Heard learned advocates for the parties. The petitioner, by way of this petition under Article 226 of the Constitution, has approached this Court with following prayers:
"(A) To admit this petition;
(B) To issue appropriate writ, order or direction directing the respondent to forthwith provide the petitioner with fresh electricity connection for his residential premises as prayed for vide application dated 15.06.2011 without insisting for payment of alleged outstanding dues of the previous owner;
(C) During pendency and final hearing of the petition, be pleased to direct the respondent to forthwith provide the petitioner with fresh electricity connection for his residential premises as prayed for vide application dated 15.06.2011 without insisting for payment of alleged outstanding dues of the previous owner;
(D) To pass such other and further orders as may be deemed fit in the facts and circumstances of the present case."
Facts, in short, leading to filing this petition are set out hereunder so as to appreciate contentions of the parties.
2.1 The petitioner purchased property, a residential premises at City Survey Ward No. 2, Survey No. 932 of Virdi Plot, Porbandar from its original owner namely Faruk Hajisiddik Palkhiwala on 21.06.2008, on executing registered sale deed and after paying appropriate consideration thereon. The requisite mutation entries in the records were carried out. The property was purchased on 21.06.2008. For the first time, on 15.06.2011, the petitioner applied for electricity connection in respect of the premises vide his application dated 15.06.2011. On the very same day, came the reply of the company-respondent that new connection cannot be given unless and until the electricity dues pertaining to that premises are cleared. The petitioner inquired of the electricity company as to whether any steps were taken for recovery of those dues. The answer given to him was that no proceedings were taken. The petitioner has, in memo of the petition, stated that the dues of the previous owner are old and time barred and therefore, when those dues themselves are not recoverable by the company, the company cannot insist upon payment thereon from the petitioner, i.e. the new purchaser. The petitioner, therefore, approached this Court, as it is stated hereinabove under Article 226 of the Constitution of India for the prayers mentioned in the memo of the petition.
Learned advocate for the petitioner relying upon decision of the Apex Court in case of Haryana State Electricity Board Vs. Hanuman Rice Mills, Dhanauri and ors reported in 2010 9 SCC 145 contended that the company could not have insisted upon payment of dues of previous owner as the dues were not enforceable even by the company qua the original owner.
Learned advocate for the petitioner also relied upon the decision rendered by Single Judge of this Court in case of Jay Mahakali Infrastructure Pvt. Ltd. and anr Vs.
Paschim Gujarat Vij Company Ltd.
rendered on 05.09.2006 in Special Civil Application No. 12624 of 2005 in support of his submission.
Leaned advocate for the respondent placed on record, the order and decision of the competent court i.e. the Court of Additional Senior Civil Judge, Porbandar in Special Civil Suit No. 46 of 2002 wherein the suit filed by the Company against the earlier owner is decreed in favour of the respondent-company and certified copy is placed on record with a copy thereof to learned advocate for the petitioner. In light of this, learned advocate for the petitioner very fairly submitted that the judgement pressed into service in case of Jay Mahakali (supra) would now not be relevant and available for support in case of the petitioner.
Learned advocate for the petitioner further contended that the petitioner has unfortunately not chosen to challenge the illegality and/or vires of clause 4.1.11 of the G.E.R.C. (Electricity Supply Code and Related Matters) Regulation, 2005 but those regulations are required to be read in consonance with the provision of law which should persuade this Court to hold in favour of the petitioner. Learned advocate for the respondent-Company contended that the judgement, which has cited in support of the petitioner's case, have no applicability to the case of the facts of the present case. Statutory rule in form of Clause 4.1.11 is absolutely available and in accordance therewith, the respondent is justified in insisting upon payment of dues even from the applicant-petitioner as it cannot be said to be in any manner illegal or arbitrary.
Learned advocate for the respondent-company invited this Court's attention to the observations made in para 9 and proposition laid down thereunder by the Supreme Court in case of Jay Mahakali (supra) and submitted that in light of the Clause 4.1.11, there exists justification on the part of the company for insisting upon payment.
Learned advocate for the petitioner was called upon to produce copy of the sale deed, which the petitioner executed with the original owner. In that sale deed, there are clauses which enables the petitioner to bring action against the original vendor and these clauses cannot be said to be on the strength whereof the petitioner could believe that he was purchaser without notice. The petitioner has not claimed to be ignorant in law or an illiterate pageant. He in fact, is a signatory to the document which contains specific clauses with regard to the electricity meter, transfer of communication etc. Therefore, relying upon those clauses, one may safely presume against the petitioner that he did have absolute knowledge with regard to outstanding of electricity dues on the premises in question. Assuming without holding, for the sake of examining the submission that petitioner did not have knowledge in respect of earlier dues then also the petitioner cannot be permitted to say that he held believe that the dues are not pending as it is a minimum amount of caution expected of the petitioner purchaser of the property to be sured of payment of earlier dues by way of tax lapses with any other dues attached to the premises. In the instant case, therefore, the Court is unable to accept submission of the learned advocate for the petitioner that the dues were not known to the petitioner. Once again assuming for the sake of examining without holding that the petitioner was not aware of the dues of the earlier dues on the premises, then also the petitioner cannot be said that he was absolved of his liability to pay dues to the electricity company on account of the statutory provision in form of the Clause 4.1.11 of Regulation. The vires or justification of the regulation is not the subject matter of consideration in this petition.
The Court is of the considered view that as the dues demanded from the petitioner is justified on account of provision of Clause 4.1.11, there exists no case of interference in exercise of Article 226 of the Constitution of India. Therefore, petition being hopelessly merit less deserves rejection and accordingly, rejected. However, there should be no order as to costs. Notice discharged.
[S.R.BRAHMBHATT, J.] JYOTI Top