9911796707
TMI Blog2006 (10) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, the undertaking was offered for sale on "as is where is basis". The first respondent herein bid the undertaking and its bid was accepted. Possession was given by the Financial Corporation to the first respondent on 22.4.1999. 3. On 27.11.2001, the appellant- Company decided to incorporate a term in the Terms and Conditions of Supply of electrical energy by providing that in cases where a consumer had defaulted in paying electrical charges and there had been a consequent disconnection of supply, no fresh connection in respect of the premises would be given to a purchaser unless the purchaser cleared the amount that was left in arrears by the consumer whose undertaking had been purchased. It is seen that the first respondent applied for a connection on 1.1.2002. The appellant- Company took the stand that unless the first respondent paid the amount outstanding against M/s L.L.C. Steels Pvt. Ltd., the prior consumer, no fresh connection could be given to the first respondent. Since the first respondent was not willing to comply, the application of the first respondent was rejected. The first respondent thereupon filed a suit, Civil Suit No. 23 of 2002 in the Court of Civil Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be dismissed. 4. Almost the whole case of the first respondent in the Writ Petition was based on the decision of this Court in M/s Isha Marbles Vs. Bihar State Electricity Board [(1995) 1 S.C.R. 847]. In that decision, this Court held that in the absence of there being a charge over the property and the premises comes to be owned or occupied by the auction purchaser and that auction purchaser seeks supply of electrical energy by way of a fresh connection, he cannot be called upon to clear the past arrears as a condition precedent for the fresh connection or supply. What mattered was the contract entered into by the erstwhile consumer with the Electricity Board. The Electricity Board could not seek the enforcement of the contractual liability of the prior consumer against the third party, the purchaser. Even the bona fides of the sale may not be relevant. It was impossible to impose on the purchaser a liability which was not incurred by him. The auction purchaser came to purchase the property after disconnection but it could not be understood as a consumer or occupier within the meaning of the Electricity Act until a contract was entered into. Though, it was stated that electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onceded that the decision of the Supreme Court in Isha Marbles (supra) applied and a different stand could not be taken in the present case by the appellant. Thus, it was directed that the appellant release the power connection to the first respondent expeditiously and not later than 30 days from the date of the judgment. The appellant filed an appeal. The Division Bench of the High Court even without admitting the appeal and without appreciating that some questions of importance do arise for decision in the appeal dismissed the same by referring to the decision in Isha Marbles (supra) and stating that the amendment of the Terms and Conditions of Supply could not be made applicable since the purchase by the first respondent was prior to the introduction of condition 21A and as legislation which affected substantive rights are presumed prospective. The High Court also relied heavily on the fact that in another case of disconnection and transfer in the year 2003, the appellant had not taken up the stance it had taken up in the present case and had conceded that the decision in Isha Marbles (supra) applied to that case. It is this dismissal that is challenged in this appeal. 6. We ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal. 8. It appears to be appropriate to set down Clause 21A inserted in the Terms and Conditions of Supply of electrical energy by the appellant with effect from 27.11.2001, which reads as under: "21-A (a) When there is transfer of ownership or right of occupancy of a premises, the registered consumer shall intimate the transfer of right of occupancy of the premises within 15 days to the Assistant Engineer/Assistant Executive Engineer concerned. Intimation having been received, the service shall be disconnected unless application for transfer is allowed. If the transferee desires to enjoy the service connection, he shall pay the outstanding dues, if any, to the Nigam and apply for transfer of the service connection within 30 days and execute fresh agreement and furnish fresh security. New Consumer number shall be allotted in such cases canceling the previous number. (b) Reconnection or new connection shall not be given to any premises where there are arrears on any account due to the Nigam unless these are cleared in advance. If the new owner/occupier/allottee remits the amount due from the previous consumer, the Nigam shall provide reconnection or new connection depending upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that even if the view taken by the High Court that the relevant date is the date of sale in favour of the first respondent is accepted, even then, the appellant would be entitled to apply sub-clause (b) of clause 21A to the first respondent as an existing consumer, since defaulting amount existed against the premises occupied by the first respondent. We are also not in a position to agree with the High Court that the relevant date is the date of sale of the undertaking by the Financial Corporation to the first respondent. The insertion of clause 21A was circulated by the communication dated 27.11.2001 and it was subsequently followed by the formal notification in terms of Section 49 of the Supply Act read with Section 79(j) of that Act. The first respondent having applied for a fresh connection only on 1.1.2002, the application would be governed by the terms and conditions including the term inserted on 27.11.2001, as subsequently formally notified. In the writ petition filed on 27.2.2002 in that behalf, the court could not have come to the conclusion that the application made by the first respondent was not governed by the amended terms and conditions including clause 21A ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary. (2) For the purpose of such recovery, the prescribed authority may forward to the Collector a certificate under his signature in the prescribed form stating the amount and details of the demand and the name and description of the debtor in default and the Collector shall on receipt of such certificate, proceed to recover from the debtor the amount of the demand as if it were an arrear of land revenue." 11. The recovery of arrears of land revenue is provided for in the Punjab Land Revenue Act, 1887. Chapter 6 thereof deals with recovery. Section 61 provides that the entire estate and the land owner shall be liable for the land revenue for the time being assessed on the estate. Section 62 provides as further security that the land revenue payable in respect of a holding shall be the first charge upon rents, profits and produce thereof. Section 67 deals with the modes of recovery of arrears of land revenue. That section contemplates recovery, inter alia, by way of arrest and detention of the person who is liable to pay the land revenue; by distress and sale of his movable property and uncut or ungathered crops; by transfer of the holding in respect of which the arrear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of electrical energy is beyond the power of the appellant. It is also not merely contractual. This Court in M/s Hyderabad Vanaspati Ltd. Vs. Andhra Pradesh State Electricity Board and others [(1998) 2 S.C.R. 620] has held that the Terms and Conditions for Supply of Electricity notified by the Electricity Board under Section 49 of the Electricity (Supply) Act are statutory and the fact that an individual agreement is entered into by the Board with each consumer does not make the terms and conditions for supply contractual. This Court has also held that though the Electricity Board is not a commercial entity, it is entitled to regulate its tariff in such a way that a reasonable profit is left with it so as to enable it to undertake the activities necessary. If in that process in respect of recovery of dues in respect of a premises to which supply had been made, a condition is inserted for its recovery from a transferee of the undertaking, it cannot ex facie be said to be unauthorized or unreasonable. Of course, still a court may be able to strike it down as being violative of the fundamental rights enshrined in the Constitution of India. But that is a different matter. In this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in obedience to the writ, even though subsequently, this Court stayed the operation of the judgment of the High Court by its order dated 5.7.2006. It is now brought to our notice that a fresh connection has been provided to the first respondent in the light of the direction in the judgment under appeal without collecting the arrears that were due from M/s L.L.C. Steel Pvt. Ltd. Strictly, in view of the fact that we have set aside the judgment of the High Court, the first respondent should lose the benefit of the fresh connection. But considering that the first respondent is an industrial undertaking and taking note of the plea that investments have been made by it to make the unit workable, we think that it will be appropriate to direct the first respondent to deposit a portion of the amount in arrears as a condition for continuance of the supply to it by the appellant on payment of regular monthly bills as per the terms and conditions between the parties. We, therefore, direct that if the first respondent pays to the appellant, without prejudice to its contentions in the writ petition, a sum of Rs. 25 lakhs (rupees twenty five lakhs) within a period of six weeks from today, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
