M/S Mahal Industries vs Jharkhand State Electricity ...
2022 Latest Caselaw 5077 Jhar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI

                        W.P.(C) No. 7571 of 2013
M/s Mahal Industries, a partnership firm having its place of business at
Khata No. 44, Plot no.1245 situated at Mouza-Mahilong, Thana No. 176,
P.S.-Tatisilwai, Dist.-Ranchi through one of its partners Smt. Seema
Narsaria, w/o Sri Manoj Narsaria, R/o 202-B, Ratnawali Apartment, Lalpur
Chowk, P.O. and P.S. Lalpur, District: Ranchi (Jharkhand).
                                                             ... ... Petitioner
                                  Versus
1. Jharkhand State Electricity Board through its Chairman having its office
   at HEC, Dhurwa, Engineers Bhawan, P.O. Dhurwa, P.S. Jagannathpur,
   Ranchi, Jharkhand.
2. General Manager cum Chief Engineer, Kusai Colony, Ranchi Area
   Electricity Board, P.O. and P.S. Doranda, Ranchi, Jharkhand.
3. The Electrical Superintending Engineer, Kusai Colony, Doranda, P.O.
   and P.S. Doranda, Ranchi, Jharkhand.
4. The Assistant Electrical Engineer, Electric Supply Sub-Division,
   Tatisilwai Camp, Kokar, P.O. Lalpur, P.S. Sadar, Ranchi, Jharkhand.
5. Junior Electrical Engineer, Electric Supply Sub-Division, Tatisilwai,
   Ranchi.
                                                        ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Nitin Kr. Pasari, Advocate Ms. Sidhi Jalan, Advocate Mr. Gaurav Kaushalesh, Advocate For the Resp.-JUVNL : Mr. Mrinal Kanti Roy, Sr. SC Mr. Chandan Tiwari, AC to Sr. SC

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th 17/Dated: 15 December, 2022

1. The instant writ petition has been filed under Article 226 of the Constitution of India for quashing of the Letter No. 76 dated 12.09.2013 and Letter No.452 dated 19.09.2013 by which a demand of Rs.37,752/- has been raised against the petitioner which was to be paid by the erstwhile occupier of the premises, namely, Shri Arvind Kumar Singh in relation to Khata No. 44, Plot No. 1245 situated at Mouza-Mahilong, Thana No. 176, P.S. Tatisilwai, Dist.-Ranchi.

2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated, reads as under:

The petitioner, in the capacity of a partnership firm, has purchased the property under auction situated at Khata No. 44, Plot No. 1245 situated at Mouza-Mahilong, Thana No. 176, P.S. Tatisilwai, Dist.- Ranchi from Debts Recovery Tribunal on the basis of the possession certificate dated 02.08.2013 from the Central Bank of India, Regional Branch, Ranchi and has made an application for fresh electricity connection for the purpose of establishing a manufacturing unit.

The petitioner, after making the said application for getting electricity connection, has received a letter under the signature of the Junior Electrical Engineer, Electric Supply Sub-Division, Tatisilwai dated 12.09.2013 communicating the petitioner that the land in question where the electricity line was provided is having dues of Rs.37,752/- and due to default in making payment of the aforesaid amount, the electricity connection lying in the premises in the name of erstwhile occupier was disconnected.

Subsequent thereto, one communication was issued by the seal and signature of the Assistant Electrical Engineer, Electric Supply Sub- Division, Tatisilwai, Ranchi requesting the petitioner to deposit an amount to the tune of Rs.37,752/- so that further action be taken for providing electricity connection, failing which the application for getting fresh connection will be rejected.

It is the case of the petitioner that although the aforesaid communication has been protested on the basis of the settled position of law as has been held by the Hon'ble Apex Court in Southern Power Distribution Company of Telengana Ltd. through its CMD and Ors. vs. Gopal Agarwal and Ors. (2018) 12 SCC 644 followed by the Supply Code of the year 2005 wherein there is no stipulation for making recovery of the amount which is lying due against the erstwhile occupier of the premises in question. But, the petitioner since was in the need of the aforesaid connection for the purpose of starting his manufacturing unit has written a letter on 04.10.2013 appended as Annexure-8 to the writ petition referring therein for deposit of the aforesaid amount but

under protest in view of Clause 5.5 of the Electric Supply Code Regulations, 2005 making therein request to grant electric connection forthwith and the aforesaid deposit is absolutely without prejudice to rights and contentions of the petitioner.

The amount has been deposited. The due receipt has been issued being Receipt No. 565622 appended as Annexure-9 to the writ petition. The petitioner, thereafter, has filed this writ petition challenging the letter no. 76 dated 12.09.2013 and letter no.452 dated 19.09.2013 on the ground that communicating such letters by way of direction to deposit the amount which was to be deposited by the erstwhile occupier is contrary to the law, as such, prayer has been made for a direction to refund the aforesaid amount.

3. The respondents have appeared and filed counter affidavit and has disputed the fact about the deposit of the amount of Rs.37,752/- by the petitioner by making statement to that effect at paragraph-7 wherein the stand inter alia has been taken that the aforesaid amount was deposited by Shri Arvind Kumar Singh on 26.10.2013 vide receipt no. 565622 thereafter outstanding dues of energy against the department was nill.

4. Mr. Mrinal Kanti Roy, learned counsel for the respondents has submitted that since the aforesaid amount was deposited by the erstwhile occupier of the premises, namely, Shri Arvind Kumar Singh and to the effect the due receipt has been issued appended as Annexure-9 to the writ petition, therefore, there is no reason to refund the amount in favour of the petitioner.

5. In response to the aforesaid opposition, learned counsel for the petitioner has submitted that it is absolutely incorrect on the part of the respondent to take the ground that the aforesaid amount was deposited by the erstwhile occupier which stands falsified from the demand raised by the Assistant Electrical Engineer dated 19.09.2013, whereby and whereunder, condition has been stipulated for supply of the electric connection subject to payment of Rs.37,752/-, failing which the application for getting electric connection will be cancelled.

It has been submitted, therefore, that when the decision has already been taken to provide electricity connection only if the dues lying against the erstwhile occupier will be cleared by the petitioner then the petitioner having no option but to deposit the said amount with a protest by making reference of the provision as contained under clause 5.5 of the Supply Code which restrain the respondent in making demand from the subsequent applicant for getting electricity connection for the purpose of making recovery of the dues lying against the erstwhile occupier.

6. In sum and substance, submission has been made that the respondent Board cannot be allowed to travel contrary to their own provision contained under Clause 5.5 of the Supply Code coupled with the position of law settled by the Hon'ble Apex Court as referred hereinabove.

7. So far as the ground taken by the respondent that the aforesaid amount has been deposited by the erstwhile occupier, namely, Shri Arvind Kumar Singh, is concerned, the same is not fit to be accepted reason being that when the demand has been made by the Assistant Electrical Engineer on the basis of the application submitted by the petitioner for getting electric connection making the said deposit to be a condition for supply of electric connection and based upon which when the amount has been deposited under protest by making correspondence as under Annexure-8 dated 04.10.2013 then the said amount cannot be said to be deposited by the erstwhile occupier and once the amount has been deposited by the petitioner then, he is entitled for the refund of the said amount.

He further submits that if any amount is due against the erstwhile occupier, the respondent is authorized to recover the same resorting to the other recovery process but not from the petitioner.

8. Heard learned counsel for the parties, perused the documents available on record as also the orders impugned dated 12.09.2013 and 19.09.2013 contained in letter no. 76 and letter no.452 respectively.

9. The entire dispute revolves around regarding the claim of the petitioner as to whether he is entitled for refund of Rs.37,752/- which he claims to

have deposited for getting electricity connection pertaining to the dues of erstwhile occupier.

10. The position of law is well settled as has been settled in Paschimanchal Viduyt Vitran Nigam Limited and Ors. vs. DVS Steel and Alloys Private Limited and Ors., (2009) 1 SCC 210 that if the property has been purchased in auction which does suggest and restrain to make recovery of any amount which is to be paid by the erstwhile occupier. Paragraph-11 of the said judgment reads as under:

"11. The supply of electricity by a distributor to a consumer is "sale of goods". The distributor as the supplier, and the owner/occupier of a premises with whom it enters into a contract for supply of electricity are the parties to the contract. A transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor-in-title or possession, as the amount payable towards supply of electricity does not constitute a "charge" on the premises. A purchaser of a premises, cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises. The supplier can therefore neither file a suit nor initiate revenue recovery proceedings against a purchaser of a premises for the outstanding electricity dues of the vendor of the premises in the absence of any contract to the contrary."

11. It is further fortified that even the respondent have come out with the Supply Code in the year 2005 which contains a provision as contained under clause 5.5 which also speaks that there cannot be any recovery of the dues from the subsequent applicant who is desiring to get the electricity connection. For ready reference, the aforesaid provision as contained under clause 5.5 is required to be referred herein, the same reads as under:

"5.5 If the applicant, in respect of an earlier agreement executed in his name or in the name of a firm or company with which he was associated either as a partner, director or managing director, has any arrears of electricity dues or other dues for the premises where the new connection is applied for and such dues are payable to the licensee, the requisition for supply may not be entertained by the licensee until the dues are paid in full. But if the old consumer who had committed default in payment of the dues has left the premises for good and the concerned premises has come in legal possession of a new occupant through transfer or purchase of the concerned property and where the new incumbent is not connected with the previous owner/occupant in any manner applies for re- connection of the electrical line in the same disconnected premises, in that event the distribution licensee shall be obliged to order reconnection without realization of the arrear dues of concerned premises from the new incumbent, as the purchaser of the premises would not be held liable to meet the liability of the previous consumer in order to secure reconnection."

12. Thus, the law is well settled that in any circumstances, i.e., before coming into effect of the Supply Code, 2015 there cannot be any demand by the licensee of the dues which was to be paid by the erstwhile occupier basis upon which the electricity line has been connected, as the case herein is, as such, the electricity line in the premises was supplied by the licensee in the name of Shri Arvind Kumar Singh and subsequently, the property was auctioned and has been transferred in favour of the petitioner after following the due process as provided under the SARFAESI Act, 2002. Since it is for the recovery of the loan amount, a proceeding under the SARFAESI Act, 2002 has been initiated which ultimately culminated into the proceeding of Section 13(2) read with Section 14 of the Act, 2002 and finally the property was purchased in auction sale by the petitioner.

13. As would appear from communication dated 12.09.2013 appended as Annexure-4 to the writ petition which is a report/communication made by the Junior Electrical Engineer, Electric Supply Sub-Division, Tatisilwai addressed to the Assistant Electrical Engineer, Electric Supply Sub-Division, Tatisilwai Camp Kokar, Ranchi contained in Letter No. 76 wherein it has been communicated that electricity connection was disconnected due to dues of Rs.37,752/-.

It further appears from the communication dated 19.09.2013 contained in Letter No. 452 issued under the seal and signature of Assistant Electrical Engineer, Electric Supply Sub-Division, Tatisilwai Camp Kokar, Ranchi addressed to the petitioner making reference of the application submitted by the petitioner for getting electricity connection in the nature of 15HP LTIS. The content of the said letter is to the effect that the petitioner has made an application for getting electricity connection in the name of M/s Mahal Industries by depositing the requisite amount of Rs.50/- vide receipt No.710888 dated 10.09.2013.

It has further been referred that the said premises was occupied by one Shri Arvind Kumar Singh in whose favour the electricity connection was provided being Consumer No. TATLT TT 6057 75 HP LTIS. But, due to default in making payment of the dues to the tune of Rs.37,752/-, the electricity connection was disconnected.

In this circumstances, request was made to the petitioner to deposit the aforesaid dues within the period of 15 days so that the further process for providing electricity connection be taken, failing which the application will be rejected.

It further appears from the communication made by the petitioner as under Annexure-8 addressed to the Assistant Electrical Engineer, in response to the Letter No. 452 dated 19.09.2013 appended as Annexure-5 referring therein that although the aforesaid amount is not to be paid by the petitioner in view of the specific provision as under Clause 5.5 of the Supply Code, 2005 but since the same has been made a pre-condition for supply of the electricity connection, the same under protest has been deposited so that the electricity connection be provided and the said deposit will be without prejudice to the rights and contentions. The amount has been deposited but the cash receipt has been issued in the name of Shri Arvind Kumar Singh, the erstwhile occupier.

14. The respondent, on the basis of the cash receipt issued in the name of erstwhile occupier of the premises, objected that the petitioner is not entitled to get the said amount since the cash receipt has been issued in the name of Shri Arvind Kumar Singh against which the dues is lying pending, as such, there is no question to refund the said amount in favour of the petitioner.

15. Such submission has been made by the respondent on the basis of the submission made by them as under paragraph-7 in the counter affidavit wherein the stand has been taken that the said amont was deposited by Shri Arvind Kumar Singh and thereafter the outstanding dues of energy against the department became nill.

16. The respondent, save and except, submission made at paragraph-7 in the counter affidavit, have not stated anything regarding the issuance of letter by the Assistant Electrical Engiener appended as Annexure-5 to the writ petition.

17. The question arises that if the said amount has been deposited by Shri Arvind Kumar Singh then why the concerned Assistant Electrical

Engineer has issued a communication to the petitioner to deposit the said amount as a pre-condition for supply of the electricity connection with a caution that if the said amount will not be deposited, the application for getting the electricity connection will be rejected.

There is no quarrel about the hierarchy of the post under the respondent and the aforesaid letter has been issued by the Assistant Electrical Engineer which is the basic cadre in the Class-II service and when the Supply Code has come in the year 2005 with the approval of the Regulatory Commission for the purpose of regulating the affairs of the licencee even then in complete defiance with the provision contained under clause 5.5 of the Supply Code, the petitioner has been called upon to deposit the amount of Rs.37,752/- which was due to the paid by Shri Arvind Kumar Singh, failing which the application for getting electricity connection will be rejected.

18. This Court has posed a pin pointed question upon the learned counsel for the respondents that under what authority of law the petitioner, who admittedly is the subsequent applicant for getting electricity connection, has been asked to deposit the said amount which was to be paid by the erstwhile occupier who became defaulter basis upon which the electricity connection was disconnected.

19. The question arises that when there is specific provision conferring power or restraining provision to act or not to act and to take or not to take decision but in complete defiance with the same, the Assistant Electrical Engineer has issued a letter for supplying electricity connection subject to deposit of an amount of Rs.37,752/- which was the liability of the erstwhile occupier.

20. The instant writ petition has been filed for quashing of the Letter No. 76 dated 12.09.2013 and Letter No.452 dated 19.09.2013 by issuing writ of certiorari and the position of law is well settled so far as it relates to power conferred to the High Court under Article 226 of the Constitution of India to issue writ of certiorari in a case where the authority concerned has exceeded its jurisdiction or action suffers from jurisdictional error.

Exceeding jurisdiction or jurisdictional error connotes that any action if not authorized under the law and if taken, the same will come under the fold of the jurisdictional error or exceeding the jurisdiction. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Syed Yakoob vs. Radhakrishnan, A.I.R. 1964 SC

477. Paragraph no.7 of the said judgment is being reproduced as under:

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.

In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors., AIR 1955 Supreme Court 233, the Hon'ble Supreme Court has held in paragraph no.21 as under:

"With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise

of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."

In Sawarn Singh and Anr. vs. State of Punjab and Ors., (1976) 2 SCC 868 their Lordships, while discussing the power of writ under Article 226 of the Constitution of India for issuance of writ of certiorari, has been pleased to hold at paragraph nos.12 and 13 as hereunder:

"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra)

13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

In Heinz India (P) Ltd. and Anr. vs. State of U.P. and Ors., (2012) 5 SCC 443 their Lordships have been pleased to hold at paragraph nos.66 and 67 as hereunder:

"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.

67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate

examination of evidence to establish the right to enforce for which the writ is claimed."

In Thansingh vs. Supdt. of Taxes, A.I.R. 1964 1419 Supreme Court, Hon'ble Supreme Court has been pleased to hold that the High Court does not jointly determine question which requires elaborate examination of evidence to establish the right to enforce for which the writ is claimed.

In Pepsico India Holding (P) Ltd. vs. Krishna Kant Pandey, (2015) 4 SCC 270 their Lordships, while discussing the scope of Articles 226 and 227 of the Constitution of India in the matter of interference into the finding of the Tribunal, has been pleased to hold by placing reliance upon the judgment rendered in Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447 at para-17 as under:

"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows:

The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the

......... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.

This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:

It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority."

In General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others vs. Giridhari Sahu and Ors., (2019) 10 SCC 695 the Hon'ble Apex Court has delved upon the issue about scope of issuance of writ of certiorari by the High Court and has laid down that, if the finding recorded by the court is erroneous and based upon perversity, the order is fit to be quashed/set aside.

21. Here, in the given facts of the case also, the Supply Code restrains by way of provision carved out as under Clause 5.5 of the Supply Code, 2005 that there cannot be any demand or a pre-condition to deposit a sum which has become liability of the erstwhile occupier of the premises, but, ignoring the same, the Assistant Electrical Engineer who is having no jurisdiction to defy the Supply Code containing therein the provision to that effect as under Clause 5.5 thereof, communication dated 19.09.2013 was issued asking the petitioner to deposit a sum of Rs.37,752/-, the liability of the erstwhile occupier, failing which the application for supply of the electricity connection will be rejected.

22. Since this Court has come to a conclusion about the authority of the Assistant Electrical Engineer in issuing the communication dated 19.09.2013 in complete defiance of the provision as under Clause 5.5 of the Supply Code, therefore, the same according to the considered view of this Court, cannot be said to be sustainable in the eyes of law.

23. Accordingly, the Letter No. 76 dated 12.09.2013 and Letter No.452 dated 19.09.2013 are hereby quashed and set aside.

24. Now, the second question is that as to whether the aforesaid amount is to be refunded to the petitioner or not since there is objection on behalf of the respondent that the aforesaid amount was deposited by the erstwhile occupier, namely, Shri Arvind Kumar Singh. The basis of this argument is the issuance of cash receipt as contained in Annexure-9 to the writ petition in the name of Shri Arvind Kumar Singh.

25. There is no dispute that the cash receipt speaks itself but when the Assistant Electrical Engineer has made a request to the petitioner to deposit the said amount by making reference of the application submitted by the petitioner for getting electricity connection and deposit

of the defaulted amount has been made a pre-condition and in case of non-deposit of the said amount, the application will be rejected, the petitioner has deposited the said amount under protest and to support the argument, communication to that effect dated 04.10.2013 has been appended as Annexure-8 to the writ petition.

26. This Court has gone across the content of the Annexure-8 dated 04.10.2013 and after considering the demand raised by the Assistant Electrical Engineer as under Annexure-5 and as is stated by the petitioner that the said amount has been deposited by the petitioner under protest, there is no reason to disbelieve that the said amount has not been deposited by the petitioner since the petitioner was the subsequent applicant and in need of electricity connection and since the petitioner has made an application for getting the electricity connection, thereafter, the Assistant Electrical Engineer has requested the petitioner to deposit the said amount, failing which the application for getting electricity connection will be rejected.

27. The contention raised that the said amount has been deposited by Shri Arvind Kumar Singh is not acceptable to this Court for the reason that once he has become defaulter basis upon which the electricity line was disconnected, thereafter, the property has been put to auction on the basis of the order passed by the Debts Recovery Tribunal arising out a SARFAESI proceeding, there is no occasion for the erstwhile occupier to come forward before the licencee to deposit the said amount.

28. The moment the SARFAESI proceeding has been initiated after issuance of notice under Section 13(2) of the SARFAESI Act, 2002 which finally culminated into the auction after getting the physical possession under Section 14 of the Act, 2002 by the order of the District Magistrate concerned, the ertshile occupier will have no interest of the premises in question, as such, there is no reason that he will come forward for depositing the said amount.

29. This Court, on the basis of the aforesaid reasoning, is of the view that the said amount has been deposited by the petitioner after taking into consideration the sequence of the documents and discussion made hereinabove.

30. This Court, after having discussed the fact in entirety and the conclusion arrived at, hereby, directs the respondents to refund the said amount in favour of the petitioner preferably within a period of four weeks from the date of receipt of copy of the order.

31. This Court deems it fit and proper to grant liberty to the respondents to initiate a proceeding, if so wishes, to recover the said amount from the erstwhile occupier namely, Shri Arvind Kumar Singh.

32. With this observation and direction, the instant writ petition stands disposed of.

(Sujit Narayan Prasad, J.) Saurabh/-