Karnataka High Court
Sanskar Trust Gulbarga vs The Assistant Executive on 26 March, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC-K:2584
WP No. 201908 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
WRIT PETITION NO.201908 OF 2018 (GM-KEB)
BETWEEN:
SANSKAR TRUST GULBARGA
REPRESENTED BY ITS SECRETARY,
SURESH S/O DATTARAYA BULBULE,
AGE: 65 YEARS, OCC: BUSINESS
R/O H.NO.10-2-150, SANGAMESHWAR NAGAR,
KALABURAGI-585102.
...PETITIONER
(BY SRI RAVI B. PATIL, ADVOCATE)
AND:
THE ASSISTANT EXECUTIVE
ENGINEER (E) O & M RURAL DIVISIONAL,
Digitally signed GESCOM, NEAR FORT ROAD,
by RENUKA SUPER MARKET, KALABURAGI-585103.
Location: High ...RESPONDENT
Court Of
Karnataka (BY SRI RAVINDRA REDDY, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT,
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI
QUASHING THE IMPUGNED ENDORSEMENT NO.
É /UÁæ.G.«/PÀ/2018-19/687-89 VIDE DATED 15.05.2018 I.E.,
¸ÀPÁ¤C(«)/¸À¯C
ANNEXURE-G PASSED BY THE RESPONDENT AND ISSUE A
WRIT, IN THE NATURE OF MANDAMUS DIRECTING THE
RESPONDENT TO CONSIDER THE APPLICATION OF THE
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NC: 2024:KHC-K:2584
WP No. 201908 of 2018
PETITIONER TRUST VIDE ANNEXURE-E IN ACCORDANCE WITH
LAW ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioner Sri Ravi B. Patil and learned counsel Sri Ravindra Reddy for the respondent.
2. The writ petition is filed with the following prayers:
i) Issue a writ, order or direction in the nature of certiorari quashing the impugned endorsement No. ¸ÀPÁ¤C(«)/¸À¯C É /UÁæ.G.«/PÀ/2018-19/687-89 vide dated 15.05.2018 i.e., Annexure-G passed by the respondent.
ii) Issue a writ, in the nature of mandamus directing the respondent to consider the application of the petitioner trust vide Annexure-E in accordance with law etc.
iii) Issue any other writ, order or direction as this Court may deem fit to grant in the -3- NC: 2024:KHC-K:2584 WP No. 201908 of 2018 circumstances of the case, including costs, in the interest of justice.
3. The facts in brief, which are utmost necessary for disposal of the writ petition are as under:
4. The land in Survey No.136/2 measuring 7 acres 7 guntas situated at Kusnoor village, Kalaburagi district was possessed by M/s.Shree Shankar Cements Work Private Limited, Mumbai. The said unit became closed and there were electricity dues in respect of the said unit. When the matter stood thus, the unit was purchased by one Smt.Usha W/o. Srikant Lahoti for a valuable consideration and from Smt.Usha, the petitioner - Trust purchased the same by way of registered sale deed dated 21.10.2015 vide Annexure-B. The property that has been sold by Smt.Usha in favour of the petitioner is free from all encumbrances and there is no liability on the petitioner in the sale deed itself.
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5. When the matter stood thus, the petitioner having purchased the property, applied for electricity connection for commencing a school in the building that has already been built in the said property. The application of the petitioner is not processed by the respondent on the ground that there are arrears of electricity consumption charges from M/s.Shree Shankar Cements Work Private Limited, Mumbai. Hence, Annexure-G came to be passed in this regard quoting regulations and demanding a sum of Rs.4,61,667/-, which is arrears of electricity charges purportedly liable to be paid by M/s.Shree Shankar Cements Work Private Limited, Mumbai for consumption of the electricity. The same is called in question in this writ petition.
6. Reiterating the grounds urged in the writ petition, the learned counsel for the petitioner contended that the petitioner being the subsequent purchaser of the land and having applied for new connection, he cannot be directed to pay the arrears in a sum of Rs.4,61,667/-, -5- NC: 2024:KHC-K:2584 WP No. 201908 of 2018 which is to be paid by the M/s.Shree Shankar Cements Work Private Limited, Mumbai. Hence, sought for quashing of Annexure-G directing the respondent to process the application and provide new electricity connection.
7. Learned counsel for the petitioner also brought to the notice of the Court that a suit also came to be filed by the respondent against M/s.Shree Shankar Cements Work Private Limited, Mumbai in O.S.No.306/1995 and the said suit came to be dismissed on merits and without filing any appeal, the respondent has illegally failed to process the application for new connection and sought for allowing the writ petition.
8. Per contra, the learned counsel for the respondent contended that as per the regulations of the GESCOM, if there is any arrears in the electricity charges, the respondent - GESCOM is not entitled to provide a new connection to the same premises and the liability is to be -6- NC: 2024:KHC-K:2584 WP No. 201908 of 2018 born by the subsequent purchaser and then only the electricity connection would be provided.
9. In this regard, he relied upon the judgment of the Hon'ble Apex Court in the case of Telangana State Southern Power Distribution Company Limited and Another vs. Srigdhaa Beverages reported in 2020 SCC OnLine SC 478, wherein, in paragraph Nos.12 and 14, it has been held as under:
"12. 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 that in Special Officer, Commerce, North Eastern Electricity Supply -7- NC: 2024:KHC-K:2584 WP No. 201908 of 2018 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."
10. He further places reliance upon the judgment of the Coordinate Bench of this Court in the case of B.K.Syed Zakir vs. The Bangalore Electricity Supply Company Limited and Others reported in ILR 2005 KAR 1676 and drew attention of this Court to paragraph No.12, which reads as under:
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NC: 2024:KHC-K:2584 WP No. 201908 of 2018 "12. In fact, the aforesaid provision of law was challenged before the Court as unconstitutional in W.P. No. 31929 of 1994, DD: 19-7-2000 in the case of Krishnappa (deceased) by L.R. v. Karnataka Electricity Board, Bangalore and Anr., 2000(6) Kar.
L.J. 153. After considering the rival contentions and relying on the judgment of the Supreme Court referred to supra and others, this Court held that:
"The aforesaid Regulation is either arbitrary or unconstitutional. The provisions of Regulation 4.34 is a reasonable restriction and this restriction has rational and reasonable nexus with the object to be achieved by the Board, namely, recovery of amounts due to it from the consumer of electricity. While achieving this object, the Board by its impugned Regulations places a restriction of not granting fresh power supply to the same premises in respect of which if there has been an installation which is in arrears. Therefore, it can safely be said that the impugned provisions are intra vires of the Act".
11. Having heard the parties, this Court perused the material on record meticulously. -9-
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12. On such perusal of the material on record, admittedly the electricity dues were that of M/s.Shree Shankar Cements Work Private Limited, Mumbai. The property was sold by M/s.Shree Shankar Cements Work Private Limited, Mumbai to Smt.Usha and later on, she sold the property in favour the petitioner.
13. The attempt made by the respondent to recover the money by filing a suit is unsuccessful inasmuch on the suit came to be dismissed.
14. For the reasons best known to the respondent, they did not challenge the said judgment and tried to recover the dues from M/s.Shree Shankar Cements Work Private Limited, Mumbai.
15. Based on the regulations, the respondent is denying the new electricity connection to the petitioner. Further, as per Annexure-R6, which is the judgment of this Court in W.P.No17225/2007, this Court has held that there is no limitation for recovery of the arrears of the electricity
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NC: 2024:KHC-K:2584 WP No. 201908 of 2018 charges and therefore, the respondent is not providing new connection to the petitioner.
16. Having given anxious consideration to the rival contentions and the relevant provisions that has been invoked by the respondent and the principles of law enunciated in the judgments cited supra, this Court analyzed the material on record.
17. In the first place, in the judgment of the Hon'ble Apex Court in the case of Telangana State Southern Power Distribution Company Limited (supra) and in the judgment of this Court in the case of B.K.Syed Zakir (supra), the sale deed contains a clause that the liability of all kinds of the vendor is passed on to the purchaser. Therefore, whatever the liability possessed by the vendor in the respective sale deeds were to be honored by the subsequent purchasers, who is the petitioner in B.K.Syed Zakir's case (supra) and respondent in Telangana State Southern Power Distribution Company Limited's case (supra).
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18. But, facts in the present case discloses that the sale deed executed by M/s.Shree Shankar Cements Work Private Limited, Mumbai in favour of Smt.Usha did not contain any such clause. Further, in the sale deed executed by Smt.Usha in favour of the petitioner there is no clause that all the liabilities are to be born by the subsequent purchasers. Therefore, the facts in both the decisions are distinguishable.
19. Secondly, the respondent has already taken recourse to law and tried to recover the amount from the M/s.Shree Shankar Cements Work Private Limited, Mumbai by filing a suit and the said suit came to be dismissed. The respondent did not chose to take any further action and therefore, the right to recover the amount has come to end by operation of law by the judgment passed by the competent Civil Court.
20. Under such circumstances, even though there cannot be any limitation with regard to the recovery, when the respondent has failed to get an order from the
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NC: 2024:KHC-K:2584 WP No. 201908 of 2018 competent Court of law with regard to the arrears of electricity charges from the person who possessed the electricity connection, based on the regulation alone, the respondent cannot lay a claim against the subsequent purchaser of the property only on the basis of the regulation referred to in paragraph No.4 of the objection statement of the respondent.
21. At any rate, since the petitioner has sought for a new connection, his application cannot be rejected based on the ground that there is a arrears of electricity consumption charges payable by the erstwhile electricity connection holder in respect of the premises bearing Survey No.136/2. Hence, Annexure-G is held to be illegal.
22. Accordingly, the following order is passed:
ORDER
a) The writ petition is allowed.
b) The endorsement dated 15.05.2018 issued by the respondent vide Annexure-G stands quashed.
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c) Consequently, the respondent is directed to process the application filed by the petitioner for getting new electricity connection to his premises within a period of two months from today.
Sd/-
JUDGE SRT CT:SI List No.: 1 Sl No.: 61