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2017 Supreme(Guj) 814
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
C.L. Soni, J.
Hotel Satyaketu - Appellants
Vs.
Madhya Gujarat Vij Company Ltd. - Respondent
Special Civil Application Nos. 5071, 6015 of 2003 and 14766 of 2004
Decided On : 20-04-2017
For the Appellant : A.J. Patel
For the Respondents: Lilu K. Bhaya
Important Point:
No statutory provision under which the Board required the prospective consumer to deposit arrears of electricity dues payable by the former consumer
Headnote:Constitution of India, 1950--- Article 226--- Electricity Supply Act, 1948--- Section 49 --- payment of the outstanding dues of the erstwhile consumers, whose premises are purchased by the petitioners in auction---three civil application--- question about validity of the condition No. 2(j) --- held it to be valid --- having statutory character. --- since the petitioner of the first petition had made application subsequent to introduction of condition No. 2(j), insistence of the Company for payment of the past dues to grant electric connection to the petitioner, though it is an auction purchaser, cannot be said to be illegal---no relief could be granted to the petitioner---first petition dismissed.--- on the date when the petitioners applied for electric connection--- no condition having statutory recognition, under which the company could have insisted for payment of the dues of the erstwhile consumer as a precondition for supply of the electric connection to the petitioners--- case of the petitioners covered by the judgment of Isha Marbles --- insistence of the company upon the petitioners to first clear the outstanding dues of the erstwhile consumer to get electric connection at the premises of the erstwhile consumer purchased by the petitioners in auction was in clear breach of the law --- if the company continued to insist to first clear the dues of the erstwhile consumer to give electric supply to the petitioners, the petitioners could not be denied relief on the ground that the petitioners are responsible for delay and laches in approaching this Court--- Third petition---petitioner purchased building and machineries of the erstwhile consumer in the auction held by GSFC ---petitionergiven possession of the property on along with a policy that the auction purchaser is not required to clear the dues of the erstwhile owner payable to the local authorities, including the GEB. ---first discharge the dues of erstwhile consumer was illegal, arbitrary, unreasonable and unjust--- Third petition allowed.
Result: Appeal Partly Allowed.
C.L. Soni, J.
1. In all these petitions filed under Article 226 of the Constitution of India, common grievance is made against insistence of the Gujarat Electricity Board - now the Vij Company (to be referred as "the Company") for payment of the outstanding dues of the erstwhile consumers, whose premises are purchased by the petitioners in auction, for giving electric connection to the petitioners.
2. It is the case of the petitioners that they have purchased the units of the erstwhile consumers in public auction and they are not required to discharge any liability of the erstwhile consumers and they cannot be denied electric connection by the company by insisting that they should first discharge the outstanding dues of the erstwhile consumers. However, the stand of the Company is that by virtue of the condition No. 2(j) inserted in conditions for supply of electricity in exercise of the powers under Section 49 of the Electricity Supply Act, 1948 ('the Supply Act'), the company is entitled to insist for payment of the outstanding dues of the erstwhile consumers by the petitioners- purchasers of the units of the erstwhile consumers as precondition for giving electric connection to them.
3. Condition No. 2(j) which was inserted in condition of supply vide notification dated 10.8.2001 reads as under:-
Recovery of old dues-
Reconnection or new connection for any premises, where there are arrears of the Board pending from the consumer/occupier, shall not be entertained. The new successor/ occupier has to clear these dues of the previous consumer before the application of successor/occupier is processed for supply of electricity. If the Board, at a later date, gets the full or part of these dues from the previous consumer, the amount shall be refunded to the successor/occupier after adjusting the costs including legal expenses to recover such arrears and the refund shall bear no interest.
4. The above condition No. 2(j) is held to be statutory in character by the Division Bench of this Court vide its judgment dated 18.7.2005 in Letters Patent Appeal No. 696 of 2003 and allied appeals. In the said judgment, Division Bench also held that it did not find anything manifestly arbitrary in Board's insistence on the deposit of the arrears of the electricity charges/dues as a condition precedent for restoration of the supply or release of fresh connection. Before the Division Bench, judgment in the case of Isha Marbles v. Bihar State Electricity Board reported in JT 1995(2) SC 626 was relied. The Division Bench found that in the case of Isha Marbles (Supra), there was no statutory provision under which the Board required the prospective consumer to deposit arrears of electricity dues payable by the former consumer and therefore, held that the ratio of the judgment in Isha Marbles (supra) could not be applied to the cases where insistence for recovery of the past dues was based on condition No. 2(j), which is statutory in character and contains a specific provision for payment of the arrears of the electricity dues as a condition precedent for restoration of the connection or grant of fresh connection.
5. In the case of Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board and others reported in (1998)4 SCC 470, Hon'ble Supreme Court has held that the terms and conditions for supply of the electricity to consumers, notified by the Board in exercise of the powers under Section 49 and made applicable to all consumers availing supply of the electricity are statutory in character.
6. The case of the petitioner of the first petition, being Special Civil Application No. 5071 of 2003 is that it purchased the unit of the erstwhile consumer in public auction held by the Gujarat State Financial Corporation ('GSFC') on 10.7.2000 and it was handed over the possession of the property purchased on 14.8.2000, whereas the condition No. 2(j) was introduced for the first time on 14.8.2001 and therefore, the company was not justified in insisting for pay
