RAGHUNATH PAPER MILL PVT LTD Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) The Petitioner has filed this Writ Petition challenging the letter dated 21.5.2010 issued by the Special Officer (Commerce), North Eastern Electricity Company of Orissa (in short, "NESCO") directing the Petitioner to pay the arrear electricity dues amounting Rs. 79,02,262.00 outstanding against the premises to which it intends to avail power.

(2.) The Official Liquidator made an advertisement for sale of movable & immovable assets & properties of the factory unit i.e. M/s. Konark Paper & Industries covering the leasehold land, buildings/ sheds, plant & machinery, furniture & fixtures etc. which is in liquidation "as is where is & whatever there is" basis which was being monitored by this Court in Company Act Case No. 25 of 2005. In pursuance of the said advertisement, the Petitioner submitted its tender. Being the highest bidder, the sale was confirmed in favour of the Petitioner-unit. As the full payment of sale consideration was received by the Official Liquidator, possession of the unit was handed over by the Official Liquidator in pursuance of the direction of this Court dated 28.3.2008. As per the terms & conditions of sale, the purchaser shall not be liable for payment of any dues relating to the company in liquidation payable on or before handing over possession pursuant to the confirmation of sale. When the possession of the unit was handed over "as is where is & whatever there is", there was no power supply to the said unit. The Petitioner in order to establish a paper unit in the leasehold land, made an 'application on 10.12.2008 to the Opp. Parties for availing power of 100 KW at 33 KV. The said line was required to be drawn from Basta Feeder to the unit in question & an estimate was made to the tune of Rs. 14,48,792. As permission was granted, the Petitioner deposited 6% supervision charges amounting to Rs. 86,928 & constructed the line. The Electrical Contractor submitted the completion certificate in the prescribed format. To avail the construction load of the aforesaid line, the Petitioner executed an agreement on 27.3.2009 with the management of NESCO & deposited security amount of Rs. 1,65,156. Due to non-supply of power, the construction was completed by using Diesel Generator Set. After completion of the said construction work, Opp. Parties did not provide power supply to the Petitioner-unit. Thereafter, the Petitioner made an application in the prescribed format for supply of power. Along with the said application, the load details & forwarding letter were also given to supply permanent power from the existing transformer installed by the Petitioner-unit. However, the authorities remained silent over the matter & did not take any step to give permanent power supply to the Petitioner. On 21.5.2010, the Special Officer, Commerce, NESCO, Balasore, communicated a letter to the Petitioner-unit to pay arrear electricity dues amounting Rs. 79,02,262.00 outstanding against the premises to which the Petitioner intends to avail power supply with further condition that on clearance of the arrear electricity dues necessary permission letter shall be issued in its favour.

(3.) It is submitted by the Learned Counsel' for the Petitioner that as per the Electricity Act, 2003, on an application made by the owner or occupier of any premises, the authority has to supply electricity within one month from the date of receipt of the application. If a licence fails to supply electricity within the stipulated rime, he shall be liable to a penalty which may extend to one thousand rupees for each day of default. The regulation made under the above Act is known as "OERC Distribution (Conditions of Supply) Code, 2004" to govern distribution & supply of electricity & procedures thereof etc. Clause-13.5 of the said Code provides that the power supply shall be provided within a period of 90 days in case of 33 KV Supply Though the Petitioner submitted its application on 26.8.2009, without providing power supply, Opp. Party No. 2 communicated a letter dated 21.5.2010 to the Petitioner to pay arrear electricity dues. Therefore, the Petitioner has filed this Writ Petition for redressal of its grievance. He further submitted that as per the terms & conditions of the sale, the Petitioner is not liable to make any dues relating to the company in liquidation payable on or before handing over possession. Therefore, the demand of the Opp. Parties to clear the arrear electricity dues of the previous company is illegal, arbitrary & unsustainable in the eye of law, Hence, the letter dated 21.5.2010 issued by Opp. Party No. 2 in favour of the petitions; is liable to be quashed In support of his contention, he cited the decisions of this Court in the case of Anshuman Behera v. Orissa State Financial Corporation and Ors., 2010 AIR(Ori) 10 & Ajay Kumar Agrawal v. O.S.F.C. and Ors., 2010 AIR(Ori) 37. He further submitted that since the unit is purchased by the Petitioner on "as is where is basis" & as per the terms & conditions of sale the purchaser is not entitled to pay any arrear dues of the erstwhile company, any arrear dues of the erstwhile company is to be cleared by the Official Liquidator who was in charge of the winding process of the company & the Opp. Parties may put forth their claims before the Official Liquidator regarding arrear electricity dues of the erstwhile company.