M/S. Anupriya Agro Industry vs West Bengal State Electricity ...
2022 Latest Caselaw 7682 Cal

                           In the High Court at Calcutta
                          Constitutional Writ Jurisdiction
                                   Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                              W.P.A. No.471 of 2022

                       M/s. Anupriya Agro Industry
                                    Vs.
                 West Bengal State Electricity Distribution
                       Company Limited and others

     For the petitioner              :     Mr. Samik Ganguli,
                                           Mr. Pritam Choudhury,
                                           Mr. Abhisek Addhya

     For the WBSEDCL                 :     Mr. Srijan Nayak,
                                           Mrs. Rituparna Maitra

     Hearing concluded on            :     11.11.2022

     Judgment on                     :     21.11.2022



     Sabyasachi Bhattacharyya, J:-



1.

The petitioner M/s. Anupriya Agro Industry is a sole proprietorship firm

having one Bishnu Pada Das as its proprietor.

2. When the writ petitioner sought for an electricity connection for industrial

purpose to open a unit on Plot No. 3224, Khatian No. - 5115, P.S. -

Raghunathganj, District - Murshidabad, the West Bengal State Electricity

Distribution Company Limited (WBSEDCL) intimated its inability to give

such connection vide letter dated 16, 2021 on the ground that there were

outstanding dues (without LPSC), totalling Rs. 1,47,809/-, being Rs.

54,418/- for Consumer ID No : 300438006 and Rs. 93,391/- for Consumer

ID No : 300239058, on account of non-payment of energy bills.

3. By placing reliance on Clause 13.9 of Regulation 46/WBERC dated May 31,

2010, the WBSEDCL insists upon such payment prior to the new

connection being given to the petitioner.

4. The present writ petition has been filed challenging such demand of the

WBSEDCL.

5. Upon hearing learned counsel for the parties, it transpires that three plots

of land are involved in the present dispute.

6. Plot No. 3223 concerned Late Bahaddur Chandra Das, who had alleged

outstanding dues of Rs. 93,391/- in respect of Consumer ID No.:

300239058 for operation of a submersible pump on the said plot.

7. In respect of Plot No. 3419, the petitioner had outstanding dues for

operation of his submersible pump to the tune about Rs. 54,418/-, in

respect of Consumer ID No.: 300438006.

8. Admittedly, the petitioner had paid the outstanding amount of Rs. 54,418/-

in respect of Plot No.3419. The third plot is the Plot No.3224. It has been

submitted by the WBSEDCL that there is a nexus between the petitioner

and the outstanding dues left with regard to Plot No.3223 as well.

9. Hence, the petitioner, it is argued, is liable to clear off the said dues of

Rs.93,391/- in respect of Plot No. 3223 prior to getting a new electricity

connection at Plot No. 3224.

10. It is contended by the WBSEDCL that, apart from the petitioner being the

son of the deceased defaulter, the petitioner has also enjoyed the benefit of

such electricity connection for operating the submersible pump of his

deceased father.

11. Secondly, it has been submitted that all the three plots-in-question are

situated in close vicinity of each other. Allegedly, the electricity connection

being given to operate anyone of the submersible pumps would also enure

to the benefit of the adjacent owners.

12. The petitioner has contended that there is no nexus between the petitioner

and the outstanding dues left (allegedly) by his deceased father. The plots

are separate from each other and the petitioner is in no way connected with

Plot No.3223. Moreover, it is contended that the new electricity connection

sought at Plot No.3224 is intended to operate an industrial unit and not a

submersible pump. It is further denied that any of the plots benefit from

the electricity connection given to the other plots.

13. The relevant consideration for the present purpose is the provision of

Clause 13.9 of Regulation 46/WBERC dated May 31, 2010.

14. Clause 13.9 is set out below:

"13.9 For getting new connection for supply of electricity from a licensee an intending consumer shall be required to pay all outstanding dues to the licensee in respect of any other service connection held in his/her name located in the area of supply of the same licensee and he/she shall also be responsible for payment of outstanding charges calculated in a prorated manner, if it is established that he/she has had a nexus with the previous consumer(s) including the purchaser/the new lessee/the new tenant of a property or a portion thereof in respect of which there are outstanding charges and/or who has/had benefited from non-payment of the aforesaid outstanding dues by the previous consumer(s) to the licensee."

15. Primarily two categories of persons have been burdened with the liability to

clear off previous outstanding dues for getting a new connection for supply

of electricity from a licensee as per the said Clause. The first category is a

person who has in his/her name any other service connection located in

the area of supply of the same licensee.

16. In the second category falls a person with whom nexus has been

established with a previous consumer(s) including the purchaser/the new

lessee/the new tenant of a property or a portion thereof in respect of which

there are outstanding charges and/or who has/had benefitted from non-

payment of the aforesaid outstanding dues by the previous consumers to

the licensee.

17. It is obvious from the language of Clause 13.9 that the licensee has to

discharge its burden of proof with regard to the allegation of nexus, which

is evident from the use of the expression "it is established". In the present

case, we are to examine whether any such nexus has been established by

the Distribution Licensee. In any event, no such nexus has been disclosed

in the impugned letter of the WBSEDCL dated December 16, 2021.

18. Inasmuch as the first category under Clause 13.9 is concerned, in view of

having cleared the dues with regard to Plot No.3419 in respect of the

petitioner's own electricity connection for operating a submersible pump, it

cannot be said that the petitioner, in any manner, falls within the first

category envisaged in the said Clause, that is, a person in whose name any

other service connection located in the area of supply of the same licensee

has outstanding dues.

19. Insofar as the second category is concerned, there is nothing on record to

establish that the petitioner benefitted in any manner from operation of the

submersible pump by the petitioner's father (since deceased) on the plot of

land which was owned by the petitioner's deceased father, being Plot

No.3223, during the relevant period. The licensee has not alleged that Plot

No. 3223 has devolved, even partially, on the petitioner after his father's

demise. Even assuming for argument's sake that the petitioner has

inherited a share in the said plot after his father's demise, at the juncture

when the outstanding dues were left, it was the petitioner's father (since

deceased) who owned the property and the electricity connection standing

thereon. The purpose of such electricity connection was to run the

submersible pump of the petitioner's father. The petitioner has a separate

electricity connection, for operating a submersible pump, apparently in the

same vicinity, in Plot No.3419, with which the petitioner's deceased father

had no connection. As such, there is no basis to presume that the

petitioner benefitted from his father's electricity connection for running a

submersible pump, despite having an independent submersible pump at

the nearby Plot No.3419.

20. In any event, the prospect of Bishnu Pada Das, the proprietor of the

petitioner-firm, of having inheriting his father's property or a portion

therein cannot be a deciding factor in the present dispute, since the

petitioner could not have inherited anything from his father during the

latter's lifetime, which is the relevant period during which the outstanding

dues accrued in respect of Plot No. 3223.

21. Inasmuch as the second limb of Clause 13.9 is concerned, it is obvious

from the language thereof that mere nexus with a previous consumer of any

property or a portion thereof would cast the liability of being charged the

outstanding dues calculated in a prorated manner from the new applicant.

However, in order to establish "nexus", there has to be a reasonable

proximity between the new applicant and the defaulting previous consumer

vis-à-vis the default committed. In the present case, however, the

WBSEDCL has failed to establish any nexus whatsoever vis-à-vis the

outstanding charges left by the petitioner's deceased father with the

petitioner, during the entire relevant period when the said dues allegedly

accrued. Just because the petitioner is the son of the previous defaulter of

a different plot of land, it cannot automatically be presumed that the

petitioner was hand-in-glove with his father or enjoyed any benefit from the

default. The connection at Plot No. 3223 was admittedly taken for operating

a submersible pump and not residential purpose. The said pump was being

used for agriculture. At the relevant time, during which the defaults

accumulated, there was no nexus between the petitioner and the said

meter, nor has it been established that the petitioner benefitted from the

said default in any manner.

22. Inasmuch as Plot No.3224 is concerned, which is the subject matter of the

instant writ petition, sufficient documents have been annexed to the

affidavit-in-reply of the petitioner to show that the petitioner has a

registered sale deed and has recorded his name in the records of rights with

regard to the said plot. Moreover, the nature of the said plot bearing Plot

No.3224 was converted from 'Aman' to 'Karkhana', that is, from agricultural

to industrial purpose. Thus, the argument of the WBSEDCL that the

petitioner had obtained any benefit from the submersible pump of his

deceased father, which was used for agriculture, to operate the newly

established industrial such unit, is not credible.

23. Although the WBSEDCL has alleged that the submersible pumps standing

on the said plots cater to the adjacent properties as well, such a logic would

defeat the purpose of the petitioner having a separate electricity connection

for his submersible pump in Plot No.3419 and seeking a new electricity

connection for operating his industrial unit at Plot No.3224 in the first

place.

24. Moreover, there is nothing on record to establish such allegation, even

prima facie, from the end of the WBSEDCL.

25. Hence, there is nothing on record to indicate that the petitioner has/had

benefitted from non-payment of the outstanding dues by the previous

consumer of Plot No.3223 that is, his deceased father.

26. Thus, there is no substantiated basis for the claim of the WBSEDCL that

the petitioner is liable to pay such outstanding charges of his deceased

father in respect of Plot No.3223 for getting a new electricity connection at

Plot No.3224.

27. The only thread which might link the petitioner with the outstanding

charges left by his father is if the petitioner has been or is, at present,

benefiting from non-payment of the outstanding dues by his father in

respect of Plot No.3223. However, in view of the above discussions no such

link could be established in the present case, since the petitioner has a

separate electricity connection for operating his submersible pump in

respect of Plot No.3419 and there is nothing produced by the WBSEDCL

even to show prima facie that the petitioner has a nexus with the

outstanding dues payable for Plot No.3223.

28. As such, in view of no nexus being established by the WBSEDCL between

the petitioner and the outstanding dues left by his father at Plot No.3223,

the claim of prior payment of Rs.93,391/- for Consumer ID No: 300239058

in respect of Plot No.3223 cannot but be negated.

29. The only outstanding dues, even as per the allegation of the WBSEDCL, to

the tune of Rs.54,418/- in respect of the petitioner's Consumer ID :

300438006 has already been cleared by the petitioner.

30. Hence, the claim of the WBSEDCL for payment of outstanding dues by the

petitioner prior to giving a new electricity connection for running its

industrial unit at Plot No.3224 cannot but be set aside.

31. However, there is no premise to the challenge of the petitioner to the

provisions of Clause 13.9 itself, since no patent illegality or

unconstitutionality of the said provision has been argued or established by

the petitioner.

32. As a result, W.P.A. No.471 of 2022 is allowed, thereby setting aside the

Demand Letter dated December 16, 2021 whereby the WBSEDCL pleaded

their inability to effect a new service connection at the petitioner's premises

being Plot No.3224. The WBSEDCL is directed to give a new industrial

electricity service connection to the petitioner at Plot No.3224, subject to

compliance of all other formalities by the petitioner, however, without

insisting upon prior payment of the alleged outstanding dues of

Rs.93,391/- for Consumer ID No: 300239058. Such connection shall be

given by the WBSEDCL to the petitioner as expeditiously as possible,

preferably within three weeks from the compliance of all formalities by the

petitioner.

33. There will be no order as to costs.

34. Urgent certified copies, if applied for, be issued by the department on

compliance of all requisite formalities.

( Sabyasachi Bhattacharyya, J. )

Later

It is pointed out by learned counsel for the parties, when the

judgment is passed today, that the connection of the petitioner has already

been given by the WBSEDCL by virtue of an interim order passed in

connection with the writ petition.

As such, no further such connection as directed in the judgment

need be given as of now.

( Sabyasachi Bhattacharyya, J. )