Allowed

Mrs. Sabasthi Ammal, v. the Assistant Engineer / O&M

Madras HC23 Apr 2014WP/8713/2011

Case brief

AI extract

What is this about?

The High Court of Madras allowed the writ petition held that a new allottee of a shed is not liable for electricity arrears of the previous owner. The Court ruled that Clause 6.10 of the Terms and Conditions cannot be enforced against a non-debtor purchaser where no charge exists over the property.

What did the court decide?

The impugned order demanding payment of previous arrears is set aside; the petitioner is directed to be provided a new electricity service connection within two weeks upon satisfying other requirement

Mrs. Sabasthi Ammal, Vs the Assistant Engineer / O&M — Service and Employment | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 22.04.2014

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CORAM:

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THE HON'BLE MR. JUSTICE T.RAJA

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W.P.No.8713 of 2011

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Mrs.Sabasthi Ammal ...Petitioner

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vs.
1. The Assistant Engineer/O&M,
TNEB/Chennai Electricity
Distribution Circle/North,
Vyasarpadi, Chennai 39.
2. Tamil Nadu Slum Clearance Board,
Rep. By its Chairman,
Kamarajar Salai.
(The second respondent impleaded
as per the order dated 11.4.2011
passed in M.P.No.2 of 2011.) ...Respondents

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Writ petition filed under Article 226 of the Constitution of India, praying this Court for issuance of Writ of Certiorarified Mandamus to call for the records of the first respondent pertaining to the letter f.vz;.c.bgh.,&g.tp.t.vz; 53 dated 17.3.2011 and quash the same and direct the respondent to provide a new electricity service connection to the petitioner's premises at Door No.915, 28th Street, B.V. Colony, Vyasarpadi, Chennai 39.

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For Petitioner ... Mr.D.Nellaiappan For 1st Respondent ... Mr.G.Vasudevan For 2nd Respondent ... No Appearance

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https://hcservices.ecourts.gov.in/hcservices/

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ORDER

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This writ petition is filed by Mrs.Sabasthi Ammal, wife of Amulraj seeking for issuance of Writ of Certiorarified Mandamus to call for the records of the first respondent pertaining to the letter f.vz;.c.bgh.,&g.tp.t.vz; 53 dated 17.3.2011, quash the same and consequently direct the first respondent to provide a new electricity service connection to the petitioner's premises at Door No.915, 28th Street, B.V. Colony, Vyasarpadi, Chennai 39.

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2.The learned counsel for the petitioner would submit that she was working in Society for Self Employment for Women. On 30.8.2004, she applied before the Tamil Nadu Slum Clearance Board for allotment of a Tenement for running a small trade. Accepting the case of the petitioner, the Slum Clearance Board by order dated 31.12.2005 alloted a shed at Vyasarpadi bearing No.915, 28^th Street, Bakthavathsalam Colony, Vyasarpadi, Chennai 39.

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3.As per the terms and conditions mentioned in the said order dated 31.12.2005, the petitioner paid a sum of Rs.11,820/- as rent for six months at the rate of Rs.1,970/- per month to the Estate Officer. In view of that, the Tamil Nadu Slum Clearance Board granted no objection for providing electricity connection to the Tamil Nadu Electricity Board. After obtaining the No Objection Certificate, on 20.1.2011, the petitioner paid a sum of Rs.2,383/- to the Tamil Nadu Slum Clearance Board towards monthly rent and other incidental charges. Later on , the petitioner has taken over the possession of the shed by engaging a small trade of packing salt in small polythene bags in order to sell them in retail outlets. Since the petitioner required electricity service connection with increased K.V load, she made an application to the respondent to extend electricity supply with one K.W.load. Thereafter, the petitioner received a letter from the respondent on 17.3.2011 informing that the petitioner has to pay a sum of Rs.15,53,975/- with interest towards previous arrears of electricity charges committed by previous allottee to the respondent Board for considering her application to extend electricity connection.

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4.Adding further, it is stated in the said letter dated 17.3.2011 that already electricity connection has been given in the said address in the name of Sengolammal A/c.No.67-17-584 on 19.4.2001 and the said Sengolammal committed theft of energy and for the same, she was required to pay a sum of Rs.15,53,975/- to consider her request for providing electricity connection in the name of the petitioner. When the petitioner was unaware of the fact that the previous allottee had committed theft of energy in the said address, namely, the shed bearing No.915, 28th Street, Bakthavatsalam Colony, Vyasarpadi, Chennai, the respondent under the impugned order ought not to have demanded from the petitioner to pay a sum of Rs.15,53,975/- as pre- condition for getting electricity service

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https://hcservices.ecourts.gov.in/hcservices/

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connection, as the petitioner was neither a consumer nor user or debtor, but a new allottee under the allotment order dated 31.12.2005.

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5.Continuing his arguments, the learned counsel for the petitioner has further submitted that the petitioner being a new allottee cannot be vicariously held liable for the default committed by the previous allottee. When the respondents are well aware of the fact that the previous allottee did not pay the electricity charges for the property, the first respondent cannot ask the petitioner to pay for the theft committed by the previous allottee without the petitioner has no connection whatsoever.

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6.In support of his submission, the learned counsel for the petitioner has relied on the decision of this Court in SHAHJAHAN VS. THE SUPERINTENDING ENGINEER, TAMIL NADU ELECTRICITY BOARD, DHARMAPURI AND ANOTHER [2012 (2) CWC 721] for a preposition that when a property is sold in public auction, it would be free from encumbrance, the subsequent purchaser of the said property would not be debtor. Therefore, the petitioner cannot be called upon to clear off the past arrears as a condition precedent to give fresh electricity service connection.

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7.Continuing further, he has also relied on yet another decision in M/s.NORTH EAST FERTILISERS PVT. LIMITED AND ANOTHER VS. BIHAR STATE ELECTRICITY BOARD AND OTHER [AIR 1995 PATNA (33)] wherein, it is held that at the time of seeking new electricity connection by the purchaser of any industrial unit, the payment of arrears of the previous owner/occupant cannot be made as a condition precedent as the imposition of such a condition is against the statutory obligation of the Board and also contrary to the policy decision taken by the Board. A direction issued therein may be usefully extracted as under:

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“The respondents are hereby directed to supply the electrical energy to the petitioners in terms of the provisions contained in Clause 6 of the Schedule appended to the Indian Electricity Act, 1910 with utmost expedition and preferably within a period of three weeks from the date of receipt of a copy of this order.”

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8.As there is no charge over the property, for which, the allotment was made by the Tamil Nadu Slum Clearance Board by the order dated 31.12.2005 holding that the shed bearing No.915, 28th Street, Bakthavathsalam Colony, Vyasarpadi, Chennai 39, was allotted to the petitioner being a new allottee cannot be asked to clear off the past arrears committed by the previous allottee.

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9.Mr.G.Vasudevan, learned counsel appearing for the first respondent-Electricity Board has submitted that under Clause 6.10 of the Terms and Conditions of Supply of Electricity of Tamil Nadu Electricity Board, the first respondent is right in passing the impugned order. Clause 6.10 of the Terms and Conditions of Supply of Electricity of Tamil Nadu Electricity Board gives enormous powers to the Electricity Board to recover past arrears as pre-condition from the subsequent purchaser or transfer or in auction or on lease basis before providing new electricity connection.

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10.It is relevant to extract Clause 6.10 of the Terms and Conditions of Supply of Electricity of Tamil Nadu Electricity Board and the same reads as follows:

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“The Board will refuse to supply electricity to an intending consumer who has defaulted in payment of dues to the Board in respect of any other service connection held in his name.

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In case of services, which have been disconnected/dismantled for non-payment of arrears and if the services are to be availed by other parties in the same premises either by purchase or transfer or in auction or on lease basis then in such cases the services will be effected only on clearance of the dues outstanding against such disconnected/dismantled service by the intending consumers.”

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11.Again, taking support from Code 17(8) of the Tamil Nadu Electricity Supply Code, Mr.Vasudevan, learned counsel appearing for the first respondent has argued that the case of the petitioner has to be treated only as a new electricity service connection by virtue of the allotment order dated 31.12.2005 issued by the Tamil Nadu Slum Clearance Board allotting the shed bearing No.915, 28th Street, Bakthavathsalam Colony, Vyasarpadi, Chennai 39.

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12.In support of his contention, while relying on the decision of the Apex Court in PASCHIMANCHAL VIDYUT VITRAN NIGAM LIMITED AND OTHERS VS. DVS STEELS AND ALLOYS PRIVATE LIMITED AND OTHERS [2009 (1) SCC 210], he contended that the first respondent can impose any reasonable terms and conditions to regulate its transactions, which are not arbitrary and unreasonable. Moreover, the Apex Court held that it is the duty of the purchasers/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises. Since the petitioner has not verified the electricity dues in respect of the shed bearing No.915, 28th Street, Bakthavathsalam Colony, Vyasarpadi, Chennai 39, the petitioner cannot ask for new electricity service connection without clearing dues committed by the erstwhile user of the shed bearing No.915.

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13.Heard the learned counsel appearing for the petitioner and the learned Standing counsel appearing for the first respondent.

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14.It is not in dispute that the petitioner Mrs.Sabasthi Ammal was allotted a shed bearing No.915, 28th Street, Bakthavathsalam Colony, Vyasarpadi, Chennai 39, by the Tamil Nadu Slum Clearance Board for running a small trade. After the allotment order dated 31.12.2005 was issued in favour of the petitioner, a sum of Rs.11,820/- representing six months rent at the rate of Rs.1,970/was paid to the Estate Officer. Accepting the payment of six months' rent by the petitioner, the Tamil Nadu Slum Clearance Board also granted No Objection Certificate for providing electricity service connection to the Tamil Nadu Electricity Board. Thereafter, the petitioner was in possession of the same and engaging in a small trade of packing salt in small polythene bags to sell them in retail outlet. Subsequently, the petitioner made an application to the respondent to extend electricity supply with one K.W. Load. The first respondent by the letter dated 17.3.2011 informed that the petitioner has to pay a sum of Rs.15,53,975/- with interest as a condition precedent for considering the application of the petitioner to extend electricity connection, even though this amount was previous arrears caused by the previous allottee.

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15.In a similar and identical circumstance, the same issue came to be decided by this Court in SHAHJAHAN VS. THE SUPERINTENDING ENGINEER, TAMIL NADU ELECTRICITY BOARD, DHARMAPURI AND ANOTHER [2012 (2) CWC 721], wherein when a property was sold in public auction free from encumbrance, the subsequent purchaser of the said property would not be considered as “debtor” within the meaning of Section 2(3) of the Tamil Nadu Electricity Board (Recovery of dues) Act, 1978, hence, the Electricity Board was directed not to demand amount due from the original owner as a condition precedent for grant of electricity connection. It is appropriate to extract paragraphs 11 and 12 of the decision cited supra:

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“11.Clause 6.10 of the Terms and Conditions of Supply of Electricity is sought to be used against the petitioner. In my considered opinion, the said attempt has to necessarily fail. Clause 6.10 can be enforced only against a person, who is a debtor. Suppose the purchaser of the property, either in public auction or at least by private auction also falls within the definition of "debtor" as defined in Section 2(3) of the act and surely Clause 6.10 will be applicable against him. Clause 6.10 therefore, cannot be read independently. The definition of the term 'debtor' as found in Section 2(3) of the Act should be read into Clause 6.10 as per the Terms and Conditions of Supply of electricity. Clause 6.10 should be understood in such a way that if there is any charge created over the property, then as per this clause,

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https://hcservices.ecourts.gov.in/hcservices/

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unless the purchaser clears off the arrears, he will not be entitled for service connection. To put it differently, if there had been no charge over the property, since the purchaser is not a debtor as defined in Section 2(2) of the Act. Clause 6.10 of the Terms and Conditions of Supply of Electricity cannot be applied against him at all.

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12.In the Division Bench judgment in W.A.No.646 of 2003, dated 23.2.2007 referred to above, precisely, the Division Bench went into Clause 6.10 of the Terms and Conditions of Supply of Electricity and the definition of the term 'debtor' and dues extensively and has held in para 6 that in the absence of any specific provision creating charge over the property, the contention of the appellant that the subsequent purchaser should clear off the dues from the erstwhile owner cannot be accepted. As per the said view taken by the Division Bench, I have no doubt that in the case on hand, the petitioner is not a debtor and therefore, Clause 6.10 cannot be enforced against him.”

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16.In view of the aforementioned decision, the impugned order passed by the first respondent is liable to be set aside. Accordingly, the same is set aside. The petitioner is entitled to get new electricity service connection, provided he satisfies the other requirements of the first respondent. It is made clear that the first respondent/Assistant Engineer/ O&M, TNEB/ Chennai Electricity Distribution Circle/North, Vyasarpadi, Chennai shall not demand any previous arrears from the petitioner as condition precedent for giving new electricity service connection as she is a new allottee.

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17.Needless to mention that the first respondent is directed to provide new electricity service connection to the petitioner shop bearing No.915, 28th Street, Bakthavathsalam Colony, Vyasarpadi, Chennai 39 provided he satisfies the other requirements within a period of two weeks from the date of receipt of a copy of this order.

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18.In the result, the writ petition is allowed. There is no order as to costs.

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Sd/Assistant Registrar (CS-III) Dated :29.04.2014

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//True Copy//

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Sub Assistant Registrar

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cla

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The Assistant Engineer/O&M, TNEB/Chennai Electricity Distribution Circle/North, Vyasarpadi, Chennai 39.

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The Chairman,
Tamil Nadu Slum Clearance Board,
Kamarajar Salai.
1 CC to Mr.D.Nellaiappan, Advocate, SR 19593
1 CC to mr.G.Vasudevan, Advocate, SR 19588
W.P.No.8713 of 2011
UG (CO)
PSI 29/04/2014

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Mrs. Sabasthi Ammal, v. the Assistant Engineer / O&M

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Mrs. Sabasthi Ammal, v. the Assistant Engineer / O&M

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