IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2582 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE V. M. SAHAI ========================================== =============== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================== ===============
SANJAY BALVANTRAI DESAI & 2 - Petitioner(s)
Versus
DAKSHIN GUJARAT VIJ COMPANY LTD & 3 - Respondent(s)
========================================== =============== Appearance :
MR JAL SOLI UNWALA for Petitioners MR MIHIR THAKORE, SR. ADVOCATE WITH MS LILU K BHAYA for Respondent 1 MR DIPAK R DAVE for Respondent No. 2 GOVERNMENT PLEADER for Respondent No.3 MR ANAL S SHAH for Respondent No. 4 MR TUSHAR MEHTA, SR. ADVOCATE WITH MS MAYA DESAI for Respondent No.5 ========================================== ===============
CORAM : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE A.L.DAVE
and
HONOURABLE MR.JUSTICE V. M. SAHAI
Date : 03/12/2012 CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. By this Special Civil Application, the writ-petitioner has prayed for appropriate writ, order or direction, declaring Clause No. 4.1.11 of Gujarat Electricity Regulatory Commission [Electricity Supply Code and Related Matters] [Third Amendment] Regulations, 2010 [“the Regulations”], published vide the Notification No. 6/10 dated August 20, 2010, to be inconsistent and ultra vires the provisions of Electricity Act, 2003 [“the Act”] and to quash and set aside the said Clause. The petitioner has also prayed for a declaration that the action of the respondent authorities in directing the petitioner to pay up the dues of M/s. Arunesh Processors Pvt. Ltd. and till then, not to grant the electricity connection to the petitioner is bad, illegal, arbitrary and violative of Article 14 of the Constitution of India and for a direction upon the respondent authorities to refund the amount of Rs. 17,16,255/- deposited by the petitioner vide Annexure:J, with interest, with further direction upon the respondent authorities not to disconnect the electricity connection to the petitioner.
2. The case made out by the writ-petitioner may be summed up thus:
2.1 The petitioner is a company which is operating at Vapi. The said company is running since 1988 and the numbers of partners have changed thereafter.
2.2 A company, i.e. M/s. Arunesh Processors Pvt. Ltd., went into liquidation and the petitioner participated in the auction held by the Hon’ble High Court of Bombay in the liquidation proceedings being Company Petition No. 545 of 1990.
2.3 The petitioner acquired the assets of M/s. Arunesh Processors Pvt. Ltd. [in liquidation], being Plot No. 282, GIDC Industrial Estate, Vapi, District Valsad, in an auction held by the Hon’ble High Court of Bombay.
2.4 The above sale was confirmed in favour of the petitioner at Rs.
70.00 Lac, out of which Rs. 14,01,000/- were paid by the petitioner on the day of the order.
2.5 Thereafter, on August 17, 2005, the petitioner was called upon to pay the remaining amount of Rs. 56.00 Lac of the auction money and on December 12, 2008, the deed of conveyance was also executed between the Official Liquidator, High Court of Bombay being the liquidator of M/s. Arunesh Processors Pvt. Ltd. and the petitioner.
2.6 For the purpose of transfer of the leasehold rights of the GIDC Plot, the office of the GIDC required “No Objection Certificate” from all government agencies including the Dakshin Gujarat Vij Company Ltd. [“DGVCL” for short]. The petitioner had made an application to the GIDC, Vapi, to transfer the leasehold rights in favour of the petitioner on February 18, 2009 and by way of a letter dated May 20, 2009, the GIDC, Vapi informed the petitioner about the said fact that for transferring the leasehold rights, NOC from all the govt. agencies was necessary.
2.7 In compliance of the said requirement, the petitioner obtained “No Objection Certificate” from all the govt. agencies except the DGVCL, the respondents herein.
2.8 The GIDC, by way of a letter dated April 15, 2010 informed the petitioner that the plot of land being No. 282/1 admeasuring about 6804 sq.mts. of M/s. Arunesh Processors Pvt. Ltd. stood transferred in the name of the petitioner w.e.f. April 7, 2010.
2.9 The respondent filed a suit being Civil Suit No. 93 of 1995 for recovery of Rs. 3,41,322/- against M/s. Arunesh Processors Pvt. Ltd. and the said suit was decreed in favour of the respondent no. 1 on November 26, 2002. Thereafter, it has come to the knowledge of the petitioner that Darkhast No. 7 of 2010 is also filed by the DGVCL, the respondents no. 1 and 2, for execution of the decree passed in Civil Suit No. 93 of 1995.
2.10 The petitioner is not having any information as to what is the stage of the said Darkhast No. 7 of 2010 filed by the DGVCL, but the DGVCL has, till date, not taken any steps to get the decree executed in its proper perspective.
2.11 The power connection which was released in favour of M/s.
Arunesh Processors Pvt. Ltd. by way of H.T. Consumer No. 372/73 at Plot No. 282/1, GIDC, Vapi as on 7.2.1982 was with the contracted load of 290 KVA.
2.12 The petitioner approached the respondent no.2, by way of a letter dated December 16, 2010, requesting to release the power supply at the above plot. The said letter was received by the respondent no.2 on December 21, 2010. The petitioner also made an application for high voltage supply for electrical energy in favour of the petitioner company in the prescribed form.
2.13 The respondent no.2, by way of a letter dated January 3, 2011 informed the petitioner that the power supply could not be released on the above plot as the matter, being Darkhast No. 7 of 2010 was pending and the dues were not recovered till that date from M/s. Arunesh Processors Pvt. Ltd.
2.14 Since the petitioner had invested huge amount and had purchased the said assets of M/s. Arunesh Processors Pvt. Ltd., the petitioner was in need of the power supply on the said plot and under protest, had paid the outstanding dues of M/s. Arunesh Processors Pvt. Ltd. to the tune of Rs. 17,16,255/- by way of a cheque dated February 25, 2011. The petitioner approached the respondent no.2 by a letter dated August 17, 2011, requesting to refund the amount paid vide cheque in view of the settled position that whenever any company takes over or acquires the assets by virtue of the order passed by the Hon’ble High Court or govt. authorities, they do not have to pay any outstanding dues to the government authorities including the DGVCL.
2.15 Vide letter dated September 19, 2011, the petitioner was informed by the respondent no.2 that the amount paid by the petitioner could not be refunded at that stage and it is only after the receipt of their claim from the previous consumer, i.e. M/s. Arunesh Processors Pvt. Ltd., that necessary action would be initiated on the representation.
2.16 The petition is opposed by the DGVCL, the respondent, by filing an affidavit by contending therein that none of the legal or fundamental rights of the petitioner had been violated by the action of those respondents. It is further alleged that the petitioner has an alternative efficacious statutory remedy available under Section 42[6] of the Electricity Act, 2003 and, therefore, on that ground of alternative remedy, the petition should be rejected.
2.17 It is further contended that the petition should also be rejected on the ground that by way of this petition, the petitioner has sought to recover the amount already paid by it and thus, for recovery of the monetary amount, Article 226 of the Constitution of India should not be invoked. It is further alleged that the petitioner had specifically given an undertaking before the respondent company that in case the amount paid by the petitioner is eventually received from the erstwhile owner, the same shall be refunded to the petitioner and after giving such undertaking, merely by making payment under protest, the petitioner cannot maintain the present writ-application. The respondent has also opposed the prayer of the petitioner that Clause 4.1.11 was violative of any law or the Constitution of India.
2.18 We have subsequently permitted the petitioner to make Gujarat Electricity Regulatory Commission and the State of Gujarat, as additional party-respondents and notice was also issued upon them. Subsequently, another party, namely, Gujarat Urja Vikas Nigam Ltd.
prayed for being added as party respondent by filing Civil Application No. 12540 of 2012 and we allowed the said prayer.
3. Mr. Jal Unwala, the learned advocate appearing on behalf of the petitioner, has strenuously contended before us that the Electricity Act, 2003 does not give any power upon the Regulatory Commission to issue any regulation thereby imposing a condition of payment of dues of the previous owner upon a new applicant seeking electricity connection who has purchased the property from the erstwhile defaulter. According to Mr. Unwala, when the Act does not authorize the Regulatory Commission to impose such condition, the aforesaid Regulation itself is violative of the Act and also in conflict with the Sections 43, 50, 56 and 181(2) (x) of the Act.
4. Secondly, Mr. Unwala also submitted that the aforesaid provision violates Articles 14 and 19[1][g] of the Constitution of India, inasmuch as his client will be unnecessarily compelled to pay the dues of the others for the purpose of starting its business which are not required to be paid by the other competitors in the field.
5. Thirdly, Mr. Unwala contended that his client having purchased the property in an auction sale under the provisions of the Companies Act, the aforesaid Regulation is in conflict with the provisions of the Companies Act which confers no power upon the creditor of a wound up company to recover its dues otherwise than in accordance with the Companies Act from its debtor.
6. In support of his contentions, Mr. Unwala has relied upon the following decisions:
[1] Fatechand Murlidhar and etc. vs. Maharashtra State Electricity Board, Nagpur and etc. reported in AIR 1985 BOMBAY 71
[2] Shikha Properties Pvt. Ltd. vs. New Delhi Municipal Committee, reported in AIR 2001 DELHI 247
[3] Deputy Commercial Tax Officer, Park Town Division, Madras and another vs. Sha Sukraj Peerajee reported in AIR 1968 SC 67
[4] J.K. Industries Ltd. And Anr. vs. Union of India & Ors. reported in 2007 (13) SCC 673
[5] Vasantlal Maganbhai Sanjanwala vs. The State of Bombay & Ors. reported in 1961 SCR 341
[6] Indian Council of Legal Aid and Advice etc. vs. Bar Council of India and another reported in AIR 1995 SC 691
[7] Hukam Chand vs. Union of India and others, reported in AIR 1972 SC 2427
[8] Additional District Magistrate (Rev.) Delhi Admn. vs. Siri Ram, reported in AIR 2000 SC 2143
[9] State of T.N. vs. P. Krishnamurthy and Ors. reported in AIR 2006 SC 1622
[10] Ashit Kumar Palit vs. West Bengal Steel Electricity Distribution Company Ltd. And Ors. reported in AIR 2009 CALCUTTA 1
[11] Sree Gajanana Motor Transport Co. Ltd. vs. The State of Karnataka reported in AIR 1977 SC 418
[12] Ajay Kumar Agarwal vs. O.S.F.C. And Ors. reported in AIR 2007 ORISSA 37(1)
[13] Shree Steel Industries, Jharsuguda vs. Western Electricity Supply Company of Orissa and Anr. reported in AIR 2008 ORISSA 53
[14] Chintamanrao and another vs. The State of M.P. reported in AIR 1951 SC 118
[15] D.S. Nakara and others vs. Union of India reported in AIR 1983 SC 130 (1)
[16] Narendra Kumar and others vs. The Union of India and others reported in AIR 1960 SC 430 (1)
[17] Tahir Hussain vs. District Board, Muzaffarnagar reported in AIR 1954 SC 630
[18] Messrs. Dwarka Prasad Laxmi Narain vs. State of U.P. and others reported in AIR 1954 SC 224
[19] Mohammad Yasin vs. Town Area Committee , Jalalabad and another reported in AIR 1952 SC 115
[20] Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another vs.
Union of India and others reported in 1960 (2) SCR 671
[21] Chameli Singh and others vs. State of U.P. reported in AIR 1996 SC 1051
[22] Amarendra Singh vs. Calcutta Electric Supply Corporation Ltd.
And Ors. reported in AIR 2008 CALCUTTA 66
[23] Anshuman Behera vs. Orissa State Financial Corporation and Ors. reported in AIR 2010 ORISSA 10
[24] M/s. Shobhana Enterprises (P) Ltd. vs. M.P. Paschim Kshetra Vidyut Vitran Co. Ltd. And Ors. reported in AIR 2010 MADHYA PRADESH 6
[25] M/s. Leitner Shriram Manufacturing Ltd. vs. Chairman, Tamil Nadu Electricity Board and Anr. reported in AIR 2008 MADRAS 16
[26] M/s. Swastic Industries vs. Maharashtra State Electricity Board reported in AIR 1997 SC 1101
[27] Ahmedabad Electricity Co. Ltd. vs. Gujarat Inns Pvt. Ltd. And others reported in AIR 2004 SC 2171
[28] Jay Mahakali Infrastructure Pvt. Ltd. vs. Paschim Gujarat Vij Company Ltd. ( SCA 12624 OF 2005 dated 5.9.2006)
[29] Rahmat Hussain vs. Jharkhan State Electricity Board & Ors. reported in AIR 2008 (NOC) 2312 (JHAR)
[30] M/s. Amit Products (India) Ltd. vs. Chief Engineer (O and M) Circle and another reported in AIR 2005 SC 3475
[31] Dakshin Haryana Bijli Vitran Nigam Ltd. vs. M/s. Paramunt Polymers Pvt. Ltd. reported in AIR 2007 SC 2
[32] Paschimanchal Vidyut Vitran Nigam Ltd. And Ors. vs. M/s. DVS Steels and Alloys Pvt. Ltd. And Ors. reported in AIR 2009 SC 647
[33] Haryana State Electricity Board vs. M/s. Hanuman Rice Mills, Dhanauri and Ors. reported in AIR 2010 SC 3835
[34] Raipur (Rakhial) Commercial Co-op. Housing Society Ltd. And Anr. vs. Ahmedabad Electricity Co. Ltd. reported in 2005 (3) GLR 2689
[35] Torrent Power A.E.C. Ltd. vs. Shreeji (Rakhial) Commercial Co- op. Housing Society Ltd. reported in 2006 (3) GLR 1944
[36] Abhisar Developers vs. Torrent Power Ltd. reported in 2010 (3) GLR 2593
[37] Gujarat Electricity Board vs. Jaisal Silk Mills Pvt. Ltd. (LPA 691 OF 2003 AND ALLIED MATTERS dated 18.7.2005)
[38] Isha Marbles vs. Bihar State Electricity Board and Anr. reported in 1995 (2) SCC 648
7. Mr. Mihir Thakore, the learned Senior Advocate appearing with Ms Lilu Bhaya for the respondents no. 1 and 2, has, on the other hand, opposed the aforesaid contentions of Mr. Unwala and has contended that the Gujarat Electricity Regulatory Commission was within its power conferred under the Act to impose such condition to a new applicant for supply of electricity and thus, the said provision cannot be said to be ultra vires any of the provisions of the Act. Mr. Thakore submitted that similarly, the said Regulation is also not violative of any of the provisions of the Companies Act as his client can recover the amount otherwise than as provided under the Companies Act only if the new purchaser applies for new connection and not otherwise. Mr. Thakore further contended that the provision contained in the Electricity Act specifically gives power under Section 50 to provide for Electricity Supply Code relating to all matters connected with supply of electricity and thus, there is no inconsistency with the provisions of the Act. Mr. Thakore further contended that the Supreme Court has already decided that a regulatory authority is entitled to impose a condition of deposit of arrears for the applicant for new supply and such provision in the Regulations cannot be said to be ultra vires or arbitrary. He, therefore, prays for dismissal of the writ-application.
8. The learned advocates appearing on behalf of the respondent no. 3, 4 and 5 supported Mr. Thakore’s contentions. In support of their defence, all the learned counsel for the respondents have relied upon the decision of the Supreme Court in the case of PASCHIMANCHAL VIDHYUT VITRAN NIGAM LTD. V. M/S. DVS STEELS AND ALLOYS
PVT. LTD. AND OTHERS, reported in AIR 2009 SC 647 and the decision of a Division Bench of this High Court in the case of Gujarat Electricity Board vs. Jaisal Silk Mills Pvt. Ltd. rendered in Letters Patent Appeal No. 691 of 2003 and other allied matters.
9. Mr. Unwala, in reply, submitted that in case of Paschimanchal Vidyut Vitran Nigam Ltd. [supra], the Supreme Court did not deal with the question as to whether the provision in question imposing condition of deposit of arrears of charges as a condition of obtaining new connection imposed by the Regulatory Authority is violative of the provisions contained in the Act or in excess of the authority conferred under the Act, and a mere general observation was made that such provision, if made in the Electricity Supply Code, shall not be arbitrary or unreasonable. Mr. Unwala contended that such general observation cannot be said to be a law laid down by the Supreme Court so as to be binding upon this Court as a precedent within the meaning of Article 141 of the Constitution of India.
10. Therefore, a pure question of law arises for determination in this case as to whether Clause 4.1.11 as amended by the Gujarat Electricity Regulatory Commission [Electricity Supply Code and Related Matters][Third Amendment] Regulations, 2010 is violative of either the Electricity Act, 2003 or Articles 14 or 19[1][g] of the Constitution of India.
11. In order to appreciate the aforesaid question, it will be profitable to refer to Sections 2[15], 43, 50, 56 and 181[2] [x] of the Electricity Act, 2003.
“2(15) “consumer” means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be;
43. Duty to supply on request. - (1) Save as otherwise provided in this Act, every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply:
Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission:
Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.
Explanation. - For the purposes of this sub-section, “application” means the application complete in all respects in the appropriate form, as required by the distribution licensee, along with documents showing payment of necessary charges and other compliances:
(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1):
Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.
(3) If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default.
50. The Electricity Supply Code. - The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non- payment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters.
56. Disconnection of supply in default of payment. - (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days' notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if such person deposits, under protest, -
(a) an amount equal to the sum claimed from him, or
(b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
181. Powers of State Commissions to make regulations.
- (1) The State Commissions may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of the following matters, namely:-
xxx xxx xxx (a) to (w) xxx xxx xxx (x) electricity supply code under section 50;
(Emphasis supplied)
12. Clause 4.1.11 introduced by way of amendment of Gujarat Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2010 is also quoted below:
“Amendment to clause 4.4.11:
Clause 4.1.11 shall be substituted in Principal Regulations as under:
An application for new connection, reconnection, addition or reduction of load, change of name or shifting of service line for any premises need not be entertained unless any dues relating to that premises or any dues of the applicant to the Distribution Licensee in respect of any other service connection held in his name anywhere in the jurisdiction of the Distribution Licensee have been cleared.
Provided that in case the connection is released after recovery of earlier dues from the new applicant and in case the licensee, after availing appropriate legal remedies, get the full or part of the dues from the previous consumer/owner or occupier of that premise, the amount shall be refunded to the new consumer/owner or occupier from whom the dues have been recovered after adjusting the expenses to recover such dues.”
13. After hearing the learned counsel for the parties and after going through the provisions contained in the third amendment of Gujarat Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2010, by which Clause 4.1.11 has been introduced in modified form, we find that the said amendment was made by virtue of a power conferred under Sections 50 and 181[2][x] of the Electricity Act, 2003.
14. We, therefore, propose to consider whether either Section 50 or Section 181[2][x] of the Act authorizes the Regulatory Commission to impose such a condition.
15. According to Section 50 of the Act, the Appropriate Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, measures for preventing tampering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters. The phrase “such other matters”, is, in our opinion, should be held to be those matters which are necessary for giving effect to and consistent with the existing provisions of the Act.
16. Therefore, when in the Act itself, the Parliament has not imposed any condition for paying of dues of an earlier consumer in a building upon a purchaser from the old consumer for getting a new connection although there are provisions of taking security or imposing other additional conditions for supply of electricity to a consumer, by taking aid of Section 50, the Regulatory Commission, a delegated authority prescribed under the Act, is not authorized to specify in the Electricity Supply Code a condition, of deposit of arrears of a previous consumer whose electricity has already been disconnected, for grant of new connection in the same building. We are unable to accept the contention of the learned counsel for the respondents that the condition impugned herein comes within the purview of “such other matters” appearing in Section 50 of the Act when the Parliament consciously did not specifically authorize such power in Section 50 and at the same time, in the entire Act itself, it has also made no such provision of recovery although the provision of security and other additional conditions to be fulfilled by a consumer have been imposed. Similarly, Section 181[2] [x] merely authorizes the Regulatory Commission to include in the Electricity Supply Code any provision relating to the subject-matter of Section 50.
17. If we go through the provision contained in Section 43 of the Act, it expressly gives a mandate upon the distribution licensee to give supply of electricity to the premises on an application by an owner or occupier of such premises within one month after receipt of application subject to the proviso of the said provision. In Section 43 itself, no condition has been imposed that in order to get supply of electricity, the dues of the previous consumer in respect of the electricity consumed in that premises should also be paid.
18. The definition of “consumer” as indicated in Section 2[15] of the Act, states that the consumer means a person and not the premises where the electricity is supplied. Therefore, the liability to pay the arrear in respect of electricity consumed by a consumer is his personal liability and devolves on his death upon his legal heirs and representatives provided such heir and legal representative has inherited any amount from such consumer and the liability of the heir and legal representative should be limited to the extent of the amount inherited by such heir and legal representative and not beyond that. If a person purchases a property from a consumer who is defaulter and whose electricity has been disconnected on that ground, he has no liability to pay the personal debt of the consumer unless such dues become a charge on the property by any inter vivos transaction entered into between the consumer and the licensee before the purchase by a third party or by operation of the law. There is no dispute that under the Electricity Act, 2003, the dues of a consumer do not become a charge on his property and in this case, there is no dispute that at the time of purchase of the property, there was no existing order of attachment of the said property in any court of law at the instance of the respondent though he had filed a suit for recovery of that amount against the consumer nor is there any charge created by the consumer in favour of the licensee before the transfer. Therefore, in accordance with the law of the land, a purchaser from a consumer, who is a defaulter, has no liability to pay the defaulted amount as a condition of getting new connection, unless an order of attachment has been obtained by the licensee from a competent court of law. If we look at Section 56 of the Act, it appears that for the neglect to pay any charge of electricity or other charges mentioned therein, a licensee is entitled to disconnect the supply after giving the required notice without prejudice to his rights to recover such charge or sum by suit, and may discontinue the electricity supply until such charges or any other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid. According to sub-section [2] of Section 56 of the Act, notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under Section 56 shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as a recoverable arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity. In other words, unless, in spite of default, the licensee has continued with supply of electricity and shows the default amount as arrear of charges continuously while supplying electricity, the defaulted amount is not recoverable after the period of two years from the date such sum becomes first due. Therefore, in a case, where for a default committed by a consumer, electricity has been disconnected and no suit is filed for recovery of the amount within two years when the amount first became due, the said amount shall not be even legally recoverable at the instance of the licensee. Such prohibition having been imposed by the provision of Section 56[2] of the Act, by taking aid of the delegated legislation, the Regulatory Commission cannot make an irrecoverable amount of money due to default as a recoverable one in favour of a licensee by way of prescribing such condition though the same is not even covered under the items mentioned in Section 50 of the Act.
19. We find that in the Electricity Act, 2003, there is a specific provision for giving security as a condition of taking benefit of electricity consumption and even there is a provision of imposing additional terms of supply as provided in Section 48. But in Chapter VI of the Act starting from Section 42 and ending with Section 60, no power has been conferred to impose a condition of payment of arrears due in respect of consumption by a former consumer in the premises from a person who has purchased the premises where the electricity was supplied to the defaulted consumer.
20. Although the learned counsel appearing on behalf of the respondents vehemently contended before us that the electricity connection is given to the premises and anybody having subsequently acquired interest in the premises should be saddled with the liability of the arrears of a previous consumer, we are not impressed by such contention, because to accept such a contention will have a disastrous effect which would be against the existing law of the land and the principles of natural justice. It appears that in the Electricity Act, the word “premises” has been defined under Section 2[51] as including any land, building or structure. Therefore, the definition of “premises” is an inclusive one. Thus, if a multi-storied building is occupied by various flat owners, by virtue of the inclusive definition of premises, the main building will also be the premises. Let us now take a case where a particular flat owner has defaulted in making payment of electricity supplied to him and for non-payment, his electricity connection has been disconnected. In the said building, there is separate connection in respect of another flat owner and the owner of such a flat decides to surrender his existing supply of electricity and thereafter, also decides to sell the said flat to a third-party. If we accept the contention of the learned counsel for the respondents that electricity connection is granted not to a consumer but to the premises and that due to default of a consumer, the premises also become a defaulter , in that event, by taking aid of such interpretation, the licensee may successfully demand that a new purchaser of a different flat whose vendor was not a defaulter, would still be liable to pay the arrears of a defaulting consumer of another flat of the same building on the ground that it is a part of the same premises. The phrase “any dues relating to that premises” appearing in the impugned regulation is thus inconsistent with the provisions of the Act inasmuch as in the Act, the consumer is held to be a defaulter and not any premises where the electricity is supplied to such consumer as provided in Sections 56 and 126 of the Act.
21. We, therefore, find that by virtue of a delegated legislation, the Regulatory Commission has not only overstepped the limit of Sections 50 and 181[2] [x] of the Act, but has also acted in violation of Section 56[2] of the Act by giving a scope of making a legally irrecoverable amount provided under the Act as a recoverable one. It is needless to mention that the power of the State Commission to make a regulation must be consistent with the Act and not inconsistent with any part thereof. We, therefore, find that the first part of the provision contained in the amended Regulation 4.1.11 authorizing a licensee to demand the arrears amount of consumer from the subsequent purchaser of the premises as condition of grant of new electricity connection is violative of the provisions contained in Sections 43, 50, 56, 126, and 181[2] [x] of the Act.
22. We now propose to deal with the relevant decisions cited by the learned counsel for the parties.
23. The relevant decision of the Supreme Court, earliest in point of time, is the case of Isha Marbles v. Bihar Electricity Board & Anr., reported in [1995] 2 SCC 648, where, a three-judge Bench had the occasion to consider the question in the light of the Electricity Act, 1910 and Electricity [Supply] Act, 1948 as to whether in a case where the premises to which the electricity was given comes to be owned or occupied by an auction-purchaser, he can be called upon to clear the past arrears of the previous owner as a condition precedent to a new supply.
23.1 The said Bench, on consideration of the provisions of the Electricity Act, 1910 and Electricity [Supply] Act, 1948, came to a conclusion that for the defaulted amount, there was no charge over the property in question. It was further held that where the premises come to be owned or occupied by the auction-purchaser and such a purchaser seeks supply of electricity, he cannot be called upon to clear the past arrears as a condition precedent to supply. According to the Supreme Court, what matters was the contract entered into by the erstwhile consumer with the Board and the Board could not seek enforcement of contractual liability against the third-party. The Supreme Court further stated that the bona fide of the sale might not be relevant. The said three-judge Bench further held that the decision of the Kerala High Court in the case of Souriyar Luka v. Kerala State Electricity Board, reported in AIR 1959 Ker. 1959, laid down the correct proposition of law in this regard. The Supreme Court further held that the decision of the M.P. High Court in the case of National Textile Corporation [M.P.] Ltd. V. M.P. Electricity Board, reported in AIR 1980 MP, 32, rested on the interpretation of the provisions of Sick Textile Undertakings [Nationalization] Act and was not relevant and at the same time, the decision of the Supreme Court in the case of Bihar Electricity Board v. Green Rubber Industries, reported in [1990] 1 SCC 731 did not deal with the question that was the subject matter in the case of Isha Marble [supra]. It may be mentioned here that in the case of Souriyar Luka [supra], the test applied by the Kerala High Court was whether the applicant who sought electricity connection was legal representative of the defaulter and further, the payment of arrears due from the defaulting consumer could not be insisted for supply of electricity to the premises used by erstwhile consumer.
23.2 Therefore, the law laid down by the Supreme Court in the case of Isha Marbles (supra), in the light of the provisions of the old Electricity Act was that the law as it stood was inadequate to enforce the liability of the previous contracting party against the auction- purchaser who was a third-party and was in no way connected with the previous owner/occupier. The Supreme Court further reminded that it might not be correct to state that it would permit the dishonest consumers transferring their unit from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lakhs and lakhs of rupees and each one of them can easily say that it was not liable for the liability of the purchaser in interest According to the Supreme Court, no doubt, the dishonest consumer could not be allowed to play truant with the public property, but inadequacy of the law could hardly be a substitute for overzealousness. In the Act of 2003 also, the Parliament has incorporated no provision in order to devolve the liability upon the purchaser by making the dues as a charge by operation of law nor has invested the delegated authority to impose such condition in Sections 50 or 181.
24. In the case of Paschimanchal Vidyut Vitaran Nigam Ltd. v.
M/s. DVS Steels and Alloys Pvt. Ltd. and Ors., ,reported in AIR 2009 SC 647 upon which strong reliance was placed on behalf of the applicant-licensee, a two-judge Bench of the Supreme Court was considering the question as to whether a supplier can recover the electricity dues from the purchaser of the legally sub-divided plot of the consumer. In that case, the Electricity Board submitted that if a consumer disposed of his premises or any portion thereof without clearing the dues in regard to the electricity supplied to the 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 and in support of such contention, the Electricity Board referred to the sub-clauses [g] and [h] of Clause-4.3 of the Electricity Supply Code, which are quoted 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.”
24.1 In the above context, the Supreme Court made the following observations in paras 9 and 10 of the judgment:
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 of 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 fulfillment 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.”
(Emphasis supplied).
24.2 After making the above observations, the Supreme Court in para-11 made the following further submission which was strongly relied upon by the learned counsel for the Board by contending that the observation made in para-11 is a proposition of law laid down by the Supreme Court and is binding upon this court in this case:
“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 to 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 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 had 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.”
24.3 After going through the aforesaid observations, we, however, find that in case of Paschimanchal [supra], the two-judge Bench of the Supreme Court had no occasion to consider the question as to whether sub-clauses[g] and [h] of Clause 4.3 of the Electricity Supply Code were ultra vires the provisions of the Electricity Act, 2003 and, therefore, the observation of the Supreme Court that, a stipulation of the distributor that dues in regard to the electricity supplied to a premises should be cleared before the electricity supply is restored or new connection is given to the premises cannot be termed as unreasonable or arbitrary, cannot be the observation as a law laid down by the Supreme Court in considering the legality of the contents of such provision in the light of the provisions of the Act of 2003. It appears that the Supreme Court also did not take into consideration Sections 43, 50 and 56 of the Act nor had the Supreme Court occasion to consider the scope of the provisions of Section 181[2][x] of the Act, by virtue of which Regulation 4.1.11 has been enacted.
24.4 Further, we find that the following observations mentioned below in the case of Paschimanchal (supra), i.e. 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, which is the basis of the said decision, are in conflict with the following view of the three-judge Bench of the Supreme Court in the case of Isha Marbles (supra) which is quoted below:
“61. What we have discussed above appears to be the law gatherable from the various provisions which we have detailed out above. It is impossible to impose on the purchasers a liability which was not incurred by them.
62. No doubt, from the tabulated statement above set out, the auction-purchasers came to purchase the prop- erty after disconnection but they cannot be “consumer or occupier” within the meaning of the above provisions till a contract is entered into.
63. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, benignly protects public property and behoves everyone to respect public property. Hence, the courts must be zealous in this re- gard. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction-purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infin- itum without the payment of the dues to the extent of lakhs and lakhs of rupees and each one of them can eas- ily say that he is not liable for the liability of the prede- cessor in interest. No doubt, dishonest consumers can- not be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for overzealousness.”
24.5 Further, in the subsequent case of Ahmedabad Electricity Company Ltd. v. Gujarat Inns Pvt. Ltd. and others, reported in AIR 2004 SC 2171 = XLV [2], GLR, 1363, another three-judge-bench of the Supreme Court followed the decision in the case of Isha Marbles [supra] holding that the buyer is under no obligation to pay the arrears incurred by the previous owner. The following observations are relevant:
“We are clearly of the opinion that in case of a fresh con- nection though the premises are the same, the auction-pur- chasers cannot be held liable to clear the arrears incurred by the previous owners in respect of power supply to the premises in the absence of there being a specific statutory provision in that regard.”
24.6 We, therefore, propose to follow the above view of the three- judge-bench and find that in the Act of 2003, there being no provision of imposing the liability of a defaulter upon the third party, the amended Regulation impugned herein is inconsistent with the provi- sions of the Act and at the same time, Sections 50 and 181 of the Act also do not authorize the Regulatory commission to prescribe such a provision in the Regulation.
25. In this connection, the learned counsel for the Respondents strongly relied upon a decision of the Supreme Court in the case of Director of Settlements, A. P. and others v. M. R. Apparao and another reported in AIR 2002 SC 1598, pointing out that a High Court cannot ignore the decision of the Supreme Court on the ground that a particular point was not argued or that the Supreme Court did not take note of any specific statutory provision. According to the learned counsel for the Respondents, even if the Supreme Court failed to take note of a particular statutory provision, the same cannot be branded as per incurium. In other words, according to the learned counsel for the respondents, the decision in the case of Paschimanchal [supra], should be treated to be a proposition of law of the Supreme Court that Regulation 4.1.11 is not ultra vires the Act of 2003.
26. To appreciate the said contention, we first propose to refer to what has been held in the above case of Director of Settlements,
A. P. (supra) which is quoted below:
“7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has 'declared law' it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An 'obiter dictum' as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a bind effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (See AIR 1970 SC 1002 and AIR 1973 SC 794). When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See 1984 (2) SCC 402 and 1984 (2) SCC 324). We have to answer the first question bearing in mind the aforesaid guiding principles.”
(Emphasis supplied).
27. We, therefore, first propose to scrutinize as to what are the observations of points raised and decided by the Court so as to be binding under Article 141 of the Constitution of India. We have already pointed out that in the case of Paschimanchal [supra], the Supreme Court had no occasion to consider whether sub-clauses [g] and [h] of Clause 4.3 of the Electricity Supply Code was ultra vires the Electricity Act, 2003. Moreover, the Supreme Court had also no occasion to consider the case of auction-purchaser in a winding up proceeding under the Companies Act as the case of Paschimanchal (supra) was one of sale of the legally divided plot of a defaulter in a private sale. Those points were neither raised nor decided by the Supreme Court. What was decided in the case of Paschimanchal was as follows:
“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 to a new connection is given to a premises, cannot be termed as unreasonable or arbitrary”
“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 had already been disconnected for non-payment, insist upon clearance of arrears before a fresh electricity connection is given to the premises.”
28. It is one thing to say that a particular stipulation is not unreasonable or arbitrary but whether such stipulation is in conflict with a Statute and can be incorporated by a delegated authority within the scope of delegation as prescribed by the Statute is quite a different question. The latter question was neither raised nor answered by the Supreme Court in the case of Paschimanchal. Thus, the said decision is not an authority for the purpose of deciding whether the amended sub-clause in the Electricity Supply Code, involved in this case, is ultra vires the Electricity Act. Moreover, we have pointed out that the basis of Paschimanchal (supra), on the first question decided is in conflict with Isha Marbles (supra), which is still the law of the land.
29. At this stage, we may also profitably refer to the following observations of the Supreme Court in the case of State of Orissa v. Sudhansu Sekhar Misra and others reported in AIR 1968 SC 647 which supports our aforesaid view:
“A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.”
(Emphasis supplied).
30. Thus, the question involved herein not having been raised or answered in the case of Paschimanchal (supra), the other principle, i.e. the decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court, does not arise for its application to the facts of the present case. If the relevant issue is raised and decided in one way or the other by the Supreme Court and while deciding such issue, a particular aspect or relevant provisions are not taken note of, the above principles indicated in the case of Director of Settlements, A. P. (supra) would be applicable; but where the relevant issue was neither raised nor decided, the above principle has no application.
31. In the case of Haryana State Electricity Board v.
M/s.Hanuman Rice Mills, reported in AIR 2010 SC 3835, the Supreme Court, in the context of Electricity [Supply] Act, 1948 referred to the case of Paschimanchal [supra] and held that the
electricity dues did not constitute charge on the premises but where applicable rules required such payment, the same would be binding on the purchaser.
32. Therefore, the Supreme Court, in the subsequent decision in the case of Haryana State Electricity Board itself referred to the case of Paschimanchal (supra), and held that the claim relating to the previous owner could not be enforced against the subsequent purchaser in the absence of any rule to that effect. The phrase “any rule”, it goes without saying, means “a valid rule consistent with the Act’ and does not mean “even a rule inconsistent with the Act”. Thus, the decision in the case of Haryana State Electricity Board is of no avail to the Respondents.
33. In the case of Krishna Industries v. Gujarat Electricity Board, being in Letters Patent Appeal No. 691 of 2003, arising out of Special Civil Application No.1598 of 2004, a Division Bench of this Court dealt with the question whether clause 2[j] of the Conditions of Supply framed by the Board containing a specific provision for payment of arrears of electricity dues as a condition precedent for restoration of the connection or grant of fresh connection, is ultra vires the provisions of 1910 Act and 1948 Supply Act. It appears that the said question has been dealt with by the Division Bench in the following way:-
“The next question which needs examination is whether Clause 2[j] is ultra-vires to the provisions of the 1910 Act and the Supply Act. The argument of the learned Counsel for the respondents in the Letters Patent Appeal and the petitioners in the Special Civil Applications is that the Conditions of Supply framed by the Board are inconsistent with Sections 3[2][f] and 22 of the 1910 Act, read with the provisions of Clause VI of the Schedule appended thereto, as also Section 26 of the Supply Act and therefore the same cannot be enforced against the prospective consumer. According to them, the Board and its successor are bound to supply electrical energy to the applicants who fulfill the requirement of the provisions contained in the 1910 Act and the Supply Act and they cannot be refused connection on the ground of non-payment of the arrears of electricity dues payable by the former consumers.
In our opinion, there is no merit in the challenge to the validity of Clause 2[j] of the Conditions of Supply on the aforementioned ground and the learned Single Judge gravely erred in striking down the said clause on the premise that the Board does not have the power to prescribe the requirement of depositing of the arrears of the dues of electricity as a condition for release of the new connection or for restoration of the old connection in favour of the new applicant. The provisions of the 1910 Act and the Supply Act are complementary and supplementary to each other and they are required to be interpreted by applying the rule of harmonious construction. A conjoint reading of Sections 3[2]f] and 22 of the 1910bAct with Section 26 of the Supply Act shows that for the purpose of supply of electricity to the consumers, the Board is a licensee. It is required to supply energy to all those persons who fulfill the conditions enumerated in Clause VI of the Schedule of the 1910 Act. This, however, is subject to the power of the Board to frame terms and conditions, as it may think fit for supply of electricity to any person other than a licensee. In other words, the Board is duty bound to supply electricity to all those who fulfill the parameters contained in Clause VI of the Schedule of the 1910 Act and also comply with the terms and conditions framed under Section49[1] of the Supply Act. There is neither any patent, nor latent conflict between the provisions contained in Sections 3[2][f] and 22, read with Clause VI of the Schedule of the 1910 Act and Section 49 of the Supply Act. As a matter of fact, there is nothing in the language of Sections 3[2][f] and 22 of the 1910 Act from which it can be inferred that the terms and conditions of supply framed by the Board under Section 49 of the Supply Act are subject to the provisions contained in the 1910 Act. Our attention has not been drawn to any provision of the 1910 Act which contains non-obstante clause and gives that Act over-riding effect qua the Supply Act. In this view of the matter and the fact that the Supply Act is a subsequent Legislation, it is not possible to agree with the learned Counsel for the writ petitioners that Clause 2[j] of the conditions of Supply is ultra-vires to Sections 3[2][f] and 22 read with Clause VI of the Schedule of the 1910 Act or Section 26 of the Supply Act.”
34. On going through the aforesaid observations, we find that the points raised in this proceeding were not the subject matter of the said Letters Patent Appeal and thus, in the said matter, the Division Bench had no occasion to consider whether Sections 43, 48, 50 and 56 authorize the regulatory Board to frame the regulation which the subject matter of this Reference. We, thus, find that the said decision does not help the Board in any way.
35. On consideration of the entire materials on record, we, therefore, find that the question as to whether the regulation impugned in this Reference or a similar one, is ultra vires the 2003 Act itself has never been dealt with by any Court and thus, the various other decisions cited by the learned counsel for the respondents are of no help to them.
36. On consideration of the entire materials, we, consequently, find that the first part of the Regulation 4.1.11 as amended by the Gujarat Electricity Regulatory Commission [Electricity Supply Code and Related matters] [3rd Amendment] Regulations, 2010, enabling a licensee to recover the dues of defaulted consumer from the subsequent purchaser of the premises where the supply of electricity was given to the defaulted consumer is ultra vires the provisions of Sections 43, 50, 56 and 181 of the Electricity Act itself, being inconsistent with those provisions of the Act. We, accordingly, declare the said part of the provision as ultra vires and direct the Respondents not to give effect to the same. The petition is allowed. Let there be also orders in terms of the remaining prayers made in paragraph 22[a] of the petition.
[BHASKAR BHATTACHARYA, CJ.]
[A.L. DAVE, J.]
[V.M. SAHAI, J.]
FURTHER ORDER:
After the judgment was pronounced, the learned counsel for the respondent No.1 prays for stay of operation of our order. After having held that the provision is ultra vires the Act, we do not find any reason to stay the operation of our order. The prayer is refused.
[BHASKAR BHATTACHARYA, CJ.]
[A.L. DAVE, J.]
[V.M. SAHAI, J.]
pirzada/-