Anubhav Jaiswal vs State Of U.P. And 4 Others
2014 Latest Caselaw 5114 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 21
 

 
Case :- WRIT - C No. - 44867 of 2014
 

 
Petitioner :- Anubhav Jaiswal
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ashok Pandey
 
Counsel for Respondent :- Mahboob Ahmad
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Vivek Kumar Birla,J.

This case has certain peculiar facts with regard to the liability and apportionment of electricity dues in respect of a premise that came to be succeeded by several owners.

The original owner of the premise Shri Islam Beg sold part of the premises in favour of one Jitendra Kumar Srivastava in the year 2008. Shri Jitendra Kumar Srivastava in turn sold it to one Smt. Swati Chaurasiya in the year 2009, who in turn sold it to one Shri R.K. Malviya in the year 2011. The petitioner is the fourth purchaser of part of the said premises under a sale deed dated 12/4/2012. The petitioner wanted to absolve himself of any liability of electricity dues and obtain a new connection for the portion which he has purchased.

An inspection was carried out and a theft proceeding was initiated against the petitioner. The petitioner appears to have filed Writ Petition No.30684/2013 which was disposed of on 10/12/2013 by the following judgment:

"The grievance of the petitioner in the matter of new connection being provided in his name at the residential house No.64/1 Keedganj, Allahabad needs to be examined by the respondent no.2 at the first instance.

The writ petition is accordingly disposed of with a direction to the petitioner to approach the respondent no.2 along with certified copy of this order within a period of two weeks from today and the respondent no.2 shall look into the grievance of the petitioner and pass an appropriate order within a period of two weeks thereafter.

We make it clear that if there are any arrears of the previous connection it shall be necessary that these dues are cleared before new connection is provided."

Since the same was not being redressed, the petitioner filed Contempt Application No.2225/2014. On the issuance of the notice, the Chief Engineer has now disposed of the representation of the petitioner by the impugned communication dated 21/4/2014 which has been assailed in the present writ petition.

The contention of Shri Ashok Pandey, learned counsel for the petitioner is that the petitioner cannot be saddled with the liability of the entire premises and the dues against Shri Islam Beg have to be realised from him. He contends that Shri Islam Beg continues to enjoy the electricity connection without any proceeding for disconnection inspite of dues on him, and on the other hand the petitioner is being denied the new electricity connection. He further submits that the petitioner has made certain deposits yet the respondents have refused a new connection to the petitioner subject to deposit of the entire dues on the entire premises and payment of the other dues referred to in the order dated 21/4/2014.

Shri Mehboob Ahmad, learned counsel for the respondents submits that so far as the payments are concerned, unless it is cleared in terms of Clause 4.3 of the Electricity Supply Code, 2005, (hereinafter called the "Code, 2005") it will not be possible for the Electricity Department to grant a new connection to the petitioner as desired by him. He further submits that if such dues are cleared of then a decision can be taken by the licensor or its competent authority in the matter as per the aforesaid provisions. He further contends that processing can be done including fixing of any proportionate liability in the event of sale and purchase of a divided share of the property. The petitioner having not approached under the aforesaid provision, and there being no application to that effect nor any evidence to support the same, the representation of the petitioner had to be rejected. He submits that now the entire facts have been stated in the present writ petition and in the aforesaid background the claim of the petitioner can be decided keeping in view the aforesaid provision.

Having considered the submissions raised, Clause 4.3 of the Electricity Supply Code, 2005 is extracted herein:

"4.3. New Connections-General.-(a)The system of supply and voltage shall depend on the category of the consumer and the load as per details given in Chapter 3.

[(b) Application form for obtaining new connection and for enhancement/reduction of load shall be made available to the applicant free of charge at all offices of the Licensee. The Licensee shall also put them on its website for downloading photocopies of a blank form may be made by the applicant and shall be accepted by the Licensee. The Licensee shall endeavour to introduce systems facilitating electronic filing of the applications for release of connections through meters (all categories), or filing/processing for connections through prepaid meters provided commercially viable and sustainable technology is available.]

(c) The licensee/local authority shall designate Officers/authority for accepting applications in respect of sanction of load (for different categories of load) for new connection and releasing load by way of giving new connection. However the local authority for a rural area may frame it's own procedure for release of connection from time to time which shall as far as possible be in conformity to approved guidelines/specifications/costs specified by Commission.

(d) All information relating to procedure, fees, designated officers for releasing new connections may be displayed on the notice boards of sub-division office, Divisional offices and offices of DGM's/GM's/ office of licensee. Public information counters for new forms, filing, and disseminating information status in the above offices, with computerized facilities in all towns with a population greater than 10 lakhs may be made operational within a time frame of one year.

(e) The electronic filing of a new application, status of connection pending to be released, and tracking of status of a connection through IVRS facility may also be made possible in a phased manner in all cities, through use of information technology, on the internet website, centralized call centres, and proper linking with the sub-division/Division/DGM/GM offices.

[(f) (i) It will be the duty of the seller and of the purchaser to find out the outstanding electricity dues up to the date of sale, and further that both seller and purchaser will be either/or, jointly and severally liable to pay the outstanding electricity dues/obtain No dues certificate.

(ii) Before sale of a premise is made, the outstanding dues will be cleared and, in the alternative the deed to agreement/sale will specifically mention the outstanding dues and the method of its payment "Outstanding dues" means all dues pending on a premises including late payment surcharge.

(iii) In case the no-dues certificate is not obtained by the old owner, new owner before purchase of property may approach the licensee for no-dues certificate, by giving the reference of the connection in said premises. The licensee shall either intimate the pending dues, if any, on the premises or issue no dues certificate within 30 working days from the date of application.

(iv) The outstanding dues will be first charge on the assets of the company, and the licensee shall ensure that this is entered in an agreement with new applicant.

(v) The recovery proceedings against the defaulting consumer, and where the defaulting consumer is a company, from the Directors of the company, shall be ensured. Where a financial institution has auctioned the property without consideration to licensees charge on assets, claims may be lodged with the concerned financial institution with diligent pursuance.

(vi) In case the electricity connection to the said premises was given with the consent of house owner, such person shall ensure the payment of all arrears/dues of electricity by the tenant before the tenant vacates the premises.

(vii) However the above conditions shall not apply if inconsistent with the provision of any higher Court order or an order as a consequence to it.

(viii) The application shall be processed by licensee on clearing of dues.]

(g) Where the property has been legally sub-divided, the outstanding dues for the consumption of energy on such premises, if any, shall be divided on pro-rata basis.

(h) A new connection to such sub-divided premises shall be given only after the share of outstanding dues attributed to such sub-divided premises, is duly paid by the applicant. Licensee shall not refuse connection to an applicant only on the ground that, dues on the other portion(s) of such premises have not been paid, nor shall the licensee demand record of last paid bills of other portion(s) from such applicants."

A perusal thereof leaves no room for doubt that the outstanding dues shall be the first charge on the premises itself and in the event the property has been legally sub-divided, the outstanding dues on account of purchase of such premises, if any, shall be divided on pro-rata basis.

We have perused the impugned order, and we do not find any such exercise having been undertaken presumably on account of the fact that the petitioner himself did not provide the entire information. In the circumstances the impugned order ex-facie cannot be faulted with, but in view of the provisions of Clause 4.3 of the Code, 2005, the matter requires a fresh determination after putting the original owner Shri Islam Beg as well to notice.

Consequently, we dispose of this writ petition with a direction to the Executive Engineer concerned to take stock of the situation and after making inquiry and considering all the objections if any, as well as the documents on which reliance has been placed by the petitioner proceed to pass appropriate orders expeditiously, preferably within a period of three months from the date of production of the certified copy of this order, provided the petitioner undertakes to deposit the amount which falls due in his share upon such determination.

A certified copy of the order shall be filed by the petitioner within ten days before the Executive Engineer along with an exhaustive representation, coupled with the documents on which reliance is being placed and the same shall be disposed of after putting Shri Islam Beg or any of the appropriate person to notice.

Shri Ashok Pandey, learned counsel for the petitioner submits that the Contempt Application No. 2225/2014 has become infructuous and it may be directed to be consigned to records.

Accordingly, Contempt Application No. 2225/2014, shall be treated to have become infructuous and it shall be consigned to records for which a copy of this order shall be placed on the records of the contempt application.

Order Date :- 27.8.2014

SB