JUDGMENT Kshitij R. Vyas, C.J.
1. Rule returnable forthwith. Shri Moharir, learned Counsel waives service for respondent Nos. 1 and 2. Shri Loney, learned Assistant Government Pleader waives service for respondent No. 3.
2. The petitioner in this petition under Article 226 of the Constitution of India, seeks direction to respondent Maharashtra State Electricity Board (for short "MSEB") to grant her new electricity connection for the property purchased by her in auction without demanding any arrears of previous occupants.
3. The petitioner is qualified and has cleared her post graduation in six subjects. She being unemployed, intended to engage her in the business of Xerox/Copy Centre. She therefore, purchased Shop No. 4 of Deep Apartments from the Sales Tax Department in an open auction held on 17th October 2003. She purchased the said shop for the consideration of Rs. 305,786/- after completing all formalities for purchase of the said shop. The said shop was registered in her name on 28th April 2004 after making full payment to the Sales Tax Department. The petitioner applied to the respondent MSEB for new electricity connection. However, her application was not accepted by the respondent MSEB as the arrears of earlier owner to the tune of Rs. 21,750/- were pending. The application was returned by the respondent MSEB by making endorsement "arrears pending Rs. 21,750/-". On enquiry, it was revealed that the arrears of previous owner Smt. Sheela Gupta were due. It is the case of the petitioner that she purchased the shop from the Sales Tax Department in auction and she is in no way concerned with Smt. Sheela Gupta. It is also the case of the petitioner that she was not aware about the said arrears of respondent MSEB at the time of purchase. It appears that the petitioner issued notice dated 26th August 2004 for grant of new electricity connection to the respondents. However, new electricity connection has not been granted by the respondents and therefore, petitioner has filed the present petition.
4. The learned Counsel for the petitioner submitted that purchaser of the property should not be held liable to clear the arrears of previous owner in the absence of any specific statutory provision in this regard. There is no privity of contract between auction purchaser and MSEB for recovery of unpaid amount of the previous owner. Under such circumstances, the respondents may be directed to grant new electricity connection to the petitioner.
5. The learned Counsel for the respondent MSEB submitted that in view of Clause 10.5 of the Maharashtra Electricity Regulatory Commission (Electricity Supply Code and Other Conditions of Supply) Regulations, 2005 liability to pay charges of electricity of the premises is transmitted to the successor in law or transferred to new owner and therefore, the Distribution Company (erstwhile MSEB) is entitled to claim the arrears.
6. We have carefully scrutinized the submissions advanced before us. In the present case the respondent Board relied upon Clause 10.5 of the Maharashtra Electricity Regulatory Commission (Electricity Supply Code and Other Conditions of Supply) Regulations, 2005 wherein liability to pay charges of electricity of the premises is transmitted to the successor in law or transferred to new owner, which entitles the respondent Board to claim arrears. There is no dispute to the fact that the said Regulations came in force in January 2005. Admittedly, the petitioner purchased the shop in question from the Sales Tax Department in an open auction held on 17th October, 2003. It was registered in her name on 28th April 2004, i.e. prior to coming into force of the Regulations of the Board. Thus, when the petitioner purchased the property, admittedly there were no Regulations in force entitling the respondent Board to claim the arrears from the subsequent purchaser. In view of this factual position, the Regulations of 2005 cannot be made applicable retrospectively against the petitioner. Under such circumstances, we have no hesitation, but to hold that the petitioner cannot be made liable to pay the arrears of her predecessor, i.e. earlier owner. We therefore, hold that the demand made by the respondent Board to the petitioner to clear the arrears of previous owner before granting new electricity connection to her is illegal and bad in law. Consequently, petitioner is entitled to have new electricity connection for the property purchased by her in auction on payment of usual charges and without paying any arrears of previous occupants. We are fortified with our view by the decision of the Apex Court rendered in Isha Marbles v. Bihar State Electricity Board and Anr. and other allied matters wherein it is laid down as under:
Where that premises comes to be owned or occupied by the auction purchaser, when such purchaser seeks supply of electric energy, he cannot be called upon to clear the past arrears as a condition precedent to supply. There is no charge over the property. What matters is the contract entered into by the erstwhile consumer with the Board. The Board cannot seek the enforcement of contractual liability against the third party. Of course, the bona fides of the sale may not be relevant. The form of requisition relating to the contract is in Annexure VIII prescribed under clause VI of the Schedule to the Electricity Act. They cannot make the auction purchaser liable.
It is further observed:
Electricity is public property Law, in its majesty, benignly protects public property and behoves everyone to respect public property. Hence, the courts must be zealous in this regard. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction-purchaser, who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state that if it is held as above, then it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lakhs and lakhs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest. No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness.
7. We accordingly allow the petition and direct the respondent MSEB to grant new electricity connection to the petitioner for the property purchased by her in auction without demanding any arrears of previous occupants, after completing the formalities for providing new electricity connection. The respondents are directed to undertake the said exercise and complete the same within four weeks on petitioner applying to respondent MSEB.
8. The rule is made absolute in the above terms. No order as to costs.