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34. Mr. J.K. Mitra further highlighted the definition of the term "consumer" as in section 2(15) of the new Act to buttress the point that the writ petitioner is not a consumer within the meaning of section 2(15) of the new Act, a fortiori, sub-reg. 4.6.4 of the 2013 Regulations. According to him, definition of "consumer" in the new Act has not radically changed with time and "consumer" as defined in the old Act and the new Act remains almost the same with minor changes. The changed scenario notwithstanding, i.e., the introduction of the new Act and rules/regulations framed thereunder, it was argued that the appellants have been wrong in their interpretation of the statutory provisions and treating the writ petitioner as a consumer.

576. In a case where a disconnection has been effected by a licensee, say by cutting off supply [as used in section 56 of the new Act] and such disconnection has continued for more than 2 (two years), as is evident from the records, can it be inferred that for the time being the premises is connected with the works of the licensee for receiving electricity? Generally, the answer ought to be in the negative. However, a somewhat broader view could be taken, i.e., the phrase "for the time being connected", could be stretched to imply that whether or not a person is a "consumer" is a jurisdictional fact which is required to be established by he who claims it, by establishing that despite disconnection of supply of electricity to the premises of such a person, such premises continues to remain connected with the works of the licensee for receiving electricity at or about the time a question arises for consideration, which of course is a question of fact. Stress laid by Mr. A.K. Mitra on "any consumer" as encompassing a "new and subsequent consumer" does not commend to me to be acceptable for the reasons that "any", in my opinion, would take colour from any of the two parts of the definition of "consumer" appearing in section 2(15) of the new Act as well as keeping in mind absence of any definition in the 2013 Regulations enlarging the scope of a "consumer" and thereby taking within its fold a person who intends to become a consumer.

90. Turning to the facts at hand, it was necessary for the appellants to build up a case that they are entitled in law to demand liquidation of the arrears left behind by Capricorn upon invocation of sub-reg. 4.6.4 of the 2013 Regulations. To ensure that, the minimum expected of them was to say with a degree of certainty and conviction that notwithstanding transfer of the secured asset pursuant to the sale effected by the secured creditor, the writ petitioner as purchaser answers the definition of a "consumer" and, therefore, liable in terms of sub-reg. 4.6.4. What I find on perusal of the records is a complete lack in this behalf. The appellants were not sure which provision of law was appropriate to be invoked and hence, maintained silence by not referring to it. I do not for a moment say that absence of reference to a statutory provision would invalidate an action, otherwise permissible in law. But what was required by the appellants, in order to invoke sub-reg. 4.6.4, was to at least refer to the 'fact' portion of the inclusive definition of "consumer", as Mr. A.K. Mitra contended, and say that the condition for treating the writ petitioner as a consumer under the new Act stood fulfilled and, therefore, it was liable to clear the dues of Capricorn. That not having been said, the jurisdictional fact for demanding payment by invocation of sub-reg. 4.6.4 remained non-existent.

92. I thus hold that the appellants have failed in their pursuit to prove that the writ petitioner is a "consumer" within the inclusive definition appearing in the second part of section 2(15) of the new Act.

93. This, to my mind, is sufficient to hold in favour of the writ petitioner and against the appellants. However, I do not wish to rest my conclusion only on this point.

94. Having regard to what has been held in paragraph 62 of Isha Marbles (supra) too, the writ petitioner is not a "consumer". In Isha Marbles (supra), no doubt section 2(c) of the old Act was under consideration but the wordings of section 2(15) of the new Act are not materially different from it. Once it has been held there upon consideration of section 2(c) of the old Act that an auction purchaser does not become a "consumer" upon purchasing a property to which electricity is disconnected till a contract is entered into, the same logic would apply here. The endeavour of Mr. A.K. Mitra to distinguish the decision by referring to Schedule VI of the old Act, which is not there in the new Act, has failed to impress me. Paragraph 62 of Isha Marbles (supra) makes the position clear that the statement of law was declared based on the definition of "consumer" as in section 2(c) of the old Act and not on consideration of Schedule VI.