Judgment:
D.G.R. Patnaik, J.
1. Petitioner, in this writ application, has prayed for issuance of an appropriate writ in the nature of certiorari for quashing the order dated-19.08.1995 (Annexure-8), by which the Respondents have rejected the petitioner's application for providing electric connection to his premises situated within Plot No. 1253 to 1262 at Mihilong, Namkom in the district of Ranchi. The grievance of the petitioner is that in spite of his application submitted together with requisite fee, the Respondents have failed to provide electric connection to his premises.
2. Earlier, with the same prayer, the petitioner had preferred a writ application vide W.P. (C) No. 3055 of 2005. While disposing of the said writ application, this Court by its order dated 29.06.2005, instead of deciding the case on merits, gave liberty to the petitioner to approach the Executive Engineer, Electric Supply Division, Kokar Urban Area, Ranchi and with a corresponding direction to the Respondents to decide the petitioner's claim within two months by taking into consideration, the decision rendered by the Supreme Court in the case of Isha Marbles v. Bihar State Electricity Board and Ors. reported in (1995) 2 SCC 682, wherein the Supreme Court held that the electric connection cannot be refused to the subsequent owner on the ground of outstanding dues against the erstwhile owner and to communicate to the petitioner, if any adverse decision is taken by the concerned authorities. The representation having been rejected by the impugned order, the petitioner has filed the instant writ petition.
3. The petitioner's case is that he had purchased the land alongwith residential house situated over the aforementioned plots, comprising a total area of 6.48 acres, from one M/s. Sahu Gupta Industries, under a registered sale deed dated 11.09.2000. The name of the petitioner was mutated in the Government Revenue Records vide an order dated 23.03.2001, passed in Mutation Case No. 787-R/2000-2001. After mutation, the petitioner had deposited rent and had obtained rent receipt.
The petitioner thereafter submitted his application alongwith requisite fee, before the Respondent-Electricity Board, praying for giving electric connection to his premises. His prayer was however, refused by the Respondents-authorities on the ground that some dues towards electricity charges against the erstwhile owner of the land, have remained unpaid.
4. Pursuant to the directions contained in the order passed in the earlier writ application, the petitioner submitted his detailed representation, enclosing therewith a copy of the sale deed, copies of the rent receipts and other particulars as well as the requisite fees.
5. However, despite the directions contained in the earlier order passed in the writ application, the Respondents have failed to follow the ratio decided in the judgment of the Supreme Court in the case of Isha Marbles (Supra), and have rejected the petitioner's application to provide the new electric connection to his premises on the same ground that the electricity dues, payable by the erstwhile owner of the land, has not been cleared.
6. Learned Counsel for the petitioner submits that the refusal of the Respondents to provide a new electric connection to the petitioner, on the ground of non-payment of electricity dues by the erstwhile owner, is totally illegal and contrary to the ratio decided by the Supreme Court in the case of Isha Marbles (Supra).
Learned Counsel explains further, that the reliance placed by the Respondents in the case of M/s. Swarn Rekha Enterprises is not applicable to the facts of the present case, as because in the M/s. Swarn Rekha Enterprises' case, the claim for a new electric connection was made by one of the partners of the original Firm against which the electric dues had remained uncleared and the liability was therefore cast upon the partner to pay the dues of the Firm. Referring to the case of Isha Marbles (Supra), learned Counsel would argue that on considering the facts of the case that there was no charge over the property, the purchaser of the property could not be called upon to clear the dues of electric consumption charge owed by the previous consumer/owner.
Learned Counsel submits further that the same ratio was followed by a Bench of this Court in the case of Kanaklata Sharma v. Jharkhand State Electricity Board and Ors. reported in 2005 (4) J.L.J.R. 267 and earlier in the case of Smt. Rekha Gupta v. Bihar State Electricity Board and Ors. reported in 1999 (3) P.L.J.R. 22 and also in a recent judgment of this Court in the case of Smt. Maya Devi v. State of Jharkhand and Ors. passed in W.P. (C) No. 4443 of 2007.
7. Per contra, the stand taken by the Respondents-Electricity Board is as follows:
(i) The land in question belonged originally to M/s. Sahu Gupta Industries, which was a partnership Firm. The Firm sold away the property to the present petitioner without clearing the charges towards electric consumption by more than Rs. 18 Lakhs till the year 1998-99. A Certificate Case was initiated against the Firm and its partners for realization of the amount vide Certificate Case No. 1 (M) 95-96/34/98-99, which is still pending.
(ii) At the time of purchase of the property, the petitioner had acknowledged the debt which the Firm had owed to the Bank and had sold away the Machines and the Scrap materials of the Firm to clear off the loan dues of the Bank, which was pending against the erstwhile owner.
(iii) The petitioner had purchased the property in a private negotiation after being fully acquainted with the liability of the Firm, including the financial liability towards the Respondents-J.S.E.B. for the electricity dues.
(iv) In the Certificate Proceedings, the Certificate Court had ordered the erstwhile owner, not to dispose of the property without prior permission and inspite of such order, the petitioner had proceeded to purchase the premises from the erstwhile owner through the sale deed.
(v) It was the duty of the purchaser to satisfy himself that there was no electricity dues before purchasing the premises.
(vi) The ratio decided in the Isha Marble's case (Supra) does not apply to the facts of the present case, because in Isha Marble's case (Supra), the property was purchased in auction by the auction purchaser and under such circumstances, it was held that the auction purchaser could not be saddled with any responsibility of liquidating the debt of the erstwhile owner.
(vii) On the other hand, this Court in the case of Prashant Kumar Gupta v. Bihar State Electricity Board and Ors. reported in 2001 (2) J.C.R. 103 (Jhr.), and the Supreme Court in the case of Hyderabad Vanaspati v. AP Electricity Board reported in : (1998) 2 SCR 620, had declared that the ratio in the case of Isha Marbles would not apply in cases of private sale between the parties. The present purchaser therefore, has to pay the dues of the erstwhile owner and without clearance of the dues, the Electricity Board cannot be called upon to extend a new electric connection to the new purchaser.
8. From the rival submissions, the following admitted facts emerge:
(i) The petitioner had purchased the property from the erstwhile owner by virtue of a sale deed.
(ii) The deal was apparently a private deal between the erstwhile owner and the petitioner.
(iii) For realization of the electricity dues, the Respondent-J.S.E.B. has initiated a Certificate Proceeding against the erstwhile owner.
(iv) The petitioner had submitted his application for electric connection alongwith the requisite fee and all the relevant documents to confirm that he was the new owner of the property, since after the date of its purchase.
(v) Admittedly, the prohibition, if any, made by the order of the Certificate Officer in the Certificate Proceedings against the erstwhile owner from selling away the property, did not create any charge over the property in favour of the Respondent-Board. The violation of the order may at best invite penal or other consequences as laid down under the law against the erstwhile owner only.
9. In Isha Marbles' case (Supra), while considering the various provisions under the Electricity Act, relating to the supply of electricity to the owner or occupiers of land, the Supreme Court had observed that the provisions under the Act, declared that the supply of electric energy, would be governed under the terms of a contract executed by and between the licensee and the prospective consumer. The conditions, which could be imposed as per the provisions of the Act, to bind the consumer, do not provide for imposing any liability upon the prospective consumer in respect of the dues towards electric consumption owed by the previous owner of the property. The Court had also observed on the facts of the case, that there was no charge on the property acquired by the prospective consumer.
Following the ratio as decided in the Isha Marble's case, (Supra), this Court in the case of Kanaklata Sharma (Supra), had declared that there cannot be an electric energy dues against a premises, but it could be against an occupant or the consumer. The outstanding dues, as claimed by the Respondents, being in the name of the erstwhile owner, the liability cannot be thrust upon the purchaser of the property.
In the case of Smt. Rekha Gupta (Supra), in which the facts are almost identical to the facts of the present case, the Court had observed that the supply of electric energy, being guided on a personal contract between the parties, namely, the licensee and the consumer, the obligations under such contracts cannot be enforced upon the third party. A Party to the contract has the remedy to recover the dues from the party thereof for the non-fulfillment of the contractual obligations by filing a suit or by initiating a Certificate proceeding under the Bihar & Orissa Public Demand Recovery Act. It is a personal liability of a contracting party and such personal liability cannot be fastened with the landlord or the bona fide purchaser who is not in any manner connected with the erstwhile consumer/vendor as it is not charge over the property.
10. The question as to whether the Board can refuse to grant electric connection on the ground that the erstwhile occupier of the premises defaulted in payment of the dues, came up for consideration before this Court, in the case of Smt. Maya Devi (Supra).
After discussing the relevant provisions of the Electricity Act, 2003, relating to supply of electric connection, and following the ratio laid down by the Supreme Court in Isha Marble's case (Supra), this Court had observed that the Regulations framed under the Electricity Act, specifically provides that the authority cannot deny supply of electricity on the ground that the old consumer committed default in payment of dues and left the premises, provides that the new incumbent is not in any way connected with previous occupier of the premises, who had committed default. Rejecting the grounds advanced by the Electricity Board, this Court had directed the Board to accept the application of the writ petitioner, for giving a fresh electric connection to his premises.
11. In the instant case, the Respondents has not come up with any such material from which an inference can be drawn that the present petitioner/the new purchaser, was in any way connected with the previous owner or occupier of the premises or that the petitioner had the knowledge of the dues owed by the previous owner to the Electricity Board and had undertaken any responsibility to clear the dues of the Board by way of any indemnity. The judgments referred to by the learned Counsel for the Respondents-Board in the cases of (i) Prashant Kumar Gupta and (ii) Hyderabad Vanaspati (Supra), would not apply to the facts of the present case, since the facts in both the cases are different and indicate that there was nexus between the previous owner and the new purchaser and that the sale and purchase of the property of the previous owner was with intent to defraud the Electricity Board with the connivance of the purchaser who also had the knowledge about the Electricity dues owed by the previous owner.
12. In the light of the above discussions, I find merit in this writ application. Accordingly, this application is allowed. The Respondents-Board is directed to accept the application of the petitioner for giving fresh connection to the premises in question and to supply electricity to the petitioner's premises within 30 days from the date of receipt/production of a copy of this order, if the application of the petitioner, is otherwise in accordance with the Rules and procedure as laid down under the Electricity Act and the Regulations there under.
13. Let a copy of this order be given to the learned Counsel for the Respondent-Board.