BSES RAJDHANI POWER LTD Vs. SAURASHTRA COLOR TONES PVT LTD

JUDGEMENT

(1.) RELEVANT FACTS 1. The appellant is a distribution company engaged in distribution of electricity in its area of supply under a statutory licence issued by the respondent No.2, Delhi Electricity Regulatory Commission (DERC for short). The respondent No.2 is constituted and established under Section 17 of the Electricity Regulatory Commissions Act, 1988 (for short the "ERC Act "). The respondent No.1, a company who is the original writ petitioner, purchased an industrial shed being Shed No.1 Category-1, DSIDC Complex, Nangloi, Delhi. Initially connection No.002-156-022/IP was sanctioned for a load of 89.52 KW in the name of the original allottee, Dev Arora. Inspection on April 22, 1997 allegedly revealed a connected load of 169.11 KW and, therefore, certain demands were raised. Dev Arora filed a suit in the civil court, that was eventually dismissed. In this connection a writ petition being CWP 715 of 2003 was also filed by Dev Arora which is pending in this Court. On transfer of the premises in its name, the first respondent applied for resumption of supply of electricity vide applications dated November 30, 2002 and December 30, 2002. The appellant, as required by Clause 2.1(iv) of 'General Conditions of Supply " contained in the Tariff Order issued by the DERC in exercise of its powers under Section 49 of the Electricity Supply Act, 1948 (for short the "Supply Act ") asked the first respondent to deposit development charges, advance consumption deposit and "all such charges as may be applicable including the outstanding dues against the premises and/or disconnected connections as a condition precedent for resumption of electricity supply. The first respondent therefore approached this Court by filing Writ Petition No.2479 of 2003 contending inter alia that a purchaser of the property cannot be asked or coerced to pay the amount which the appellant as the licencee may be claiming from the former consumer.

(2.) THE writ petition was heard and disposed of by the learned single Judge along with five connected matters by a common judgment dated November 9, 2005. The learned single Judge, following the decisions of the Supreme Court in Isha Marbles v. BSEB, (1995) 2 SCC 648, Ahmedabad Electricity Company Ltd v. Gujarat Inn Pvt. Ltd, (2004) 3 SCC 587, Union of India v. Raman Iron Foundry, (1974) 2 SCC 231 and a judgment of the Gujarat High Court in Sona Cooperative Housing Society v. Gujarat Electricity Board, AIR 2004 Guj 26 and also judgments of Delhi High Court in Inndev Engineers (India) P. Ltd v. Delhi Vidyut Board, AIR 2002 Delhi 478, Shikha Properties Private Ltd v. NDMC, (90) 2001 DLT 18, held, inter alia, that a distribution company is not entitled to recover arrears of electricity charges pertaining to the electricity connection to the premises from its new owner/occupier who seeks resumption of supply of electricity unless it establishes mala fides of the old and new consumer or the new consumer was in fact a heir or successor of the defaulting party or had actual notice of the existence of arrears. In any event, according to the learned single Judge, disconnection as a stand-alone action without initiation of recovery proceedings against the actual consumer (not the subsequent purchaser) by way of civil suit for recovery of arrears will be illegal. The learned single Judge further held that "General Conditions of Supply ", as contained in the Tariff Order for the years 1997-98 and 2001-02 cannot form part of "Tariff " as contemplated under Section 49 of the Supply Act but are essentially regulations under Section 79(j) of the Supply Act which must be approved by the State Legislature under Section 79A of the said Act. The learned single Judge, therefore, quashed and set aside the General Conditions of Supply contained in the Tariff Orders of 1997-98 and 2001-02. Consequently, the writ petition was allowed and the appellant was directed to restore the electricity supply to the first respondent without insisting on clearance of the arrears of electricity charges.

(3.) CONSEQUENTLY , against the common judgment dated 9th November 2005 of the learned Single Judge, BSES Rajdhani Power Limited (which was aggrieved by the writ petition of the Respondent herein being allowed) filed the present appeal LPA No. 2725 of 2005, and Madhu Garg and JB Garg filed LPA No. 223-24 of 2006. The appeals by Madhu Garg and J.B. Garg were finally heard on the first hearing i.e 1st February 2006 and judgment reserved. Thereafter the Division Bench heard some of the other appeals, involving a similar question. The present appeal was heard finally on 8th March 2006 and judgment reserved.