TMI Blog2012 (11) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Unit in an auction sale conducted by the Official Liquidator has applied for a fresh service connection for supply of energy. Respondent No. 1 has not applied for transfer of service connection from the name of the erstwhile company to its name. Such clause applies to a request for transfer of service connection but not to a fresh connection. The interpretation of this clause by learned single Judge as well as by the Division Bench was correct being reasonable, just and fair. - CIVIL APPEAL NO. 7899 OF 2012 - - - Dated:- 9-11-2012 - P. SATHASIVAM And RANJAN GOGOI, JJ. JUDGMENT P. Sathasivam, J. 1) Leave granted. 2) This appeal is directed against the final judgment and order dated 04.11.2010 passed by the High Court of Orissa at Cuttack in Writ Appeal No. 237 of 2010 whereby the Division Bench while affirming the order dated 05.08.2010 passed by the learned single Judge dismissed the appeal filed by the appellants herein. 3) Brief Facts: a) In the year 2007, pursuant to the order of the Company Judge, High Court of Orissa, in Companies Act Case No. 25 of 2005, the Official Liquidator, made an advertisement for sale of movable and im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute that respondent No. 1 was the highest bidder and the sale was confirmed in its favour and possession of the Unit was handed over on 28.03.2008 itself. It is further seen that after getting the possession and after finding that there is no supply power in the premises in question, respondent No. 1 made an application for availing the same to the Chief Executive Officer, NESCO. Since there was no reply on their part, respondent No. 1, by letter dated 26.08.2009, again requested for permanent supply of electricity, for which, by letter dated 21.05.2010, the NESCO directed respondent No. 1 to pay the arrears of electricity dues amounting to Rs. 79,02,262/- outstanding against the premises which was purchased in auction through Official Liquidator. Being aggrieved by the same, respondent No. 1 challenged the said demand order before the High Court. Learned single Judge, with reference to various guidelines/rules applicable, quashed the demand order dated 21.05.2010 and the Division Bench also affirmed the same which necessitated filing of the above appeal. 7) At the foremost, it is useful to refer the original order of demand dated 21.05.2010 issued by the NESCO which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction period of Basta feeder line to the Unit, respondent No. 1 executed an agreement with the NESCO dated 27.03.2009 for availing the required load and deposited security amount of Rs. 1,65,156/, however, even after completion of the work, the NESCO did not provide power supply to the Unit on the ground of arrears of electricity dues amounting to Rs. 79,02,262/- against the premises. According to the appellant-NESCO, without clearance of the outstanding dues for the electricity charges by the previous owner, respondent No. 1 is not entitled to power supply. On the other hand, it is the stand of respondent No. 1 that inasmuch as the application is not for seeking transfer of power from a previous owner and the Unit was purchased on as is where is and whatever there is basis after fulfilling all the formalities/conditions and in the absence of any privity of contract between respondent No. 1 and the NESCO, the demand for clearance of arrears of electricity dues is not justified. 10) Now, let us consider the relevant provisions of the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply), Code, 2004 (in short the Electricity Supply Code ). Sub-clause 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: x x x x x x 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: x x x x x x Section 43 of the Electricity Act, 2003 casts a duty on every distributing licencee, in the case on hand, the appellant, to supply electricity on the application made by the owner or occupier of any premises within 1 month after receipt of the application. No doubt, it should be only after fulfilling the conditions such as installation of machinery, deposit of security etc. 14) We were also taken through the other regulations, viz., Regulation Nos. 3 and 10 and various Forms which would show the words other dues including the security as may be payable does not mean and were not meant to convey that a new applicant for fresh connection shall pay arrears of electricity dues or other dues for the same premises payable by the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccupier. 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, 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 he is not liable for the liability of the predecessor in interest .. 17) In Paschimanchal Vidyut Vitran Nigam Ltd. Ors. vs. DVS Steels Alloys Pvt. Ltd. Ors. AIR 2009 SC 647= (2009) 1 SCC 210, the question whether the supplier can recover electricity dues from the purchaser of a sub-divided plot was considered by this Court. The following conclusion is relevant:- 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 or 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 const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany to its name but applied for a fresh connection to its Unit after purchasing the same from the Official Liquidator. 18) It is also relevant to refer a decision of a three-Judge Bench of this Court reported in Ahmedabad Electricity Co. Ltd. vs. Gujarat Inns Pvt. Ltd. and Others, (2004) 3 SCC 587. This Court, after finding that the cases are of fresh connection, in para 3, held as under:- 3 ..We are clearly of the opinion that in case of a fresh connection though the premises are the same, the auction-purchasers 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 .. 19) In a recent decision, i.e. in Haryana State Electricity Board vs. Hanuman Rice Mills, Dhanauri and Others, (2010) 9 SCC 145, this Court, after referring to all the earlier decisions including Isha Marbles (supra) and Paschimanchal Vidyut Vitran Nigam Ltd. (supra) etc., summarized the position in the following manner which is as under:- 12. .(i) Electricity arrears do not constitute a charge over the property. Therefore in general law, a transferee of a premi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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