writ in the nature of Mandamus directing the respondent authorities to grant fresh electrical connection under Section 43 of the Act of 2003. A declaration has been sought for to say that the action of the respondents in not providing fresh electrical connection to the petitioners is completely unjustified.
Facts of the Case
3. Petitioner no. 1 is a private limited company incorporated under the provisions of the Companies Act 1956. Petitioner no. 2 is one of the Directors of the petitioner no. 1. Petitioner no. 1 being a Juristic person in the eye of law made an application on 26.03.2018 through it’s director petitioner no. 2 with the respondents power company for grant of fresh electrical connection under non-domestic category for a load of 3 Kilo Watt. Respondent no. 4, however, vide his letter no. 32 dated 09.04.2018 communicated to the petitioners that fresh electrical connection over the premises is not possible without payment of the earlier outstanding dues in the name of Narayan Prasad Jalan which was Rs. 20,40,464/-. The petitioners were called upon to make payment of aforesaid amount, failing which the security amount deposited by the petitioners for grant of fresh electrical connection would be adjusted after rejecting the application for grant of said connection. A copy of letter dated 09.04.2018 issued by respondent no. 4 is Annexure ‘2’ to the writ application.
4. The petitioners claimed that upon query they came to know that earlier an electrical connection was obtained by Narayan Prasad Jalan, Director of respondent no. 5 who had taken electrical connection under high tension category for a contract demand of 134 Kilo Watt. The electric supply was disconnected on 21.06.2013 and a final Bill was raised on 03.07.2014 for a sum of Rs. 20,05,402/-. Copy of the energy bill dated 03.07.2014 has been brought on record as Annexure ‘3’ to the writ application. It is stated that for recovery of the said amount a certificate proceeding being Certificate Case No. 05 of 2015-16 has been initiated against the defaulting consumers and others.
5. It is the contention of the petitioners that the respondents intended to recover the outstanding amount from the persons named in letter no. 76 dated 31.01.2015 who are (1) Sri N. P. Jalan, Prop. M/s Saket Tubes Ltd., (2) Sri Sudarsan Kumar Bansal, S/o Karodimal Bansal, (3) Sri Narayan Prasad Jalan son of Hanuman Prasad Jalan and (4) Sri Tapan Kumar Chakraborty c/o Parmanand Yadav.
6. Narayan Prasad Jalan, however, died much before filing of the certificate case is an admitted position.
7. Some admitted facts in paragraphs 8 and 9 of the writ applications are worth taking note o as under: –
“8. That the land over which the respondent no. 5 was granted electrical connection was a land which was leased out by Sri Krishna Goshala Prabandhak Committee to the petitioner no. 1 vide lease deed dated 30.1.1999 for a period from 1.4.1998 to 31.3.2028. It is pertinent to mention here that Narayan Prasad Jalan was one of the Directors of M/s Jalan Polytubes Private Limited, who was lessee to the said deed.
9. That it appears that another Com
