Arsil Alam Khan vs Director Of West Bengal State ...
2022 Latest Caselaw 7795 Cal

  21,22
24.11.2022


                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE

                        W.P.A. No. 23240 of 2022

                             Arsil Alam Khan
                                    Vs.
                 Director of West Bengal State Electricity
                  Distribution Company Limited & Anr.

                                   with

                        W.P.A. No. 22876 of 2022

                      West Bengal State Electricity
                     Distribution Company Limited.
                                   Vs.
                         Arsil Alam Khan & Ors.


                    Mr. Rabiul Islam,
                    Mr. Raju Mondal,
                    Ms. Pramita Banerjee
                                      ...for the petitioner in
                                       WPA No. 23240 of 2022 and
                                       for the respondent in

W.P.A. No. 22876 of 2022

Mr. Srijan Nayak, Mr. Rituparna Maitra, Mr. Debjit Mukherjee ...for the petitioner in W.P.A. No. 22876 of 2022 and for the respondent in WPA No. 23240 of 2022

The two writ petitions have been filed on

different perspectives from the same set of facts.

W.P.A. No. 22876 of 2022 has been preferred by

the West Bengal State Electricity Distribution Company

Limited (WBSEDCL) against an order passed by the

Ombudsman, whereby the order passed by the

Grievance Redressal Officer was reversed and the

WBSEDCL was directed to give electricity connection to

the petitioner in W.P.A. No. 23240 of 2022.

The petitioner in W.P.A. No. 23240 of 2022 has

contended that despite such direction by the

Ombudsman, the WBSEDCL has failed to give the

electricity connection to the petitioner.

The background of the case, in short, is that

the petitioner in W.P.A. No. 23240 of 2022 purchased

the property-in-question from his vendor. There were,

apparently, certain outstanding dues from the vendor to

the WBSEDCL in regard to the same property.

However, subsequently, when the matter came

up before the Ombudsman, it was clearly observed that

the burden of proving nexus, as contemplated in the

WBERC Regulations, for the purpose of claiming

outstanding dues from a subsequent purchaser, lies on

the person who alleges such nexus. Hence, since the

WBSEDCL had failed to discharge such burden, the

petitioner had a right to get new electricity connection in

the petitioner's name after purchase without being

saddled with the outstanding dues of his vendor.

Learned counsel appearing for the petitioner

contends, by placing reliance on the order of the

Ombudsman, that there is no scope of challenge to the

same as the same was in consonance with law and

facts.

At the outset, learned counsel appearing for the

WBSEDCL submits, upon query of court as regards the

grounds of challenge, that no copy of the Draft

Settlement Order passed by the Ombudsman was

initially handed over to the WBSEDCL in order to enable

the WBSEDCL to use a written objection thereto for the

purpose of coming to a final order.

However, such contention is palpably belied by

the averments made in the writ petition of the

WBSEDCL itself. It is clearly mentioned in paragraph

12 of the writ petition filed by the WBSEDCL, that is,

W.P.A. No. 22876 of 2022 that in the Draft Settlement

Order the parties were directed to file their respective

views against the Draft Settlement Order within 20 days

and the matter would be heard again.

In paragraph 13 of the said writ petition, it is

averred by the WBSEDCL that the petitioner-company

filed an objection against the appeal of the intending

consumer "in the form of a response to the Draft

Settlement Order" stating inter alia that under the

provisions of law, WBSEDCL is entitled to recover the

outstanding amount against the premises-in-question

from the intending consumer before providing

connection.

Moreover, it is palpably evident from the final

order of assessment itself that both sides had been

heard before passing the same.

Hence, there cannot be any iota of doubt that

the Draft Settlement Order was duly served on the

WBSEDCL, only upon which the WBSEDCL was able to

file a response thereto.

The next submission made by learned counsel

appearing for the WBSEDCL is that it is well-settled

that, more particularly as held by the Supreme Court in

the case of Paschimanchal Vidyut Vitran Nigam Limited

& Ors. Vs. DVS Steels and Alloys Private Limited & Ors.,

reported at (2009) 1 SCC 210 (in paragraph 14 thereof),

it is obviously the duty of the purchasers/occupants of

premises to satisfy themselves that there are no

electricity dues before purchasing/occupying a

premises.

It is further observed by the Supreme Court

that they can also incorporate in the deed of sale or

lease, appropriate clauses making the vendor/lessor

responsible for clearing the electricity dues up to the

date of sale/lease and for indemnity in the event they

are made liable.

However, such observation of he Supreme

Court was followed by a short sentence "Be that as it

may". The said final sentence, coupled with the rest of

the judgment of the Supreme Court, indicates that the

Supreme Court proceeded on the facts of the said case

and finally came to its conclusion.

It is observed by the Supreme Court that in the

said case, when the first respondent, who was the

purchaser of a sub-divided plot, wanted a new electricity

connection for its premises, the appellant informed the

first respondent that such connection will be provided

only if the electricity dues are paid pro rata. It was

observed that they were justified in making the demand.

However, in the present context, there is no

scope of applying the said ratio, since, even as per the

WBERC Regulations, which was not considered in the

said judgment by the Supreme Court, the burden of

proving nexus is on the person alleging such nexus.

In view of such specific clause in the WBERC

Regulations, it is the bounden duty of the WBSEDCL to

prove the allegation of nexus. In the present case,

although it has been alleged by the WBSEDCL that the

petitioner did not produce a copy of his purchase deed,

there is nothing to substantiate why the WBSEDCL did

not seek for a direction on the petitioner before the

Ombudsman for production for such document and/or

why the WBSEDCL did not take any effort to produce a

certified copy of the said registered deed from the

appropriate authority to discharge its burden of proving

nexus.

In the absence of such proof, it does not lie in

the mouth of the WBSEDCL to say that the ratio laid

down in Paschimanchal Vidyut Vitran Nigam Limited

(supra) ought to be followed in the present case as well.

Hence, I find from the observations of the

Ombudsman that it elaborately discussed various facets

of the case and came to the conclusion that the

WBSEDCL had failed to prove the nexus between the

previous and the present owner of the property.

In such view of the matter, there is no scope of

interfering with the order of the Ombudsman.

As such, W.P.A. No. 22876 of 2022 is dismissed

on contest without, however, any order as to costs.

W.P.A. No. 23240 of 2022, filed by the

purchaser/intending consumer, is allowed, thereby

directing the WBSEDCL to comply with the direction of

the Ombudsman and to give new electricity connection

to the petitioner, subject to compliance of all due

formalities by the petitioner, but without insisting upon

any payment of outstanding dues, allegedly due from

the erstwhile vendor. Such connection shall be given as

expeditiously as possible, positively within December

09, 2022.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance of all necessary formalities.

(Sabyasachi Bhattacharyya, J.)