Rajasthan High Court - Jodhpur

Devraj vs Jodhpur Vidhyut Vitran Nigam ... on 19 August, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:26250]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 12547/2022

Rakesh Kumar S/o Rampal Kathwal, Aged About 34 Years, B/c Arora, R/o Ward No. 16, Tehsil Anoopgarh, Dist. Sri Ganganagar (Raj.).

----Petitioner Versus

1. Jodhpur Vidhyut Vitran Nigam Limited (Jdvvnl), (Jdvvnl) Through Chaiman, New Power House, Jodhpur.

2. Executive Engineer, Jodhpur Discom, Jdvvnl, Anoopgarh, Tehsil Anoopgarh, Dist. Sri Ganganagar (Raj.).

3. Assistant Engineer (O And M), Jodhpur Discom, Jdvvnl, Anoopgarh, Tehsil Anoopgarh, Dist. Sri Ganganagar (Raj.).

----Respondents Connected With S.B. Civil Writ Petition No. 12684/2022 Devraj S/o Om Prakash, Aged About 54 Years, B/c Arora, R/o Ward No. 19, Tehsil Anoopgarh, Dist. Sri Ganganagar (Raj.).

----Petitioner Versus

1. Jodhpur Vidhyut Vitran Nigam Limited (Jdvvnl), Through Chairman, New Power House, Jodhpur.

2. Executive Engineer, Jodhpur Discom, Jdvvnl, Anoopgarh, Tehsil Anoopgarh, Dist. Sri Ganganagar (Raj.).

3. Assistant Engineer (O And M), Jodhpur Discom, Jdvvnl, Anoopgarh, Tehsil Anoopgarh, Dist. Sri Ganganagar (Raj.).

                                                                      ----Respondents


     For Petitioner(s)          :    Mr. VR Choudhary
                                     Mr. Nimesh Suthar
     For Respondent(s)          :    Mr. Tananjay Parmar
                                     Mr. Priyanshu Goppa

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order Reportable 19/08/2023

1. The petitioners have preferred the present writ petitions

claiming the following reliefs :-

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"It is, therefore, most humbly prayed that by an appropriate writ, order or direction, and the writ petition filed by the petitioner may kindly be allowed with costs declaring the action of the respondents bad in the eye of law; and the order impugned dt. 22.07.2022 (Annex.3) may kindly be quashed and set aside and the respondents may kindly be directed to provide the electricity connection supply to the petitioner for his premises as applied. Any other appropriate order / relief, which this Hon'ble court deems just and proper may kindly, also be passed in favour of the petitioner. "

2. As per the pleaded facts, the petitioner purchased a

residential plot measuring 575 sq ft. vide registered deed dated

08.05.2020 from one Smt. Sadhna Chhabra, who had purchased

the same portion of land out of a land measuring 2400 sq. ft. from

one Avinash Bhargav by a registered sale deed dated 08.08.2019.

Subsequently, the subdivision and mutation of the purchased land

was made in the name of the petitioner by the Nagar Palika,

Anoopgarh vide order dated 13.06.2022.

3. Thereafter, the petitioner applied for connection of the

electricity supply for his shop before respondent no.3 vide

application dated 18.07.2022; an inspection of the site was made

and an order was passed, whereby the petitioner was asked to

deposit the past dues of the earlier customer pending on the land,

part of which had been purchased by the petitioner and of which

the petitioner was completely unaware. By order dated

22.07.2022 passed by respondent no.3, the petitioner was asked

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to clear the dues of Rs.11,08,793/- as on June 2022 of Avinash

Agarwal i.e. the seller of the property for the whole property

measuring 2400 sq. ft.. Aggrieved of the order dated 22.07.2022,

the petitioner has preferred the present writ petition claiming the

afore-quoted reliefs.

4. Learned counsel for the petitioner submits that the dispute is

regarding the recovery of dues with the subsequent purchaser. He

has taken this Court to merits of the case stating that the previous

owner's liability cannot be shifted to the present petitioner.

5. Learned counsel for the respondent has referred to the order

of 'Terms and Conditions for Supply of Electricity-2021'; the

relevant condition, which is condition 6.7, reads as under :-

6.7 Clearance of arrears of old connection A new connection shall be given in the premises only if all arrears and dues in respect of old connection in the premises have been cleared and paid. However, in case of auction of an existing industry by RIICO/ Rajasthan Financial Corporation (RFC) or by official liquidator appointed by Rajasthan High Court or Debt Recovery Tribunal, new connection shall be released as per policy guidelines of State Government & prevailing law. However, in respect of premises auctioned by bank under SARFAESI Act (The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002), the connection shall be released as per guidelines framed by the Nigam."

6. Learned counsel for the respondent has also referred to the

judgment of Hon'ble Apex Court rendered in the case of

Telangana State Southern Power Distribution Company

Limited & Ors. Vs. Srigdhaa Beverages, (2020) 6 SCC 404,

relevant portion whereof reads as under :-

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"15. We have gone into the aforesaid judgments as it was urged before us that there is some ambiguity on the aspect of liability of dues of the past owners who had obtained the connection. There have been some differences in facts but, in our view, there is a clear judicial thinking which emerges, which needs to be emphasized:

A. That electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual nature.

B. Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is on "AS IS WHERE IS, WHATEVER THERE IS AND WITHOUT RECOURSE BASIS", there can be no doubt 10 (supra) that the liability to pay electricity dues exists on the respondent (purchaser).

C. The debate over connection or reconnection would not exist in cases like the present one where both aspects are covered as per clause 8.4 of the General Terms & Conditions of Supply. "

7. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgment cited at the Bar.

8. This Court is conscious of the judgment rendered by the

Hon'ble Apex Court in the case of K.C. Ninan Vs. Kerala State

Electricity Board & Ors. (Civil Appeal No. 2109-2110 of

2004, decided on 19.05.2023); relevant portion of which reads as

under:

"I. Conclusions

328. The conclusions are summarised below:

a. The duty to supply electricity under Section 43 of the 2003 Act is not absolute, and is subject to the such

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charges and compliances stipulated by the Electric Utilities as part of the application for supply of electricity; b. The duty to supply electricity under Section 43 is with respect to the owner or occupier of the premises. The 2003 Act contemplates a synergy between the consumer and premises. Under Section 43, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided by the Electric Utilities; c. For an application to be considered as a 'reconnection', the applicant has to seek supply of electricity with respect to the same premises for which electricity was already provided. Even if the consumer is the same, but the premises are different, it will be considered as a fresh connection and not a reconnection;

d. A condition of supply enacted under Section 49 of the 1948 Act requiring the new owner of the premises to clear the electricity arrears of the previous owner as a precondition to availing electricity supply will have a statutory character;

e. The scope of the regulatory powers of the State Commission under Section 50 of the 2003 Act is wide enough to stipulate conditions for recovery of electricity arrears of previous owners from new or subsequent owners;

f. The Electricity Supply Code providing for recoupment of electricity dues of a previous consumer from a new owner have a reasonable nexus with the objects of the 2003 Act; g. The rule making power contained under Section 181 read with Section 50 of the 2003 Act is wide enough to enable the regulatory commission to provide for a statutory charge in the absence of a provision in the plenary statute providing for creation of such a charge; h. The power to initiate recovery proceedings by filing a suit against the defaulting consumer is independent of the power to disconnect electrical supply as a means of recovery under Section 56 of the 2003 Act; i. The implication of the expression "as is where is" basis is that every intending bidder is put on notice that the seller

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does not undertake responsibility in respect of the property offered for sale with regard to any PART I 179 liability for the payment of dues, like service charges, electricity dues for power connection, and taxes of the local authorities; and j. In the exercise of the jurisdiction under Article 142 of the Constitution, the Electric Utilities have been directed in the facts of cases before us to waive the outstanding interest accrued on the principal dues from the date of application for supply of electricity by the auction purchasers."

9. This Court observes that the very inception of condition 6.7

of 'Terms & Conditions for Supply of Electricity-2021' clearly

stipulates that a new electricity connection for a premises can be

obtained only when the previous dues of that premises have been

paid in full.

10. This Court also observes that it is a settled proposition of law

that whenever a person buys a property and gains ownership of

the same, he also buys with it whatever liability is accompanied

with the property, thus the principle of caveat emptor comes in

play.

11. This Court is thus of the opinion that the petitioner cannot

feign innocence when the aforementioned condition for supply of