1. With the consent of learned Advocates for the concerned parties the petition is heard for final decision.
2. The petitioner has taken out present petition seeking below mentioned relief and directions:
"12(b) to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside order dated 05.12.2011 passed by the Deputy Engineer, PGVCL, rural S/D Junagadh."
3. The relief prayed for by the petitioner gives out an impression that the petition is preferred against order passed by Deputy Engineer of the respondent company. However, on perusal of the relevant document dated 5th December 2011 (i.e. Annexure-A page 9), it emerges that the petitioner has approached against notice/intimation informing the petitioner to deposit the amount mentioned in the notice/intimation and that in the event of failure appropriate action including disconnection of power supply would be taken. Any order on adjudication is not passed and any order is not brought under challenge but as mentioned above notice/intimation is brought under challenge.
4. So as to justify and support the relief prayed for in the petition the petitioner has narrated below mentioned facts and details.
5. The learned Advocate for petitioner has claimed that the petitioner is an agriculturist and he purchased certain parcels of lands under sale deed dated 21.04.2007. He has claimed that the petitioner purchased the land in question from one Shri H.A.Odedara. It is also claimed that the parcel of lands in question are purchased jointly by petitioner and his brother. According to petitioner, lands bearing survey Nos.299 and 159 paiki, 4 paiki and 3 paiki have been purchased, out of which, lands bearing survey Nos. 159 paiki and 3 paiki are non-irrigable land. The petitioner has claimed that after having purchased the parcels of lands from said Shri H.A.Odedara, petitioner made request to the respondent electricity company to change the name of the consumer from the erstwhile owner to the petitioner.
6. In support of various submissions, learned counsel for the petitioner has relied on the documents at page 9, 23, 24, 15 and 29 of present petition.
7. On the basis of the document at page 23, learned counsel for the petitioner has claimed that after purchasing the land in question the petitioner made a request in June 2007 to the electricity company to change the name of consumer and transfer the electricity connection in his name i.e. in name of the petitioner.
8. The learned counsel for the petitioner has further claimed that since for almost three years the electricity company did not take any action, the petitioner repeated the request in August 2010 its letter dated 23.08.2010.
9. The learned counsel for the petitioner has also claimed that while the petitioner was pursuing his request before the electricity company to change the name of the consumer and transfer the connection in his name i.e. in petitioner's name, the petitioner received communication dated 7th September 2011 intimating the petitioner that there were outstanding dues with reference to the connection bearing No.36128/00771/6 i.e. the power supply connection granted on the lands in question.
10. The connection was, as claimed by the petitioner, was in the name of the original owner i.e. Mr.H.A.Odadera. The electricity company vide communication dated 7th September 2011 informed the petitioner to make payment of Rs.13,08,688.75ps. which was outstanding due of the said power supply connection and that if the said amount was not deposited then interest at the rate of 1.5% would be loaded/charged and in the event of failure the respondent company would be constrained to disconnect the power supply.
11. It emerges from the record that even after said intimation the petitioner did not take any action either to make the payment or any other action against the said intimation.
12. Therefore, the respondent company forwarded another communication dated 5th December 2011.
13. It is the said communication and intimation against which the petitioner has now approached this Court.
14. Learned counsel for petitioner has submitted that the petitioner is not responsible for the unpaid amount related to the electricity supply connection in name of the previous owner. He also submitted that it is the previous owner who is responsible for unpaid amount and the respondent company should raise the demand against the previous owner instead of enforcing the said demand against present petitioner. Learned counsel for the petitioner also relied on the terms and conditions incorporated in the sale deed executed between the petitioner and said Mr.H.A.Odedara and he submitted that according to the relevant terms and conditions in the sale deed, the responsibility to make payment of any dues in respect of any debt prior to the date of sale is that of the erstwhile owner and that therefore also the petitioner should not be held responsible for the said unpaid amount. The learned counsel for petitioner also claimed that the petitioner is an agriculturist and he is put to undue hardship because the respondent company is enforcing the said demand against present petitioner. Learned counsel for the petitioner relied on judgment in case of Torrent Power AEC Ltd. v. Shreeji (Rakhial) Commercial Co-Operative Housing Society Ltd. reported in AIR 2006 Gujarat 190.
15. The petition is resisted by learned advocate for respondent. The learned advocate for respondent has submitted that in view of the provisions contained under Supply Code framed by Gujarat Electricity Regulatory Commission (GERC for short), particularly clause No. 4.1.11, the respondent company is entitled to enforce the demand against present owner i.e. the petitioner. The learned counsel for the respondent company also submitted that the arrangement of transferring the land by virtue of the deed in question is entered into with mala fide intention to defraud the respondent company. The learned counsel for the respondent submitted that it is private arrangement made with an ulterior intention which is evident from the fact that arrangement came to be arrived at between the parties during the pendency of the suit. The learned counsel for respondent company has relied on the decision in case of Hariyana State Electricity Board v. Hanuman Rice Mills reported in (2010) 9 SCC 145.
16. The petitioner has prayed that the order (which is actually a notice/intimation) dated 05.12.2011 may be set aside. In view of the fact that the petitioner has approached this Court against the notice/intimation dated 05.12.2011 and not against any order the petition does not deserve to be entertained.
17. On perusal of the said notice/intimation, it emerges that the said demand is raised on the basis of the decree passed by the trial Court.
18. It appears that certain proceedings were pending between said Mr. Odadera and electricity company wherein the demand raised by the electricity company was the subject matter. It also appears that the said suit proceedings came to be decreed in favour of the electricity company and by virtue of the decree passed in the proceedings the electricity company is entitled for payment of Rs.13,08,688.75ps. In light of the fact that the notice/intimation is based on decree, in view of this Court, there is no justification to set aside the said notice/intimation based on decree which does not appear to have been set aside until now.
Besides this, the said aspect related to suit and that the arrangement came to be made during pendency of the suit and when order was to be passed, are not placed on record by the petitioner.
19. It is not in dispute that by virtue of provision contained under clause 4.1.11 the respondent electricity company i.e. the licensee is conferred with power to enforce the demand, though due from previous owner, from the existing owner of the property in question. Therefore, even if the petitioner's contention viz. that the dues in respect of which demand has been raised are of previous owner, is to be considered, then also there is no justification to interfere with the said demand in light of the said provision under the Supply Code framed by GERC.
20. Furthermore, prima facie, there appears to be some justification in the contention raised by the learned counsel for the respondent company with reference to the sale deed on which the petitioner has relied. It appears that at the time when the sale deed was executed, the suit wherein the decree came to be passed, was pending and that therefore when the suit was about to be decreed, the petitioner and the said Mr. Odadera appear to have entered into the said sale deed.
21. Moreover, it is pertinent that after having addressed a communication dated 21.06.2007 (Annexure D page 23) the petitioner does not appear to have taken any other steps and almost after three years the petitioner addressed another letter on 23rd August 2010. Except addressing the said two communications the petitioner does not appear to have taken any step to get the power supply connection transferred in his name. Therefore also the petition does not deserve to be entertained.
22. The learned counsel for respondent company has submitted that since the petitioner did not respond to two intimations i.e. the intimation dated 7th September 2011 and subsequent intimation dated 5th December 2011, even though sufficient time was allowed, the respondent company has already disconnected the power supply.
23. It is pertinent to note that in present petition the action of the respondent company to disconnect the power supply is not challenged and that therefore the said aspect is not under consideration. However, in view of the said subsequent development also, present petition does not deserve to be entertained.
24. Accordingly, on overall consideration of the facts and circumstances, the petition does not deserve to be entertained. The petitioner has failed to make out any ground to interfere with the intimation dated 5th December 2011, more particularly because the petitioner had also received one previous communication dated 7th September 2011 and yet he had not taken any action pursuant thereto and now the power supply has already been disconnected.
25. Thus, the petition fails and is accordingly dismissed.
(K.M.THAKER, J.) jani Top