High Court
Case Details
WP(C) 5349/2006 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) Facts of the case leading to the present litigation may be briefly noted By this writ petition under Article 226 of the Constitution of India, pe titioners seek quashing of communication dated 23.9.2006 of the respondent No. 3 declining to provide fresh electricity connection to the tea estate of the peti tioners and further seek a direction to the respondents to provide fresh electri city connection to the said tea estate i.e. Pathini Tea Estate in the district o f Karimganj (Assam) without insisting on clearance of the previous dues of the e arlier consumer/owner, Tea Trading Corporation of India Limited. 2. . 3. Initially, the writ petition was filed and moved by Vijayshree Industrie s Private Ltd. (Unit-Pathini Tea Estate) and its Managing Director Shri Devendra Kumar Mantri. Subsequently, in terms of order dated 22.8.2007 passed in MC No. 3100/2007, petitioner No. 1 was substituted by D.M. Properties Private Ltd. Agai n, as per order of this Court dated 28.4.2010 passed in MC No. 1066/2010, follow ing change of name of the company from D.M. Properties Private Ltd. to Mantri Te a Company Private Ltd., which was approved by the competent authority leading to issuance of fresh certificate of incorporation, Mantri Tea Company Private Ltd. is now the petitioner No. 1. Accordingly, the present petition is being pursued by Mantri Tea Company Private Ltd. (Unit- Pathini Tea Estate) and its Managing
Legal Reasoning
Director Shri Devendra Kumar Mantri as the petitioners. 4. Tea Trading Corporation of India Ltd, the erstwhile owner of Pathini Tea Estate was in liquidation and, in this connection, Company Petition No. 324/199 1 was instituted in the Calcutta High Court. In the course of the said winding u p proceeding, the properties and assets of Pathini Tea Estate were put up for sa le by auction by the Official Liquidator appointed by the Calcutta High Court. O ne R.K. Fishing and Agro-based Private Limited submitted a bid of Rs. 1.55 crore s for purchase of the Pathini Tea Estate ( ’Tea Estate’ hereafter ). However, th e said party defaulted in depositing the entire bid money. At this stage, the pr edecessor company i.e. Vijayshree Industries Private Ltd. stepped in and being i nterested in venturing into tea business, filed an application in the pending co mpany petition before the Calcutta High Court, being Company Application No. 343 /2006, and deposited the entire bid money of Rs. 1.55 crores to purchase the ass ets and properties of the tea estate in auction. It is stated that representativ es of the petitioners had inspected the tea estate and found that there was no e lectricity connection to the tea estate. The earlier connection given was discon nected since the year 2000 and dismantled by the Assam State Electricity Board. Calcutta High Court passed order dated 22.8.2006 confirming the sale of the asse ts and properties of the tea estate in favour of Vijayshree Industries Private L td. subject to deposit of a further sum of Rs. 2,20,000/- on or before 28.8.2006 being the additional expenses incurred on account of securing the assets and pr operties of the tea estate. 5. Vijayshree Industries Private Ltd. deposited the aforesaid additional am ount of Rs. 2,20,000/- before the Official Liquidator on 23.8.2006. Thereafter, on completion of official formalities, possession of the tea estate was handed o ver to Vijayshree Industries Private Ltd. on 29.8.2006. Since then, Vijayshree I ndustries Private Ltd. and thereafter, Mantri Tea Company Private Ltd. are in ph ysical possession of the assets and properties of the tea estate. 6. As per the minutes of handing over and taking over possession of the tea estate dated 29.8.2006, it was clarified by the Official Liquidator that all pr e-liquidation claims would be invited by newspaper publication and settled by th e Official Liquidator in accordance with law. 7. Electricity connection to the tea estate was disconnected by the Assam S tate Electricity Board (ASEB) for non-payment of dues by the previous owner i.e. Tea Trading Corporation of India Ltd. Since electricity was necessary to run th e tea estate, petitioners wrote to the authorities of the successor company viz, Central Assam Electricity Distribution Company Ltd. (CAEDCL), more particularly to the respondent No. 3, vide letter dated 30.8.2006 requesting the authority t o provide HT and LT electricity connection to the tea estate. Respondent No. 3 w as informed that petitioners had purchased the assets and properties of the tea estate which was previously owned by Tea Trading Corporation of India Ltd. (in l iquidation) on order passed by the Calcutta High Court in a company petition and that possession of the assets and properties of the tea estate was handed over to the petitioners by the Official Liquidator on 29.8.2006. However, respondent No. 3 informed the petitioners vide impugned communication dated 23.9.2006 decli ning to restore electricity connection or to provide fresh connection to the tea estate. It was stated that as per the terms and conditions of supply of power b y ASEB, electrical connection to any premises which was disconnected due to defa ult in payment of electricity bills cannot be restored or provided fresh connect ion unless the outstanding dues are cleared alongwith all statutory charges. 8. This was followed by a number of correspondences between the petitioners and the respondents but the stalemate continued. Ultimately, on a request made by the petitioners, respondent No. 4 furnished a certificate dated 20.10.2006 ce rtifying that electricity connection to the tea estate was disconnected on 4.12. 2000 due to non-payment of energy bill. The break-up of the outstanding dues as on 1.10.2006 was as follows:- Principal Surcharge Total 9. As the respondents were not providing electricity connection to the tea estate, the present writ petition has been filed seeking the relief as indicated Rs. 12,31,888.00 Rs. 49,53,717.00 Rs. 61,85,605.00 - - - above. 10. Contention of the petitioners is that petitioners had sought for fresh e lectricity connection and such connection cannot be declined on the ground of de fault in the payment of electricity dues by the previous owner. Petitioners bein g auction purchaser of the assets and properties of the tea estate, the arrear d ues of the previous owner, whose default led to disconnection of electricity sup ply to the tea estate, cannot be realized from them. Respondents had to lodge th eir claim before the Official Liquidator since the company which was the previou s owner of the tea estate had gone into liquidation and was facing a winding up proceeding. Alternatively, it is contended that the outstanding dues relate to a period prior to 4.12.2000, on which date electricity supply to the tea estate w as disconnected. Therefore, such dues have now become time barred and cannot be recovered. 11. This Court by order dated 8.11.2006 had admitted the writ petition for h earing and passed an interim order directing that fresh electricity connection b e provided by the respondents to the petitioners as new registered owner of the tea estate without insisting on payment of arrears as per certificate dated 20.1 0.2006. It was, however, observed that such demand of arrears would be subject t o the outcome of the writ petition. Liberty was also given to the respondents to move the appropriate forum including the Official Liquidator for settlement of the claim of outstanding electricity charges against Tea Trading Corporation of India Limited, the previous owner of the tea estate. 12. Respondents have filed a common affidavit. Stand taken is that as per pr ovision of Assam Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2004, the foremost condition of supply of electric ity to new connection is to ensure that previous electricity dues are cleared. U nless the arrear dues of the tea estate alongwith all statutory charges are clea red, respondents cannot provide fresh electricity connection to the tea estate. Respondents are public utility service providers funded by public money and, the refore, a commercial entity like the tea estate cannot take undue advantage of t he situation. The outstanding dues of the tea estate amounting to Rs.61,91,102.0 0 is the legitimate claim of the respondents. Contention of the petitioners that the outstanding dues of the previous owner are not recoverable from them has be en disputed by the respondents, who have also taken the stand that bills were ra ised continuously against the tea estate claiming all outstanding dues. Copies o f some of the bills have been annexed to the counter affidavit. Therefore, the a rrear dues have not become time barred. Further, respondents had issued newspape r advertisement on 26.6.2006 in terms of Government decision dated 29.11.2004 in forming all electricity consumers having outstanding dues to clear the said dues before transfer of the premises and also intimating the prospective buyers to s atisfy themselves regarding clearance of electricity dues before taking over pos session of such premises and that in the event of non-discharge of liability of electricity dues by the previous owner, the purchaser/lessee would be liable to clear the said dues before electricity connection is provided. 13. Petitioners have filed a detailed affidavit-in-reply. Besides reiteratin g the contentions advanced in the writ petition, the petitioners have further st ated that the bills annexed to the counter affidavit of the respondents are not genuine as those are manufactured ones to show that respondents had been regular ly raising bills for payment of the outstanding dues so as to ensure that the ar rear dues can be presented as subsisting and have not become time barred under t he law. In paragraph 8 of the reply affidavit, petitioners have given details to support their contention that the claims have become time barred under Section 56 (2) of the Electricity Act, 2003. Petitioners have contended that since the c laim of the respondents are more than 2 years old, those are not recoverable. Pe titioners had sought for new electricity connection and not for restoration of t he earlier connection which was in the name of Tea Trading Corporation of India Limited. Petitioners have also factually disputed that the bills raised by the r espondents, which have otherwise been disputed as not genuine, had been served o n the previous owner or the Official Liquidator. They have contended they cannot be termed as ’consumer’ under Section 2 (15) of the Electricity Act, 2003 as el Heard Mr. S.K. Kejriwal, learned counsel for the petitioners and Mr. B.D ectricity connection was yet to be provided. 14. . Das, learned senior counsel appearing for the respondents. Mr. Kejriwal, learned counsel for the petitioners contends that since th 15. e petitioners are auction purchaser of the property in question, they cannot be saddled with the dues of the previous owner. He submits that the earlier owner T ea Trading Corporation of India Limited was a company in liquidation and in a wi nding up proceeding under the Companies Act before the Calcutta High Court, peti tioners had purchased the assets and properties of the tea estate in auction, th e sale of which was confirmed by the High Court. The Official Liquidator had cle arly stated at the time of handing over possession of the tea estate that all pr e-liquidation claims would be invited by newspaper publication and settled by th e Official Liquidator in accordance with law. Therefore, question of recovery of arrear electricity dues of erstwhile owner from the petitioners does not arise. Petitioners have sought for fresh electricity connection and not for re-connect ion or transfer of connection. He further submits that the electricity dues of t he previous owner related to a period prior to 4.12.2000 when electricity connec tion to the tea estate was disconnected. Therefore, such claim cannot be raised now as it has become time barred under Section 56 (2) of the Electricity Act, 20 03. Referring to Regulation 3.6.4 of the Assam Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations, 2004, learned counse l submits that the dues of the earlier occupier relates to a period more than 2 years prior to the date of issuance of certificate of demand dated 20.10.2006 an d, therefore, are not recoverable in law. He also contends that Central Assam El ectricity Distribution Company Limited (CAEDCL) is a successor company of Assam State Electricity Board (ASEB) and as per the transfer scheme, since no suit or other proceeding for recovery of the amount in question was pending for recovery of the aforesaid amount on the date of coming into force of the Electricity Act , 2003, such dues have also no legal sanctity now. Therefore, the dues of the pr evious owner cannot be recovered from the petitioners. In this connection, he ha s placed reliance on a decision of this Court rendered in the case of Nanotech P vt. Limited and Others -vs- Assam State Electricity Board and Others reported in 2009(2) GLT 212. Referring to various bills placed on record, learned counsel f or the petitioners vehemently argues that those are not only not genuine but the re is also no documentary evidence to show that such bills raised were in fact s erved continuously either at the registered office of the previous owner or serv ed on the Official Liquidator. He has also contended that petitioners cannot be brought within the ambit of the definition of a ’consumer’ as defined under Sect ion 2 (15) of the Electricity Act, 2003. He has placed reliance on a number of d ecisions which shall be referred to in the course of the judgment. 16. Opposing the submissions made by the learned counsel for the petitioners , Mr. B.D. Das, learned senior counsel appearing for the respondents submits tha t respondents have acted in accordance with law. All that the respondents are tr ying to ensure is that the earlier dues are paid before electricity connection i s given to the tea estate. It was the duty of the petitioners to have verified t he outstanding dues of the tea estate by the previous owner and to have paid suc h dues before purchasing the same. He has placed reliance on the provision of Re gulation 3.6.4 of the Assam Electricity Regulatory Commission (Electricity Suppl y Code and Related Matters) Regulations, 2004 to support his above contention. H e submits that the said provision has been approved by a Division Bench judgment of this Court in the case of Carbon Resources (P) Ltd -vs- Assam Electricity Re gulatory Commission and Others reported in (2010) 5 GLR 29. Respondents had been regularly issuing bills to the tea estate demanding payment of the arrear dues. Therefore, the claim has not become time barred as per Section 56(2) of the Ele ctricity Act, 2003. Referring to the contentions of the petitioners that the bil ls are not genuine and that those were not served, learned senior counsel submit s that firstly, ASEB or CAEDCL are statutory bodies and question of manufacturin g fake bills by a State instrumentality does not arise. Secondly, petitioners ha ve raised controversial and disputed questions of fact as to whether the bills a re genuine or not and whether those had been served or not. He contends that thi s Court in a proceeding under Article 226 of the Constitution of India may not e nter into such disputed questions of fact, the determination of which would be e ssential to decide the issues raised in the writ petition. In the course of hear ing, he has produced a numbers of bill books to show that bills were continuousl y raised. He, therefore, prays for dismissal of the writ petition. 17. 18. issues arise for consideration of the Court, which are as under:- Submissions made have been considered. From an analysis of the pleadings and the submissions made, broadly two 1) Whether the petitioners who had purchased the assets and propert ies of the tea estate from another company in liquidation in auction from the Of ficial Liquidator in a winding up proceeding in Court, would be liable to pay th e outstanding electricity dues of the earlier owner? 2) Whether the outstanding electricity dues of the tea estate stand Before attempting to answer the above issues, a brief reference to some ing in the name of the earlier owner have become barred by limitation? 19. of the relevant legal provisions is considered necessary. The Electricity Act, 2003 was enacted to consolidate the laws relating t 20. o generation, transmission, distribution, trading and use of electricity and for taking measures conducive to development of electricity industry, promoting com petition, rationalization of electricity tariff etc. The Act came into force on 10.6.2003. Section 2 (15) defines ’consumer’. As per the said definition, ’consu mer’ means a person who is supplied with electricity for his own use by a licens ee or by the Government or by any other person engaged in the business of supply ing electricity to the public under the Electricity Act, 2003. Thus, the statuto ry definition of ’consumer’ is a person who is in receipt of supply of electrici ty. ’Person’ has been defined under Section 2 (49) to include any company or bod y corporate or association or body of individuals whether incorporated or not or artificial juridical person. Section 43 deals with supply of electricity. It provides that every dist 21. ribution licensee shall on an application by the owner or occupier of any premis es, give supply of electricity to such premises, within a period of one month fr om the date of receipt of the application requiring such supply. As per the Expl anation to the said section, the application would have to be in the appropriate form and complete in all respects. Thus, under Section 43 of the Electricity Ac t, 2003, every distribution licensee is under an obligation to supply electricit y on an application made by the owner or the occupier of the premises within a p eriod of one month from the date of receipt of the application subject to fulfil ment of the necessary conditions. Section 56 of the Electricity Act, 2003 provides for disconnecti 22. on of supply in default of payment. As per Sub-section (1) of the said section, where any person neglects to pay any due for supply of electricity, the licensee would have the right to cut off supply of electricity after giving him 15 days notice. Such disconnection will, however, be without prejudice to recover the du es. Sub-section (2) provides that no sum due from any ’consumer’ under the said section shall be recoverable after a period of two years from the date when such sum became first due unless such sum has been shown continuously recoverable as arrear of charges for electricity supplied and the licensee shall not cut off t he supply of electricity. A careful reading of the said section would reveal a s ubtle but significant distinction. While the first part deals with disconnection of electricity supply for default in the payment of dues, the second part impos es a time limit for recovery of such dues. While the first part deals with defau lt by any ’person’, the second part specifically deals with recovery from a ’con sumer’. No sum due from a ’consumer’ beyond two years is recoverable unless it c an be shown that steps have been taken continuously to recover the dues. Barring the exception, the licensee is not entitled to cut off the supply of electricit y after two years when the payment of electricity charges first became due. Thus , recovery can be made only from a ’consumer’ that too within the period specifi ed subject to the exception carved out. And ’consumer’ means a person who is in receipt of supply of electricity, as per definition under the Electricity Act, 2 003. 23. Assam Electricity Regulatory Commission constituted under the El ectricity Act, 2003 has framed the Electricity Regulatory Commission (Electricit y Supply Code and Related Matters) Regulations, 2004. The said Regulations (here inafter referred to as (cid:28)Assam Supply Code (cid:29)) have since been amended. The Assam S upply Code deals with supply of electricity and other related matters. In the As sam Supply Code, as per Regulation 1.3 (vi), the term ’consumer’ has been given an extended meaning beyond the meaning ascribed in the definition of the said te rm in the Electricity Act, 2003. In addition to the definition given in the Elec tricity Act, 2003, as per the definition in the Assam Supply Code, the term ’con sumer’ would also include persons who have applied for electricity connection or whose supply has not yet commenced even though connection has been provided. A conjoint reading of the definition of ’consumer’ under the Electricity Act, 2003 and under the Assam Supply Code would show that there is an endeavour in the la tter to expand the meaning of the term ’consumer’ to bring in persons within its fold, thereby bringing into existence substantive obligations or disabilities o n such persons, which is not intended or contemplated by the Electricity Act, 20 03. The provisions of the Assam Supply Code cannot traverse beyond the Electrici ty Act, 2003 and those would have to be interpreted or understood keeping in vie w the provisions of the Electricity Act, 2003. 24. As per Regulation 3.6.4 of the Assam Supply Code, in case of a p erson occupying a new property, it will be the obligation of that person to chec k the bills for the previous months or in case of disconnected supply, the amoun t due as per the licensee’s record immediately before occupation and ensure that all outstanding electricity dues as specified in the bills are duly paid up and discharged, subject to the bar of limitation as per Sub-section (2) of Section 56 of the Electricity Act, 2003. As discussed above, this provision will have to be interpreted and understood keeping in view the provisions of the Electricity Act, 2003, particularly the provisions contained in Sections 2(15), 43 and 56 ( 2) thereof, and not in isolation. In Global Energy Limited and Another -vs- Cent ral Electricity Regulatory Commission reported in (2009) 15 SCC 570, where the c onstitutional validity of certain clauses of the Central Electricity Regulatory Commission (Procedure, Terms and Conditions for Grant of Trading Licence and Oth er Related Matters) (Amendment) Regulations, 2006 was questioned, the Apex Court held that the regulation making power cannot be exercised so as to bring into e xistence substantive rights or obligations or disabilities which are not contemp lated in terms of the provisions of the Electricity Act, 2003 and that the power of the regulation making authority must be interpreted keeping in view the prov isions of the said Act. Regulation 4.2.2 of the Assam Supply Code deals with billing. Fr 25. equency of bills should preferably be one month, giving 15 days time for payment . Bills are required to be sent by post or delivered at the premises of the cons umer. Recovery of old dues is provided in Regulation 4.3.3 of the Assa 26. m Supply Code which is similar to the provision contained in Sub-section (2) of Section 56 of the Electricity Act, 2003. 27. As already noticed above, the previous owner of the tea estate, which defaulted in the payment of electricity dues, was a company in liquidation for which a winding up proceeding under the Companies Act, 1956 was going on in the Calcutta High Court. Official Liquidator was appointed by the High Court to sell the assets and properties of the tea estate in auction sale. Following the failure of the first party to pay the consideration money, petitioners had paid the entire consideration money of Rs.1.55 crores with the Official Liquidator a nd thereafter also paid the additional amount of Rs.2,20,000/- to the Official L iquidator on account of security expenses. The purchase of the tea estate by the petitioners was confirmed by the Calcutta High Court and on order of the High C ourt, physical possession of the assets and properties of the tea estate was han ded over to the petitioners. At the time of handing over possession of the tea e state, the Official Liquidator had clarified that all the pre-liquidation claims would be invited by newspaper publication and settled by the Official Liquidato r in accordance with law. After getting possession over the tea estate, petition ers applied for fresh electricity connection. 28. Respondents have been not able to show or produce any material i ndicating steps taken by them for recovery of dues from the previous owner of th e tea estate. Respondents have also not been able to place any material on recor d to show that they had lodged claim before the Official Liquidator for realizat ion of the dues in terms of order of this Court dated 8.11.2006. Thus, no effect ive steps were taken for recovery of the arrear dues from the erstwhile owner i. e., the ’consumer’. 29. In the case of Isha Marbles -Vs- Bihar State Electricity Board a nd Another reported in (1995) 2 SCC 648, the Hon’ble Supreme Court examined the question as to whether the auction purchaser was liable to meet the liability of old consumer of electricity to the premises which was purchased by him in aucti on sale from the Bihar State Financial Corporation under Section 29(1) of the St ate Financial Corporations Act, 1951. That was a case under the old Electricity Act, 1910. After examining various aspects of the matter, the Hon’ble Supreme Co urt held that where the premises came to be owned or occupied by the auction pur chaser, when such purchaser seeks supply of electric energy, he cannot be called upon to clear the past arrear as a condition precedent to supply. What matters is the contract entered into by the erstwhile consumer with the supplier. Suppli er cannot seek enforcement of contractual liability against third party. It was finally held that it is impossible to impose on the purchasers a liability which was not incurred by them. Auction purchasers cannot be consumers till a contrac t is entered into. 30. Similar issue cropped up in the case of Ahmedabad Electricity Company Li mited -vs- Gujarat Inns Private Limited and Others reported in (2004) 3 SCC 587. In that case, the two respondents were auction purchaser under Section 29 of th e State Financial Corporations Act, 1951 in one case and in the other case, from the Official Liquidator in winding up proceeding under the Companies Act, 1956. The previous owners of the properties had defaulted in the payment of electrici ty dues. The dispute was whether the respondents should be held liable to pay th e arrears which were outstanding against the previous owners. Referring to the j udgment in Isha Marbles (Supra), a three judges Bench of the Hon’ble Supreme Cou rt held that the two cases before it were cases of fresh connection. It was held that in case of a fresh connection though the premises are the same, the auctio n purchaser cannot be held liable to clear the arrears incurred by the previous owner in respect of power supply to the premises in the absence of there being a specific statutory provision in that regard. 31. In Paschimanchal Vidyut Vitran Nigam Ltd and Others -vs- DVS Steels and Alloys Private Limited and Others reported in (2009)1 SCC 210, the question was whether the supplier can recover the electricity dues from the purchaser of a su b-divided plot. The Hon’ble Apex Court held that supply of electricity by distri butor to a consumer is (cid:28)sale of goods (cid:29). The distributor as the supplier and the owner/occupier of a premises with whom it entered into a contract for supply of electricity are the parties to the contract and transferee of the premises or a subsequent occupant of the premises with whom the supplier has no privity of con tract cannot obviously be asked to pay the dues of his predecessor-in-title or p ossession, as the amount payable towards supply of electricity does not constitu te a ’charge’ on the premises. A purchaser of the premises cannot be foisted wit h the electricity dues of any previous occupant merely because he happens to be the current owner of the premises. The supplier can neither file a suit nor init iate revenue recovery proceeding against the purchaser of the premises for the o utstanding electricity dues of the vendor of the premises in the absence of any contract to the contrary. 32. The above issue again came up for consideration before the Hon’ble Supre me Court in Haryana State Electricity Board -vs- Hanuman Rice Mills, Dhanauri an d Others reported in (2010) 9 SCC 145. After referring to various previous judgm ents, the position was summarized by the Apex Court as under:- (cid:28)Electricity arrear do not constitute a charge over the property. Theref ore, in general law, a transferee of the premises cannot be made liable for the dues of the previous owner/occupier and that where the statutory rules or terms and condition of supply authorises the supplier to demand from the purchaser cla iming reconnection or fresh connection of electricity, the earlier dues of the p revious owner/occupier in regard to supply of electricity to such premises, the supplier can recover the arrears from the purchaser. (cid:29) 33. In Carbon Resources (P) Ltd. (supra), a Division Bench of this Court neg atived the challenge to the validity of Regulation 3.6.4 of the Assam Supply Cod e and held the conditions prescribed therein for providing electricity supply to a premises where electricity had been disconnected for non-payment of the dues to be justified. 34. However, the issue appears to have been finally settled by the Hon’ble S upreme Court in the recent case of Special Officer, Commerce, North Eastern Elec tricity Company of Orissa (NESCO) and Another -vs- M/s Raghunath Paper Mills Pri vate Limited and Another in Civil Appeal No. 7899/2012 disposed of on 9.11.2012 (MANU/SC/0962/2012). The Hon’ble Supreme Court again considered the issue as to whether a company which purchased the property of another company under liquidat ion through auction is liable to pay the arrears of electricity dues outstanding against the erstwhile company. That was also a case where the moveable and immo vable assets and properties of the factory belonging to the company in liquidati on was purchased by the respondent company pursuant to order of the High Court i n company proceeding under the Companies Act, 1956 on ’as is where is and whatev er there is’ basis. After referring to various provisions of the Electricity Act , 2003 and the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004, the Apex Court held that it was a case of fresh connecti on and not for transfer of connection. Respondent company had applied for fresh connection for its unit after purchasing the same from the Official Liquidator. The arrears of electricity dues levied against the premises in question was agai nst the erstwhile company. Sub-clause 10 of Regulation 13 of the Orissa Supply C ode, which is somewhat similar to Regulation 3.6.4 of the Assam Supply Code, was examined and explained by the Apex Court to hold that the said clause applies t o a request for transfer of service connection but not to a fresh connection. In respect of requirement of payment of other dues before processing electricity c onnection, it was held that such dues does not mean and were not meant to convey that a new applicant for fresh connection shall pay arrears of electricity dues or other dues for the same premises which were payable by the earlier consumer. Other dues has been explained to mean security and other charges payable for a new connection in terms of the conditions of supply but not the arrears of elect ricity dues payable by earlier consumer who was in default. Finally, having rega rd to the fact that respondent company had purchased the premises under Court au ction sale from the Official Liquidator, it was held that it was a request for f resh connection and not for transfer of connection from the previous owner. The decision of the High Court directing the supplier to provide electricity to the unit of the respondent company was accordingly upheld by the Apex Court. 35.
Decision
I am of the opinion that the facts of the present case are substantially identical with the facts of the above case and, therefore, the present case wou ld stand covered by the ratio of the above judgment. In view of the above judgme nt, the decision in Carbon Resources (P) Ltd. (supra) can be of no assistance to the respondents. 36. In view of the above deliberation and the case laws discussed, I am of t he considered view that the requirement of Regulation 3.6.4 of the Assam Supply Code would not be applicable to an auction purchaser of a property, earlier belo nging to a company in liquidation having arrear electricity dues, from the Offic ial Liquidator on order of the High Court in a winding up proceeding. Having hel d so, I deem it appropriate to allow this writ petition and to make the interim order dated 8.11.2006 directing the respondents to provide fresh electricity con nection to the tea estate absolute. 37. ision on the second issue is considered not necessary. Writ petition is accordingly allowed. 38. However, there shall be no order as to cost. 39. Since the case is being decided on the first issue, deliberation and dec