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Maheshkumar vs Dakshin

High Court Of Gujarat|28 June, 2012
1. Heard learned advocate Mr. Hriday Buch for the petitioner, learned advocate Mr. A. S. Asthavadi for respondent no.2 and learned advocate Mr. L. K. Bhaya for respondent no.3. The petitioner has preferred present petition seeking below mentioned relief/s:
"7(B) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the impugned Communication dated 20/9.2011 (Annexure-A) and further be pleased to declare the action of the respondents for not processing the application for new connection to be illegal and arbitrary.
7(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by directing the respondents to process further the application made by the petitioner on 15/16.11.2010 (Annexure-F) for new connection without insisting upon the payment of the dues of the erstwhile owner of th premise."
2. The petitioner has brought under challenge order dated 20/09/2011 (Annexure-A) at page-15 of the petition.
3. So as to support the contentions against the impugned order, the petitioner has stated that the petitioner purchased certain property in auction sale conducted by GSFC. The property was purchased in February, 2008 thereafter in March, 2008, the petitioner applied for electricity supply connection. It is also claimed that at the relevant point of time any provision allowing the respondent company to demand payment of dues of the previous owner from auction purchaser was not in operation.
4. Such provision came into operation with effect from August, 2010.
6. The petitioner has also submitted that at the relevant time in 2008, the petitioner could not commence commercial activities and also could not take steps in that direction. Subsequently in November, 2010, the petitioner again applied for electricity supply connection. It is at that time i.e. when the petitioner again applied for electricity supply connection, the provision conferring power on the respondent company to demand the payment of previous owner was introduced in the supply code. In that view of the matter, the respondent nos.1 and 3 forwarded the quotation to the petitioner in response to petitioner's application for electricity supply connection and informed that the petitioner will have to pay Rs.1,34,106/-. The petitioner claimed that the said amount was deposited by the petitioner. It is also claimed that subsequently the issue about the dues of the previous owner was raised and in that connection vide communication dated 03/10/2011 from the State Financial Corporation the petitioner was informed that the respondent electricity company was paid a sum of Rs.70,000/- by Finance Corporation on pro rata basis from the amount of sale consideration received from auction sale of the properties. The petitioner also received communication dated 20/09/2011 from respondent demanding payment of the dues of previous owner. Aggrieved by the said communication dated 20/09/2011, the petitioner preferred present petition.
7. Under order dated 23/12/2011, the office was directed to issue notice to the respondents. In response to the notice the respondents has appeared and filed reply affidavit dated 29/02/2012. In para-5 of the said affidavit-in-reply, it is stated that:
"5. Respondents submit that the petitioner has purchased Plot No.7 in Block No.100 at Mota Borsara, Taluka Mangarol from Gujarat State Financial Corporation through auction. The petitioner applied for connection from the respondent on 16.11.2010. The petitioner was informed that as per the provisions of Clause-4.1.11 of The Electricity Supply Code, the petitioner is required to pay the outstanding arrears of the earlier consumer amounting to Rs.1,60,880.57ps. after deducting Rs.70,000/- payment received from G.S.F.C. On 29.4.2011 and also Rs.16,571.35ps. for the lighting connection of erstwhile consumer M/s.Hansa Texturising Pvt. Ltd. Respondent submits that the petitioner was informed that the connection cannot be released unless the entire dues of the earlier consumer are paid by the petitioner in full and not part thereof."
8. Learned counsel for the petitioner has submitted that the petitioner wants to commence its commercial activities and business and therefore requires electricity supply connection, however, respondent company is demanding payment of dues of previous owner. He submitted that the petitioner had purchased the property in 2008 in auction sale and it has made application for electricity supply connection in March, 2008. Therefore, the relevant date would be the date on which the petitioner purchased the property in question. He submitted that since at the relevant time any provision authorizing the respondent company to demand payment of previous owner was not in operation such demand cannot be made.
9. It is not in dispute that the provision authorizing the respondent company to demand payment of previous owner from the subsequent purchaser is introduced in August 2010 and the petitioner made second application in November, 2010 and therefore prima facie the petitioner's objection does not appear to be sustainable against the demand by the respondent company. Therefore, respondent company's communication dated 20/09/2011 comes in picture.
10. By the said letter the respondent company has asked the petitioner to pay a sum of Rs.2,30,880.57 and Rs.16,571.35 being the dues of the previous owner, with interest. The petitioner has raised grievance that since respondent has been paid pro-rata amount in the sum of Rs.70,000/- by the Finance corporation, any amount towards alleged dues of previous owner should not be claimed from the petitioner and in any case credit/adjustment of Rs.70,000/- paid by GSFC should be given to the petitioner.
11. In view of the fact that the petitioner is now ready to pay, without prejudice to its contentions, the amount mentioned by the respondent company in the reply affidavit, the action of the respondent company of refusing to release/grant electricity supply connection to the petitioner prima facie appears unjustified and the petition deserves consideration.
12. Hence, Rule returnable on 23/08/2012.
13. Learned advocate Mr. Asthavadi has waived service of notice of Rule for respondent no.2 and learned advocate Ms. Bhaya has waived service of notice of Rule for respondent no.3.
14. So far as the petitioner's request for interim relief is concerned, the petitioner has prayed that:
"7(D) Pending admission, hearing and final disposal of this petition, Your Lordship be pleased to direct the respondents and more particularly respondents No.1 and 3 to process the application made by the petitioner on 15/16.11.2010 (Annexure-F) without insisting upon the payment of the amount mentioned in the impugned communication dated 20.9.2011."
15. On this count, it is relevant to note that in its impugned letter dated 20/09/2011 the respondent has informed the petitioner that until the dues of the previous owner in the sum of Rs.2,30,880.57 and Rs.16,571.35 with interest are not paid connection cannot be granted. However, subsequently in its reply affidavit dated 29/02/2012 which is made on a date subsequent to the date of its own earlier letter (dated 20/09/2011), the respondent has averred that:
"5. ....
The petitioner was informed that as per the provisions of Clause-4.1.11 of The Electricity Supply Code, the petitioner is required to pay the outstanding arrears of the earlier consumer amounting to Rs.1,60,880.57ps. after deducting Rs.70,000/- payment received from G.S.F.C. on 29.4.2011 and also Rs.16,571.35ps. for the lighting connection or erstwhile consumer M/s.Hansa Texturising Pvt. Ltd. Respondent submits that the petitioner was informed that the connection cannot be released unless the entire dues of the earlier consumer are paid by the petitioner in full and not part thereof."
16. Thus, even according to the respondents, the petitioner is required to pay a sum of Rs.1,60,880.57 and Rs.16,571.35. In view of this, in the facts of the case, any unconditional interim relief does not deserve to be granted.
17. Therefore, by way of interim relief, below mentioned order is passed:
17.1. On the condition that the petitioner makes payment of Rs.1,60,880.57 and Rs.16,571.35, the respondent company shall, on such payment being made, restore/grant electricity supply connection to the petitioner at the property, the details of which have been mentioned in its application. The petitioner will also pay the charges as per rules of the electricity company. The aforesaid arrangement is made only by way of interim arrangement so that the respondent company gives connection and also to ensure that the activities and business of the petitioner is also not delayed. It is also clarified that the arrangement is without prejudice to the rights and contentions of either parties. Direct service is permitted. The aforesaid arrangement shall come in operation only if and only after the petitioner deposits the amount in question. After the amount is deposited and other requisite charges are paid, the respondent company shall take necessary steps to grant electricity supply connection as expeditiously as possible and without any delay.
(K.M.THAKER, J.) (ila) Top
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Title

Maheshkumar vs Dakshin

Court

High Court Of Gujarat

JudgementDate
28 June, 2012