Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9404 of 2012 ====================================================== 1. Praween Budhia S/O Late Jagdish Prasad Resident Of Hazari Sah Lane, 4th Road, P.O. & P.S. Nath Nagar, Distt. Bhagalpur .... .... Petitioner/s Versus 1. The Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna Through Its Chairman 2. The Chief Engineer, Commercial, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna 3. The Electrical Superintending Engineer, Electric Supply Circle, Bhagalpur 4. The Electrical Superintending Engineer, Electrical Supply Circle, Patna 5. The Electrical Executive Engineer, Urban Electric Supply Division, Bhagalpur 6. The Assistant Electrical Engineer, Electric Supply Sub Division, Bhagalpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Suraj Samdarshi For the Respondent/s : Mr. Vinay Kirti Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 11 13-08-2013 Heard learned counsel for the petitioner and learned counsel for the respondent Bihar State Electricity Board. The petitioner seeks a direction upon the respondent authorities to grant fresh electric connection, which is being delayed by the respondent authorities without any valid reason as also consequential reliefs. The short facts of the case are that the petitioner purchased a piece of land having an area of 2232 Sq. ft. equivalent to 3 Kathas 2 Dhurs in Bhagalpur on 15.6.2005 from Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 2 one Vijay Kumar Bajoria and his two sons, who are not related to him in any manner. Thereafter, the petitioner applied for an Industrial connection for 75 KVA on 9.4.2008 and by letter dated 8.7.2008, the Electrical Superintending Engineer sanctioned contract demand of 75 KVA under 11 KV High Tension from Nath Nagar feeder to the petitioner. The petitioner was required to deposit Rs. 97,500/- as initial security deposit. The petitioner deposited the same and was again asked to deposit a further sum of Rs.49,970/- as per the estimate for erection of High Tension Line as stated in the letter dated 13.7.2010 of the Electrical Superintending Engineer. The petitioner deposited the said amount on 22.7.2010. Thereafter on the instruction of the respondents, the petitioner purchased a new meter and handed over the same to the respondent authorities to get it tested along with testing fee on 19.5.2011. By the letter dated 7.6.2011, the Electrical Superintending Engineer, Bhagalpur requested the Electrical Superintending Engineer, Electric Supply Circle, Patna to get the meter tested at the earliest and return the same so that the electric supply can be energized, but thereafter on the fresh electrical connection not being granted to the petitioner even after a lapse of four years from the date of his application and after all the process failed, the petitioner has approached this Court.
Legal Reasoning
Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 3 Learned counsel for the petitioner submits that under Section 43 of the Electricity Act, 2003, every distribution licensee, shall, on an application by the owner of occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply. It is further pointed out that under sub-section (3) of Section 43 if a distribution licensee fails to supply electricity within the period specified in sub-section (1), he shall be liable to penalty which may extend to one thousand rupees for each day of default. However, in the case of the petitioner, it is submitted that the respondents have failed to do so after nearly five years from the receipt of the application of the petitioner. In the counter affidavit filed on behalf of the respondents, the stand taken is that the petitioner is not entitled to claim fresh connection in the given facts and circumstances and the Board had already set up an enquiry to take legal departmental action against the subordinates, the Junior Engineer and the Assistant Engineer, who have submitted incorrect information regarding the dues on the premises of which the petitioner is one of the beneficiaries. It is further submitted that the petitioner is a member of the joint family and separate connections were taken in the individual names, including in the name of the wife of the Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 4 petitioner, and the total dues against them is Rs. 68-72 lacs and for the said reasons, the fresh connection has not been granted to the petitioner. A reference has been made to as many as nine electrical connections in the names of different family members of the petitioner out of which it is submitted that there are outstanding dues for non-payment with respect to as many as seven such connections. Reliance is placed in the counter affidavit on the third proviso and sub-clause (i) of clause 4.1 of the Bihar State Electricity Supply Code, 2007, in which it is provided that if there are arrears of electricity dues on a premises, a new connection shall not be released to a new applicant or the old consumer on the same premises, if the applicant (being an individual) is an associate or relative (as defined in Section 2 and 6 respectively of the Companies Act, 1956) of the defaulting consumer. It is submitted that even after receipt of notice, the petitioner did not take any step for clearing the outstanding dues of the Board and thus the new connection cannot be granted to him. It is further stated that a money suit is pending in the Court of Bhagalpur for realization of dues of the Board and in the said circumstances, the new connection cannot be granted to the Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 5 petitioner. It is the further stand of learned counsel for the Board that on an enquiry made it was found that the land purchased by the petitioner is situated just on the eastern side of the house of Masudan Lal Budhia, grandfather of the petitioner and, as per the report submitted by the Assistant Electrical Engineer, after purchasing the said plot the petitioner has demolished the boundary wall between the plot of Masudan Lal Budhia and Bijay Kumar Bajoria and the plot purchased by him has been amalgamated and there is no separate identity of the land. It is also the stand in the supplementary counter affidavit that there was electricity dues of Rs.1,13,316/- standing
Legal Reasoning
in the name of Sri Nathmal Bajoria and the supply line was disconnected in the year 2004 and under clause 4.15 of the Electricity Supply Code, 2007, it was the duty of the seller to find out the outstanding electricity dues up to the date of sale and he is liable to pay outstanding electricity dues/obtain no dues certificate. It is the further stand of learned counsel for the Board that under sub-clause (iv) of clause 4.15 of the Code the outstanding dues will be the first charge on the assets of the defaulting consumer/company, and the licensee shall ensure that this is entered in an agreement with new applicant and thus no Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 6 electrical connection can be granted on the piece of land purchased by the purchaser in the face of dues of Rs.1,13,316/- of his vendor Nathmal Bajoria with respect to the larger premises out of which the 2232 sq. ft. has been purchased by the petitioner. As against the aforesaid, learned counsel for the petitioner submits that there can be no application of third proviso and sub-clause (i) of clause 4.1 of the Bihar State Electricity Supply Code, 2007, as the petitioner is neither an associate nor relative of the old consumer on the said premises as per the requirement of the said proviso. It is further submitted that so far as clause 4.15 of the Code is concerned, the Electricity Supply Code itself has been brought into force with effect from 10.1.2008 and therefore, the provisions of clause 4.15 cannot be applied to the case of the petitioner nor any first charge on the outstanding dues which has been created subsequently by the Electricity Supply Code can have any effect on the rights of the petitioner when he had purchased the land in the year 2005 nor any duty as envisaged under sub-clause (i) of clause 4.15 upon seller with regard to specific provisions to be entered in the sale deed would have any application on a prior transaction of sale. Learned counsel further submits that so far as the Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 7 dues of his other relatives are concerned, there is nothing in the Electric Supply Code,2007 to make any consumer liable for such dues unless the dues relate to the particular premises for which a new electrical connection has been sought. With respect to the dues standing in the name of the wife of the petitioner, it is submitted that with regard to the same the wife of the petitioner Smt. Rita Devi Budhia had approached the Consumer Grievance Redressal Forum, B.S.E.B under Section 42 (5) of the Indian Electricity Act, 2003 and by order dated 23.7.2012, it was held by the Forum that the claim of the wife of the petitioner was justified. It is, thus, submitted that the said case cannot be used against the petitioner for grant of a new electrical connection. It is further submitted that the provision regarding dues to deny any electric connection to the applicant, who is an associate or relative of the defaulting consumer, would not apply even in the case of the wife of the petitioner. Apart from the fact, as of today, there is no such due against the wife of the petitioner in terms of the order of the Consumer Forum. It is lastly submitted by learned counsel for the petitioner that so far as the stand of the respondents that the petitioner has amalgamated the premises of his grandfather with Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 8 the land purchased by him, the same is wholly misconceived as the factory of the petitioner is situated on the land which has been purchased by the petitioner and the adjacent land of area 2016 sq. ft. which has been gifted by the grandfather of the petitioner is only used as a link road to the main approach road from the land which has been purchased by the petitioner and there is no construction over the adjacent gifted land so far as the factory unit is concerned. It is further stated that the petitioner is prepared to segregate the land by erecting a boundary wall, in case the respondents so wish. It is contended by learned counsel for the petitioner that the respondent Board admittedly having taken steps to recover the dues from the vendor of the petitioner, they cannot be permitted to have the same recovered from the petitioner. I have considered the rival submissions of learned counsels for the parties. So far as the stand of the respondent Board that there are dues of different family members of the petitioner amounting to Rs.68-72 lacs and therefore a fresh electrical connection cannot be granted to the petitioner is concerned, there is no provision either under the Act or the Regulations which can support such claims for denying a new connection to an applying Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 9 consumer unless such dues relate to the particular premises for which a new electrical connection has been sought in which case the third proviso to sub-clause (i) of clause 4.1 of the Bihar Electricity Supply Code may come into operation. That not being the case and the premises in question having been purchased by the petitioner from a third party, no such condition can be imposed by the respondent Board for the purpose of grant of new electrical connection to the petitioner. This Court is also in agreement with the submissions of learned counsel for the petitioner that the dues of the petitioner’s wife unrelated to the premises in question of the petitioner could not be taken into consideration for denying the new electrical connection to the petitioner. Moreover, in the present circumstances, no such dues can be said to be standing against the petitioner’s wife in view of the order dated 23.07.2012 of the Consumer Grievance Redressal Forum. So far as the liability of the petitioner to pay the outstanding dues of his vendor is concerned, two issues have to be kept in mind. Firstly, the vendor has not sold of his entire premises to the petitioner but only part of the vacant land and the rest of the premises including the residence are still under the occupation of the vendor. Moreover, no such duty as envisaged under clause Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 10 4.15 (i) would be applied to the sale deed of the petitioner which was executed on 15.6.2005, whereas the Electricity Supply Code itself has come into force on 10.1.2008 and no such retrospective effect can be given to any such obligations and duties created by the Supply Code. The petitioner can only be saddled with such liability under the Supply Code as pertain to the prospective period since the application for new electrical connection was made by him after the Supply Code has come into force. Thus, the dues of the vendor of the petitioner are for the respondent Board to realize from the said vendor by taking appropriate steps, which has already been done by filing the suit in the Civil Court. The only issue that remains to be considered is as to the effect of the land approximately 2016 sq. ft. gifted to the petitioner by his grandfather which is adjacent to the premises on which the factory has been installed by the petitioner, for which the new connection has been sought. The fact that the boundary wall between the two plots has been demolished has not been denied by the petitioner although learned counsel for the petitioner submits that no part of the factory is situated on the land gifted by his grandfather and the same is only being used so as to provide a link road between the main road and the factory premises. By filing a supplementary affidavit it has been Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 11 stated that the petitioner is prepared to segregate the land by erecting a boundary wall so that only such part of the gifted land is used by him which is required for the purpose of approach road to the factory premises of the petitioner. In my view, the same should be sufficient to take care of the concerns of the respondent Board in this regard, otherwise the gift deed having been executed on 11.3.2008, i.e., after the coming into force of the Supply Code, any such amalagamation of the two lands and extension of the factory to the adjacent plot would surely bring the petitioner within the mischief of sub-clause (i) of the third proviso to clause 4.1 of the Supply Code. On the petitioner complying with the said undertaking given by an affidavit, in my view, he would be entitled to the benefit of a fresh electrical connection on the land on which the factory is situated so long as the adjacent land is used only for the purpose of approach road to the main road. Thus, on a consideration of the entire facts and circumstances of the case, the writ application is allowed subject to the petitioner complying with the aforesaid undertaking and segregating the gifted land so as to have only a connecting road with a boundary wall on the said land to reach the factory premise. The authorities of the respondent Board, now the Bihar State Patna High Court CWJC No.9404 of 2012 (11) dt.13-08-2013 12 Power (Holding) Company Ltd., are directed to grant a fresh electrical connection to the petitioner within a period of one month from the date when the petitioner completes the segregation of the road from the gifted land to the satisfaction of the authorities of the respondent Board. V.P.Sinha/- (Ramesh Kumar Datta, J)