IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 WP(C).No. 24506 of 2008(P) -------------------------- PETITIONER(S): --------------- DR.K.V.RAFEE, S/O.N.V.MAMMOO, ZUBAIDA MANZIL, NARAVOO, KUTHUPARAMBA, KANNUR. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): --------------- 1. THE KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. 2. KERALA FINANCIAL CORPORATION, BRANCH OFFICE PAVAMANI ROAD, KOZHIKODE. 3. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION, 2ND FLOOR, CHOICE TOWERS, MANORAMA JUNCTION, COCHIN. ADV. SRI.M.PATHROSE MATTHAI (SR.) FOR R3 SRI.SAJI VARGHESE, SC, R3 SRI.K.JAJU BABU, SC, KFC, R2 ADV.SRI.P.P.THAJUDEEN, SC, KSEB, R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 24506 OF 2008 P ```````````````````````````````````````````````````` Dated this the 11th day of November, 2008 J U D G M E N T Petitioner seeks to quash Exts.P3 and P4 in so far as they refuse connection to the petitioner on account of the dues of the previous owner. A direction is sought to provide connection to the building covered by Ext.P1 sale deed without insisting for clearing the dues of the previous owner. A further direction is sought to KFC to clear off the dues payable to KSEB within such time as this court directs. 2. M/s.Calicut Printing Complex Ltd. was in possession of 2.59 ½ acres. Acting on the basis of section 29 of the State Financial Corporation Act, 1951, Kerala Financial Corporation sold the property to recover the dues. The petitioner purchased the same vide Ext.P1 dated 27.2.2006. The petitioner made application for electric connection but the stand of the authority is that the electric connection to the building was dismantled on 31.5.2001 due to non payment of current charge and it is insisted by Ext.P3 that the petitioner should pay and discharge the dues of WPC.24506/08 : 2 : the previous consumer. The amount of arrears is also communicated vide Ext.P4. So, the petitioner challenges Exts.P3 and P4. 3. I heard learned counsel for the petitioner Sri.C.P.Mohammed Nias, learned standing counsel for KFC Sri.Jaiju Babu and learned standing counsel for KSEB Sri.P.P.Thajudeen. 4. Two contentions are raised by the learned counsel for the petitioner. Firstly, he contends that the petitioner has purchased the property which is sold in public auction under section 29 of the State Financial Corporation Act. He would also contend that the purchaser in such an auction is not liable to pay the arrears. In this context, he refers to section 29(2) of the State Financial Corporation Act which reads as follows. “ Any transfer of property made by the Financial Corporation, in exercise of its powers and sub section (1), shall vest in the transferee all rights in or to the property transferred as if the transfer had been made by the owner of the property.” He would contend that going by section 55(1)(g) of the WPC.24506/08 : 3 : Transfer of Property Act, 1882, the dues are to be paid by the previous owner up to the date of sale. Secondly, he contends that the decision of the apex court in Isha Marbles Vs. Bihar State Electricity Board and another [1995 (2) SCC 648] has categorically taken the view that it is not open to the Board to direct the purchaser of the premises in which there was arrears due from the previous owner to pay the arrears as a condition for grant of connection. He points out that there are two decisions of this court, namely Seena B.Kumar Vs. Assistant Executive Engineer [2003 (3) KLT 987] and Purushothaman Vs. KSEB [2007 (2) KLT 827] but they were not cases rendered in the context of proceedings under section 29 of the State Financial Corporation Act. 5. Per contra, learned standing counsel for KFC as also learned standing counsel for KSEB contend that one of the decisions [ i.e., 2003 (3) KLT 987] was in fact a case under section 29 of the State Financial Corporation Act. It is submitted that as far as the contention based on the decision of the apex court is concerned, that was a case where there was no statutory WPC.24506/08 : 4 : provision as contained in Regulation 15(e) of Conditions of Supply of Electrical Energy. They would further contend that though Regulation 12 of the Conditions of Supply of Electrical Energy, 2005 provides recovery of the dues from the previous owner, that has been stayed by the Commission and would contend that in such circumstances, it has been held by this court that it is a previous provision namely Regulation 15(e) which governs and there is a statutory provision under which the dues are to be recovered from the new applicant. 6. As far as the contention based on section 29(2) of the State Financial Corporation Act, I would think that there is no merit in the contention. Section 55(1)(g) provides that the previous owner will be liable to pay the dues up to the date of the sale. But, the opening words of the section makes it very clear that it is subject to a contract to the contrary. A statement has been filed by the 2nd respondent producing Ext.R2(a). Clause No.5 of Ext.R2 (a) reads as follows. “Any outstanding dues on account of Electricity/Water shall be borne by you and the Corporation shall not be responsible for the same.” WPC.24506/08 : 5 : In the light of this provision, the petitioner who actually was not the auction purchaser but the nominee of the auction purchaser will also be bound by the said clause. This would be a contract of the contrary and, therefore, there is no merit in the said contention. 7. As far as the contention based on Isha's case is concerned, not only is it true that the decision of the Division Bench in 2003 (3) KLT 987 also related to a proceeding under section 29 of the State Financial Corporation Act but it would be clear from paragraph 56 of Isha's case that the said case actually turned on the facts present there in as there was no provision akin to Regulation 15(e) which in my view would be crucial fact which distinguishes this case. If it were only a matter which is to be determined by the contract between the previous consumer and the Board certainly the petitioner could have derived support from the decision. Here a Regulation has been made which provides for recovery of the amount from the new owner. The Regulation is law and it is of general application. In such circumstances, there is no merit in the said contention. WPC.24506/08 : 6 : 8. Learned counsel for petitioner submits that the Board is obliged to recover the amount which may be paid by the previous owner and give it to the petitioner. I think that request of the petitioner is reasonable. Therefore, while rejecting the first two contentions of the petitioner, it is ordered that upon the petitioner paying the amount, it will be recovered and dealt with as provided in law. Writ petition is disposed of as above. (K.M.JOSEPH, JUDGE) aks