While issuing notice on 09.03.2011, the Court passed the following order;
"Learned advocate for the petitioner requested in the morning for urgent circulation today in view of the urgency that, in case, if the supply is not obtained within short period and the production is not commenced, then umpteen number of hardships including claim of depreciation would also accrue. This Court, therefore, granted permission and the matter was taken up at 2.30 p.m. i.e. after lunch hours. Learned advocate has invited this Court's attention to the facts regarding filing of suit by the electricity company, withdrawal of the suit and issuance of no due certificate at page
107. Now in respect of that very premises, when the petitioner is seeking fresh connection, it has been held out to him that the earlier consumer, while compromising the dispute, had assured that no claim of electricity will be made by him for that premises and, therefore, when the petitioner is making request of fresh electricity, this Court is of the prima facie view that the matter requires consideration. Hence, Notice for final disposal returnable on 13.03.2012. It is expected from the respondents to keep their affidavit-in-reply as to under what circumstances of law, such an objection can be taken qua the new occupant of the premises unless and until it is made to known to the petitioner. The respondents are saddled with a question that arises as to whether such a saddling of handicap on the premises can ever be permitted. All these questions are required to be answered by way of affidavit in reply. Direct service permitted."
Affidavit is filed and it was contended in the affidavit that the withdrawal of the suit and issuance of no due certificate was pursuant to the clear understanding and agreement between the Electricity Company and the then consumer, which is reproduced at page no.155 of the compilation, wherein it is clearly mentioned that in case the defaulter is desirous of seeking connection in future, then the compromise arrived at between the parties will be treated as revoked and he would be liable to pay the entire amount with interest as per column no.1 and the prevalent rates of connection. Now, in view of this, it was contended that the unconditional withdrawal in terms of pursis, exhibit-37 also would not absolve the new party i.e the petitioner to seek connection without payment of charges and dues.
The Court is of the view that exhibit-37 is not placed on record. Exhibit-37 is the pursis which might throw some light as to intention of the parties. The order at page no.105 indicate that the suit is withdrawn unequivocally and unconditionally and it does not talk about any reservation or any condition attached to the compromise which is now sought to be indicated and pursuant to which no dues certificate is made out. Therefore, the purchaser like petitioner who has claimed to be bona fide purchaser without knowledge and who could not have been relied upon except the certificate of no dues, then in this peculiar facts of the case, the Court is of the view that the matter is required to be admitted for final disposal, as it is required to be heard on the question as to whether the pursis 37 and the order would out way the compromise and even if negative whether the bona fide purchaser who has relied upon the no dues certificate, which is absolutely silent qua any future liability or likelihood attached to the premises be made responsible to make payment of the dues in view of the settlement of the matter in Lok Adalat. Hence, Rule. By way of interim relief, the respondent no.2 is hereby directed to release electricity connection to petitioner on paying the requisite charges, as if the new connection is required to be obtained.
The connection being given under this order shall be conditional and will be subject of final out come of this petition. The connection is ordered to be released without insisting upon past dues in respect of the premises in question.
In view of the aforesaid peculiar facts narrated hereinabove, this will not be treated as a precedent in any manner. Direct service is permitted.
(S.R.BRAHMBHATT, J.) Pankaj Top