Jaisukhlal N. Bhuta And Ors. vs Maharashtra State Electricity ...
2006 Latest Caselaw 428 Bom

JUDGMENT

Anoop V. Mohta, J.

1. The respondents refusal of new electricity connection to the petitioners' premises has resulted in the present Writ Petition.

2. The petitioners are the Trustees of Bombay Gow Rakshak Trust (for short "Trust"), a Public Trust registered under the Bombay Public Trusts Act, 1950. The Trust, after an order of sanction dated 20th November, 2003, passed in Miscellaneous Application No. 361 of 2003 by the Special Court, became the owner of the property in question being the highest auction purchaser in the sale proceedings. The Trust has deposited with the Court Receiver, High Court, Bombay, total amount of Rs. 4,25,00,000/- i.e. an entire purchase price. On 3rd December, 2003, the Court Receiver, handed over the vacant and peaceful possession of the property to the Trust. The Trust paid all the taxes, cess and other society charges as per the sale confirmation terms.

3. The petitioners-Trust found that the electricity supply to the said property had been disconnected by respondents No. 2 and 3 for the reasons of non payment of electricity charges aggregating to a sum of Rs. 1,08,99,870/- in respect of two electricity connections of the previous owner M/s Kailash Milk Products Limited. The respondents, in spite of repeated requests and applications, by a letter dated 3rd February, 2004, addressed to the Court Receiver and communicated that "as per the M.S.E.B, Rules, unless the arrears are paid, the reconnection cannot be made". By the said communication, it was requested to transfer the amount from the Court Receiver against the arrears so as to enable the respondents to reconnect the electricity supply. The petitioners, therefore, by their Advocate's Notice dated 12th February, 2004, expressed their surprise for such refusal to grant fresh electricity connection. A reference was made to the judgment of the Supreme Court in Isha Marbles v. Bihar State Electricity Board and Anr. . As the respondents paid no heed to the said requests for the re-connection, the petitioners have invoked Article 226 of the Constitution of India by the present Writ Petition.

4. By an order dated 8th April, 2004, this Court has directed to grant a fresh electricity connection as per prayer clause (d). The extract of the said order of admission and interim relief is as under:

4. Interim relief in terms of prayers (d) and (e) upon the petitioners giving an undertaking to this Court that they will pay the amount of Rs. 1,08,9,870/- if they fail in the present petition. The respondents shall within two weeks of such undertaking being furnished, grant fresh electricity connection as per prayer (d).

5. The undertaking of the petitioners shall stand discharged if the Court Receiver/Custodian is directed by the special court to make payment of amounts as is determined by the Special Court as being due to MSEB from Kailash Milk Products Ltd. and as such payment is made.

The petitioners have accordingly submitted the undertaking dated 17th April, 2004. The respondents, in view of the above order and undertaking, have provided the fresh connection.

5. The Apex Court in Isha Marble (supra), after considering the provisions of Electricity Act, 1910 and Electricity (Supply) Act, 1948, observed as under:

Where the 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. 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. It is impossible to impose on the purchaser, a liability which was not incurred by them.

6. The above observation, as contended, supports the case of the petitioners also. We see no reason as to why the said principle should also be not applied to a sale conducted under the provisions of the Special Courts Act; as the principle applicable is the same. Just like a company in liquidation whose assets are sold the creditors will have to prove their claim before the Special Court and recover their dues from the amounts recovered. On the facts of this case, the petitioners have purchased the property in auction. They have paid the full sale consideration, taxes and other charges as per the terms and conditions of sale. There was no specific clause or liability in respect of electricity dues imposed on the petitioners while sanctioning and/or confirming the sale. In absence of any specific conditions of payment of the electricity arrears of the previous consumer/owner of the premises, the petitioners cannot be penalised now. The respondents action of not granting fresh/new electricity connection for the above reason is. therefore, apparently contrary to the Apex Court's decision as referred above. There was no such demand or insistence even made by the Court Receiver. There were no details made available to the petitioners about a vague claim of an exorbitant amount of Rs. 1,08,99,870/-.

7. The respondents are, therefore, wrong in refusing to provide the fresh electricity connection. The respondents have a remedy to file a suit for recovery of the arrears, if any. The respondents, therefore, could not have put such a condition for supplying fresh electricity connection.

8. Strikingly, by an order dated 16th March, 2006, the Special Court in Suit No. 1 of 1994 between Bank of India v. Kailash Milk Products and Anr. while considering the income-tax liabilities, as well as, the claim of the respondents-MSEB against Kailash Milk Products Limited, observed that:

The other claim is made by M.S.E.B. Though the M.S.E.B, is claiming an amount of Rs. 1 crore and above, perusal of the affidavit filed on behalf of the M.S.E.B. shows that they have not produced copy of the order passed in Special Civil Suit No. 503 of 1998. Perusal of the copy of the judgment shows that a decree in the amount of Rs. 23,94,000/- with interest has been made. The only objection in this regard on behalf of the notified party is that the M.S.E.B. has not produced decree but has produced only a copy of the judgment. It is obvious that the objection has no substance. There is a judgment in favour of the M.S.E.B. So far as the claim in excess of decretal amount is concerned, it cannot be allowed to be paid to M.S.E.B. In the absence of there being any decree in its favour. It is, however, made clear that before the date on which the Court takes up distribution, if there is a decree passed in favour of M.S.E.B., the M.S.E.B. will be free to approach the Court in accordance with law.

The Special Court, therefore, granted liberty to M.S.E.B. to approach the Special Court if a decree is passed in their favour for the amount or any such amount. There was no permission as such granted to the respondents - M.S.E.B. to recover the said amount due from the sale proceeds in question.

9. In view of the facts and circumstances and in terms of the principle laid down by the Apex Court which we have followed also in the cases, we are of the view that the action of the respondents of refusal to provide the new electricity connection to the petitioners-Trust is illegal and unsustainable in law. The petitioners are entitled for the new electricity connection in accordance with the provisions of law, if they are otherwise eligible.

10. Considering the above, we allow the Petition in terms of prayer clauses (a) to (c). The petitioners are discharged from the undertaking dated 17th April, 2004. No order as to costs.