JUDGEMENT

          Complainant by filing this complaint has submitted that he is a tenant of the premises and he has no electric meter in the above premises, so the complainant made an application for new connection to the CESC Ltd. on 18.01.2012 on payment of necessary application fees for a sum of Rs.200/- and on same date i.e. 18.01.2012 op issued a letter to the complainant and informed that an inspection would be carried out on 27.01.2012 and they did it.  Thereafter CESC Ltd. further on 09.02.2012 directed the complainant to appear before the commercial officer of the said office and as per advice complainant appeared before the commercial officer of CESC Ltd. who directed the complainant to settle the outstanding dues of premises in the name of other persons otherwise they are unable to give new supply to the complainant.

          Complainant states that CESC Ltd. has no power to claim third party outstanding dues from the complainant in violation of the Electricity Act 2003 and the complainant has no nexus/relation with the aforesaid persons who violated to pay previous electricity bill said ex-consumer.  It is further alleged that electricity is an essential service and every person has right to enjoy it on payment of necessary charges and the complainant is ready to pay necessary charge for new connection but CESC has denied to give new supply for which complainant has filed this complaint for redressal.

          On the other hand op/CESC Ltd. by filing written statement submitted that complainant no doubt made an application for a new connection on 18.01.2012 in the premises in question.  But the company through their letter dated 18.01.2012 intimated the complainant that the inspection would be carried out on 27.01.2012 between 9AM to 1PM when the complainant was requested to be present. Further complainant was intimated vide a letter dated 09.02.2012 that the outstanding shall be paid against the premises when complainant has direct nexus and in the said letter dated 09.02.2012 the company mentioned three names of defaulters – Md. Iqbal for outstanding amount of Rs.8,135.50 paisa, Md. Habib for outstanding amount of Rs. 7,031.24 paisa and A A M F Rabbani Esqr for outstanding amount of Rs. 4,077.79 paisa and the complainant was requested to settle the outstanding amount since the complainant was having direct nexus with the outstanding dues on receipt of such letter complainant was sitting tight on the issue and he moved this application on 19.09.2013 and obtained an exparte interim order but subsequently interim order was vacated after hearing and fact remains as per Clause- 3.4.2 – the licensee shall be eligible to recover from a new and subsequent consumer(s) the dues of the previous and defaulting consumer(s) in respect of the same premises only if a nexus between the previous and defaulting consumer(s) and the new consumer(s) in respect of the same premises is proved.  The onus of proving a nexus, if claimed by a licensee, shall lie on the licensee and company as the distribution licensee is entitled to recover the outstanding dues from the premises before giving new connection.  Such view has been endorsed by the Hon’ble Supreme Court, High Courts and also the State Commission in a number of decisions.

          It is further submitted that no doubt complainant deposited Rs.200/- as application fees and he has filed this case after one year and nine months and the company is statutorily obligation to recover the outstanding dues from the premises in accordance with law and the company has every authority and right in view of the above laws to make the claim for outstanding dues before processing the application for new connection and restoration etc.  It is further submitted that it is the obligation on the part of the complainant to comply all necessary formalities including the payment of the necessary charges and to complete the formalities as mentioned under procedure A as appended with the Regulations No. 46 under Regulation 7.1.  So, there was no laches and deficiency on the part of the CESC Ltd. and for which the complaint should be dismissed.

                                                    Decision with reasons

          On in depth study of the complaint and written version and also considering the argument as advanced by the Ld. Lawyers of both the parties and on overall evaluation of WBERC Notification No. 36/WBERC dated 12.09.2007, it is found that the said regulation was passed in exercise of the powers conferred by sub-section (I) and clause (X) of sub-section (2) of section 181 read with section 50 of the Electricity Act, 2003 (36 of 2003) and the Electricity (Removal of Difficulties) Order, 2005 issued under notification No. SO790€ dated 08.05.2005 in terms of section 183 of the Electricity Act, 2003 and all powers enabling it on that behalf, and in supersession of Notification No.13/WBERC dated 05.02.2004 published on 19.02.2004 in the Kolkata Gazette, Extraordinary, West Bengal Eclectricity Regulatory Commission and accordingly the said regulatory commission issued regulations and as per regulation and Clause 3.4.2, it is clear that the licensee shall be eligible to recover from a new and subsequent consumer(s) the dues of the previous and defaulting consumer(s) in respect of the same premises only if a nexus between the previous and defaulting consumer(s) and the new consumer(s) in respect of the same premises is proved.  The onus of proving a nexus, if claimed by a licensee, shall lie on the licensee and same is included in the heading Recovery of Arrears.  But as per judgement of the Hon’ble Supreme Court a transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privities of contract cannot obviously be asked to pay the dues of his predecessor-in-title or possession, as the amount payable towards supply of electricity does not constitute a “charge” on the premises.  Because the supply of electricity by a distributor to a consumer is a sale of goods.  The distributor as supplier and the owner or occupier of premises with whom it enters into a contract for supply of electricity are the parties to the contract.  So, a transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor-in-title or possession, as the amount payable towards supply of electricity does not constitute a “charge” on the premises.  So a purchaser of premises cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises.  The supplier can therefore neither file a suit nor initiate revenue recovery proceedings against a purchaser of premises of the outstanding electricity dues of the vendor of the premises in the absence of any contract to the contrary.

          But considering other ruling reported in SCC (2009) I page 210 order dated 07.11.2008 in Civil Appeal No. 6565 of 2008 and also (1995) 2  SCC No. 648 order of Hon’ble Division Bench dated 17.03.2012 passed in MAT No. 669 of 2010 & CAN No. 4582 of 2010 and in MAT No. 669/2010 a judgement reported in 2007(1) and CHN No. 210 along with argument of the complainant to that effect that ops failed to prove any nexus between the previous and defaulting consumers and the present applicant/complainant.  But considering the observation of the Hon’ble Supreme Court passed in 2009(1) SCC 210 it is clear that Hon’ble Supreme Court has come to a conclusion that it is obviously the duty of the purchaser/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises.  They can also incorporate in the deed of sale or lease, appropriate clauses making the vendor/lessor responsible for clearing the electricity dues up to the date of sale/lease and for indemnity in the event they are made liable.

          Further it is observed that a stipulation by the distributor that the dues in regard to the electricity supplied to the premises should be cleared before electricity supply is restored or a new connection is given to a premises, cannot be termed as unreasonable or arbitrary.  In the absence of such a stipulation, an unscrupulous consumer may commit defaults with impunity, and when the electricity supply is disconnected for non-payment, may sell away the property and move on to another property, thereby making it difficult, if not impossible for the distributor to recover the dues.  Having regard to the very large number of consumers of electricity and the frequent moving or translocation of industrial, commercial and residential establishments, provisions similar to clauses 4.3(g) and (h) of the Electricity Supply Code are necessary to safeguard the interests of the distributor.

          It is also observed by the Hon’ble Supreme Court so long such rules and regulations of the terms and conditions which are not arbitrary and unreasonable court will not interfere with them and if any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations.  If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper to regulate its transactions and dealings and this decision also relied by the Hon’ble High Court  in MAT No. 178/2010 vide Hon’ble High Court order dated 17.03.2010 and came to a conclusion that the entire procedure as adopted by the op is within the ambit of rules and regulations and they are governed by the statutory rules of WBERC to sanction of connection or supply of electricity the distributor can insist upon fulfillment of requirement of such rules and regulations.  So it is found that the whole matter regarding outstanding liability of the same premises shall be decided by the company in accordance with law.

          Moreover in this case it is found that three occupiers of the said premises enjoyed the electricity and they are Md. Iqbal for outstanding amount of Rs.8,135.50 paisa, Md. Habib for outstanding amount of Rs. 7,031.24 paisa and A A M F Rabbani Esqr for outstanding amount of Rs. 4,077.79 paisa prior to the present applicant.  So considering that fact and also the observation of the Hon’ble Supreme Court to that effect that “having regard to the very large number of consumers of electricity and the frequent moving or translocating of industrial, commercial and residential establishments, provisions similar to Clauses-4.3(g) and (h) of the Ecelctricity Supply Code are necessary to safeguard the interests of the distributors”.  If we rely upon that observation and present fact and circumstances it is clear that one after another occupiers are taking electricity and thereafter defaulting to pay huge amount and thereafter without any certificate of surrender from the land lord, another person appeared as tenant and collecting the receipt from land lord and in the present case it is clear that only to avoid payment of electricity bill by the occupiers one after another the present process is adopted by such persons like this complainant and fact remains if it is being continued and the Forum is found blind in allowing such application without considering the pros and cons of legal provision but in this case we are confident that the distributor shall be deceived by so called consumers and already the distributors are deceived though they rendered services to three other occupiers who enjoyed the said electricity and did not pay the bill.

          So we find that as per the provision, the distributor and supplier of the electricity disconnect the electricity supply for non-payment and on clearance of some fresh electricity connection can be given to the premises and no doubt it is the duty of the purchaser/occupants of premises to satisfy themselves that there are no electricity dues before purchasing/occupying a premises and in the rent receipt there is no such endorsement by the land lord that electricity bill is due what previous occupiers did not pay.

          No doubt relying upon the decision reported in 2007(1) CHN 2010 and  2009(1) SCC 2010 we are convinced to hold that the stipulation by the distributor that dues in regard to the electricity supply to the premises should be cleared before electricity supply restored or by a new connection is given to that premises cannot be termed as reasonable or arbitrary accordingly we are of the view that there are outstanding dues of three previous occupiers and which is huge amount but to avoid the liability and to deprive the CESC of his legitimate claim recovery by suppressing the previous status and suppressing any such documents as well as and also without producing any such certificate from the land lord that the tenant was satisfied that there was no outstanding dues of any previous occupiers and thereafter he inducted as tenant.

          Moreover the above legal position is practically applicable to the present complainant when fresh tenant approaches the distributor seeking a fresh connection for supply electricity so the distributor can stipulate the terms subject to which it can supply electricity.  When arrears due in regard to the supply electricity made to that premises was in occupation of previous occupiers should be cleared before the electricity supply give a fresh connection as provided to the premises if statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfillment of the requirements of such rules and regulations.

          No doubt the Ld. Lawyer for the complainant referred one ruling reported in 2010 (4) ICC Supreme Court 423 and another ruling in C.V No.7988/2012 passed on 09.11.2012 and submitted that the present application was filed by a fresh tenant for a fresh connection and op has failed to prove any nexus in between the previous occupiers and the present complainant.  So, those rulings are not applicable and complainant is entitled to get fresh line.  But on overall consideration of the entire fact and circumstances including the rules and regulations as laid down as per Electricity Act and the WBERC and also the judgement of Hon’ble Supreme Court as referred we are convinced to hold that the present complainant must have to comply the rules and regulations and op electricity company can stipulate as one fresh application for supply of electricity of that premises in question that arrears due of the premises when it was the occupation of the previous occupiers should be cleared before electricity supply office when a fresh connection can be given to the premises of the complainant and fact remains such a condition is not declared as void and not even by the Supreme Court.  So invariably complainant must have to comply the terms and conditions for getting the said electricity connection and in this regard we have not found any deficiency, negligence on the part of the op.  But fact remains complainant has not appeared with clean hand.  But after waiting for one year and nine months complainant filed this complaint but in the meantime he did not take any step.  So, in the above circumstances we are convinced to hold that no negligence and deficiency or any malpractices or any unfair trade practice was/is adopted by the op.

          But as per law they reported everything to the complainant and complainant received it and complainant was sitting idle for one year and nine months and thereafter filed this case.  Taking into legal position the decision of the Hon’ble Supreme Court and High Court and present fact and circumstances we find that there is no substance in the present complaint against the op in respect of any negligence, deficiency or unfair trade practice but they acted as per law but complainant did not comply and for which we are convinced to hold that there is no merit in this complaint.

          Accordingly the complaint fails.

          Hence, it is

                                                                 ORDERED

          That the complaint be and the same is hereby dismissed on contest with cost of Rs.5,000/- which shall be paid by the complainant to the CESE.