IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16101 of 2010 SANJAY KUMAR SINGH. Versus THE BIHAR STATE ELECTRICITY BOARD. ----------- 3. 2.12.2010 Heard learned counsel for the petitioner and for the Bihar State Electricity Board (hereinafter referred to as the ‘Board’). The petitioner is aggrieved by the order dated 13.9.2010 of the Board informing him that there are dues for an amount of Rs. 60,429/- with regard to the premises in which the petitioner desires an electric connection only thereafter it may be provided to him. It is submitted that the petitioner is not the owner of the premises but a tenant. He has entered into a tenancy agreement with the land lord. The query made by the Board in the counter affidavit, with regard to the alleged deficiencies in the tenancy agreement as per the requirements of the Board shall be rectified to its satisfaction. In so far as the claim from the petitioner, as a tenant, of the dues from the erstwhile tenant is concerned, it is submitted that the petitioner is a tenant who desires an electric connection in his own name to which the landlord has no objection. The liability to pay the consumption charges is individual of the petitioner. If the petitioner is fulfilling the conditions for grant of a 2 electric connection under Clause-4.1 of Chapter-4 of the Bihar Electricity Supply Code, 2007 (hereinafter referred to as the ‘Code’), dealing with the licensee’s obligation to supply electricity, he is bound to be provided the same. Any arrears of an erstwhile tenant are no obligation of the petitioner and therefore the action of the respondents in withholding connection on that ground is arbitrary. The remedy of the Board lies against the erstwhile tenant against whom it took no action. Referring to the counter affidavit, it is submitted that the dues pertained to the period 22.2.2008 or earlier. Referring to Clause 10.18 in Chapter 10 of the Code, it is submitted that the dues have become barred after a period of two years and cannot be recovered. It is lastly submitted that even after the erstwhile tenant left without payment of the dues, another tenant before the petitioner was nonetheless provided an electric connection. The petitioner is being subjected to discriminatory and different treatment. Counsel for the Board submitted that any error on part of the Board in making recoveries from the erstwhile tenant or supplying electricity notwithstanding the dues to another tenant cannot inure to the benefit of the petitioner. Placing reliance on Clause 4.15 (vi) of the Code, it was submitted that if electric connection was 3 given in a premises with the consent of the house owner, such person (meaning thereby the house owner) was to ensure the payment of all arrears/dues of electricity by the tenant before the tenant vacates the premises. Clause 10.18 refers to a consumer. The consumer shall mean the tenant who actually consumes the electricity. Failure on his part to pay shall not detract from the responsibility of the house owner under Clause 4.15 (vi) of the Code. Clause 4.15(vi) reads as follows:- “ 4.15 No dues certificate:- (vi) In case the electricity connection to the said premises was given with the consent of house owner, such person shall ensure the payment of all arrears/dues of electricity by the tenant before the tenant vacates the premises. Clause 10.18 :- No sum due from any consumer shall be recoverably after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrears of charges for electricity supply and the licensee shall not cut off the supply of electricity. To the Court, the two provisions relied upon by the parties are distinct and have their own 4 independent fields of operation. There may be a tenant in a house. He may install a separate meter with the consent of the landlord on the understanding that the current charges shall be paid by the tenant. If the current charges are not paid, the Electricity Board may disconnect supplies. The Electricity Board may not disconnect supply as it has the assurance of the landlord in light of Clause 4.15 (vi) that the latter assumes ultimate responsibility for all payments. If the tenant was running into large arrears, it was for the landlord to be more cautious and ensure disconnection of the electricity supply by appropriate intimation to the Board. The landlord could not be permitted to avail the monetary benefits of rent from the tenant, disowning his responsibility under the Code for ultimate liability to pay the arrears of the electricity Board and not giving any intimation for disconnection despite amounting arrears. The landlord cannot have his cake and eat it too. Clause 10.18 deals with a situation of continued relationship of licencer and licensee when supplies are not disconnected. The moment a tenant vacates supply gets disconnected. If there are arrears the liability of the landlord steps in. Therefore the limitation of two years may have no application in a case where there has been cessation of supply on account of 5 the tenant vacating the premises. The liability under 4.15(vi) and 10.18 are independent. If Clause 10.18 is given overriding effect it frustrates Clause 4.15(vi). If they are made applicable in their own respective field, the two exist harmoniously. Dealing with the question of liability of the transferee of a premises or subsequent occupant of premises with whom the supplier of electricity has no privity of contract and the liability of the latter for dues that may be existing previously, it has been held in 2009(1) SCC 210 (Paschimanchal Vidyut Vitran Nigam Limited & Ors. Vs. DVS Steels & Alloys Private Limited & Ors.) at Paragraphs 12 to 14 as follows:- “12. But the above legal position is not of any practical help to a purchaser of a premises. When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper to regulate its transactions and dealings. So long as such rules and regulations or the 6 terms and conditions are not arbitrary and unreasonable, courts will not interfere with them. 13. A stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary. In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues. Having regard to the very large number of consumers of electricity and the frequent moving or translocating of industrial, commercial and residential establishments, provisions similar to Clauses 4.3(g) and (h) of the Electricity Supply Code are necessary to safeguard the interests of the distributor. 14. We do not find anything unreasonable in a provision enabling the distributor/supplier to disconnect electricity supply if dues are not paid, or where the electricity supply has already been disconnected for non-payment, insist upon clearance of arrears before a fresh electricity connection is given to the premises. It is obviously the duty of the purchasers/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises. They can also incorporate in the deed of sale or lease, appropriate clauses making the vendor/lessor responsible for clearing the electricity dues up to the date of sale/lease and for indemnity in the event they are made liable. Be that as it may. If the claim of the petitioner were to be allowed, the landlord shall get away with complete violation of Clause 4.15 (vi) of the Code, rendering it nugatory, even 7 while he may continue to change his tenant one after another and who may move out without paying their electricity dues, each one of them claiming that the liability remains in the past tenant alone. The landlord shall continue to perpetuate this illegality by receiving the rent from successive tenants, while the public exchequer suffers the landlord continues to make hay in collusion with each tenant. The Court therefore holds that in view of the provisions of Clause 4.15(vi) incorporated by the Board for its own protection, in terms of the discussion contained in the case of Paschimanchal Vidyut Vitran Nigam Limited (Supra) referred to above, no fault can be found with the stand of the Board that until the dues are not cleared, it shall not provide electricity connection. At this stage, learned counsel for the petitioner submits that the landlord is not aware of any notice issued to him or demand raised for the arrears. That makes the situation worse for the landlord in making his premises available for tenancy and to earn revenue at the cost of the public exchequer. The writ application stands dismissed. P. Kumar ( Navin Sinha, J.)