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High Court Of Calcutta
Kalyan Jyoti Sengupta
ARUN SHAW - Appellant
Versus
CESC LIMITED - Respondent
W. P. 2089 Of 2000
Decided On : 07/24/2001
ELECTRICITY SUPPLY - CONNECTION - NEW CONNECTION - OUTSTANDING DUES - LIABILITY OF NEW CONSUMER - CESC CANNOT DENY NEW CONNECTION TO PROSPECTIVE CONSUMER ON ACCOUNT OF ALLEGED OUTSTANDING DUES OF FORMER CONSUMER - SECTION 49B OF ELECTRICITY (SUPPLY) ACT, 1948 DOES NOT GIVE RIGHT TO CESC TO DENY NEW ELECTRIC CONNECTION ON ACCOUNT OF ALLEGED OUTSTANDING DUES IN RESPECT OF THE SELFSAME PREMISES - SECTION 22 OF INDIAN ELECTRICITY ACT, 1910 AND CLAUSE VI OF SCHEDULE THEREOF DO NOT AUTHORIZE LICENSEE TO PUT FORWARD ANY TERMS AND CONDITIONS FOR REALIZATION OF THE OUTSTANDING DUES AGAINST THE NEW CONSUMER - CONTRACT BETWEEN CONSUMER AND LICENSEE UNDER THE ACT DOES NOT STAND ON A SEPARATE FOOTING FROM THAT OF THE ORDINARY CONTRACT - CONTRACTUAL OBLIGATION OF ONE PARTY CANNOT BE DISCHARGED BY THIRD PARTY, UNLESS HE OR SHE HAS EXPRESSLY UNDERTAKEN TO DO SO - OWNER OF THE PREMISES CANNOT BE TREATED TO BE A GUARANTOR OF HIS/HER TENANT FOR DISCHARGE OF THE CONTRACTUAL OBLIGATION OR VICE-VERSA - CESC CANNOT ASK FOR PAYMENT OF THE DUES OF THE FORMER TENANT FROM THE LANDLORD AND VICE VERSA - CESC IS BOUND TO GIVE SEPARATE SUPPLY LINE IN THE NAME OF THE PETITIONERS IN ACCORDANCE WITH LAW, HOWEVER, WITHOUT REALIZING ALLEGED OUTSTANDING DUES OF THE TENANT.
Fact of the Case:
The petitioners, husband and wife, jointly applied for two separate new electric connections in the premises No. 33, Rabindra Sarani, Liluah, Howrah. CESC agreed to give connection in usual course, but demanded payment of the alleged outstanding dues of Rs. 14,723/- in respect of electric energy consumed in the past by third parties at the same premises. The petitioners contended that they were not liable to pay the same as they were not consuming electric energy nor they were consumers for the above outstanding dues.
Finding of the Court:
The Court held that CESC cannot deny new connection to prospective consumer on account of alleged outstanding dues of former consumer. Section 49b of Electricity (Supply) Act, 1948 does not give right to CESC to deny new electric connection on account of alleged outstanding dues in respect of the selfsame premises. Section 22 of Indian Electricity Act, 1910 and Clause VI of Schedule thereof do not authorize licensee to put forward any terms and conditions for realization of the outstanding dues against the new consumer. Contract between consumer and licensee under the Act does not stand on a separate footing from that of the ordinary contract. Contractual obligation of one party cannot be discharged by third party, unless he or she has expressly undertaken to do so. Owner of the premises cannot be treated to be a guarantor of his/her tenant for discharge of the contractual obligation or vice-versa. CESC cannot ask for payment of the dues of the former tenant from the landlord and vice versa. CESC is bound to give separate supply line in the name of the petitioners in accordance with law, however, without realizing alleged outstanding dues of the tenant.
Issues: Whether the petitioners are under obligation under the law to pay off the alleged outstanding dues of the erstwhile tenant, viz. M/s. Shyam Steel Corporation or not in order to get new separate connection.
Ratio Decidendi: The Court relied on the decision of the Supreme Court in (1995)2 SCC 648, wherein it was held that where 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. The Board cannot seek the enforcement of contractual liability against the third party.
Final Decision: The Court allowed the writ petition and directed CESC to give separate supply line in the name of the petitioners in accordance with law, however, without realizing alleged outstanding dues of the tenant.
( 1 ) THE Court: The husband and wife are the petitioners in this and have jointly prayed for two separate new electric connections in the premises No. 33, Rabindra Sarani, Liluah, Howrah. There is no dispute that applications of the petitioners have been received by the CESC and at certain stage it had agreed to give connection in usual course. However, dispute has arisen as CESC demanded for payment of the alleged outstanding dues of Rs. 14,723/- in respect of electric energy consumed in past by the third parties at the same premises.
( 2 ) THE grievance of the petitioners is that the petitioners are not liable to pay the same as they were not consuming electric energy nor they are consumers for the above outstanding dues. Therefore, under any circumstances they are not obliged to pay any amount in this respect for obtaining new separate connection.
( 3 ) IN affidavit-in-opposition, the case of the CESC in substance, is that the petitioners were the beneficiaries in respect of the supply line previously given to one M/s. Shyam Steel Corporation which was surrendered subsequently. The said Shyam Steel Corporation was a tenant in respect of the said premises, therefore, the petitioners are obliged to pay the aforesaid amount in order to get separate supply connection. Another technical point has been taken that the petitioner No. 2 Rina Shaw is not the lawful occupant, so she cannot obtain separate connection.
( 4 ) THE learned lawyer for the writ petitioners contends that the agreement between the consumer and the CESC being the licensee, is always governed by the Contract Act and the mutual rights and obligation always emanate from the contractual terms and conditions. The petitioners were not consumer not ever took any obligation to pay off the dues in relation to the agreement entered into by the previous tenant. So, CESC cannot claim the above amount as a condition precedent to give new separate connection. Neither Indian Electricity Act, 1910 nor Electricity (Supply) Act, 1948 does not enjoin any such right or power upon the CESC.
( 5 ) MR. Subir Sanyal, learned advocate appearing for the CESC contends that petitioner No. 2 under the law cannot get any supply line as she is neither a tenant nor lawful occupant nor owner of the premises. At the first instance, I have no hesitation to reject this contention of locus standi of the petitioner No. 2 as she is the wife of the petitioner No. 1. The marital obligation of Hindu husband amongst other is to give shelter and maintain his wife. This is almost indefeasible right of lawfully married wife originate from marital relationship. So, the petitioner No. 2 has right of residence with her husband at the premises in question a fortiori a lawful occupant. As such she is eligible to get electric supply line.
( 6 ) MR. Sanyal next contends that the petitioners were the beneficiaries of the previous electric supply line which stood in the name of the tenant. Therefore, they were the de-facto consumer. The petitioners are really asking for restoration of electric supply line in a circuitous way. The petitioners are obliged to pay the outstanding dues to get supply line.
( 7 ) HE has also drawn my attention to the provision of section 49b of the Electricity (Supply) Act, 1948 being the West Bengal State amendment and contends that the CESC is entitled to recover this amount by virtue of the aforesaid provision. In support of his submission he has also referred to a decision of the learned single Judge of this Court reported in 1995 (II) CHN page 4.
( 8 ) THE learned lawyer for the petitioners contends that the aforesaid judgment of the learned single Judge is not an authority in view of the fact that on the identical point of law the earlier decision of the Supreme Court reported in (1995) 2 SCC 648 was not considered by the learned Judge while rendering the said judgment. Therefore, the aforesaid judgment of the Hon'ble Justice Gitesh Ranjan Bhattacha
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