Calcutta High Court (Appellete Side)
For The vs Cesc on 5 October, 2010
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
0.10
MAT No. 197 of 2010
+
CAN No. 2221 of 2010
Mr. Ram Mohan Chattopadhyay, Adv.
... For the appellants
Mr. Pratap Chatterjee, Sr. Adv.
Mr. Debdutta Sen, Adv.,
Mr. Dinabandhu Dan, Adv.,
Mr. Dipankar Ghosh, Adv.
... For the State respondents
This appeal is directed against an order dated 23rd December, 2009 passed in W.P. No.23309(W) of 2009 whereby the Hon'ble First Court was pleased to direct the respondent authorities, the West Bengal State Electricity Distribution Company Limited (hereinafter referred to as the said 'Company'), the appellant herein, to take necessary steps for effecting supply of electricity at the premises in question of the petitioners without any further delay but positively within a period of four weeks from the date of communication of this order subject to completion of necessary formalities by the writ petitioners including payment of necessary charges. His Lordship further directed that the writ petitioners are not required to make payment of any outstanding dues of third party in respect of the premises in question.
Being aggrieved with the said order, the appellant herein has field this appeal inter alia on the ground that without giving a chance to the appellant the writ petition was disposed of at the motion stage.
2It is further stated that the appellant raised demand of Rs.33,14,472/- on the respondent/writ petitioner and the writ petitioner refused to pay the said amount on the ground that they never had any chance with the erstwhile lesser M/s. Maxlux Glass Pvt. Ltd. It is further the case of the appellant that the provision of Section 43 of the Electricity Act, 2003 was not correctly considered by the Court.
The facts of the case briefly are as follows :-
The writ petitioner purchased 3.312 acres of land at Uluberia, in the District of Howrah in a sale held by the Hon'ble High Court. On 29th January, 2009 the sale was confirmed in favour of the writ petitioner. Such sale was confirmed on and for a consideration of Rs.4.05 crores paid by the writ petitioner.
According to the writ petitioner, a sale notice dated 3rd October, 2008 issued by the Official Liquidator was published in the newspaper for sale of the moveable and immoveable properties of the company in liquidation, namely, Laustizer Glass (India) Ltd. which would be sold on 'as is where is and whatever there is' basis.
After payment was made by the writ petitioners on 30th January, 2009, the Official Liquidator handed over the possession of the said property in favour of Om Dayal, the respondent No. 1. On 7th April, 2009 the Deed of Assignment was executed by the Official Liquidator by transferring the leasehold interest in the 3 said property in favour of Om Dayal and the said deed was registered on 29th April, 2009.
The particulars of the unexpired portion of the leasehold interest over and in respect of the said property which was purchased by the said Om Dayal as stated in the table shown hereinbelow :-
Sl. Plot Area Remarks Sketch
No. No. Map
Annexure
No.
1. 39(P) 0.9535 Assigned by Maxlux 3
Glass Pvt. Ltd. to
Lausitzer Glass (India)
Ltd. by registered
Deed of assignment
dated 23.4.1997 after
obtaining the consent
of WBIIDC
2. 38(P) 1.6595 Let out by WBIIDC to 2
Lausitzer Glass (India)
& Ltd. under a deed of
lease dated 22.1.1996
39(A)
3. 38A 0.6993 Let out by WBIIDC to 1
Lausitzer Glass (India)
Ltd. under a deed of
lease dated 21.7.1995
It is the case of the writ petitioners that the said property was purchased by said Om Dayal for the purpose of setting up an Engineering College for which the writ petitioner No. 1 applied before All India Council for Technical Education (hereinafter referred to as A.I.C.T.E.) for obtaining necessary approval. Therefore, one of the essential conditions to have the approval was that Om 4 Dayal would have to obtain permission for electrical connection from competent authority.
On 17th March, 2009, Om Dayal addressed a letter to the authorities W.B.S.E.D.C.L for one single phase. Subsequent thereto for carrying on construction activities on the said land. On 29th May, 2009 the name of the writ petitioner was mutated by the West Bengal Infrastructure Development Corporation being the principal landlord of the premises in question and on 29th August, 2009 the Divisional Engineer, by a memo intimated that the writ petitioners' service connection work cannot be done since there is an outstanding payment of Rs.33,14,4,72/- in the name of Maxlux Glass (P) Ltd. being the erstwhile lessee in respect of the said property.
It was pointed out that the said Maxlux Glass Pvt. Ltd. and the writ petitioners were distinct and separate entity and on separate piece of land and the outstanding dues of the said company cannot be levied upon the writ petitioners. Since, there was an outstanding dues the supply was refused to the writ petitioners.
It appears that on the said factual matrix the writ petition was filed challenging the decision of the W.B.S.E.D.C.L and the Hon'ble First Court on 23rd December, 2009 allowed the writ petition following the decision rendered by the Hon'ble Supreme Court in Isha Marbles case as also the decisions of this Hon'ble High Court in the case of Shree Balasaria Construction (P) Ltd. Vs. CESC 5 reported in 1996(1) CHN 15 and in the case of Prahlad Kumar Goenka Vs. CESC.
Being aggrieved, this appeal has been filed.
The point taken by the respondent authority that the writ petition was disposed of at the motion stage. The case of the respondent is that the writ petitioners applied for temporary connection for the plot Nos. 38, 38A and 39 of Uluberia Industrial Growth Centre at Uluberia, District - Howrah. Previously, on 26th December, 1991, electricity connection was effected in the name of M/s. Maxlux Glass Pvt. Ltd and subsequently, on its request load capacity was enhanced on 23rd September, 1993. The said consumer, M/s. Maxlux Glass Pvt. Ltd. neglected to pay the monthly energy bills accumulating the dues of Rs.33,14,471/-. The said consumer also assured the appellant herein that they would pay the outstanding dues but did not pay the same. On their request, the electrical installation was not removed. On 31st July, 2009, requests were made on behalf of the appellant to the said consumer M/s. Maxlux Glass Pvt. Ltd. to liquidate the outstanding dues. Therefore, only question arose whether the respondent/writ petitioners are liable to pay outstanding dues lying at the premises in question. The submissions have been made on behalf of the appellant W.B.S.E.D.C.L. that under Section 43 of the Electricity Act, 2003 (hereinafter referred to as the said Act) the appellant discharged duty of the 6 Distribution Licensee to supply electricity within one month from date of the record under Section 48(b) of the said Act.
The said Authority has a right to ask any person who required a supply of electricity at the premises in question. But in turns restrict the liability of distributing licensee for making loss resulting from effect of the person to whom the licence is supplied. It is stated that the bills were due since 2002 in respect of the supply to M/s. Maxlux Glass Pvt. Ltd. Therefore, Section 43 (1) of the said Act is relatable to the premises not to the owner or occupier of the premises. Therefore, learned counsel appearing on behalf of the appellant contended that outstanding dues attaches to the premises in question, should be paid by the writ petitioners. Reliance was placed on the decision reported in 2009 (1) SCC 210 (Paschimanchal Vidyut Vitran Nigam Limited and Ors. - Vs. - DVS Steel and Alloys Pvt. Ltd. & Ors.), where the Supreme Court has held that when the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner or the occupant should be clear before the electricity supply is restored to the premises or a fresh connection is provided to the premises. 7
Reliance has also been placed on an unreported decision in Appeal being MAT No. 178 of 2010 (W.B.S.E.D.C.L. - Vs. - Ravi Jain) dated 17th March, 2010 when the Division Bench of this High Court presided over by the Hon'ble The Chief Justice has held that in view of the principle laid down in the said decision reported in 2009 (1) SCC 210, the Court has no hesitation to allow the appeal and set aside the order passed by the learned Single Judge.
It is further submitted that the case which was cited before the Hon'ble First Court reported in (1995) 2 SCC 648 (Isha Marbles Vs. Bihar State Electricity Board) by the writ petitioner, has no application after the new Electricity Act, 2003 came into operation. It is further submitted that the reference to the decision reported in 2009 (4) SCC 486 (AI Chaampdany Industries Ltd. Vs. Official Liquidator) has no application in the facts and circumstances of this case as relied on by the writ petitioners before the Trial Court only and deals with the matter in respect of the dues in relation to the municipal taxes and therefore, has no application. It is further stated that the decisions which have been cited by the learned counsel for the appellant have no application in the facts and circumstances of this case. Hence, it is submitted that the outstanding dues have to be paid by the writ petitioners.
On the contrary, Mr. Pratap Chatterjee, learned Sr. Advocate appearing on behalf of the respondent submitted that from the particulars of land purchased by Om Dayal from Lausitzer Glass Pvt. as stated in table above (now in 8 liquidation) it would be evident that out of the total 3.312 acres of land, 0.9535 acres of land which was leased out by WBIIDC in favour of Maxlux Glass Pvt. Ltd. was assigned by Maxlux Glass in favour of Lausitzer Glass (in liquidation) with the consent of WBIIDC as early as on 23rd April, 1997.
He further submitted that from para 5 of the stay petition it would appear that the purported dues of Rs.33,14,472/- of Maxlux Glass Ltd. was in respect of a period from February, 2000 onwards. He also submitted that the dues of the said Maxlux Glass Pvt. Ltd. for the period subsequent to February, 2000 could not have been in respect of the said 3.312 acres of land (including the said 0.9535 acres of land leased out by WBIIDC in favour of Maxlux Glass in favour of Lausitzer Glass India Ltd. (In liquidation) on 23.4.1997) which was purchased by Om Dayal, respondent No. 1 in court sale.
The learned counsel contended that the said dues of Maxlux Glass cannot be recovered by WBSEDCL, the appellant from Om Dayal and ought to be recovered from the said Maxlux Glass which still is in existence and has its factory on adjacent land as would be evident from and corroborated by letters dated 13.6.2003 and 31.7.2009 written by WBSEDCL to the said Maxlux Glass Pvt. Ltd.
Relying on the decision in the case of Paschimanchal Vidyut Vitran Nigam Ltd. (Supra) he submitted that it has no manner of application in the facts of the instant case because of the following reasons : 9
In the said case the new consumer being the first respondent who had applied before Paschimanchal Vidyut Vitran Nigam Ltd., the appellant for supply of electricity had agreed to pay the arrear dues of the erstwhile occupier being the third respondent.
The said decision which has not considered the earlier decision of a larger Bench of the Hon'ble Supreme Court rendered in the case of Isha Marbles (supra) cannot be relied upon by WBSEDCL in support of its contention that in order to get supply of electricity through new connection Om Dayal would have to pay the dues of the erstwhile occupier (assuming that Maxlux Glass Pvt. Ltd. was the erstwhile occupier of the land purchased by Om Dayal in the court sale).
In the decision of Isha Marbles (supra) the three Judges Bench of the Hon'ble Supreme Court had held as follows :
"where that premises comes to be owned or occupied by auction purchaser, when such purchaser seeks supply electric energy he cannot be called upon to clear the past arrears as a condition precedent to supply."
He also relied upon the decision in the case AI Champdany Industries (supra), where the Hon'ble Supreme Court has followed its earlier decision rendered in Isha Marbles case (supra).
10
He submitted that the law laid down by a larger Bench of the Hon'ble Supreme Court in Isha Marbles (Supra), which has been subsequently followed by the Hon'ble Supreme Court as aforesaid, may be followed by this Hon'ble Appeal Court and the impugned order dated 23rd December, 2009 may be upheld and affirmed. Reliance may be placed in the case of Union of India Vs. K.S. Subramanian, reported in AIR 1976 SC 2433.
Mr. Chatterjee further contended that the decisions of the Hon'ble Supreme Court have held that past dues may have to be paid by the persons seeking supply of electricity are not applicable in the instant case.
The learned counsel further contended that in the following decisions of the Hon'ble Supreme Court wherein the Hon'ble Supreme Court has held that past dues may have to be paid by the persons seeking supply of electricity are not applicable in the instant case.
He also relied upon the decision in the case of Ahmedabad Electricity Co. Ltd. Vs. Gujarat Inns Pvt. Ltd. & Ors., reported in (2004) 3 SCC 587 where the Supreme Court held that in the case of reconnection different considerations may arise. It was also held that the auction purchaser of a property seeking new connection cannot be held liable to clear arrear dues of previous owners in absence of any statutory agreement. 11
He also relied upon the decisions in the cases of Dakshin Haryana Bijli Vitran Nigam Ltd. Vs. Paramount Polymers (P) Ltd., reported in (2006) 13 SCC 101 and Dakshin Haryana Bijli Vitran Nigam Ltd. & Anr. Vs. Excel Buildcon Pvt. Ltd. & Ors., reported in (2008) 10 SCC 720 where the Hon'ble Supreme Court held that the consumers seeking new connection would have to pay arrear dues if there is a specific enactment to that effect.
He submitted that the said three decisions have no relevance in the instant case because of the following reasons :-
(i) In the instant case is a case of new connection and not reconnection.
(ii) As per clause 3.4.2 of the regulations made by West Bengal Electricity Regulatory Commission which provides inter alia that the licensee is entitled to recover the dues of the defaulting consumer from a new and subsequent consumer in respect of the same premises only if nexus between the previous and the defaulting consumer and the new consumer in respect of the same premises is proved. In the instant case it has been specifically stated that there is no nexus between the Lausitzer Glass Pvt. Ltd. and Om Dayal, the respondent No. 1, which remain uncontroverted.
In Isha Marbles Vs. Bihar State Electricity Board (supra) where the Supreme Court held that when an auction purchaser seeks supply of electric energy, he cannot be called upon to clear the past arrears as a 12 condition precedent to supply. There is no charge over the property. What matters is the contract entered into by the erstwhile consumer with the third party. Of course, the bona fides of the sale may not be relevant. The form of requisition relating to the contract is in Annexure VIII prescribed under clause VI of the Schedule to the Electricity Act. They cannot make the auction-purchaser liable. It is true that it was the same premises to which reconnections have to be issued does not appear to be the correct line of approach as such a situation is brought about by the inaction of the Electricity Board in not recovering the arrears as and when they fall due or not providing itself by adequate deposits. In the present cases what the Corporation sought to recover under Section 29 were the loans advanced by enforcement of a mortgage. Such sale cannot affect the right of the Board to recover its dues. The failure of the Board to recover the dues as and when such dues arose, is a point to be put against it. Therefore, it is impossible to impose on the purchasers a liability which was not incurred by them. Though the auction-purchasers came to purchase the property after disconnection, they cannot be "consumer or occupier" within the meaning of the above provisions till a contract is entered into.
We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, 13 benignly protects public property and behoves everyone to respond public property. Hence, the courts must be zealous in this regard. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction-purchaser who is a third party and is in no way connected with the previous owner/occupier. In AI champdany Industries Limited Vs. Official Liquidator & Anr. (supra) where the Supreme Court held itself in relation to the Municipal taxes in terms of the provisions of the Companies Act, 1956 did not create any encumbrance on the property. It does not create any charge. It is considered to be a personal liability. In the said decision while dealing with the matter where the company went into liquidation and was given due publicity thereof to the respondent municipality did not file its claim before the official liquidator in terms of the provisions of the Companies Act, 1956. The respondent municipality was also an unsecured creditor and the Supreme Court held in the capacity. It was not a preferential creditor. The Supreme Court further held that dues of the municipality would also not even otherwise come within the purview of the Crown debt. The provision Crown debt would be discharged only after the secured creditors stand discharged.
In Ahmedabad Electricity Co. Ltd. Vs. Gujarat Inns Pvt. Ltd. & Ors. (supra) where the Supreme Court drawn a distinction between the case of 14 the reconnection and the case of fresh connection. The Court held as follows :
"In our opinion, the present two cases are cases of fresh connection. The learned counsel for the respondents (auction-purchasers) have stated that they have taken fresh connections and they have no objection if their connections are treated as fresh connections given on the dates on which the supply of electricity was restored to the premises. We are clearly of the opinion that in case of a fresh connection though the premises are the same, the auction-purchasers cannot be held liable to clear the arrears incurred by the previous owners in respect of power supply to the premises in the absence of there being a specific statutory provision in that regard. Though we find some merit in the submission of the learned counsel for the appellant calling for reconsideration of the wide propositions of law laid down in Isha Marbles case (supra) we think the present one is not a case for such exercise. We leave the plea open for consideration in an appropriate case."
In the case of Dakshin Harayana Bijli Vitran Nigam Ltd. Vs. Paramount Polymers (P) Ltd. reported in (2006) 13 SCC 1010 where the Supreme Court held as follows :
"We must observe that the decision in Isha Marbles is by itself not an answer to the validity of clause 21-A of the Terms and Conditions inserted by the notification. Under Section 49 of the Supply Act, the licensee or rather, the Electricity Board, is entitled to set down the Terms and Conditions of Supply of electrical energy. In the light of the power available to it, also in the context of Section 79(j) of the Supply Act, it could not be said that the insertion of clause 21-A in the Terms and Conditions of Supply of electrical energy is beyond the power of the appellant. It is also not merely 15 contractual. This Court in Hyderabad Vanasparhi Ltd. Vs. A.P. SEB has held that the Terms and Conditions of Supply of electricity notified by the Electricity Board under Section 49 of the Electricity (Supply) Act are statutory and the fact that an individual agreement is entered into by the Board with each consumer does not make the Terms and Conditions of Supply contractual. This Court has also held that though the Electricity Board is not a commercial entity, it is entitled to regulate its tariff in such a way that a reasonable profit is left with it so as to enable it to undertake the activities necessary. If in that process in respect of recovery of dues in respect of a premises to which supply had been made, a condition is inserted for its recovery from a transferee of the undertaking, it cannot ex facie be said to be unauthorized or unreasonable. Of course, still a court may be able to strike it down as being violative of the fundamental rights enshrined in the Constitution of India. But that is a different matter. In this case, the High Court has not undertaken that exercise."
And the Supreme Court set aside the judgment of the High Court and remit the writ petition before the High Court.
In the case of Dakshin Haryana Bijli Vitran Nigam Ltd. & Anr. Vs. Excel Buildcon Pvt. Ltd. & Ors. reported in (2008) 10 SCC 720 where the Supreme Court held that since the clause 21-A of the Terms and Conditions of supply framed under Section 49 read with Section 79(j) of the Electricity (Supply) Act, 1948 was challenged before the High Court questioning the validity of the said clause 21-A of the Terms and Conditions of supply was pending before the High Court. The Supreme Court did not express any opinion on the merits of the case and directed 16 the respondent to pay Rs.25 lacs with a further direction that in the event of such deposit supply of electricity will not be dis-connected. In the case of Union of India Vs. K.S. Subramanian reported in AIR 1976 SC 2433 where the Supreme Court held as follows :
"We do not think that the difficulty before the High Court could be resolved by it by following what it considered to be the view of a Division Bench of this Court in two cases and by merely quoting the views expressed by larger benches of this Court and then observing that these were insufficient for deciding the point before the High Court. It is true that, in each of the cases cited before the High Court, observations of this Court occur in a context different from that of the case before us. But, we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court. If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view."
In the West Bengal Electricity Regulatory Commission Notification published in the Kolkata Gazette on 12th September, 2007 it would be evident that in exercise of powers conferred by sub-Section (1) and clause
(x) of sub-section (2) of section 181 read with section 50 of the Electricity Act, 2003 (36 of 2003) and the Electricity (Removal of Difficulties) order, 17 2005 called the West Bengal Electricity Regulation Commission (Electricity Supply Code) Regulations, 2007 came into force on 12th September, 2007 and under the said Regulation act the recovery of arrears has been specifically stated in clause 3.4 of the said regulation which are set out here under.
"3.4. 3.4.1(a) A list of consumers from whom arrears are to be recovered should be prepared and the same should be continuously updated for taking further actions towards disconnection of supply as per the provisions of the Act and the Regulations.
(b) The licensee shall monitor the recovery of the arrears and disconnection of supply when arrears are not realized in accordance with the provisions of the Act and the Regulations.
(c) It will be the responsibility of the licensee to take prompt action for speedy recovery of the defaulted amounts from all the consumers and/or for disconnection of supply of defaulting consumers subject to the provisions of the Act and these regulations.
3.4.2 The licensee shall be eligible to recover from a new and subsequent consumer(s) the dues of the previous and defaulting consumer (s) in respect of the same premises only if a nexus between the previous and defaulting consumer(s) and the new consumer(s) in respect of the same premises is provided. The onus of proving a nexus, if claimed by a licensee, shall lie on the licensee.
3.4.3 The licensee may grant at its sole discretion the facility of payment of arrears bills to any consumer by suitable instalments with delayed payment surcharge subject to sub-section(2) of section 56 of the Act." 18 It is also provided that Clause 6 of the said regulation deals with the reconnection of supply where it has been specifically stated in clause 6.1 that the licensee shall not reconnect the supply of electricity to a person, supply to whom has been disconnected in terms of regulation 4.2.1, if he is not a consumer.
In the case of Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. Vs. DVS Steels and Alloys Pvt. Ltd. & Ors. reported in (2009) 1 SCC 210 where the Supreme Court held as follows :
"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 contrat. 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 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. But the above legal position is not of any practical help to a purchaser of a premises. When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared 19 before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them."
The Supreme Court also held that once intended the consumer voluntarily pay the outstanding dues to obtain a fresh electric connection he cannot seek refund on the basis of subsequent order of the Commissioner in the absence of a specific direction for refund. In an unreported decision of the Division Bench of this High Court the Division Bench held as follows :
"The Apex Court has held that if any statutory rules govern the condition relating to sanction of connection or supply of electricity, the distributor can insist upon fulfillment of requirement of such rules and regulations and if the rules are silent, they can stipulate such terms and conditions which are not arbitrary and unreasonable. The Apex Court has held that the Electricity Company can stipulate as one of the conditions for supply that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored and a fresh connection is provided to the premises.
In view of the above principles laid down by the Apex Court, we have no hesitation in allowing the appeal and setting aside that part of the impugned 20 judgment in which the learned Single Judge has observed that the writ petitioner need not or will not make any payment towards outstanding dues of the erstwhile consumer in respect of the property in question."
In the case of M/s. Shree Balasaria Corpn. (P) Ltd. Vs. CESC Ltd. reported in 1996 1 CHN where the Supreme Court held that :
"It is necessary to consider the matter any further, in view of the latest pronouncement of the Supreme Court upholding the aforesaid decisions of the Patna High Court in M/s. Isha Marbles Vs. Bihar State Electricity Board & Anr. reported in JT 1995 (2) SC 626 wherein the Supreme Court categorically has held that in terms of s. 24 of Indian Electricity Act that the liability of the consumer cannot be thrust upon a third party."
After considering the facts of this case and the test laid down in the decisions quoted hereinabove and after considering the judgment of the Supreme Court, in our considered opinion, the only question arose in this matter is whether the appellant herein can recover the dues of M/s. Maxlux Glass Pvt. Ltd. bedsore granting supply of electricity. After analyzing the facts of this case it appears to us that the subject property was purchased in an auction held by the Company Court and transferred the lease-hold interest in the said property in favour of the respondent No. 1 and on 7th April, 2009 the Official Liquidator accepted a Deed of Assignment and thereby transferred the lease-hold interest in the said property to the writ petitioner/respondent No. 1 under the West Bengal Electricity Regulation Commission, 2007 came into force on 12th 21 September, 2007 which has been specifically stated under rule 3.4.2 that the licensee shall be eligible to recover from a new and subsequent consumer(s) the dues of the previous and defaulting consumer (s) and the new consumer (s) in respect of the same premises is provided. The onus of proving of nexus, if claimed by a licensee, shall lie on the licensee. In the case of Paschimanchal Vidyut Vitran (supra) where the Supreme Court held that distributor and the owner of a premises are the parties to the contract in respect of supply of electricity. 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 any previous occupant, merely because he happens to be the current owner of the premises. Therefore, it has been specifically held that the supplier can neither file a suit nor initiate revenue recovery proceedings against a purchaser of a premise for the outstanding electricity dues of the vendor of the premises in the absence of any contract to the contrary. It has also been laid down in the said decision that when the purchaser approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. If there is a condition stipulated by the supplier that unless the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity 22 supply is restored and a fresh connection is provided to the said premises cannot be done unless the dues are cleared by the present occupant and/or the owner. If any statutory rules govern the condition relating to sanction of connection or supply of electricity, the distributor can insist upon fulfillment of the said rules and regulations. If the rules are silent, then it would be based on the terms and conditions to be stipulated by the supplier to regulate the transactions and dealings between the parties. In these circumstances, we find that there is a regulation 3.4. If the supplier can prove in terms of such regulation 3.4.2. that there was some nexus between the present occupant/owner with the previous and defaulting consumer, in that case the authority has the power to give effect to the said clause and asked the new purchaser to make the payment. However, the onus of proving is nexus shall lie on the licensee. In the facts and circumstances of this case it would be proper for us to direct the supplier to effect supply to the writ petitioner/appellant by modifying the order passed by the Trial Court and if the supplier can prove that there is nexus between the M/s. Maxlux Glass Pvt. Ltd. and the present Om Dayal. In the facts and circumstances of this case there is no contract has yet been concluded between the parties. However, we do not intend to make any comment with regard to the terms so to be fixed by the parties. We only direct that the authorities shall act in accordance with 23 the clause 3.4.2, the prevalent rules in the matter and to effect supply to the petitioner after compliance of all the formalities. The appeal is disposed of on the above terms.
Since the appeal is disposed of, the connected application being CAN 2221 of 2010 has become infructuous and the same is disposed of accordingly.
(PINAKI CHANDRA GHOSE, J.) (PRABHAT KUMAR DEY, J.)