1. Heard Mr. Chudgar, learned advocate for petitioner and Mr. Hasurkar, learned advocate for respondents.
2. In present petition the petitioner has prayed that:
"18(A) Your Lordships be pleased to issue a writ of mandamus or any other writ in the nature of mandamus or any other writ, order or direction, quashing and setting aside the impugned communication dated 20.04.2012 of the respondent No.2 whereby the respondent no.2 has refused to grant electric connection to the petitioners, and further be pleased to direct the respondents to grant permanent electric connection to the petitioners on the subject plots being Survey No1202/1 and 1202/2 of Mouje- Rajpur, Tal.Kadi, Dist.Mehsana.
(B) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the respondents from demanding the dues of M/s. Superchem Intermediate Pvt. Ltd. from the petitioners and further be pleased to direct the respondents to grant temporary/permanent electric connection to the petitioners on the subject plots being Survey No.1202/1 and 1202/2 of Mouje-Rajpur, Tal.Kadi, Dist.Mehsana."
SCA/8357/2012 2/16 ORDER
3. So far as the relevant facts involved in and leading to present petition are concerned, the petitioner has claimed that somewhere in 2007 one Smt. Niruben Patel had purchased two parcels of land bearing survey No.1202/1 and 1202/2 from their respective owners viz. M/s. Korsa Intermediate and M/s. Superchem Intermediate Pvt.
Ltd. respectively. It appears that the petitioners were interested in purchasing the said parcels of land and that therefore the petitioners approached said Smt. Niruben Patel and requested her to sell the lands in question. Subsequently, agreement was arrived at between the parties for sale of the said lands. By way of abundant caution, petitioners' advocate issued public notice dated 16.07.2010 inviting objections in connection with the lands in question. The petitioner has claimed that in response to the notice any claims or objections were not received. Therefore, the petitioners proceeded in the transaction and purchased the lands in question i.e. Survey No.1202/1 and 1202/2 situate at village Rajpur, Tal.Kadi, Dist.Mehsana from said Smt. Niruben Patel. The transaction was finalized and sale deeds were executed on or around 29.08.2012. After purchasing the lands in question, the petitioner had planned to construct a manufacturing unit for manufacturing micro nutrient fertilizers and that SCA/8357/2012 3/16 ORDER therefore the petitioners made application for release of electricity supply connection, on 21.12.2011 and 04.01.2012. By the said applications, the petitioners applied for temporary connection and also paid requisite fees. After the respondent electricity company received the applications and after examining the applications, the respondent company informed the petitioners, on or around 23.01.2012, that so far as plot No.1202/2 is concerned, it was initially owned by M/s. Superchem Intermediates Pvt. Ltd. and thereafter it was purchased by Smt. Niruben Patel and said Smt. Niruben Patel sold the said property to the petitioner. However, the outstanding dues in the tune of Rs.6,24,758.66 (which was to be paid by M/s. Superchem Intermediates Pvt. Ltd.) were not cleared by said company. While informing the said details to the petitioners, the respondent electricity company also asked the petitioners that if they desire that the electricity supply connection may be released then they will have to clear the outstanding dues of Rs.6,24,758.66 (with interest till the date and payment) of the erstwhile owner of the premises i.e. M/s. Superchem Intermediates Pvt. Ltd. It appears that the petitioner did not find the condition acceptable and that therefore, vide its letter dated 10.02.2012, the petitioner requested the SCA/8357/2012 4/16 ORDER respondent company that it had purchased the property from Smt. Niruben Patel and not from M/s. Superchem Intermediates Pvt. Ltd. and that therefore the electricity company was not justified in enforcing the claim from the petitioner which was actually required to be recovered from M/s. Superchem Intermediates Pvt. Ltd. The petitioner also requested the respondent company to condone the recovery procedure and release the electricity supply connection so that the petitioner can commence construction activities. The respondent electricity company did not accept the said request of the petitioner and vide its letter dated 01.03.2012, the electricity company reiterated its condition for releasing power supply connection and refused to release electricity supply connection.
4. It appears that the respondent company also informed the petitioner that the dues were duly crystallized and determined by order - decree passed by learned trial Court in Civil Suit No.165 of 1996.
5. After having received the said intimation dated 01.03.2012 from the respondent company, the petitioner appears to have made inquiries with regard to the said Civil Suit No.165 of 1996 and found that the demand-claim made by the SCA/8357/2012 5/16 ORDER respondent company against said M/s. Superchem Intermediates Pvt. Ltd. was not towards any electricity consumption charges but the claim was in respect of minimum billing and fixed charges which were levied for high tension connection. It is claimed by the petitioner that on inquiry and on examination of record it also found that the said M/s. Superchem Intermediates Pvt. Ltd. had not pursued its application for HT connection and the claim was raised by the electricity company only on the basis of application and not actual consumption. The petitioner claims that it also came to its notice that the principal amount of claim of the respondent electricity company against the said M/s. Superchem Intermediates Pvt. Ltd. was to the extent of Rs.5,04,000/- and after calculating the interest on such principal amount, the decree was passed in sum of Rs.6,24,758.66 with further direction for payment of interest at 24% per annum until the amount is realized.
6. It also appears that during the proceedings of the said Civil Suit No.165 of 1996 the said erstwhile owner i.e. M/s. Superchem Intermediates Pvt. Ltd. had not attended the hearing of the suit proceedings in the trial Court and that therefore the decree on which the respondent electricity company placed reliance came to be SCA/8357/2012 6/16 ORDER passed ex-parte.
7. However, the fact remains that as on the date when the petitioner made application, the respondent electricity company was armed with decree and order in its favour which was passed by the trial Court in Civil Suit No.165 of 1996. The said decree imposes liability of payment of Rs.6,24,758.66 with further interest at 24% per annum on said M/s. Superchem Intermediates Pvt. Ltd.
8. It appears that the claim of the respondent company against said M/s. Superchem Intermediates Pvt. Ltd. was placed before Lok Adalat wherein the petitioner was informed that the total dues against M/s. Superchem Intermediates Pvt. Ltd. are in the tune of Rs.24 lakhs and petitioner may be given waiver of Rs.4 lakhs and petitioner should pay a sum of Rs.20 lakhs.
9. The respondent company has floated an Amnesty Scheme which provide for waiver of interest and penalty for the consumers involved in theft of power and/or in the cases where the consumers have defaulted in making payment of dues of electricity company. It appears that somewhere in April 2012 the petitioners submitted an application under the said Amnesty Scheme but the SCA/8357/2012 7/16 ORDER petitioner was informed that its case would not stand covered within the scope of Amnesty Scheme and that therefore the said benefit cannot be extended to the petitioners.
10. Feeling aggrieved by the said action and decision of the respondent company including the action of not accepting the application for Amnesty Scheme the petitioner has preferred present petition and prayed for above mentioned relief(s):
11. In response to the notice, the respondent electricity company entered appearance and filed reply affidavit opposing the petition. In the reply affidavit the respondent electricity company has claimed, inter alia, that:
"2. At the outset, I deny all the statements and averments made in the memo of Special Civil Application except which are specifically admitted hereinafter. However, my non-dealing with any particular statements and averments may not be kindly construed as deemed admission of any statement, averment made therein. I am filing this affidavit in reply only for the purpose of opposing the admission and granting of any interim relief as prayed for in the petition and for the purpose of responding the oral order passed by this Hon'ble High Court.
3. With reference to the contention that representation of the petitioner for giving benefit of amnesty scheme is rejected without specific reason. I crave leave to refer and rely upon Item No.14 and 15 of the Government Resolution dated 29th March, 2012 appended at page-34. In view of the condition No.14, it is humbly submitted that the cases which have been finally decided cannot be considered to be eligible for benefit under amnesty scheme. In the instant case, there was already a decree standing against the predecessor in title of the SCA/8357/2012 8/16 ORDER petitioner i.e. Superchem Intermediates Pvt. Ltd. and the said decree is as on date not satisfied. In such circumstances, benefit of amnesty scheme cannot be granted to the petitioner. Even on perusing the text of the said Government Resolution powers of relaxation are not given to the Respondent Company. On perusing item No.15, it may be kindly appreciated that eligibility of the benefit is left to the determination of Administrative Officers of the company. However, in view of the clear provision of item No.14, the benefit cannot be given to the petitioner.
4. With reference to the main contention of the petitioner as to not providing electricity as envisaged under Section 43 of the Electricity Act, it is submitted that since there are decretal dues against the premises for which petitioner is seeking electricity connection unless those dues are cleared electricity connection cannot be given to the petitioner. Annexure-I to this reply is copy of Notification No.6 of 2010 which has amended as Gujarat Electricity Regulatory Commission (Electricity Supply Code and related matters). The said amendment is applicable in the case of the petitioner because petitioner has requested electricity supply after coming into force the said amendment. I crave leave to file detailed affidavit if need to that effect arises at a later stage."
12. Subsequently, the petitioners requested for permission to amend the petition as per the draft amendment. The respondent has opposed the petitioners' said request for amendment and has, for the purpose of opposing the request for amendment in the petition, filed further affidavit dated 17.09.2012.
13. In the said affidavit opposing the draft amendment moved by the petitioners, the respondent electricity company has relied on the provisions contained under Clause 4.1.11 of the Electricity Supply Code framed by the Gujarat Electricity Regulatory Commission (GERC for short). The respondent company has also relied on SCA/8357/2012 9/16 ORDER the provisions contained under Sections 2(15), 2(19), Section 50, Section 51, Section 43 and Section 86(1)(k) read with Section 56 of the Act. Reliance is also placed on Clause 4.1.16. The respondent company has, while relying on the said provisions, contended that the petitioner's claim that it is not liable to pay the dues of erstwhile owner of the property in question, is incorrect and unjustified.
14. Mr. Chudgar, learned counsel for petitioner has appeared and submitted that the petitioner has not purchased the property from the said company viz. M/s. Superchem Intermediates Pvt. Ltd., whose dues are, allegedly, outstanding and are being demanded by the respondent company. He submitted that actually the said company had sold the land in question to one Smt. Niruben Patel and that therefore if at all the respondent company has any claim to be made, then it would be against the same company M/s. Superchem Intermediates Pvt. Ltd. or against said Smt. Niruben Patel and the said amount cannot be claimed from the petitioner. Mr. Chudgar further submitted that without prejudice to its contentions, the petitioner is ready to pay the extra/additional amount to the extent of principal claim, provided on such payment the electricity company release electricity supply SCA/8357/2012 10/16 ORDER connection in favour of the petitioner. He also submitted that when the petitioner applied for the Amnesty Scheme floated by the respondent electricity company, the respondent company arbitrarily rejected petitioner's application. He submitted that the respondent company is required to be directed to consider the petitioner's application made under its own scheme i.e. Amnesty Scheme whereby the respondent company has stipulated and agreed to waive interest components and penalty components. He, thus, challenged the decision of the respondent company of rejecting petitioner's application for benefit under Amnesty Scheme. He submitted that the petitioner has completed the entire construction work of the factory and all other formalities are over and have been fully executed by the petitioner and the petitioner is awaiting installation of electricity supply connection so that the manufacturing activities can be commenced at the earliest. It is claimed that only because of the stand taken by the respondent company the petitioner is not in position to commence its manufacturing activities even after investing huge amount. Mr. Chudgar has also submitted that since petitioner was not party to the proceedings before the learned trial Court it had not taken any action against the decree until now, however, now the petitioner company has SCA/8357/2012 11/16 ORDER filed First Appeal along with an application for leave to appeal, though it is yet to be heard by the Court.
15. The learned counsel for respondent has opposed the petition. So far as the petitioner's allegation against the respondent's decision of rejecting petitioner's request for benefit under the Amnesty Scheme is concerned, the learned counsel for respondent company has heavily relied on the terms and provisions under the said Amnesty Scheme. According to the respondent company, the petitioner is not entitled for benefit under the said Amnesty Scheme, inasmuch as according to the terms of the said Amnesty Scheme the claims should be pending and should not have been adjudicated and determined by appropriate of the Court in any proceedings and that therefore petitioner is not considered eligible for the benefit under the said Amnesty Scheme.
16. So far as the outstanding dues of the erstwhile owners are concerned, it is not in dispute that the petitioner is second generation purchaser of the property in question, inasmuch as it has purchased the property from one Smt. Niruben Patel and not from the said company viz. M/s. Superchem Intermediates Pvt. Ltd.
SCA/8357/2012 12/16 ORDER
17. It is also not in dispute that the learned trial Court has passed decree in favour of the respondent electricity company. The amount which the respondent electricity company is entitled to recover, as per the decree, is Rs.6,24,759.66 with interest calculated as on 03.10.2001. The decree also allows interest at the rate of 24% per annum until the amount is realized. Accordingly, the total amount, as on 3rd September 2012, according to calculation submitted by the petitioner, comes to Rs.23,87,982/- (including interest calculated at 24% until 03.09.2012).
18. According to the petitioner, as against the claim for principal amount of about Rs.5 lakhs, now, the respondent electricity company is claiming payment in the tune of Rs.23,87,982/- and it has taken a stand that so long as the petitioner does not pay the entire amount with interest, electricity supply connection will not be released.
19. On the other hand, it is asserted by the petitioner that it has completed work of construction of manufacturing unit and the petitioner is now awaiting electricity supply connection and if electricity supply connection is released then immediately the manufacturing activity can be commenced.
SCA/8357/2012 13/16 ORDER
20. So as to support and justify its demand the respondent company has relied on clause No.4.1.11 of Electricity Supply Code framed by GERC. It is claimed that in light of the said provision the respondent company is entitled to interest for payment of erstwhile owner of the property from the subsequent purchaser.
21. Having regard to the fact that the respondent company does not appear to have taken any steps for recovering the amount at the time when Smt. Niruben Patel had purchased the property and having regard to the fact that the principal amount of the claim is to the tune of approximately Rs.5 lakhs and the amount as per the decree (along with interest calculated at 24% until 3rd October 2001), comes to about Rs.6,24,759/- and also having regard to the fact that the respondent company itself has floated Amnesty Scheme under which the respondent company waives interest component and penalty components, however, the said benefit is denied to the petitioner on the ground that in case of present petitioner the claim has been adjudicated, and also having regard to the fact that the said decision of the respondent company is under substantial challenge in present petition and the petitioner has also prayed for direction to the respondent company for releasing electricity SCA/8357/2012 14/16 ORDER supply connection by showing its readiness to pay the amount mentioned in the decree, (the respondent company has, however, insisted for payment of the entire amount with interest until the date on which the amount is paid) and also having regard to the fact that though belatedly, the petitioner company appears to have challenged the decree by way of appeal, it appears that present petition requires consideration. Therefore, below mentioned order is passed.
22. Rule. Having regard to the facts and circumstances of the case, Rule shall be returnable on 18th February 2013.
23. So far as interim relief is concerned, the petitioner company has prayed that respondent may be directed to grant temporary/permanent electricity supply connection to the plot Nos. 1202/1 and 1202/2 at village Rajpar, Taluka: Kadi, District: Mehsana.
24. Having regard to the provisions contained under Rule 4.1.11 which empowers the respondent electricity company to insist for payment of the dues of erstwhile owner of the property in question, from the subsequent purchaser and also having regard to the fact that the said provisions is under substantial challenge by way SCA/8357/2012 15/16 ORDER of various petitions, and also having regard to the fact that the manufacturing unit of the petitioner company is awaiting release of electricity supply connection and if electricity supply connection is released on appropriate condition then it would generate employment as well, it appears appropriate to grant ad-interim relief, however, on certain conditions (i.e. to grant conditional interim relief). Therefore, so far as interim relief is concerned, below mentioned order is passed
25. The petitioner company shall, within 10 days deposit a sum of Rs.6,30,000/- (Rupees Six Lakhs Thirty Thousand only), with the respondent company which shall be maintained by the respondent company in "No Lien Account" and will not be appropriated. The petitioner company shall also submit a Bank Guarantee issued by a Nationalized Bank for balance amount of Rs.23,90,000/- which shall be kept alive by the petitioner till the final hearing and decision in present petition. It is clarified that the amount deposited by the petitioner company and the Bank Guarantee shall abide by the final decision in present petition. At the relevant time Court will take into consideration the final outcome, if any, in the First Appeal which is said to have been filed by the petitioner along with an SCA/8357/2012 16/16 ORDER application for leave to appeal. After the amount as aforesaid is deposited and the Bank Guarantee as aforesaid is submitted by the petitioner company, the respondent company shall take steps to release, within 10 days, electricity supply connection in favour of the petitioner company. Such release of electricity supply connection will not create any right or equity in favour of the petitioner but it will be only as an arrangement under interim order of present order and will be subject to final decision in present petition.
Direct service is permitted.
(K.M.THAKER, J.) jani