Patna High Court
Smt. Rekha Gupta vs Bihar State Electricity Board And Ors. on 30 July, 1999
Equivalent citations: 1999(3)BLJR1860
ORDER R.N. Prasad, J.
1. The writ petition has been filed for quashing the order contained in letter No. 241 dated 23-6-1998, Annexure-1, whereby respondent No. 4 rejected the petition tiled by the petitioner for new electric connection dated 5-5-1998 and also for issue of a direction to the respondents to provide electric connection to the petitioner forthwith.
2. One Dr. Mrs. Saroj Rani Sinhawas owner of Municipal Survey Plot Nos. 1367, 1368 and 1369, Holding No. 1248/845 of 1984-85 situated at Mohalla East Lohanipur, Patoa. She executed power of attorney in favour of B.N. Sinha, respondent No. 5. One Raj Kumar S/o Ram Swaroop Singh was a tenant in the said premises. He established a press, namely, Anokha Printing Works. He was provided electric connection bearing consumer No. 16-32605406-A. He did not pay electric dues and vacated the premises in the year 1995-96. The petitioner purchased a portion of the said building measuring an area 10 dhur by a registered sale-deed dated 17-12-1997 for a consideration of Rs. 90,000/- and came in possession over the purchased portion since then. The petitioner filed an application dated 5-5-1998 for new electric connection which was rejected vide order dated 23-6-1998, Annexure-1, on the ground that there were electric dues to the tune of Rs. 80,032/- against Anokha Printing Works due to which line was disconnected. The owner of the house has sold the premises to different persons. Unless dues are recovered, it. is not possible to provide electric connection to the petitioner. The claim of the petitioner is that she is bona fide purchaser and has no relation/connection with Raj Kumar, the proprietor of Anokha Printing Works. The respondent-Board has also initiated a certificate proceeding bearing No. 4107 of 1995-96 against Raj Kumar for realisation of electric dues. Raj Kumar, the owner of Anokha Printing Works has also filed a petition before the Electricity Board for settlement of dues. The Respondent-Board cannot deny electric connection to the petitioner on the ground of dues against erstwhile consumer.
3. A counter-affidavit has been filed on behalf of respondent No. 5 wherein stand has been taken that neither the petitioner, who is a bona fide purchaser, nor the vendor is liable for payment of electric dues against occupier/tenant, namely, Raj Kumar, the owner of Anokha Printing Works as there was a contract between Electricity Board and the defaulter consumer for supply of electricity and payment thereof, the same cannot be enforced against the vendee or vendor.
4. A separate counter-affidavit has been filed on behalf of Electricity Board-respondent No. 1 stating therein that the petitioner purchased a portion of the building in which Anokha Printing Works was running. Raj Kumar was proprietor of Anokha Printing Works, who was tenant of Dr. Mrs. Saroj Rani Sinha, the vendor of the petitioner. Electric connection was provided in the aforesaid premises in the name of Raj Kumar, proprietor of Anokha Printing Works. There were electrical dues against the owner of Anokha Printing Works. Electric connection is provided to the premises owned or occupied by tenant. In the requisite form, particulars of the premises are to be mentioned and the Consumer has to declare nature of right, title and possession and in case if the applicant is a tenant electric connection is provided after due permission of the landlord only with a view that electrical dues may be realised from the landlord. Clause (5)(d) of Section 55 of the Transfer of Property Act, (hereinafter referred to as the Act), says that Purchaser is bound to pay all public charges and rent which may become payable in respect of property, the principal money due on any incumbrances subject to which property is sold, and the interest thereon afterwards accruing due. A buyer cannot escape the liability in case seller evades payment. Therefore, unless a buyer clears all the previous dues, the Board is not obliged to provide fresh connection. The Board has taken a policy decision in the year 1970, Annexure-'C' that reconnection of electricity in the premises should ordinarily be refused till dues outstanding against that connection is cleared off in full. In the year 1972, the Board has taken a decision, Annexure-'D', that there may be genuine case in which the old consumer who committed default in payment of the dues has left the premises for good and another person. Not connected with him in any manner has come in occupation thereof and he wants reconnection. In such a case, it may neither be legal nor proper to insist on realisation of the arrear dues from him for giving reconnection. However, in the supplementary counter-affidavit, it has been stated that Annexure-'D' has been withdrawn by the Board. The Board has power to disconnect electric connection in case of default and also to initiate a proceeding for realisation of electrical dues and not to provide fresh electric connection unless dues against the said premises is realised. There is distinction between auction-purchase and purchase by registered sale-deed and the case of purchase by sale-deed cannot be compared with the case of purchase in auction. Thus, the respondents have rightly refused to provide fresh connection to the petitioner unless electrical dues against the premises in question is cleared off in full.
5. It is evident from the materials on record that owner of the premises was one Dr. (Mrs.) Saroj Rani Sinha. The premises was let out to one Raj Kumar, who was running a press, namely, Anokha Printing Works. Electric connection was provided in the name of Raj Kumar, proprietor of Anokha Printing Works. An agreement was entered into in between Electricity Board and Raj Kumar for supply of electric connection and payment of electrical dues. Raj Kumar did not pay electrical dues and left the premises in the year 1995-96. The petitioner purchased a portion of the said premises vide registered sale-deed dated 17-12-1997 and after purchase filed a petition dated 5-5-1998 for fresh electric connection, which was rejected on the ground that unless dues against Anokha Printing Works is paid no fresh connection can be provided. In the counter-affidavit, purchased by the petitioner a portion of the premises in question has not been disputed nor anything has been stated that purchase is fraudulent or a sham transaction rather the petitioner's claim is that she is a bona fide purchaser and has no connection in any manner with Raj Kumar, the erstwhile consumer. The Board has also initiated a certificate proceeding under the Bihar and Orissa Public Demands Recovery Act against Raj Kumar for realisation of dues. Therefore, the question for determination is as to whether action of the respondent-Board denying the fresh electric connection to the petitioner is legal and justified.
6. The Electricity Board is a statutory authority and is a State within the meaning of Article 12 of the Constitution of India. It has monopoly in the matter of supply of electrical energy. It has statutory obligation to supply electrical energy to any person if requisition is made therefor subject to fulfilment of condition as required under the law. Therefore, its action must pass the test of fairness and reasonableness.
7. Learned Counsel for the respondents faintly argued that there is difference between auction-purchase and purchase by registered sale-deed. However, learned Counsel could not be able to substantiate the same. In this regard, it would not be out of place to mention herein that transaction is presumed to be bona fide unless, it is held otherwise. In the counter-affidavit, no statement has been made that purchase by the petitioner is fraudulent or sham or the petitioner has any connection with the erstwhile consumer. There may be transactions which are entered into in order to defeat the legitimate claim of the parties such sham, mala fide or bogus transactions are not transaction in the eye of law. It is true that sale by registered deed or by auction does not affect right of third party but right of third party can only be enforced as provided under the law or in terms of the contract. A contract has to be enforced as against the contracting party and not against a third-party, who is not bound by the terms thereof. Therefore, there cannot be any distinction in auction purchase or purchase by a registered sale-deed unless, it is established that transaction is fraudulent or sham.
8. The contention of the learned Counsel for the respondents is that in case of providing electric connection to the tenant permission of the landlord is taken on requisition form and electric connection is provided in the premises. Therefore, the landlord or the purchaser thereof shall be liable to pay electrical dues against the erstwhile consumer and unless dues are paid no fresh connection can be provided. In this regard, it would be pertinent to mention herein that for providing electric connection an agreement in between the consumer and the Board is entered into for supply of electric energy and payment of electrical dues thereof. It is a personal contract between the parties and as such contract cannot be enforced against third party. A party to the contract has remedy to recover the dues from the party thereto for non-fulfilment of contractual obligation by filing a suit or by initiating a certificate proceeding under the Bihar and Orissa Public Demand Recovery Act, It is a personal liability of contracting party and such personal liability cannot be fastened with the landlord or the bona fide purchaser who is not in any manner connected with the erstwhile consumer of the vendor as it is not charge over the property. Merely because permission is taken for providing electric connection to the tenant, it cannot be said that the landlord or the bona fide purchaser, who is not connected in any manner with the erstwhile consumer shall be liable for payment thereof. Similarly, Annexure-'C' to the counter-affidavit says that reconnection of the premises should ordinarily be refused till the dues outstanding against that connection is cleared off in full. It does not say with regard to fresh connection. Moreover, it has already been stated that liability to pay electrical dues is between contracting parties and the same cannot be enforced against third party as it is a personal contract. Therefore, contention of the learned Counsel for the respondents has no substance at all.
9. Learned Counsel for the respondents next contended that the petitioner is liable to pay electrical dues against the erstwhile consumer under Section 55(5)(d) of Transfer of Property Act. Section 55(5)(d) of Transfer of Property Act reads as follows:
Where the ownership of the property has passed to the buyer as between himself and the seller, to pay all public charges and rent which may become payable in respect of property, the principal moneys due on any incumbrances subject to which the property is sold, and the interest thereon afterwards accruing due.
10. It is, thus, obvious from the aforesaid provision that it says with regard to liability of payment by the purchaser and the purchaser is bound to pay all public charges an rent which may become payable in respect of the property. There is a contract between Electricity Board and the consumer for supply of electric energy and payment thereof. Such contract is a personal contract and it cannot be enforced against third party. Moreover, it is not a charge over the property unless it is held that such personal contract is a charge over the, property. The respondent-Board cannot take advantage of Section 55 of the Act. Section 55(5)(d) of the Act deals with payment of all public charges and rent over the property purchased by a person. It cannot be interpreted that electrical dues against the consumer is a public charge over the property. Thus, the respondents cannot take advantage of Section 55(5)(d) of the Act.
11. Section 24 of the Indian Electricity Act says with regard to disconnection of supply of electric energy to consumers neglecting to pay the charges and realisation of dues. Annexure-C to the counter-affidavit says that Assistant Electrical Engineer/Electrical Executive Engineer must see that security deposits are taken in each case and that arrear dues are not allowed to exceed the amount of security deposits. As soon as the energy dues are about to exceed the amount of security deposits, the supply line of the house should immediately be disconnected after going through the usual formalities of serving the required notice. However, if the Board allowed the consumer to consume electricity even after nonpayment of dues resulting amount of arrears it cannot take advantage of its own wrong and refuse to give new connection to a bona fide purchaser on the ground that unless dues against the erstwhile consumer is not cleared off in full electric connection cannot be provided. Right of realisation of dues against the consumer has also been provided under the Act i. e. by filing a suit or initiation of certificate proceeding,
12. Learned Counsel for the respondents, however, relied upon a decision in the case of Bhola Shankar Prasad Sah v. Bihar Electricity Board and Ors. disposed of on 21-12-1995, Annexure-E to the counter-affidavit in support of his contention. On perusal of the decision as aforesaid, it is evident that the Court has taken into consideration the report wherein the authority of the Electricity Board stated that earlier consumer and the intending consumer were related to each other. They were residing together. Electric connection was taken in collusion with each other to deny the Board of its legitimate dues and, accordingly, the Court observed that new service connection could have been sanctioned only after realisation of dues against service connection No. 34042. In the instant case, there is nothing on record to show that the petitioner, the purchaser, is in any way connected with the erstwhile consumer i, e. Raj Kumar. Therefore, the decision relied upon by the learned Counsel for the petitioner has no bearing in the facts of the case. Moreover, in the case of Sumari Packaging Private Limited, Digha Ghat v. The Chairman, Bihar State Electricity Board and Ors. 1995 (1) BLJ 465, a Division Bench of this Court has held that refusing to give new connection to the purchaser/owner of a unit, who has purchased the same in auction held under Section 29 of the State Financial Corporation is not justified under the law and he is not bound by any personal agreement and is not statutorily liable to clear off the personal dues of the erstwhile consumer. Section 24 of the Indian Electricity Act does not apply in case where transferee had no connection with original consumer and, accordingly, direction was issued to the Electricity Board to give new electric connection to the petitioner on the terms and conditions as required under the law. It has already been stated that, in fact, there is no distinction, between purchase in auction or purchase by registered sale-deed. Therefore, ratio decided is applicable in case of purchase by registered sale-deed. The said decision was challenged before the Apex Court which was considered along with other similarly situated case in the case of Isha Marbles v. Bihar State Electricity Board and Ors. and the Apex Court upheld the decision of this Court.
13. Thus, on consideration as discussed above, refusing to provide new electric connection to the petitioner by the Board vide Annexure-1 cannot be held to be legal and justified. Accordingly, this application is allowed and the order, Annexure 1, is hereby quashed. The respondent-Electricity Board is directed to provide fresh electric connection to the petitioner without any delay. The amount paid by the petitioner pursuant to the interim order passed in this case shall be adjusted in future electric charge against the petitioner.