SCA/4921/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4921 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== SASHIKALA VIHAYEK BINEKAR Versus TORRENT POWER LIMITED ====================================== Appearance : MR ASHOK N PARMAR for Petitioner MR KB PUJARA for Respondent ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 08/09/2008 ORAL JUDGMENT 1 Rule. Learned counsel, Mr. K.B. Pujara waives service of Rule on behalf of the respondent. At the request of learned counsel for the parties, this petition is taken up for final hearing. 2 This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner, who claims to have purchased a flat from one Rajendrakumar Gokulprashad Aherwal on 9th June 2007 by way of power of attorney and sale agreement, for the following relief: “Your Lordships be pleased to issue appropriate writ of mandamus, certiorari, prohibition, or any other suitable writ, order in the nature of writ of mandamus to direct the respondent to give electricity supply to the petitioner at the premise.” 3 It is averred in the petition that the erst-while owner, Rajendrakumar Gokulprashad Aherwal [old consumer] had illegally SCA/4921/2008 2/4 JUDGMENT utilized electricity and a case under Section 135(1)(b) of the Electricity Act, 2003 [for short, 'the Act'] came to be registered against him, and, ultimately, the competent Court under the Act sentenced said Rajendrakumar Gokulprashad Aherwal to undergo R.I. for two years and fine of Rs.4,50,000/- by judgment and order dated 26th June 2007 in Electricity Special Criminal Case No.8 of 2007. Against the order, Rajendrakumar Gokulprashad Aherwal filed Criminal Appeal No.995 of 2007 with Criminal Misc. Application No.8413 of 2007 in this Court and Rajendrakumar Gokulprashad Aherwal was granted conditional bail of depositing Rs.1 lakhs. 4 The petitioner purchased flat No.48/556, Vaishali Flat, Gujarat Housing Board, Bapunagar, Ahmedabad, [for short 'the said flat'] from Rajendrakumar Gokulprashad Aherwal by virtue of unregistered agreement to sell dated 9.6.2007 and general power of attorney dated 9.6.2007. Whether the transfer of the said flat by the above mode is legal or not is a different question, but the fact remains that the outstanding energy dues of the electricity company relatable to the said flat remains unpaid by the erstwhile owner. 5 The learned counsel for the petitioner submits that the petitioner is not liable to pay the outstanding dues of the erstwhile owner and the Electricity Company is duty bound to provide electricity connection to the petitioner who is occupying the said flat by virtue of unregistered agreement to sell dated 9.6.2007 and general power of attorney dated 9.6.2007. 6 Upon a query posed before the learned counsel for the petitioner whether petitioner has right to seek electricity connection to a flat whose erstwhile owner has not paid outstanding dues to the electricity company SCA/4921/2008 3/4 JUDGMENT and, under what provisions of the Act, the petitioner can challenge the refusal of electricity connection, the learned counsel for the petitioner is unable to satisfy this Court. 7 Mr. K.B. Pujara, learned counsel for the respondent-Electricity Company, has heavily relied upon the affidavit-in-reply filed by the Manager of the Electricity Company and submitted that the erst-while owner had committed theft of electricity and was sentenced to undergo R.I. for two years and fine of Rs.4,50,000/- by judgment and order dated 29th June 2007 in Electricity Special Criminal Case No.8 of 2006 and, in appeal, he was granted bail, but the fact remains that the dues of the electricity company still remain outstanding. Mr. K.B. Pujara has relied upon Section 43 of the Act and submitted that the distribution licencee shall give supply of electricity to 'the premises' and, therefore, the energy dues are relatable to the premise where supply is granted and not certainly to the owner or occupier of the premises. He further submits that Regulations 4.1.11, 4.8.3 and 8.7.5 of the Supply Code confer certain rights upon the distribution licensee and, in case of default of electricity dues, supply of electricity to the said premise may be disconnected. He, therefore,submits that the petitioner has no right to seek electricity connection to the said flat whose erstwhile owner has not paid outstanding dues to the electricity company. 8 It transpires from the record that the petitioner has got possession of the said flat by virtue of unregistered agreement to sell and general power of attorney both dated 9th June 2007, whereas the the erst-while owner of the said flat was convicted and sentenced by judgment and order dated 29th June 2007 in Electricity Special Criminal Case No.8 of 2006. However, the learned counsel for the petitioner is not able to show any specific provisions of the Act under which a right accrues to SCA/4921/2008 4/4 JUDGMENT the petitioner to seek electricity connection, or, under which provisions of the Act, he can challenge refusal to supply electricity to the said flat, whose erst-while owner committed theft of electricity and was sentenced to undergo R.I. for two years and fine of Rs.4,50,000/- by judgment and order dated 29th June 2007 in Electricity Special Criminal Case No.8 of 2006. Therefore, the respondent-Electricity Company cannot be restrained from exercising its statutory right to disconnect the supply and keep the supply discontinued until the outstanding dues of electricity remain unpaid. On a perusal of Regulations 4.1.11, 4.8.3 and 8.7.5, it is clear that the refusal on the part of the Electricity Company to provide electricity connection to the said flat of the petitioner is just and proper and cannot be said to be, in any way, unreasonable, arbitrary or violative of Articles 14 and 19 of the Constitution of India. 9 The issue involved in the case of M/s. Isha Marble vs. Bihar State Electricity Board, JT 1995 (2) SC 626 and M/s. Sarvodaya Corporation vs. Gujarat Electricity Board, 1995 (1) GLR 196, whether electricity dues constitute a charge on the property so far as transferor and transferee of the unit is concerned, is referred to the Larger Bench of the Apex Court. In the cognate matter, being Special Leave to Appeal [C] No. 10732 of 2006 in the case of Maharashtra State Electricity Board vs. MJ/s. Jai Tirath Financiers Private Limited, the Apex Court has stayed the order of the High Court. Hence the reliance placed by the learned counsel for the petitioner on the above-referred decisions is of no help. 10 In the result, this petition has no substance and is rejected. Rule is discharged with no order as to costs. (ANANT S. DAVE, J.) (swamy)