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Gujarat High Court
Judgename :K.S.JHAVERI
RAIPUR (RAKHIAL) COMMERCIAL CO-OP HOUSING SOCIETY LTD - Appellant
Versus
AHMEDABAD ELECTRICTY CO LTD - Respondent
SPECIAL CIVIL APPLICATION 15737 of 2004
Decided On : 08/31/2005
Gujarat Co-operative Societies Act, 1961 – Electricity Act – Section 22 – Auction – Payment of the arrears of electricity dues in respect of power supplied to the previous owners as a condition precedent for the restoration of electric connection in the premises of the new owners – Petitioner is a Co-operative Society registered engaged in commercial activities and in construction of houses for its members – Respondent no. 2 Pvt. Ltd. had purchased assets of one Company Limited for crores, pursuant to winding-up proceedings in Company Petition – Petitioner contended that petitioner Society, being auction-purchaser of assets of Company in question, is not liable to pay electricity dues of previous owner, in absence of their being statutory provision in that behalf – He has submitted that respondent Company could not have and ought not to have denied petitioner fresh electricity connection on ground that dues of Pvt. Ltd are not paid by petitioner Company – Held, Having not done so, respondent Company, cannot take advantage of their mistake / omission at this stage – Even if it is presumed that respondent Company had not initiated coercive measures for petitioners cannot be made victims of such huge recovery of arrears, on account of liberal stand taken by State Government in that regard – Arrears in question are very old and by now they have become time-barred, and therefore, the petitioners cannot be permitted to recover said amount of arrears by exercising powers which were not exercised at relevant point of benefit of workers of textile mills, respondent Company cannot thrust upon burden of arrears of electricity charges on petitioners time – It is required to be noted that there is no such condition, such as Condition 2 (j), in respect of respondent Company – State Government has not incorporated any such condition in respect of respondent Company – Absence of such condition, respondent Company cannot take shelter of the provisions of its Conditions of Supply and Miscellaneous Charges in order to transfer the burden of arrears of the previous owner on the new owners i. e petitioners – Action of respondent Company is wholly uncalled for and respondent is required to grant fresh connection to the petitioner without insisting for the arrears of the previous owners – Power to recover arrears of electricity charges has to be exercised against the original consumer and not on the new incumbent, i. e a third party – It may not be out of place to state that when this Court had advertised for the auction of the properties in question prior to the winding-up proceedings, the respondent Company could have objected to said auction of the properties in view of huge revenue dues of the erstwhile owners of the said properties – Civil Application disposed of. (Paras 12, 13 and 14)
( 1 ) THESE three petitions raise a common question and are directed against the action of respondent Ahmedabad Electricity Company Limited (for short, the Company ) of insisting upon the payment of the arrears of electricity dues in respect of the power supplied to the previous owners as a condition precedent for the restoration of electric connection in the premises of the new owners. Hence, they are disposed of by this common judgment.
( 2 ) THE facts leading to the filing of Special Civil Application No. 15737 of 2004 are as under; (1) The petitioner in this petition is a Co-operative Society registered under the provisions of the Gujarat Co-operative Societies Act, 1961, engaged in commercial activities and in the construction of houses for its members. Respondent no. 2 herein, M/s. Ajar Enterprises Pvt. Ltd. , had purchased the assets of one Raipur Manufacturing Company Limited for Rs. 13. 30 crores, pursuant to the winding-up proceedings in Company Petition No. 114 of 2001 held before this Court. The said petition was filed on 14. 06. 2001 and it came to be disposed of on 15. 10. 2001. (2) As per the conditions of the said auction, the assets of the Company were conveyed to the petitioner Society by the Official Liquidator as per the Deed of Conveyance executed on 02. 08. 2004 read with the Deed of Rectification dated 01. 10. 2004 executed between the Official Liquidator of the Company i. e. of Raipur Manufacturing Company Limited, ICICI Bank Ltd. , respondent no. 2 herein M/s. Ajar Enterprises Pvt. Ltd and the petitioner herein, and, one Shreeji (Rakhial) Commercial Co-operative Housing Society Ltd. (i. e. petitioner in S. C. A. No. 15545 of 2004) by which the entire property purchased by respondent no. 2 vide order dated 02. 12. 2004 was transferred to the petitioner - Society and Shreeji (Rakhial) Commercial Co-operative Housing Society Ltd. (i. e. petitioner in S. C. A. No. 15545 of 2004 ). (3) After taking possession of the said Company, the petitioner applied to respondent no. 1 - Company for the grant of electric connection for the said premises. However, respondent no. 1, vide letter dated 07. 01. 2004, declined to grant power supply to the petitioner, unless the petitioner pays the demand in the sum of approximately Rs. 12. 3 crores claiming to be the outstanding dues in connection with the power supplied to the previous owner, i. e. Raipur Manufacturing Company Limited (in liquidation) prior to 15. 07. 1999. (4) In response to the above, the petitioner addressed letter dated 25. 11. 2004 to respondent no. 1 claiming that in view of the judgment of the Apex Court in the case of Isha Marbles v. Bihar State Electricity Board, reported in (1995) 2 S. C. C. pg. 648 and some other judgments, the respondent Company could not insist upon the petitioner to pay up the demands due from the previous owner as a condition precedent for the release of fresh connection in view of the auction purchase. (5) No reply was given by respondent no. 1 to the said letter of the petitioner. The petitioner was not extended with the power supply, thereby preventing it from starting its construction activity. Since electricity connection was not released by the respondent - Company, the petitioner has approached this Court by way of this writ petition.
( 3 ) THE short facts in Special Civil Application No. 15545 of 2004 are that the petitioner in this petition is one of the two purchasers, being purchaser no. 2, of the premises of the said Raipur Manufacturing Company Limited, which went into liquidation and was wound up in Company Petition No. 114 of 2001 disposed of on 15. 10. 2001. On 13. 08. 2004, the petitioner made an application to respondent Company for the supply of power. But, the petitioner was denied electricity connection on the same grounds as stated in the aforesaid Special Civil Application.
( 4 ) THE facts in Special Civil Application No. 13216 of 2004 are that the petitioner in this petition had purchase
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