Ms Babu Bhai Metalics Pvt Ltd Through Its ... vs Jharkhand Urja Vikas Nigam Through Its ... on 23 June, 2016

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Jharkhand High Court

Ms Babu Bhai Metalics Pvt Ltd Through Its ... vs Jharkhand Urja Vikas Nigam Through Its ... on 23 June, 2016

The prayer for fresh electrical connection has been made by the petitioner in respect of the premises situate at Mouza Jamdole, Thana No.376, Anchal and P.S. Chakulia under Khata No.60, Plot No.216 having an area of 0.46 Acre; under Khata No. 60, Plot No.217/364 having an area of 0.25 Acre and Khata No.59, Plot No.221/362 having an area of 0.05½ Acre conveyed through two sale deeds dated 5th June, 2015 and 10th July, 2015 (Annexure-2 and 2/1) by the Vendor M/s Johar Steel Enterprises Pvt. Ltd. Petitioner's application for fresh connection of electricity on 7th July, 2015 before the respondent no.4 - The Electrical Superintending Engineer, Electric Supply Circle, Jamshedpur has been rejected by the impugned order at Annexure-6 dated 15th October, 2015 passed by the said respondent stating therein that there are dues in respect of the said premises.

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Learned senior counsel for the petitioner has primarily assailed the impugned order on the ground that it is cryptic and does not show application of mind to the relevant material facts in the light of the provisions of Clause 5.5 of the (Electricity Supply Code) Regulations, 2005. Petitioner is a new occupant having purchased the property from the erstwhile vendor through a sale deed on the basis of a tripartite memorandum of understanding entered into between Allahabad Bank, Vendor-M/s Johar Steel Enterprises Pvt. Ltd. and the petitioner (Annexure-1). Learned senior counsel has also sought to address that there are issues of fact agitated in litigation by the previous vendor relating to the outstanding dues of the premises which have attained finality in L.P.A. No.143 of 2006 decided analogously with several other cases vide judgment dated 5th May, 2016. It is submitted that the petitioner is a bonafide purchaser of the plots in question and is entitled to a fresh connection in terms of Section 43 of the Electricity Act, 2003 which also contemplates penalty on failing to provide electric supply by the licensee within the specified period of one month from the date of application. Learned senior counsel has relied upon a judgment rendered by the Apex Court in Civil Appeal No.7899 of 2012 dated 9 th November, 2012 in the case of Special Officer, Commerce, North Eastern Electricity Company of Orissa (NESCO) & Anr. vrs. M/s Raghunath Paper Mills Private Limited & Anr. stating that the Apex Court has considered the precedents on the same point such as in the case of Isha Marbles vrs. Bihar State Electricity Board & Anr. (1995)2 SCC 648 and Haryana State Electricity Board vs. Hanuman Rice Mills, Dhanauri & Ors. reported in (2010) 9 SCC 145. In any case, according to the learned senior counsel for the petitioner, the impugned order is fit to -3- be set aside on account of non-application of mind itself. Reference is also made to paragraph-7 of the first counter affidavit where an assertion has been made that the petitioner is not associated with the erstwhile owner/occupier M/s. Johar Steel Enterprises Pvt. Ltd. as informed by the Assistant Electrical Engineer, Electric Supply Sub-Division, Chakulia and the Electrical Executive Engineer, Electric Supply Division, Ghatshila.

Learned counsel for the respondents-Corporation has defended the impugned order stating that the petitioner is not a bonafide purchaser in any such auction purchase arising out of a SARFAESI proceeding in respect of the mortgaged property of the erstwhile vendor. The transaction may be colourable and would not entitle the applicant- petitioner to be treated as bonafide purchaser which is the requirement of Clause-5.5 of the (Electricity Supply Code) Regulations, 2005. There are other assertion of facts relating to proceeding under Public Demand Recovery Act, 1914 in respect of outstanding dues of the erstwhile vendor.

I have considered the submissions of the parties in the light of the relevant material facts pleaded. Perusal of Annexure-6 (impugned) dated 15th October, 2015 reflects non-application of mind as the respondent no.4 has not dealt with the issues germane for deciding the application of the petitioner for fresh connection in the light of the provisions of (Electricity Supply Code) Regulations, 2005 and the provisions made thereunder as also Section 43 of the Electricity Act, 2003. The competent authority under the Board/Corporation was required to address the relevant issues and come at a considered finding by a well reasoned order in accordance with law, so that they can be tested by the superior forum in appeal or in judicial review by the Court. -4-

Having regard to the aforesaid discussions made and the reasons stated herein above, it is felt appropriate that a fresh decision be taken on the application of the petitioner in accordance with law taking into account all the relevant material facts, the provisions of the (Electricity Supply Code) Regulations, 2005 by the competent authority/ respondent no.3, the General Manager-cum-Chief Engineer, Singhbhum Electric Supply Area, Bistupur, Jamshedpur within a period of four weeks from the date of receipt of a copy of this order. Consequently, the impugned order at Annexure-6 is quashed. The writ petition is allowed in the manner and to the extent indicated herein above.

Let it be made clear that any observation made herein above would not be treated as comments on the merits of the case of the parties.

(Aparesh Kumar Singh, J.) Shamim/

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Jharkhand High Court