M K AND SONS Vs. CESC LIMITED

JUDGEMENT

(1.) In the instant writ petition the petitioner claims that in September, 2007 he took tenancy in respect of a portion of premises no. 9X, Abinash Chowdhury Lane, Kolkata - 700 046 for the purpose of using it as office/ godown. In June, 2008 he applied before the respondent no. 3 for a new electric connection at the said premises. In response the respondent no. 3 in their letter dated 8th July, 2008 intimated that some outstanding dues in respect of consumption of electricity of previous consumers of the said premises is to be settled and as such asked him to attend their Commercial Department to resolve it. On 18.11.2008 he was officially asked to meet the Deputy Manager, Loss Control Cell of the CESC Limited to resolve the dues. Accordingly he contacted several officials, but to no effect. On 02.03.2009 he again requested the respondent no. 3 to give him an opportunity of being heard which was denied. Then he requested the respondent nos. 2 and 3 by letter dated 26.03.2009 to take immediate steps for supply of electricity to his tenanted premises as he is not liable to pay third party's liability for consumption of electricity. On the same date he received another letter dated 20.03.2009 from the respondent no. 2 to meet him again. But that too yielded no fruitful result and the respondent authorities adhered to their decision to pay the outstanding dues of the previous consumer first and thereafter his prayer will be considered. He again issued a reminder on 03.04.2009 and ultimately through lawyer demanded justice on 20.04.2009 by issuing a notice to the respondent nos. 2 and 3. In response the respondent no. 2 informed in their letter dated 30.04.2009 that they are unable to take any action on his prayer unless the arrears of the previous consumer on account of consumption of electricity is paid by him. Having no other alternative he has filed the present writ petition praying for a direction upon the respondents, their men and agents to give new electric connection at his tenanted premises and to set aside the order dated 23.04.2009 passed by the respondent no. 3 in the matter demanding outstanding dues of previous consumer.

(2.) The respondent nos. 1, 2 and 3 in their affidavit-in-opposition on the contrary have claimed that in the disputed premises at 9X, Abinash Chowdhury Lane, Kolkata - 700 046 there are two disconnected supplies for theft or unauthorised use of electricity and a sum of Rs. 12,27,140/- and Rs. 22,90,547/- respectively is due and payable against such disconnected supplies. It is further contended that Md. Nadim, son of Ezaz Ahmed Vohra was the previous consumer and vendor of the premises in question and they were running their business in the same in the name and style of M/s. Plasto Wing and now the same place are being used by the writ petitioner seeking supply of new connection. The disconnected service installations are still existing in the premises and the writ petitioner sought to install the meters in the same service position. The final assessment order was issued in the name of Md. Nadim and against M/s. Plasto Wing (Annexure R-1) in respect of the Consumer No. 29188048000 and Meter No. 2141671. They have further contended that one of the partners, namely, Md. Hussain Shah purchased the premises in question in September, 2007 in his personal name from the said Ezaz Ahmed Vohra. Thereafter the petitioner was purportedly inducted as a tenant under the said partner of the petitioner Md. Hussain Shah. The petitioner made his application in June, 2007 for commercial use but did not submit complete partnership agreement for the partnership firm and also the Deed of Conveyance in the name of Md. Hussain Shah (Purchaser) and Janab Ejaz Ahmed Bhora (Vendor) till 20th August, 2009. It is further contended that Md. Hussain Shah, a partner of the petitioner firm, was fully aware of the disconnected supplies and the huge amount of outstanding dues against such supplies. Subsequently the documents called for were supplied by the writ petitioner in his letter dated 20.08.2009. It transpires from the said Deed of Conveyance that he shall hereafter keep the purchaser, his heirs, executors, administrators, legal representatives and assign, saved, harmless and indemnified against all estates, charges, encumbrances, litigations, mortgages, heirs, attachments, lispendences, trusts, claims and demand whatsoever created, occasioned or made by the vendor or any person or persons lawfully or equitably or rightfully claiming as aforesaid and any loss, damage, expense, claim, demand action and proceeding arising in respect of the said property and/or any part thereof. The aforesaid clause of indemnification keeps the petitioner indemnified against any demand or claim of CESC for consumption of electricity at and in respect of the said property. In view of the aforesaid clause the petitioner is now liable to pay the aforesaid dues of the vendor prior to obtaining supply of electricity at the same premises as the same has been purchased by one of the partners of the petitioner firm from the defaulting consumer/ vendor Ejaz Ahmed Vhora at a total undervalued price of Rs. 15,00,000/- for more than six cottahs of land with standign structure whereas the present market price of land in the locality per cottah will be more than Rs. 6,00,000/-, i.e., the total value would have been more than Rs. 36,00,000/-. It is further contended that purchase of the property at such an undervalued rate is on account of full knowledge of the vendor that huge outstanding dues are lying in respect of the same premise and this clearly establishes the nexus between the defaulting consumer/ vendor and the petitioner purchaser. Therefore, the petitioner is liable to pay the outstanding dues which is consistent with the Regulation 5 of the West Bengal Electricity Regulatory Commission (Standards of Performance of Distribution Licensee Relating to Consumers Services) Regulation, 2005 and in terms of regulation 3.4.2 of the West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulation, 2007. Moreover, only the manager of the writ petitioner has affirmed the petition instead of its partner. In absence of any affidavit of competency on behalf of the writ petitioner such writ petition is not maintainable in its present form.

(3.) In their affidavit-in-reply the writ petitioner has claimed that the said Nesar Ahmed has authority to affirm in this case as by virtue of his appointment as Manager of the partnership firm he has been authorised by the partners to deal with all matters concerning and relating to the said firm. They have, however, denied all the allegations made against them by the respondents in their affidavit-in-opposition. In paragraph 19 of such reply it is categorically claimed that neither the writ petitioner nor any other partner of the said firm has any right, title and interest as owner of the said premises. It is specific case of the writ petitioner that it is a tenant in respect of one portion of the said premises and as such not liable to pay any outstanding dues of the previous tenants/ occupiers of the said premises.