The petitioners by way of this petition has approached this Court under Article 226 of the Constitution, with following prayers.
"[A].
Your Lordships be pleased to issue a writ fo mandamus and/or any other appropriate writ,m order or directions in the like nature to quash and set aside the impugned arbitrary and contemptuous decision dated 17-09-2011 of the Respondent in not transferring the HT Connection No. 23209 in the name of the petitioner no.2 and direct the Respondent to transfer the HT Connection No. 23209 in the name of the petitioner no.2.
[B] Your Lordships be please to take appropriate severe contempt proceedings against the respondent for willful and deliberate disobedience of the order dated 10-11-2009 passed by this Hon'ble Court in Civil Application No. 10656 of 2009 in Second Appeal No. 260/2009 and declare that in view of stay granted by this Hon'ble Court, the respondent is not entitled to recover delayed payment charges during the pendency of Second Appeal.
[C] Pending the hearing and final disposal of this petition, Your Lordships be pleased to direct the Respondent to transfer the HT Connection No. 23209 in the name of petitioner no.2 M/s. Sachdeva Oxygen Industries immediately in the interest of justice."
Brief facts leading to filing this petition as could be culled out from memo of the petition deserves to be set out as under.
Petitioner no. 1 is a company registered under the companies Act 1956, engaged in the business of manufacturing of industrial gases. And, petitioner no.2 is a registered partnership firm engaged in sale and purchase of oxygen gas etc. Under the prevalent policy, petitioner no.1 was granted concession of 10% in the electricity tariff right for putting up industry in a particular area which was developing. That concession was withdrawn and therefrom petitioner was liable to pay the charges, including delayed payment charges. This withdrawal of concession and demand of dues was subject matter of challenge by the petitioner in civil proceedings being Civil Suit No. 710 of 1998, which ultimately culminated into filing Second Appeal before this Court being Second Appeal No. 260 of 2009, wherein petitioner no.1 has challenged the order against him. In this matter this Court passed an order on 10/11/2009. The operative portion whereof need to be set out for ready reference.
"
In view of the above, following order is passed:
The opponents are restrained from disconnecting the electric connection given to the applicants on condition that the applicants deposit the outstanding amount being the amount of withdrawal of 10% concession with the opponents within four weeks from today and shall go on paying the regular electricity bills as and when become due till the final disposal of Second Appeals.
The opponents are restrained from demanding delayed payment charges claimed by them during the pendency of these Second Appeals. One of the directors of the applicants shall also file an undertaking before this Court that if the applicants fail in the litigation, they would pay the delayed payment charges as demanded by the opponents. The undertaking shall be filed within favour weeks from today.
It is made clear that the direction to deposit the amount issued in the order is subject to the result of the Second Appeals.
In view of the above, Civil Applications are disposed of. Rule is made absolute accordingly with no order as to costs.
Sd/-
[B.N.
MEHTA, J ]"
The principal amount was paid and petitioner no.1 transferred undertaking to petitioner no.2 and applied for transferring name of petitioner no.2, instead of petitioner no.1. That time insistence for delayed payment charges was raised as the petitioner no.2 was not party to the litigation and he was coming forward as new consumer and as per the supply code new consumer is to bear the burden of outstanding dues, if any, though the outstanding dues now were those of delayed payment charges which is already stayed by this Court vide order dated 10/11/2009.
Petitioner no.1 therefore preferred Special Civil Application No. 5992 of 2010 which came to be disposed of by this Court vide order dated 12/5/2010, wherein petitioner was directed to make representation to the concerned authority which the petitioner made and which was in terms rejected vide order dated 11/6/2010. It is an admitted position that this order passed by respondent company has remained unchallenged and it has attained finality. Thereafter petitioner no.1moved one more petition being Special Civil Application No. 8639 of 2010 which came to be dismissed as withdrawn vide order dated 29/7/2010, which is set out here under:
"1.
Learned advocate Mr. DG Chauhan appearing on behalf of petitioner seeks leave to withdraw present petition with a view to approach appropriate forum.
2. Considering his request, permission is granted. Accordingly,present petition is disposed of as withdrawn."
Petitioner no.2 in the meantime preferred Civil Application No. 15694 of 2010 in Second Appeal No. 260 of 2009 which came to be allowed by this Court vide order dated 14/3/2011, wherein relevant portion is set out herein below for reference.
"It appears from the averments made in the application that the applicant wants to be joined as party appellant in Second Appeal No. 260 of 2009. It is stated that the applicant has purchased the Unit from M/s Sachdeva Industries Limited - original appellant. Therefore, the applicant wants to be joined as party appellant as Second Appeal is filed by said M/s. Sachdeva Industries Limited. In support of its say, the applicant has produced copy of Registered Sale Deed executed between the applicant and said M/s. Sachdeva Industries Limited at Annexure-A. In view of the fact that the applicant has purchased the Unit and the fact that the Unit has filed Second Appeal which is pending before this Court, with a view to avoid multiplicity of proceedings, the applicant is required to be joined as appellant in the Second Appeal. It is made clear that the applicant would step into the shoes of original appellant and merely joining it as a party in proceedings, no right is created in its favour to claim right as a consumer of the respondent.
In the result, this application is allowed. The applicant is permitted to be joined as party appellant in Second Appeal No. 260 of 2009. Rule is made absolute with no order as to costs."
Petitioners thereafter approached the authorities but without any avail. This order refusing transfer is under challenge in this petition.
Learned advocate for the petitioners contended that no amount is due and payable by the petitioners in view of the stay granted by this Court in Second Appeal No. 260 of 2009 dated 10/11/2009. An undertaking is filed by petitioner no.1 that if Second Appeal is dismissed or if he fails in the litigation he will pay the amount. The principal amount is paid as directed by this Court and Second Appeal is pending and the stay is operating against demand of delayed payment charges and therefore respondent is not entitled to ask for any payment towards delayed payment and the application is rejected arbitrarily.
Learned advocate for respondent Electricity Company has contended that petitioners earlier request for transferring connection is rejected vide order dated 11/6/2010 and that order has not been challenged in any manner. The situation is not drastically changed so as to clothe the petitioner no.2 or petitioner no.1 with better rights to seek appropriate relief only on the ground of petitioner no.2 being joined as appellant in second appeal. In fact by way of allowing application petitioner no.2 be joined as appellant, no further right or better right is conferred upon petitioner no.2 so as to avoid the statutory provision in form of Supply Code being Clause No.4.1.11, which is statutory in nature. Therefore by interim order the rights of the parties cannot be said to be jeopardized which are flowing from the statute.
Petitioner no.1 & 2, both are now appellants before this Court. Therefore petitioner no.2 who has been actually joined as appellant cannot say that he assumes characteristic and or rights which are inuring in favour of petitioner no.1. Petitioner no.1 has not been substituted nor has been deleted in any manner and appellant is joined only to avoid multiplicity of proceedings as could be seen from the order passed in civil application for joining party.
Learned advocate for respondent has further submitted that a cursory glance of the order would go to show that the Second Appeal Bench did not accept petitioner no.2's right to be treated as a consumer in any manner and therefore the clarification is specifically denying its place in the order.
Learned advocate for the respondent has invited this Court's attention to earlier orders wherein while withdrawing the petition this Court has unequivocally noted the statement of learned advocate for petitioner no.1 that petitioner is ready to pay outstanding amount including dues of erstwhile owner of the electricity connection. In view of this there exists estoppal against resisting the demand of dues.
In light of these submissions, it can well be said that the stay which was granted to the petitioner no.1 may inure only in favour of petitioner no.1, but when there is change of circumstances pleaded and when this change of circumstances has not been accepted and approved by the Court in any other manner so as to substitute petitioner no.2 or for that matter petitioner no.1 cannot insist upon change in name, as it amounts to violating payment terms contrary to the provision of Supply Code No. 4.1.11 which is statutory in nature.
This Court is of the considered view that the petition is required to be dismissed for following reasons, namely:-
a) The petitioners had in fact approached the authorities under the provisions of law and the reply is given vide order dated 11/6/2010. That order is not challenged in any manner. Therefore prima facie there exists a valid ground in favour of the respondent which militate against maintaining the very petition itself.
b) Petitioner no.1 has obtained order of stay against recovery of late payment charges. Thus late payment charges and stay is disputed between petitioner no.1 and the company itself. Now, when the petitioner no.1 is intending to change the circumstances and pass it on the electricity connection to third party, who is not admittedly consumer or was a litigant before this Court, then, it was not open to the petitioner no.2 to take shelter under the order which is inuring in favour of petitioner no.1 only. The appropriate forum, i.e. the Court hearing Second Appeal did not permit substitution of the appellant. In other words, when appellant is not substituted and petitioner no.2 herein is merely joined as additional appellant in the appeal with a rider that no right of consumer accrue in favour of petitioner no.2, then the injunction which is inuring in favour of petitioner no.1 cannot be said to be inuring in favour of petitioner no.2 by virtue of he being joined as appellant therein. Had it been so, then nothing prevented petitioners to make appropriate request before Second Appeal Bench to clarify the situation. Unfortunately, the clarification is rather contrary to the request of treating petitioner no.2 as petitioner no.1. In other words the statutory provision of collecting dues is required to be observed of those who are seeking electricity connection and or those who are seeking transfer. By merely filing an appeal against the order of civil court wherein petitioner no.1 lost, and when there is stay qua delay payment charges, same cannot be permitted to inure in favour of new purchaser also. This permission, if at all was required to be taken into, it should have been from Second Appeal as that Second Appeal Bench will decide rights of the parties. In the instant case is concerned it is unequivocally mentioned that petitioner no.2 would not get any right as a consumer.
c) It is also pertinent to note at this stage that the Court in its order dated 12/5/2010 has recorded that erstwhile owner is ready and willing to pay the entire outstanding and in fact that statement was made when the principal amount was already paid and after the stay order was passed. Therefore, this statement cannot be construed in any manner but the preparedness on the part of petitioners to pay delayed payment charges also. Therefore, on this admission also petitioner has no right to maintain this petition under Article 226 of the Constitution, which is a discretionary jurisdiction and the Court in such a situation would not exercise discretion in favour of the petitioners.
In view of this, the petition being bereft of merits deserves rejection and is accordingly rejected. Notice discharged. However, there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn Top