Moumita Ghosh vs West Bengal State Electricity ...
2022 Latest Caselaw 7006 Cal

                           In the High Court at Calcutta
                          Constitutional Writ Jurisdiction
                                   Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                           WPA No.3241 of 2022

                              Moumita Ghosh

                                     Vs.

              West Bengal State Electricity Distribution
                    Company Limited and others

     For the petitioner              :     Mr. Kushal Chatterjee,
                                           Mr. Saptarshi Kumar Mal,
                                           Mr. Asif Sohail Tarafdar

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

     Hearing concluded on            :     19.09.2022

     Judgment on                     :     27.09.2022



     Sabyasachi Bhattacharyya, J:-



1.

The petitioner and her husband Mintu Ghosh purchased a property from

one Syed Masud Ali by a registered deed of conveyance dated September

23, 2021. Thereafter, the petitioner applied for an electricity connection to

the said premises. Initially the WBSEDCL dilly-dallied in the matter, for

which a writ petition was preferred by the petitioner. Upon a direction

being given by this Court, the WBSEDCL processed the application for new

electricity connection of the petitioner and, vide communication dated

December 29, 2020, intimated the petitioner that total outstanding dues to

the tune of Rs.56,79,649/- was lying unpaid against the connection at the

said property. Pending outstanding dues were to be cleared, it was insisted

by the WBSEDCL, for a new electricity connection to be given to the

petitioner.

2. Learned counsel appearing for the petitioner contends that the Distribution

Licensee acted without jurisdiction in insisting upon payment of

outstanding dues left by a previous consumer, in the absence of any nexus

between the petitioner/purchaser and the erstwhile owner.

3. Learned counsel for the petitioner places reliance on a co-ordinate bench

judgment rendered in M/s. Shree Krishna Paper Mills and another Vs. The

West Bengal State Electricity Distribution Co. Ltd. and others, reported at

2009 SCC OnLine Cal 1543. In the absence of any nexus between the

erstwhile defaulting consumer and the petitioner having been established,

the learned Single Judge held that the outstanding dues could not be

charged from the purchaser.

4. While defending the demand of the WBSEDCL, learned counsel appearing

for the WBSEDCL submits that as per the extant regulations, the

Distribution Licensee is well within its powers to insist upon payment of all

outstanding dues left by the vendor/erstwhile consumer from the

subsequent purchaser of the premises.

5. In support of such contention, learned counsel cites Paschimanchal Vidyut

Vitran Nigam Limited and others Vs. DVS Steels and Alloys Private Limited

and others, reported at (2009) 1 SCC 210. Learned counsel also places

reliance on a Division Bench Judgment of this Court passed in The

Assistant Engineer and another Vs. Sri Nirmal Kumar Mondal and another,

reported at 2010 (2) CLJ (Cal) 450 and another unreported Division Bench

Judgment delivered in MAT 178 of 2010. In the said cases, it is argued, the

Courts had held that arrears due in regard to supply of electricity made to

the premises can be claimed while giving connection to the subsequent

purchaser.

6. Upon considering the submissions of learned counsel and going through

the materials-on-record, it is clear from the deed of conveyance, by which

the petitioner and her spouse purchased the property, annexed as

Annexure P-1 at page 16 of the writ petition, that no encumbrance with

regard to default in electricity charges were mentioned within the four-

corners of the deed of transfer.

7. Rather, the said document clearly stipulated that the purchasers were

indemnified against all estate and encumbrances created by the vendors or

any person or persons lawfully or equitably claiming from, under and in

trust for them.

8. It is well-settled that, in any event, electricity dues do not form a charge

over a property, to be borne by the subsequent purchaser. In

Paschimanchal Vidyut Vitran Nigam Limited and others (supra), the

Supreme Court had, inter alia, upheld the vires of Clause 4.3 of the

Electricity Supply Code, sub-clauses (g) and (h).

9. Sub-clause (g) provides that 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.

10. Sub-clause (h) stipulates that 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.

11. 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.

12. The said facts and circumstances substantially differ from the present case.

The vires of the Clauses as indicated above were upheld by the Supreme

Court on the premise that if any statutory rules govern the conditions

relating to sanction of a connection of supply of electricity, the Distributor

can insist upon fulfillment of the requirements of such rules and

regulations.

13. It was further observed that there was nothing unreasonable in a provision

enabling the distributor/supplier to disconnect electricity supply if dues are

not paid, or where the electricity supply has already been disconnected for

non-payment, to insist upon clearance of arrears before a fresh electricity

connection is given to the premises. It is obviously the duty of the

purchaser/occupants of premise, it was held, to satisfy themselves that

there were no electricity dues before purchasing/occupying the premises.

The Supreme Court went on to observe that the purchasers 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.

14. Precisely such a clause was incorporated in the purchase deed of the

petitioner and her spouse. It was specifically provided in the registered sale

deed that the purchasers were indemnified against all encumbrances

created by the vendors or any person or persons lawfully or equitably

claiming from the estate. Moreover, the said judgment is not a precedent

on the West Bengal Electricity Regulatory Commission (WBERC)

Regulations, which are applicable to the present case. Insofar as the

Division Bench judgment in Sri Nirmal Kumar Mondal and another (supra)

and in the unreported Division Bench judgment, both cited by the

WBSEDCL, are concerned, it was reiterated in both the said Judgments

that the Distributor can insist upon fulfillment of requirement of the rules

for effecting supply of electricity.

15. Moreover, in Sri Nirmal Kumar Mondal and another (supra), the writ

petitioner was agreeable to pay the amount as claimed by the WBSEDCL

but only contended that three other occupiers also enjoyed the said

electricity and he is agreeable to pay one-fourth dues of the WBSEDCL,

which prayer was allowed by directing payment on pro-rata basis.

16. Even in the other unreported Division Bench Judgment of this Court, the

same provisions were reiterated. Both the Division Benches place reliance

on Paschimanchal Vidyut Vitran Nigam Limited and others (supra).

17. Let us scrutinise the relevant Regulation with regard to the WBSEDCL

claim in the present case. Regulation No.46, that is the WBERC (Standards

of Performance of Licensees Relating to Consumer Services) Regulations,

2010, stipulates in Clause 13.9 that 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 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 pro-rata manner, if it is established that he/she has

had a nexus with the previous consumer including the purchaser of a

property in respect of which their outstanding dues or who had benefitted

from non-payment of the said outstanding dues by the previous consumer.

18. In the present case, learned counsel for the WBSEDCL has sought to level

various aspersions against the writ petitioner/purchaser. It has been

contended that the purchasers had pre-purchase knowledge with regard to

the electricity dues and that the property was purchased at a low price,

allegedly in consideration of the electricity dues to be discharged by the

purchasers.

19. However, the provisions of the sale deed itself bely such contentions of the

petitioner. The WBSEDCL has failed to establish, even on a preponderance

of probability, that the purchasers had pre-purchase knowledge or paid a

demonstrably low consideration for purchase of the property.

20. In the deed itself, the purchase price was shown to be Rupees Forty Lakh.

The Memo of consideration attached to the deed indicated the exact mode

in which the purchasers had disbursed such amount in favour of the

vendor.

21. The deed itself clearly contains a clause that indemnifies the purchasers

against all encumbrances created by the vendors or persons lawfully or

equitably claiming from the vendors in respect of the estate. Hence, no

nexus has been established at all between the petitioners and the

vendors/erstwhile consumers inasmuch as electricity default is concerned.

22. In all the cited Judgments, the courts have insisted upon the rules and

procedures being followed. Even agreeing to such proposition, it is evident

from Clause 13.9 of Regulation 46 of 2010 of the WBERC that no "nexus"

with the previous consumer and the purchaser was established by the

WBSEDCL, nor could the WBSEDCL show from any material that the

purchasers had benefitted from non-payment of the aforesaid outstanding

dues. The purchasers only came in possession of the property after

purchase, prior to which the alleged default had been left outstanding by

the vendor. The sale deed indemnifies the purchasers as discussed above.

Moreover, there was no question of the purchaser deriving any benefit from

the default or having any nexus with the purchasers.

23. Furthermore, it is well-settled that new allegations cannot be furnished as

grounds subsequently in pleadings filed with regard to a writ petition.

Although several allegations have been made from the bar and sought to be

indicated in the affidavit-in-opposition of the WBSEDCL, the impugned

demand letter dated December 29, 2020 did not disclose any such ground

at all.

24. Hence, the WBSEDCL cannot be permitted to insist upon payment of the

outstanding dues left by the vendor from the purchaser for giving new

connection.

25. In such circumstances, there was no justification for the WBSEDCL

insisting upon prior payment of all outstanding dues by the petitioner

before giving a new electricity connection to the petitioner.

26. Hence, WPA No.3241 of 2022 is allowed, thereby directing the WBSEDCL

to immediately raise a fresh quotation on the basis of application

no.5003191018 of the petitioner for new electricity connection at the

premises-in-question, de hors the alleged outstanding dues of

Rs.56,79,649/-, as claimed in the impugned letter dated December 29,

2020. Such letter, being Annexure P-4 at page 54 of the writ petition, is

hereby set aside.

27. Upon payment of due charges payable in law for getting a new electricity

connection and compliance of all formalities, of course, without any

payment of outstanding dues left allegedly by the vendor/erstwhile

consumer, the WBSEDCL shall give a new electricity connection to the

petitioner as expeditiously as possible, preferably within a fortnight from

the date of compliance of such formalities by the petitioner, without

insisting upon prior payment of any outstanding dues which might have

been claimed from the erstwhile consumer.

28. However, it is made clear that nothing in this order shall prejudice the

rights of the WBSEDCL to recover the amount of outstanding dues as

claimed by the WBSEDCL from the erstwhile consumer/vendor Syed

Masud Ali in due process of law.

29. There will be no order as to costs.

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

compliance of all requisite formalities.

( Sabyasachi Bhattacharyya, J. )