Arunava Dey vs State Of West Bengal And Another
2023 Latest Caselaw 2013 Cal

D/L. 37.

March 27, 2023.

MNS.

WPA No. 26660 of 2022

Arunava Dey Vs.

State of West Bengal and another

Mr. Dhiman Ray, Mr. Dip Chanda

...for the petitioner.

Mr. Subrata Dasgupta

...for the State.

Mr. Debjit Mukherjee

...for the Distribution Licensee.

Affidavits-in-opposition and reply filed in

Court today be kept on record.

Learned counsel for the petitioner

contends, by placing reliance on a judgment

reported at AIR 2023 Calcutta 61 (Moumita

Ghosh Vs. West Bengal State Electricity

Distribution Company Limited and others), that as

per Clause 13.9 of Regulation 46 of 2010

Regulations of the WBERC, unless any nexus is

shown between the previous consumer and the

purchaser, the West Bengal State Electricity

Distribution Company Limited (WBSEDCL)

cannot stipulate the pre-payment of the

outstanding dues left by the previous consumer

as a pre-condition for giving electricity to the

purchaser.

However, in the present case, although

the petitioner agreed to deposit an amount

allegedly left due by the borrower of the vendor,

from whom the petitioner purchased through a

bank sale, the petitioner does not now admit the

liability to pay even such amount. Moreover, the

WBSEDCL went so far as to list a number of

alleged outstanding dues left by different

consumers in respect of the premises, which

were allegedly to be paid by the petitioner, who

had no connection with such liabilities, before the

electricity connection being given to the

petitioner.

Learned counsel for the petitioner

contends that the letter written by the petitioner

dated September 23, 2022, annexed at page 39

of the writ petition, could not amount to an

admission of such dues on the part of the

petitioner. Moreover, the petitioner had agreed to

make payment of the borrower's dues under

compulsion, since the WBSEDCL was refusing to

give electricity connection to the petitioner unless

such amount was cleared.

Learned counsel also places reliance on

the sale certificate of the petitioner, which clearly

indicates that the list of encumbrances, which

were payable by the petitioner, was shown to be

"NIL" in the said certificate. As such, it is argued

that the petitioner is entitled to electricity

connection being given upon payment of the due

charges as per law without the WBSEDCL

insisting upon the outstanding dues left by any of

the previous consumers.

Learned counsel appearing for the

WBSEDCL also places reliance on the sale

certificate annexed at page 27 of the writ petition.

In the last sentence of the first paragraph of the

sale certificate, it is mentioned that the sale of the

scheduled property was made "without freeing

from encumbrances listed below in list II".

It is further contended that the said

provision, read in conjunction with the statement

of the petitioner in the letter written by the

petitioner (Annexure P3 at page 39 of the writ

petition), where the petitioner admitted in Bengali

vernacular that the petitioner was agreeable to

pay the dues left outstanding by the borrower,

oblige the petitioner to clear the entire

outstanding dues before getting electricity

connection.

It is submitted, by placing reliance on the

affidavit-in-opposition used by the WBSEDCL,

that the letter itself is sufficient indicator of a

nexus between the petitioner and the

borrower/erstwhile consumer.

Such contentions, of course, are refuted

by learned counsel for the petitioner.

A perusal of the sale certificate relied on

by both the parties indicates clearly that the

SARFAESI sale was not made on an "as is where

is" basis.

It was, rather, mentioned clearly in the

sale certificate that the sale of the scheduled

property was being made free from all

encumbrances known to the secured creditor as

listed in list I, on deposit of the money demanded

by the undersigned therein.

In the next sentence, it was mentioned

that the sale of the scheduled property was made

without freeing from encumbrances listed in list II

thereunder. However, in list II given in the sale

certificate, it was mentioned that the list of

encumbrances not freed from, and subject to

which sale made, was "NIL".

Hence, it is evident from the sale

certificate itself that the purchaser in the

SARFAESI sale, that is, the present petitioner,

was in no position to know about previous liability

or outstanding dues left with regard to the said

premises.

The sale being one without encumbrances

and a public sale, it cannot be said that there is

any nexus whatsoever, in the absence of

anything else, between the petitioner and the

borrower.

That apart, on a composite reading of the

letter written in Bengali vernacular, annexed at

page 39 of the writ petition, it is seen that the

petitioner had agreed to pay only the outstanding

dues in respect of the borrower, that too under

compulsion, since otherwise the WBSEDCL was

not inclined to give electricity connection, which

was also indicated in the said letter itself.

Moreover, the petitioner had indicated in the letter

that it is only from the office of the WBSEDCL

that the petitioner came to know about the said

outstanding dues.

Such statement and payment cannot, in

any manner whatsoever, create any previous

nexus between the petitioner and the borrower,

either at the juncture when the sale was made or

before.

Hence, as also laid down in Moumita

Ghosh (supra), Clause 13.9 of Regulation 46 of

2010 of the WBERC clearly imposes a burden on

the WBSEDCL to prove nexus between the

previous consumer and the new applicant for the

purpose of insisting upon prior payment of

outstanding dues left by such previous consumer

for the purpose of giving new electricity

connection.

Such provision being fully applicable in the

present case and since the WBSEDCL failed to

prove any nexus whatsoever between the

petitioner and any of the previous consumers, the

demand of the WBSEDCL for prior payment by

the petitioner of all outstanding amounts in

respect of the premises is patently illegal and de

hors the law and Regulations.

Accordingly, WPA No. 26660 of 2022 is

allowed, thereby directing the WBSEDCL to give

electricity connection to the petitioner as

expeditiously as possible, positively within a

fortnight from this date and/or from compliance of

all formalities by the petitioner, whichever is later.

However, in view of the above

observations, the WBSEDCL shall not insist upon

payment of the outstanding dues with regard to

the same premises left by any other person than

the petitioner at any point of time as a pre-

condition for giving such electricity connection to

the petitioner.

Parties shall act on the server copy of this

order without insisting upon prior production of a

certified copy thereof.

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 with the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)