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2002 Supreme(Cal) 279
High Court Of Calcutta
KALYAN JYOTI SENGUPTA
GANESH WIRE INDUSTRIES - Appellant
Versus
C.E.S.C.LTD. - Respondent
W. P. 1412 Of 1992
Decided On : 04/25/2002
A statute that creates a new liability cannot be applied retrospectively unless it expressly or impliedly provides for retrospective operation.
Headnote:
ELECTRICITY - SUPPLY - NEW CONNECTION - OUTSTANDING DUES OF PREVIOUS CONSUMER - LIABILITY OF NEW OWNER - RETROSPECTIVE APPLICATION OF S. 49-B OF THE ELECTRICITY (SUPPLY) WEST BENGAL AMENDMENT ACT, 1994 - APPLICABILITY - HELD, S. 49-B CANNOT HAVE RETROSPECTIVE OPERATION - NEW OWNER NOT LIABLE TO PAY OUTSTANDING DUES OF PREVIOUS CONSUMER.
Fact of the Case:
The petitioner, who purchased an industrial unit as a going concern, applied to the respondent electricity company for a new electric supply connection. The company refused to provide a new connection unless the petitioner paid the outstanding dues of the previous owner. The petitioner challenged the company's refusal, arguing that he was not liable for the previous owner's debts.
Finding of the Court:
The court held that the petitioner was not liable to pay the outstanding dues of the previous owner. The court found that S. 49-B of the Electricity (Supply) West Bengal Amendment Act, 1994, which imposed liability on new owners for the outstanding dues of previous consumers, could not be applied retrospectively. The court also held that the company could not refuse to provide a new connection to the petitioner simply because he refused to pay the outstanding dues of the previous owner.
Issues: 1. Whether S. 49-B of the Electricity (Supply) West Bengal Amendment Act, 1994, can be applied retrospectively to impose liability on new owners for the outstanding dues of previous consumers? 2. Whether an electricity company can refuse to provide a new connection to a customer who refuses to pay the outstanding dues of a previous owner?
Ratio Decidendi: 1. The court held that S. 49-B of the Electricity (Supply) West Bengal Amendment Act, 1994, could not be applied retrospectively because it created a new liability and did not expressly or impliedly provide for retrospective operation. 2. The court held that an electricity company could not refuse to provide a new connection to a customer who refused to pay the outstanding dues of a previous owner because the company's right to recover the outstanding dues did not justify refusing to provide a new connection.
Final Decision: The court directed the electricity company to provide a new connection to the petitioner and to adjust the amount that the petitioner had already paid in terms of the interim order.
( 1 ) ORIGINALLY the writ petition was filed alleging inaction of CESC in not granting separate new electric supply line to the writ petitioner. The short case made out in the writ petition as follows : one
( 2 ) M/s. Campa Wire Industries being the pro forma respondent No. 5 obtained financial accommodation from the West Bengal financial Corporation for setting up its small scale industries for manufacturing wire at premises No. 435 Jessore Road, Calcutta. The pro forma respondent indeed set up industrial unit and obtained electric connection from the respondent No. 1. Thus there was contractual relationship between the respondent No. 5 and the respondent no. 1 as licensee and consumer.
( 3 ) THE respondent No. 5 thereafter committed default in paying off the loan granted by the respondent No. 6 and in terms of the agreement the plant and machinery and other assets being possessed by the respondent no. 5 were taken over by the respondent no. 6 and the same was ultimately sold by an agreement in writing to the writ petitioner.
( 4 ) IN terms of the agreement it appears that the writ petitioner has not become the absolute owner and/or transferee of the above industrial unit. It is pertinent to mention the writ petitioner No. 1 purchased the industrial unit as a going concern on the terms and conditions mentioned in the agreement for sale. After purchase the writ petitioner decided to run the factory, so it approached the respondent No. 1 with application for new electric supply connection to the same industrial unit where from the. old supply line given to the respondent No. 5 was not then withdrawn.
( 5 ) IT appears from the writ petition that though petitioner had applied for new connection, but, in substance, it wanted resumption and/or restoration of the supply line either by way of new connection or reenergizing old and existing line. So, the writ petitioner in fact wanted to settle and negotiate with the respondent No. 1. However, respondent No. 1 was not agreeable to supply electric energy either by way of new supply line or re-energizing the old and existing line, unless a sum of Rs. 19,42,149. 31 is liquidated by the petitioner. According to cesc the aforesaid amount fell due and outstanding in relation to consumption of electric energy by the respondent No. 6.
( 6 ) AT the interim stage it appears that justice Kalyanmoy Ganguly (as his Lordship then was) was pleased to pass an order directing the respondent No. 1 to restore the electric supply through the old and existing line upon payment of sum of Rs. 65,000/- and shall continue to supply, provided the petitioner pays a sum of Rs. 15,000/- per month for the first six months and thereafter at the rate of Rs. 20,000/- per month till a sum of Rs. 2,45,00,4. 19 p. is repaid. Thus, writ petitioner got electric connection through the old line and consumed the same without any disturbance, whatsoever, until the time a further disconnection was effected on 22 December, 2000. Both the writ petitioner as well as the respondent No. 1 have accepted the interim order passed by Justice ganguly and no appeal was preferred therefrom.
( 7 ) IN the affidavit-in-opposition respondent no. 1 has taken the point unless a sum of Rs. 19,42,149. 31 being the outstanding dues is liquidated by the writ petitioner, separate supply line or for that matter resumption of old electric connection is not possible.
( 8 ) DURING pendency of the writ petition there is an amendment of the law relating to electric supply by the West Bengal State legislative Assembly by and under the Electricity (Supply) West Bengal Amendment Act, 1994. The said Amendment has taken effect on and from 20th April, 1995, by the said Amendment a new S. 49-B has been incorporated. By this amended provision it has been made clear amongst other that: the sum due to the Board or licensee shall stand recoverable and shall be recovered from the sale proceeds or from the former owner or manager or new
