Gujarat High Court
Jitendrabhai Babubhai Patel vs The Dakshin Gujarat Vij Co. Ltd. (Dgvcl) on 27 June, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/9655/2022 JUDGMENT DATED: 27/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9655 of 2022
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 9655 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JITENDRABHAI BABUBHAI PATEL
Versus
THE DAKSHIN GUJARAT VIJ CO. LTD. (DGVCL)
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Petitioner(s) No. 1,2,3,4
MR RAHUL K DAVE(3978) for the Petitioner(s) No. 1,2,3,4
MS LILU K BHAYA(1705) for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
NOTICE UNSERVED for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 27/06/2022
ORAL JUDGMENT
1. Rule. Learned advocate Ms.Lilu Bhaya waives service of notice of rule for and on behalf of the respondent Nos.1 and 2. Though thus Court had cautioned learned advocate Mr.Dave as to whether Page 1 of 12 Downloaded on : Thu Jun 30 20:48:55 IST 2022 C/SCA/9655/2022 JUDGMENT DATED: 27/06/2022 he would invite an order on merits in wake of an alternative remedy, he has chosen to invite order on merits rather to avail alternative remedy.
2. The present writ petition has been filed inter alia for the following reliefs:
"22b. Your Lordships be pleased to issue appropriate writ of mandamus or any other writ order or direction holding that the refusal to grant new connection of electricity by the respondent No. 1 and 2 to the petitioner on 25/03/2022 is bad in law and therefore the same may be struck down and Your Lordships be further pleased to direct the respondent No. 1 and 2 to grant the electricity connection to the petitioner immediately.
C. Your Lordships be pleased to direct the respondent No. 1 and 2 to grant the electricity connection to the petitioner immediately during pendency of admission, hearing and final disposal of this petition on such terms and conditions as the Hon'ble Court may deem fit."
2.1 Thus, the petitioner is seeking direction from this Court upon the respondent No.1 to grant new connection of electricity.
3. Being aggrieved by the communication dated 25.03.2022, the petitioner has filed the present writ petition. By the said communication, the application of the petitioner for connection of the electricity is refused in view of dues of the erstwhile occupant.
4. Learned advocate Mr.Dave appearing for the petitioner has submitted that the impugned communication is required to be set aside since the petitioner-Company is asked to pay the dues Page 2 of 12 Downloaded on : Thu Jun 30 20:48:55 IST 2022 C/SCA/9655/2022 JUDGMENT DATED: 27/06/2022 of the erstwhile occupant of the plot of GIDC, for which the petitioner cannot be held liable.
5. The brief facts of the case are as under:
5.1 The petitioner-Company has been allotted a plot being No.C1B-3411 at GIDC, Ankleshwar by the office order dated 01.11.2021, for which they applied for electric connection on 02.03.2022 from the respondent No.2. The same was rejected by the authority. Earlier, the said plot was allotted to the respondent No.5 and he had secured the electric connection from the Gujarat Electricity Board (GEB) i.e. the erstwhile electric company of the respondent No.1. The respondent No.5 had some unpaid electricity bills and, therefore, the GEB instituted Special Civil Suit No.64 of 1995 in the Court of Principal Senior Civil Judge, Ankleshwar. The suit was allowed by the judgement and decree dated 03.11.2006.
5.2 It is the case of the petitioner-Company that they have received the property from the respondent No.3 and not from the respondent No.5.
The respondent Nos.1 and 2 have not taken any action for recovery of the decreed amount from the respondent No.3.
6. Learned advocate Mr.Dave has submitted that the respondents have no jurisdiction to cut the connection for the reason that erstwhile owner Page 3 of 12 Downloaded on : Thu Jun 30 20:48:55 IST 2022 C/SCA/9655/2022 JUDGMENT DATED: 27/06/2022 being M/s.Gujarat Industries has not paid the amount of due electricity bill. It is submitted that no recovery has been initiated against the said owner. It is submitted that the respondent had also instituted a suit against M/s.Gujarat Industries being Special Civil Suit No.64 of 1995, which was decreed in favour of the respondent-Board by the judgement dated 03.11.2006, wherein the petitioners therein were authorized and entitled to recover an amount of Rs.20,23,112.82/- from the defendant with interest @ 24% and clarified that it is always open for the respondent-Board to file execution proceedings to recover the amount from M/s. Gujarat Industries instead of the present petitioner-Company. He has submitted that initially, the plot belongs to the GIDC and dues are in personam, which cannot be enforced against the petitioner-Company and hence, the respondents may be directed to grant new connection to reconnect the electricity.
7. In response to the aforesaid submissions, learned advocate Ms.Bhaya has submitted that the writ petition is not maintainable in view of the expressed provision of Section 42(5) of the Electricity Act, 2003 (the Act for short) since the petitioner has an alternative remedy. In support of her submission, she has placed reliance on the judgement of the Apex Court in the case of Maharashta Electricity Regulatory Page 4 of 12 Downloaded on : Thu Jun 30 20:48:55 IST 2022 C/SCA/9655/2022 JUDGMENT DATED: 27/06/2022 Commission Vs. Reliance Energy Ltd and Ors. , (2007) 8 S.C.C. 381. She has also placed reliance on the judgement of the Apex Court in the case of Telengana State Southern Power Distribution Company Ltd. and Anr. Vs. M/s.Srigdhaa Beverages, (2020) 6 S.C.C. 404 and thus, it is submitted that as per their regulations being GERC Notification No.4 of 2015 dated 24.09.2015, more particularly Clause 4.30, the application for new connection, re-connection, addition or reduction of load etc. cannot be entertained unless any dues relating to that premises are satisfied. She has submitted that the Apex Court in the case of M/s.Srigdhaa Beverages (supra) consenting various judgements on the issue, has held in favour of the Electricity Company. She has submitted that in fact the petitioner-Company is seeking amalgamation of two plots, which is not permissible and in view of the disputed set of facts of the case, the writ petition may not be entertained. She has submitted that in case the amount due is recorded in execution proceedings, then the amount paid by the petitioner will be refunded.
8. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.
9. The facts, which are not in dispute and are established from the record, are that the erstwhile occupant being M/s.Gujarat Industries Page 5 of 12 Downloaded on : Thu Jun 30 20:48:55 IST 2022 C/SCA/9655/2022 JUDGMENT DATED: 27/06/2022 did not pay the dues to the tune of Rs.20,89,699.48/-, which constrained the respondent-Electricity Board to institute Special Civil Suit No.64 of 1995 and by the judgement and decree dated 03.11.2006, the said suit was decreed in favour of the respondent-Board and it was directed that they are entitled to recover the amount of Rs.20,23,112.80/- with interest @ 24% p.a. It appears that thereafter, execution proceedings are filed by the respondent-Board. In the meantime, the petitioner-Company applied for new connection for the very same plots, which were occupied by them and the same was refused in view of the non-payment of the bill.
10. At this stage, it would be apposite to refer to the Clause 4.30 (page 12 ann. A) incorporated in the impugned communication dated 25.03.2022.
"You are entitaled to change of Name only after clearing dues with interest as per amendment of GERC vide notification No.4 of 2015 dt.24.09.2015 for clause no.4.30 which is as under.
"An application for new connection, reconnection, addition or reduction of load, change of name or shifting of service line for any premises need not be entertained unless any dues relating to that premises or any dues of that applicant to the Distribution Licensee in respect of any other servise connection held in his name anywhere in the jurisdiction of the distribution Lincensee have been cleared."
10.1 Thus, the connection, re-connection, addition and reduction of load has been barred under the said clause unless the dues of the electricity relating to that premises are satisfied.
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11. In the present case, the contention has been raised by the petitioner-Company that they cannot be held responsible for the dues of the erstwhile owner and decree is in personam and cannot be enforced against the erstwhile occupant. The said contention does not merit acceptance since the electric dues concerned relating to the premises, where the electricity connection was supplied, is required to be considered while entertaining any application for electricity connection as per Clause 4.30. The expression used in Clause 4.30 is "dues relating to that premise" or any dues of that applicant. The case of the petitioner will fall under first part of expression.
12. At this stage, it would be apposite to refer to the observations made by the Apex Court in the case of M/s.Srigdhaa Beverages (supra). The Apex Court, while dealing with the issue of dues with effect to the occupants, who have occupied the premises and the same is subsequently transferred to other owner, has held thus:
11. We can draw strength from the observations of this Court in Dakshin Haryana Bijli Vitran Nigam Ltd.
v. Paramount Polymers (P) Ltd.,5 where there was a similarity as in the present case, of a specific clause dealing with electricity dues. It was observed that in such a scenario if a transferee desires to enjoy the service connection, he shall 4 (1998) 4 SCC 470 5 (2006) 13 SCC 101 (2 Judges Bench) pay the outstanding dues, if any, to the supplier of electricity and a reconnection or a new connection shall not be given to any premises where there are arrears on account of dues to the supplier unless they are so declared in advance.
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12. We may also notice that as an auction purchaser bidding in an "as is where is, whatever there is and without recourse basis", the respondent would have inspected the premises and made inquiries about the dues in all respects. The facts of the present case, as in the judgment aforesaid, are more explicit in character as there is a specific mention of the quantification of dues of various accounts including electricity dues. The respondent was, thus, clearly put to notice in this behalf.
13. The same view in case of a similar clause has been taken in Paschimanchal Vidyut Vitran Nigam Limited & Ors. v. DVS Steels and Alloys Private Limited & Ors.6 It has been further observed that 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 so long as such rules and regulations or the terms and conditions are not arbitrary and 6 (2009) 1 SCC 210 (2 Judge Bench)unreasonable. A condition for clearance of dues cannot per se be termed as unreasonable or arbitrary.
14. We may notice a slightly contra view in Haryana State Electricity Board v. Hanuman Rice Mills, Dhanauri & Ors., 7 in a given scenario where the pendency of electricity dues was not mentioned in the terms & conditions of sale, and it was held in those facts that the dues could not be mulled on to the subsequent transferee.
15. We may notice that in Special Officer, Commerce, North Eastern Electricity Supply Company of Orissa (NESCO) v. Raghunath Paper Mills Private Limited & Anr.,8 a distinction was made between a connection sought to be obtained for the first time and a reconnection. In that case, no application had been made for transfer of a service connection from the previous owner to the auction-purchaser, but in fact, a fresh connection was requested. In light of the regulations therein, previous dues had to be cleared only in the case of a reconnection. Hence, the respondents were held to be free from electricity liability. This Court in Southern Power Distribution Company of Telangana Limited (through its CMD) & Ors. 9 found that the facts were similar to 7 (2010) 9 SCC 145 (2 Judge Bench) 8 (2012) 13 SCC 479 (2 Judge Bench) 9 (supra) the NESCO10 case, and thus followed the same line.
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16. 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:
16.1 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.
16.2 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)."
13. The Apex Court has held that the Electricity dues, which are statutory in character under the Electricity Act and as per the terms and conditions of supply, cannot be waived in view of the provisions of the Act itself, more particularly Section 56 of the Act (in pari materia with Section 24 of the Electricity Act, 1910 and cannot share the character of dues of purely contractual nature. The Apex Court has in fact was dealing with the issue where the property was purchased and sale is on "as is where is, whatever there is and without recourse basis", there can be no doubt that the liability to pay electricity dues exists on the respondent (purchaser). while referring to the decision in the case of Paschimanchal Vidyut Vitran Nigam Page 9 of 12 Downloaded on : Thu Jun 30 20:48:55 IST 2022 C/SCA/9655/2022 JUDGMENT DATED: 27/06/2022 Ltd. Vs. DVS Steels & Alloys (P) Ltd. , wherein it has been observed that under any statutory rules, governing 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 or on the terms and conditions so long they are not arbitrary and unreasonable. It is held that a condition for clearance of dues cannot per se be termed as unreasonable or arbitrary.
14. In the present case, the respondent authority have placed reliance on clause 4.30 of the notification dated 24.09.2015. The petitioner-
Company has not challenged the aforesaid clause. Hence, no fault can be attributed to the respondent authorities denying the electricity connection to the petitioner-Company.
15. There is another aspect, which requires to be addressed i.e. with regard to alternative remedy. The Apex Court in the case of Reliance Energy Ltd and Ors. (supra), while examining the provision of Section 42(5) of the Act has observed thus:
"33. As per the aforesaid provision, if any grievance is made by a consumer, then they have a remedy under Section 42(5) of the Act and according to sub-section (5) every distribution licensee has to appoint a forum for redressal of grievances of the consumers.
In exercise of this power the State has already framed the Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Ombudsman) Regulations, 2003 (hereinafter referred to as "the 2003 Regulations") and created Consumer Grievance Redressal Forum and Ombudsman. Under these Page 10 of 12 Downloaded on : Thu Jun 30 20:48:55 IST 2022 C/SCA/9655/2022 JUDGMENT DATED: 27/06/2022 2003 Regulations a proper forum for redressal of the grievances of individual consumers has been created by the Commission. Therefore, now by virtue of sub- section (5) of Section 42 of the Act, all the individual Grievances of consumers have to be raised before this forum only. In the fact of this statutory provision we fail to understand how could the Commission acquire jurisdiction to decide the matter when a forum has been created under the Act for this purpose. The matter should have been left to the said forum. This question has already been considered and decided by the Division Bench of the Delhi High Court in Suresh Jindal v. BSES Rajdhani Power Ltd. and Dheeraj Singh v. BSES Yamuna Power Ltd and we approve of these decision. It has been held in these decisions that the forum and ombudsman have power to grant interim orders. Thus a complete machinery has been provided in Section 42(5) and 42(6) for redressal of grievances of individual consumers. Hence wherever a forum/ombudsman have been created the consumers can only resort to these bodies for redressal of their grievances. Therefore, not much is required to be discussed on this issue. As the aforesaid two decisions correctly lay down the law when an individual consumer has a grievance he can approach the forum created under sub-section (5) of Section 42 of the Act.
34. In this connection, we may also refer to Section 86 of the Act which lays down the functions of the State Commission. Sub-section (1)(f) of the said section lay down the adjudicatory function of the State Commission which does not encompass within its domain complaints of individual consumers. It only provides that the Commission can adjudicate upon the disputes between the licensees and generating companies and to refer any such dispute for arbitration. This dies not include in it an individual consumer. The proper forum for that is Section 42(5) and thereafter Section 42(6) read with the Regulations of 2003 as referred to hereinabove."
16. The Apex Court has held that by virtue of Section 42(5) of the Act, all the individual grievances of consumers have to be raised before the forum only and in the face of this statutory provision, the Commission cannot acquire Page 11 of 12 Downloaded on : Thu Jun 30 20:48:55 IST 2022 C/SCA/9655/2022 JUDGMENT DATED: 27/06/2022 jurisdiction to decide the matter when a forum has been created under the Act for this purpose and the matter should have been left to the said forum.
17. In the present case, the partners of the petitioner-Company has directly approached this Court, without availing the remedy as envisaged under Section 42(5) of the Act.
18. There are also disputed questions of facts emerging from the record, with regard to amalgamation of plots, for which electric connection is sought. The Court, while exercising power under Article 226 of the Constitution of India, cannot delve into the disputed question of fact hence, the present writ petition fails. Rule is discharged.
19. As a sequel, the connected civil application also stands disposed of.
Sd/-
(A. S. SUPEHIA, J) NVMEWADA Page 12 of 12 Downloaded on : Thu Jun 30 20:48:55 IST 2022