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2003 Supreme(Guj) 323

Gujarat High Court
Judgename :KUNDAN SINGH
SONA COOPERATIVE HOUSING SOCIETY LIMITED - Appellant
Versus
GUJARAT ELECTRICITY BOARD - Respondent
S.C.A. 9032 of 2002
Decided On : 06/19/2003

Advocates Appeared: D.G.CHAUHAN, Hashim Qureshi, Lilu K.Bhaya, R.M.Chauhan, R.S.SANJANWALA, S.A.QURESHI, S.B.VAKIL, S.N.SHELAT, S.Shelat, SUDHA GANGVAR, SURESH N.SHELAT, TUSHAR MEHTA, VIJAY H.PATEL, Z.F.BHARDA

Headnote:

Indian Electricity Act, 1910 - Co-operative Societies Act, 1961 - Sections 107 to 115 - Constitution of India,1950 - Articles 14, 19 and 21 – Petition has been challenged either directly or indirectly hence all these petitions are being disposed of by this common judgment - Conditions and Miscellaneous Charges for Supply of Electrical Energy - Co-operative Spinning Mills Ltd went in liquidation and a final order of liquidation was passed to order of liquidation Liquidator was appointed and Liquidator started exercising statutory powers conferred of Co-operative Societies Act - There were several creditors of Co-operative Spinning Mills Ltd. whose dues were outstanding against the said mills - There were also dues of workers running into cores of rupees against said mill - A petition being Special Civil Application was filed in this Court - By an order this Court directed for disposal of assets of mill company by a committee Chairmanship of Commissioner for satisfying dues of secured creditors workers and other creditors including dues of Government and some Government organizations - Order a committee was constituted for disposal of assets of aforesaid mill - A tender notice was issued on - As offer of petitioner society was highest and that offer was accepted and hence a registered sale deed was executed by Liquidator on payment of cores to Liquidator – Held, It is not statutory in nature electricity is consumed by the consumer on basis of a written contract prescribed in form approved by of Act - Hence petitioner cannot be held liable for any default committed by the previous consumer. Madhya Pradesh High Court in the case of National Textile Corporation (MP) Ltd - MP Electricity Board reported has held that any liability of a former owner or National Textile undertaking prior to appointed day cannot be fastened on the successor by mere inference. Hence, the liability to pay electricity dues is obviously fastened only to consumer - In present petition petitioner is not consumer it is yet to receive electric connection - Supreme Court in case of Bihar State Electricity Board Green Rubber Industries and another reported in has held that relationship between Board and consumer is purely contractual – Thus Board cannot insist upon petitioner to pay arrears owed by erstwhile consumer as a condition precedent to provide electricity connection there is an obligation of Electricity Act and second proviso of Supply Act read with clause of Supply Act and that clause of schedule contains a condition which supply can be disconnected - Condition mentioned in clause is exhaustive for grant of connection for supply of energy to any person but not exhaustive for continuance of energy which is subject of Regulation of Supply Act - Those conditions do not stipulate that initial supply will not be made or discontinued unless arrears of electricity owed by erstwhile consumer in premises are not paid first - Thus such a pre-condition is illegal and ultra virus Act - Condition is also unreasonable in view of fact that sometimes identity of premises where electricity was consumed by earlier occupier or owner cannot be made – Petition allowed (Para 15)

KUNDAN SINGH, J.

( 1 ) IN all the aforesaid petitions, since the validity of clause/condition 2 (j) of Conditions and Miscellaneous Charges for Supply of Electrical Energy (hereinafter referred to as "the Conditions of Supply") has been challenged either directly or indirectly, hence all these petitions are being disposed of by this common judgment.

( 2 ) IN Special Civil Application no. 9032 of 2002, it has been averred that Visnagar Co-operative Spinning Mills Ltd. went in liquidation and a final order of liquidation was passed. Pursuant to the order of liquidation, Liquidator was appointed and the Liquidator started exercising statutory powers conferred under sections 107 to 115 of the Co-operative Societies Act, 1961. There were several creditors of Visnagar Co-operative Spinning Mills Ltd. whose dues were outstanding against the said mills. There were also dues of workers running into crores of rupees against the said mill. A petition being Special Civil Application no. 1178 of 1988 was filed in this Court. By an order dated 20th September, 1999, this Court directed for the disposal of the assets of the mill company by a committee under the Chairmanship of the Commissioner, Kutir Udyog for satisfying the dues of secured creditors, workers and other creditors including the dues of the Government and some Government organisations. Under the order, a committee was constituted for the disposal of the assets of the aforesaid mill. A tender notice was issued on 18th September, 2000. As the offer of the petitioner society was the highest and that offer was accepted and hence a registered sale deed was executed by the Liquidator on 4. 4. 2001 and that was registered in the office of Sub-Registrar on 30th June, 2001. The petitioner made complete payment of Rs. 13. 25 crores to the Liquidator. The petitioner society demolished the superstructure standing on the land and constructed complete new shops cum residential units on the said land. After making a substantial investment and after completing necessary legal formalities, the petitioner society applied for temporary connection of electricity to the respondent no. 1 Board for making fresh construction. A temporary connection was given to the petitioner after the petitioner paid the estimate on 16. 3. 2001. When the new construction was made, the petitioner made an application for a new connection, for the supply of electricity to the petitioner society, the petitioner was required to deposit the entire dues of the previous owner by GEB. The Joint Director, Kutir Udyog by his letter dated 14. 9. 2001 made it clear to Gujarat Electricity Board that the dues of the GEB were to be claimed from the Liquidator and the auction purchaser was not liable for the dues of GEB and recommended for giving a fresh regular electricity connection to the petitioner society. Accordingly, the respondent Board made a claim of Rs. 5,75,57,299. 27 ps. Out of the aforesaid total claim of the GEB, a proportionate sum of Rs. 2,23,80,443. 00 were paid towards GEBs claim on 17. 11. 2002. The Chief Engineer of GEB informed the Superintending Engineer (O and M) of GEB, Mahesana that the competent authority has directed to recover arrears first and then to release the connection to the petitioner. The Deputy Engineer of the respondent GEB by an order dated 16th March, 2003 intimated the petitioner that its temporary connection would be disconnected. When the petitioner applied for a regular connection of the electricity on 20th April, 2002 to the respondent Board, the Board asked the petitioner society that unless the petitioner clears the dues of previous owner Visnagar Co-operative Spinning Mills Ltd. , the petitioner society would not be entitled for a fresh connection. Since then the respondent Board has not issued a regular electricity connection as required by the petitioner society inspite of various representations made to various authorities beginning from the liquidator to the Chief Minister of the St



















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