Allahabad High Court
M/S Torrent Power Ltd vs The State Of U.P. And 3 Others on 30 October, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - C No. - 14563 of 2019 Petitioner :- M/S Torrent Power Ltd Respondent :- The State Of U.P. And 3 Others Counsel for Petitioner :- Ashutosh Srivastava Counsel for Respondent :- C.S.C., Mohd. Ayub Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. M/s Torrent Power Ltd. writ petitioner has filed present writ petition challenging order dated 28.12.2018 (Annexure-11 to the writ petition) passed by Electricity Lokpal/Ombudsman, Lucknow dismissing Representation No.87 of 2018 (M/s Torrent Power Ltd. Vs. Chaudhary Nasir) filed by petitioner as also order dated 27.02.2018 (Annexure-7 to the writ petition) passed by Consumer Grievance Redressal Forum, Agra allowing Case No. 61A of 2017 (Chaudhary Nasir Vs. M/s Torrent Power Ltd.) filed by respondent-4. Petitioner has further prayed for a mandamus commanding respondent authority not to give effect to above-mentioned impugned orders.
2. Petitioner is a Distribution Franchisee of Dakshinanchal Vidyut Vitran Nigam Ltd. (hereinafter referred to as 'DVVNL') within the meaning of Electricity Act, 2003 (hereinafter referred as Act, 2003). Petitioner is authorised to operate and maintain distribution system for supplying electricity to consumers of urban area of District Agra. Officer's of petitioner undertaking, i.e. Executives and above as well as Managers and General Managers have been authorised to take action under sections 126, 135(2) and Section 152(1) of Act, 2003 and U.P. Electricity Supply Code, 2005 (hereinafter referred to as Code, 2005) by virtue of notification dated 13.9.2012 issued by Special Secretary, Department of Energy, Government of U.P. Lucknow.
3. It transpires from record that property no.4/9E/1A, is a huge property. Part of aforesaid property, which is in the nature of open land was sold by its owner Ashif son of Late Nawab Khan to respondent-4 Chaudhary Nasir, vide registered sale-deed dated 9.6.2015.
4. Subsequent to aforesaid sale-deed dated 9.6.2015, name of respondent-4 was mutated in the record of Nagar Nigam, Agra. Thereafter respondent-4 constructed a house over land purchased by him. He applied for a new electricity connection in the house so constructed by completing requisite formality for same.
5. Petitioner did not allot electricity connection to respondent-4 nor passed any order disclosing grounds for not granting electricity connection to respondent-4. Accordingly, respondent-4 filed a complaint before Consumer Grievance Redressal Forum, Agra, which was registered as case No.61A of 2017 (Chaudhary Nasir Vs. Vice President, Torrent Power Company Ltd.).
6. Perusal of complaint filed by respondent-4 goes to show that respondent-4 alleged that he duly applied for grant of new electricity connection in the house constructed by him over land purchased vide registered sale-deed dated 9.6.2015. Respondent-4 further alleged that he completed requisite formality and submitted application No.705024083 along with Rs.100/- towards process fee as is evident from receipt no. D/1162384346. According to respondent-4 cause of action for filing above-mentioned complaint arose as petitioner neither granted a new electricity connection nor disclosed any ground for denying electricity connection to him. Thus, it was prayed that direction be issued to petitioner M/s Torrent Power Company Ltd. to issue estimate of electricity connection to respondent-4 and after accepting deposit towards same and grant electricity connection.
7. Aforesaid complaint filed by respondent-4 was contested by petitioner by filing a detailed reply dated 01.12.2017. According to petitioner House No. 4/9-A Nagla Prathvinath Shahganj, Agra was having electricity connection in the name of Mohd. Ashif Khan. Aforesaid electricity connection was having electricity dues to the tune of Rs.10,30,556/-. According to petitioner since plot purchased by respondent-4 is part of premises pertaining to house no.4/9-A Nagla Prathvinath Shahganj, Agra, therefore, no fresh electricity connection is possible in the aforesaid premises till electricity dues pertaining to electricity connection installed in house no. 4/9-A Nagla Prathvinath Shahganj, Agra in the name of Mohd. Ashif Khan are cleared.
8. Respondent-4 filed replication to the objections filed by petitioner and reiterated the same issues as stated in complaint.
9. After exchange of pleadings parties went to trial and filed their oral evidence by way of affidavit.
10. Accordingly, respondent-2 Consumer Grievance Redressal Forum, Agra decided complaint filed by respondent-4 vide order dated 27.2.2018. Forum allowed complaint filed by respondent-4 and directed petitioner to grant fresh electricity connection to respondent-4.
11. Perusal of order dated 27.2.2018 passed by respondent-2 Forum goes to show that Forum upon consideration of pleadings of parties framed only one point for determination i.e. Whether complainant respondent-4 is liable to deposit arrears of electricity dues pending in the name of owner of premises.
12. While evaluating aforesaid point of determination forum looked into the sale-deed dated 9.6.2015 and concluded that respondent-4 has only purchased open land and not any part of house in which earlier electricity connection was installed. After having purchased open land respondent-4 constructed his house. Thereafter newly constructed house was included in records of Nagar Nigam. If there is any electricity connection in respect of owner of premises of which a part of open land was purchased by respondent-4 then liability to pay same is upon owner of the said premises. There is no evidence that there was even a temporary connection in open land. If respondent-4 had purchased constructed house against which arrears of electricity dues were outstanding then in that eventuality respondent no. 4 would have been liable to pay same. Judgments relied upon by petitioner in case of Madhur Garg and others Vs. North Delhi Power Ltd. 129 (2006) DLT 2013 and Judgment of Apex Court in case of Paschimanchal Vidyut Vitran Nigam Ltd. and others Vs. DVS Steels & Alloys Pvt. Ltd. and others AIR 2009 SC 647 in support of their defence were found to be inapplicable by Forum in the facts and circumstances of case. Petitioner was thus held guilty of deficiency in services by not granting fresh electricity connection to respondent-4 immediately or little thereafter.
13. Feeling aggrieved by order dated 27.2.2018 passed by respondent-2 Consumer Grievance Redressal Forum, Agra, petitioner filed a representation before Electricity Ombudsman, Lucknow. Same was registered as Representation No. 87 of 2018 (Torrent Power Ltd. Vs. Sri Chaudhary Nasir). After exchange of pleadings, respondent no.3 Electricity Lokpal/Ombudsman, Lucknow rejected representation filed by petitioner vide order dated 28.12.2018.
14. Respondent-3 Electricity Lokpal/Ombudsman while rejecting representation filed by petitioner observed that electricity connection was granted in respect of house no.4/9E, whereas fresh electricity connection had been applied in respect of land comprised in Khasra plot/survey plot no. 744 and 745. Electricity connection granted in premises no. 4/9E/1A was disconnected on account of arrears of electricity dues. Further on 18.12.2013 and 27.9.2017 electricity theft was detected. Accordingly FIR was lodged against Mohd. Ashif Khan and assessment to the tune of Rs.2,42,915/- and 7,87,641/- respectively was made. Respondent-4 has purchased a part of open piece of land of premises no.4/9E/1A. He thereafter constructed a house upon same and applied for electricity connection in newly constructed house. Therefore, Ombudsman relying upon clause 4.3(h) of Code, 2005 concluded that even on the alleged ground pleaded by petitioner fresh electricity connection cannot be denied to respondent-4. Accordingly, Electricity Ombudsman has modified order passed by Forum and directed that fresh electricity connection be granted to respondent-4 within a period of 15 days and submit a compliance report within another 15 days thereafter.
15. Feeling aggrieved by impugned orders dated 28.12.2018 passed by respondent no.3-Electricity Lokpal/Ombudsman, Lucknow (Annexure-11 to writ petition) and order dated 27.2.2018 passed by respondent no. 2-The Consumer Grievance Redressal Forum, Agra (Annexure-7 to writ petition), petitioners have now filed present writ petition.
16. We have heard Mr. Ashutosh Srivastava, learned counsel for petitioner, leaned Standing Counsel representing respondent-1 and Mr. Mohd, Ayub, Advocate, learned counsel appearing for respondent-4.
17. Mr. Ashutosh Srivastava, learned counsel for petitioner in challenge to impugned orders submits that respondents 2 and 3 have erred in law and fact in accepting case of respondent-4. According to learned counsel for petitioner, it is an undisputed position that electricity connection was granted in respect of house constructed in property no. 4/9E/1A. Electricity connection so granted was bearing no.670154467 in the name of Mohd. Ashif Khan vendor of registered sale-deed dated 9.6.2015. Aforesaid electricity connection was having arrears of electricity dues to the tune of Rs.10,30,556/- and further on account of electricity theft assessments were made to the tune of Rs.2,42,915/- and 7,87,641/- respectively. Aforesaid amount remains unpaid till date. Since open land pertaining to property no. 4/9E/1A is part of same premises, no illegality was committed by petitioner in denying new electricity connection to respondent no.4. He further submits that case of petitioner is fully covered by judgment of Delhi High Court in Madhur Garg and others Vs. North Delhi Power Ltd. 129 (2006) DLT 2013 and Supreme Court in Paschimanchal Vidyut Vitran Nigam Ltd. and others Vs. DVS Steels & Alloys Pvt. Ltd. and others, AIR 2009 SC 647 . Respondents 2 and 3 erred in law in not considering the same even though they fully supported the petitioners case. Hence, respondents 2 and 3 have acted in excess of jurisdiction in passing impugned orders. Consequently, same are liable to be quashed by this Court and complaint filed by respondent-4 is liable to be dismissed in toto.
18. Mr. Mohd. Ayub, Advocate, appearing for respondent-4, on the other hand has supported impugned orders. He submits that it is an undisputed fact that land purchased by respondent-4 is part of premises no. 4/9E/1A but land purchased by respondent-4 was open piece of land. Electricity connection earlier granted was in respect of house constructed on the aforesaid property number and is recorded as house no. 4/9-A, Nagla Prathvinath Shahganj, District Agra. Open land purchased by respondent-4 did not even had a temporary connection. Reliance is placed upon definition of term "Premises" as defined in Code, 2005 to buttress the submission that premises in relation to earlier electricity connection granted shall be the house in which electricity connection was installed and not the adjoining open land. Further reference was made to clause Clause 4.3(h) of Code, 2005 to contend that respondent-4 could charge electricity dues in respect of earlier electricity connection granted in the premises part of which has been purchased by respondent-4 by dividing the share of electricity dues on pro rata basis. He thus submits that since petitioner himself failed to comply with clause 4.3(h) of Code, 2005, no illegality was committed by respondents 2 and 3 in accepting claim of respondent-4. Hence, present writ petition filed by petitioner M/s Torrent Power Ltd. challenging orders passed by respondents 2 and 3 is liable to be dismissed.
19. Before proceeding to consider the varied arguments canvassed by counsel for parties, it is imperative to first have a glance at the definition of the term "premises" as defined in section 2(51) of Electricity Act, 2003, relevant provisions of Code, 2005 as controversy involved in present writ petition can be decided only in light of provisions contained in section 2(51) of Electricity Act, 2003 and clause 2.2 and clause 4.3(h) of Code, 2005. The same are reproduced herein under:
Section 2(51) of Electricity Act, 2003:
"Premises" includes any land, building or structure;
2.2 (ss). "Premises" means the area/portion of the building/shed/field etc., for which, the electric connection has been applied for or sanctioned for a single consumer.
4.3 New Connections-General
(a) The system of supply and voltage shall depend on the category of the consumer and the load as per details given in Chapter 3.
(b) Application form for obtaining new connection and for enhancement /reduction of load shall be made available to the applicant free of charge at all offices of the Licensee. The Licensee shall also put them on its website for downloading. Photocopies of a blank form may be made by the applicant and shall be accepted by the Licensee. The Licensee shall endeavour to introduce systems facilitating electronic filing of the applications for release of connections through meters (all categories), or filing/processing for connections through prepaid meters provided commercially viable and sustainable technology is available].
(c) The licensee/ local authority shall designate Officers/authority for accepting applications in respect of sanction of load (for different categories of load) for new connection and releasing load by way of giving new connection. However the local authority for a rural area may frame it's own procedure for release of connection from time to time which shall as far as possible be in conformity to approved guidelines/specifications/ costs specified by Commission.
(d) All information relating to procedure, fees, designated officers for releasing new connections may be displayed on the notice boards of Sub-division office, Divisional offices and offices of DGM's/GM's/office of licensee. Public information counters for new forms, filing, and disseminating information status in the above offices, with computerized facilities in all towns with a population greater than 10 lakhs may be made operational within a time frame of one year.
(e) The electronic filing of a new application, status of connection pending to be released, and tracking of status of a connection pending to be made possible in a phased manner in all cities, through use of information technology, on the internet website, centralized call centres, and proper linking with the sub-division/Division/DGM/GM offices.
[(f) (i) It will be the duty of the seller and of the purchaser to find out the outstanding electricity dues upto the date of sale, and further that both seller and purchaser will be either/or, jointly and severally liable to pay the outstanding electricity dues/obtain No dues certificate.
(ii) Before sale of a premise is made, the outstanding dues will be cleared and, in the alternative the deed to agreement/sale will specifically mention the outstanding dues and the method of its payment. "Outstanding dues" means all dues pending on a premises including late payment surcharge.
(iii) In case the no-dues certificate is not obtained by the old owner, new owner before purchase of property may approach the licensee for no-dues certificate, by giving the reference of the connection in said premises. The licensee shall either intimate the pending dues, if any, on the premises or issue no dues certificate within 30 working days from the date of application.
(iv) The outstanding dues will be first charge on the assets of the company, and the licensee shall ensure that this is entered in an agreement with new applicant.
(v) The recovery proceedings against the defaulting consumer, and where the defaulting consumer is a company, from the Directors of the company, shall be ensured. Where a financial institution has auctioned the property without consideration to licensees charge on assets, claims may be lodged with the concerned financial institution with diligent pursuance.
(vi) In case the electricity connection to the said premises was given with the consent of house owner, such person shall ensure the payment of all arrears/dues of electricity by the tenant before the tenant vacates the premises.
(vii) However, the above conditions shall not apply if inconsistent with the provision of any higher Court order or an order as a consequence to it.
(viii) The application shall be processed by licensee on clearing of dues.
(g) Where the property has been legally sub-divided, the outstanding dues for the consumption of energy on such premises, if any, shall be divided on pro-rata basis.
(h) A new connection to such sub-divided premises shall be given only after the share of outstanding dues attributed to such sub-divided premises, is duly paid by the applicant. Licensee shall not refuse connection to an applicant only on the ground that, dues on the other portion(s) of such premises have not been paid, nor shall the licensee demand record of last paid bills of other portion(s) from such applicants. (Emphasis added)
20. On the pleadings raised and arguments advanced, question which arises for consideration is:- "Whether stand taken by petitioner that since premises in which earlier electricity connection was installed was in arrears of electricity dues, therefore, respondent-4, who has purchased part of such premises cannot be granted new electricity connection till arrears in respect of electricity connection so installed in premises part of which has been purchased by respondent-4 is cleared by respondent-4 himself".
21. The aforesaid issue has been decided against petitioner by respondents 2 and 3 respectively. However, it has been urged before us that premises shall include house and open land adjoining the house, consequently, if there is a sale-deed in respect of part of premises and subsequent purchaser applies for electricity connection, he is bound to make good electricity dues. To buttress aforesaid submission, reliance is placed upon definition of term "Premises" as defined in Act, 2003. We have already referred to the definition of term "Premises" as defined in Act, 2003 as well as Code, 2005. The definition of term "premises" in Act, 2003 is not exhaustive but only provides as to what will be included in premises. No doubt that Code, 2005 has been framed in exercise of powers under Section 50 of Act, 2003 but definition of premises provided in Act is not exhaustive whereas Code, 2005 specifically defines the term "premises". Consequently there is no conflict regarding meaning of the term premises as defined in Act, 2003 and Code 2005. We accordingly hold that in view of definition of term 'premises' in Code, 2005 the open land appurtenant to a house in which electricity connection was granted does not fall within the definition of term "Premises" as suggested by learned counsel for petitioner.
22. Petitioner has contended before authorities below that no fresh electricity connection can be granted in 'premises' in which there was an electricity connection but having electricity dues, till pending dues are cleared. Admittedly respondent-4 has applied for fresh electricity connection in respect of a newly constructed house which has been constructed on open piece of land, which is part of property no.4/9E/1A and purchased vide registered sale-deed dated 9.6.2015. Electricity connection was granted in respect of house no. 4/9-A Nagla Prathvinath Shahganj, Agra which is situate in premises no.4/9E/1A. No electricity connection whether temporary or permanent was granted in respect of open piece of land of aforesaid premises.
23. Clause 4.3 of Code, 2005 deals with grant of new electricity connection. Aforesaid clause provides that fresh connection shall be granted in respect of sub divided premises only after the share of outstanding dues attributed to such sub divided premises is duly paid by applicant. It further restrains licensee from refusing new connection on the grounds that dues on the other portion of such premises have not been paid.
24. Admittedly, stand of petitioner before authority concerned was that no fresh electricity connection can be installed in part of same 'premises' where electricity connection has been granted but same was under electricity dues. Until and unless electricity dues are cleared no fresh connection can be offered. Stand taken by petitioner before authorities below is dehors the provisions of clause 4.3(h) of Code, 2005 as in any circumstance fresh connection cannot be refused that dues on other portion of such premises have not been paid.
25. Reliance is placed upon paragraphs 8, 9, 10, 11 and 12 of judgment in Paschimanchal Vidyut Vitran Nigam Ltd. Vs. DVS Steels & Alloys Pvt. Ltd. And others AIR, 2009 SC 647. Paragraphs 8, 9, 10, 11 and 12 which reads as under:
"8. The appellant submitted that if a consumer disposed of its premises, or any portion thereof, without clearing the dues in regard to the electricity supplied to its premises, any transferee seeking fresh electricity connection or supply of electricity to the premises, will have to clear the electricity dues of the previous occupant. The appellant referred to sub-clauses (g) and (h) of clause 4.3 of the Electricity Supply Code, which is extracted below :
"(g) Where the property has been legally sub-divided, the outstanding dues for the consumption of energy on such premises, if any, shall be divided on pro-rata basis.
(h) A new connection to such sub-divided premises shall be given only after the share of outstanding dues attributed to such sub-divided premises, is duly paid by the applicant. Licensee shall not refuse connection to an applicant only on the ground that, dues on the other portion(s) of such premises have not been paid, nor shall the licensee demand record of last paid bills of other portion(s) from such applicants." The appellant submitted that similar provisions existed in the relevant regulations of the Board even before the said Code came into force.
9. 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 contract. 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 his predecessor in title or possession, as the amount payable towards supply of electricity does not constitute a `charge' on the premises. A purchaser of a premises, cannot be foisted with the electricity 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.
10. 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 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 fulfilment 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.
11. A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues. Having regard to the very large number of consumers of electricity and the frequent moving or translocating of industrial, commercial and residential establishments, provisions similar to clause 4.3(g) and (h) of Electricity Supply Code are necessary to safeguard the interests of the distributor. We do not find anything unreasonable in a provision enabling the distributor/supplier, to disconnect electricity supply if dues are not paid, or where the electricity supply has already been disconnected for non-payment, insist upon clearance of arrears before a fresh electricity connection is given to the premises. It is obviously the duty of the purchasers/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises. They can also incorporate in the deed of sale or lease, appropriate clauses making the vendor/lessor responsible for clearing the electricity dues up to the date of sale/lease and for indemnity in the event they are made liable. Be that as it may.
12. In this case, when the first respondent, who was the purchaser of a sub-divided plot, wanted a new electricity connection for its premises, the appellant informed the first respondent that such connection will be provided only if the electricity dues are paid pro-rata. They were justified in making the demand. Therefore, it cannot be said that the collection of Rs.8,63,451/- from first respondent was illegal or unauthorized. It is relevant to note that when the said amount was demanded and paid, there was no injunction or stay restraining the appellant from demanding or receiving the dues."
26. Admittedly in the judgment referred to above dispute was in respect of part of industrial plot which was construed as a composite unit and therefore upon sale of part of industrial plot rule of pro rata basis was applied for as explained in above-noted judgment. However, in the present case, land purchased by respondent-4 is part of open vacant land on which no electricity connection either temporary or permanent was installed. The premises in which earlier electricity connection was installed is not a composite premise and therefore the rule of pro rata basis will not be applicable. Therefore, we have no hesitation to conclude that no illegality was committed by respondents 2 and 3 in directing petitioner to grant electricity connection to respondent-4 without asking him to clear electricity dues of electricity connection installed in the premises part of which was purchased by respondent-4 vide registered sale-deed dated 9.6.2015.
27. In view of discussions made herein-above, we find that respondents 2 and 3 did not commit any illegality in passing impugned orders and consequently directing petitioner to grant electricity connection to respondent-4 without insisting upon respondent-4 to clear pending electricity dues of electricity connection installed in premises part of which was purchased by respondent-4 vide registered sale-deed dated 9.6.2015. None of the arguments raised by learned counsel for petitioner could dislodge the impugned orders passed by respondents 2 and 3. Petitioner himself insisted for payment of entire electricity dues in respect of electricity connection installed in the premises, part of which was purchased by respondent-4. Such action of petitioner is dehors the provisions of clause 4.3(h) of Code, 2005. Consequently, present writ petition fails and is liable to be dismissed. It is, accordingly, dismissed.
Order Date :- 30.10.2019 Prajapati