Subernrekha Enterprises vs Jharkhand State Electricity Board and Others

Sushil Harkauli, J.—The petitioner has approached the Court against the decision of the respondent Board refusing to give a fresh electricity connection to the petitioner unless the petitioner clears electricity dues of the earlier owner of the property.

It appears that the original owner had certain dues of electricity and also certain dues of the Bihar State Financial Corporation. The Bihar State Financial Corporation auctioned the property which was purchased by M/s. S. D. Minerals. The petitioner purchased the property from M/s. S. D. Minerals. After purchase, the petitioner sought an electricity connection which has been denied on the aforesaid ground.

Counter affidavit has been filed and in the counter affidavit reliance has been placed by the Board, in justification of its demand, upon the decision of the Supreme Court in the case of Paschimanchal Vidyut Vitran Nigam Ltd. and Others Vs. DVS Steels and Alloys Pvt. Ltd. and Others,

During the hearing learned Counsel for the Board, in addition to the aforesaid decision, also placed reliance upon another decision of the Supreme Court in the case of Dakshin Haryana Bijli Vitran Nigam Ltd. Vs. Paramount Polymers Pvt. Ltd., .

On the other hand, learned Counsel for the petitioner has placed reliance upon the Clause 5.5 of the Electricity Supply Code as amended by Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) First Amendment Regulation, 2007. The said amendment reads a follows:

But if the old consumer who had committed default in payment of the dues has left the premises for good and the concerned premises has come in legal possession of a new occupant through transfer or purchase of the concerned property and where the new incumbent is not connected with the previous owner/occupant in any manner and applies for re-connection of the electrical line in the same disconnected premises, in that event the distribution licensee shall be obliged to order reconnection without realization of the arrear dues of the concerned premises from the new incumbent, as the purchaser of the premises would not be held liable to meet the liability of the previous consumer in order to secure reconnection.

In Isha Marbles Vs. Bihar State Electricity Board and Another, the Supreme Court had left that in absence of there being a charge over the property, and the premises coming to be owned or occupied by the auction purchaser and the auction purchaser seeking supply of the electrical energy by way of a fresh connection, he cannot be called upon to clear the past arrear of electricity as a pre condition for the fresh connection or supply.

The case in hand is squarely covered by the said decision of the Supreme Court.

In the case of Dakshin Haryana Bijli Vitran Nigam Ltd. Vs. Paramount Polymers Pvt. Ltd., the Supreme Court was dealing with a case where there was a specific clause, namely Clause 21-A, inserted in the terms and conditions of supply of electrical energy by the distribution licensee, as a pre-condition for restoration of the old connection or giving new connection.

In the case of Paschimanchal Vidyut Vitran Nigam Ltd. and Others Vs. DVS Steels and Alloys Pvt. Ltd. and Others, , in paragraph 12, by the Supreme Court that if there is a Rules or Regulation permitting realization of the dues of the previous owner from the transferee of the property, and such rules are not arbitrary or unreasonable, such past dues can be recovered from the successor owner.

The amendment to Clause 5.5. of the Supply Code, as applicable in the State of Jharkhand, makes it very clear that unless the petitioner is shown to be connected with the original owner who had left unpaid dues, in the manner mentioned in Clause 5.5., no recovery can be made from him as pre-condition for a new connection.

The difficulty expressed during the argument by the learned Counsel for the respondent that in absence of a machinery for investigation, the Board would not be in a position to find out and prove whether the subsequent owner was connected with the original owner or not, is of no relevance. The respondent Board is bound by that Clause 5.5. which has laid down that it is a pre-condition for seeking recovery of the past dues from the successor owner, that there is a prima-facie finding supported by material that he is connected with previous owner in the manner prescribed under the clause.

The decision of a Division Bench of this Court in the case of Bijay Kumar Tantia v. Jharkhand State Electricity Board reported in 2002 (3) JCR 368: 2002 AIR Jhar HCR 991, has been cited from the petitioner''s side. Learned Counsel for the Board has argued that this decision is in respect of a matter prior to the amendment of Clause 5.5. and even prior to the 2003 Act.

Because the provisions relied upon for the purpose of deciding the case of Bijay Kumar are virtually the same, therefore the decision will continue to apply, and in view of amended Clause 5.5. with greater force.

In the result the writ petition is allowed.

The respondents are directed not to insist upon the clearance of past dues of electricity charges as a pre-condition for giving a new connection to the petitioner.

The request of the petitioner for a new connection will be processed by the respondent Board within a month.