Judgment:
ORDER
1. This writ petition relates to supply of electricity to a residential building numbered as Holding No. 729(C) in Ward No. 35 situated at Chauliaganj in Cuttack town. The said property was earlier in the name of the mother of the petitioner. Electricity to the said building was supplied to the consumer bearing registration No. 02252995, which was in the name of the elder brother of the petitioner Keshab Chandra Lenka. After the death of the mother of the petitioner, the properties of the family were partitioned between the petitioner and his two brothers, namely, Keshab Chandra Lenka and Rama Chandra Lenka. The residential building numbered as Holding No. 729(C), Ward No. 35 at Chauliaganj, fell to share of the petitioner and the petitioner applied for electricity connection to the CESCO. But since an amount of Rs. 21,209.51 p. was due and payable to the CESCO by the elder brother of the petitioner, namely, Keshab Chandra Lenka, CESCO has refused to supply electricity to the petitioner until the said amount of Rs. 21,209.51 p. is paid. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution for appropriate relief.
2. Mr. Mohapatra, learned counsel for the petitioner submitted that the petitioner was not a consumer in respect of Consumer No. 02252995 for which the arrear bill of Rs. 21,209.51 p. was due and payable. Therefore, the petitioner is not liable for the same. He argued that CESCO cannot deny power supply to the petitioner on the ground that the said amount of Rs. 21,209.51 p. has not been paid as yet.
3. Mr. Ray, learned counsel appearing for the opposite parties, on the other hand, submitted relying on the averments made in the counter affidavit filed by the opposite parties that by partition between the three brothers, not only the properties of family but also the liabilities of the family have been apportioned between the brothers, but so far as the liability of Rs. 21,209.51 p. in respect of supply of electricity to the aforesaid building under consumer No. 02252995 is concerned, no apportionment has been made between the brothers. He submitted that the CESCO authorities are, therefore, entitled to recover the entire arrear amount of Rs. 21,209.51 p. from the petitioner as the petitioner before supplying electricity on the application of the petitioner for such supply. He referred to the circular dated 23-8-2003 of the Chief Executive Officer, CESCO to the all A.G. Ms./Managers (In charge of Distribution Division) in Annexure-B to the counter affidavit in which it is stated that in various plots there are arrears and power supply has been disconnected and again another fresh connection has been given in another name and this may be reviewed and in one plot only one domestic connection and one commercial connection can be given.
4. On a reading of the said circular dated 23-8-2003, we do not find anything therein to fasten the liability undertaken by the consumer for supply of electricity on someone other than the consumer. For supply of electricity, it is only the consumer, who has agreed to take the supply of electricity from the licensee, who is liable for the bill for supply of electricity to the licensee. Provisions, however, may be made in statute, rules or regulations fixing the liability on any other person in specific exceptional circumstances. In fact, under Clause 10 of the OERC Distribution (Conditions of Supply) Code, 1998 the following provision has been made :
'If the applicant in respect of an earlier agreement executed in his name or in the name of his spouse or in the name of a firm or company with which he was associated either as a partner, director or managing director, is in arrears of electricity dues or other dues for the same premises payable to the licensee, the application for supply shall not be allowed by the engineer until the arrears are paid in full.'
The aforesaid provision does not provide that if some electricity dues or other dues for the same premises is payable to the licensee by brother of an applicant, the application for supply of electricity shall not be allowed by the engineer until the arrears are paid in full by the applicant. Unless therefore an applicant agrees to pay any part of the arrears for supply of electricity to the premises to which supply was earlier made, the authorities of CESCO cannot recover the said arrear nor any part of arrears or withhold supply of electricity to him on the ground that some arrears and other dues towards electricity charges for the premises in question are payable to the CESCO from his brother who earlier occupied the premises. It appears that the petitioner has agreed to pay only Rs. 7,070/- out of the total arrear dues of Rs. 21,209.51 p.
5. We, accordingly, direct that on the petitioner paying a sum of Rs. 7,070/- and complying with the other formalities for supply of electricity, the opposite parties will supply electricity to the aforesaid premises of the petitioner. It is, however, open for the CESCO to recover the balance amount of Rs. 13,139.51 p. from Keshab Chandra Lenka in whose name the supply of electricity was earlier made in consumer No. 02252995 situated at Holding No. 729(C), Ward No. 35.
6. With the aforesaid direction and observation, the writ petition is disposed of.
M.M. Das, J.
7. I agree.