Punjab

StateCommission

A/11/1375

Rajesh Kumar Bajaj - Complainant(s)

Versus

PSEB - Opp.Party(s)

Surinder Garg

29 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1375 of 2011

 

                                                          Date of Institution: 09.09.2011

                                                          Date of Decision:  29.04.2015

 

Rajesh Kumar Bajaj S/o Sh. Faquir Chand Bajaj, R/o Katarian Wali Gali, Near Bariwala Road Chungi, Village Warring, Tehsil and District Sri Muktsar Sahib.

                                                                                                                                                                   …..Appellant/Complainant

         

                                      Versus

 

1.       Punjab State Power Corporation Ltd., through its Assistant         Executive Engineer, Sub Urban Sub Division Bariwala, now at   Sarainaga, District Sri Mukatsar Sahib.

 

2.       The Punjab & Sind Bank through its Branch Manager, Mandi      Bariwala, Tehsil and District Sri. Muktsar Sahib.

 

 

 

                                                          …..Respondents /Opposite parties

 

         

First Appeal against order dated 29.07.2011 passed by the District Consumer Disputes Redressal Forum, Sri Mukatsar Sahib.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                       :         Sh. Surinder Garg, Advocate

          For the respondent No.1            :         None

          For the respondent No.2. :         Sh.C.S Sidhu Advocate.

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 29.07.2011 of District Consumer Disputes Redressal Forum Sri Mukatsar Sahib, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant.

2.      The complainant Rajesh Kumar has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that he purchased the property from OP No.2 in auction for sale price of Rs.26,15,000/- . Sale certificate and order of confirmation of sale of property was issued in his favour. He was also delivered the possession of the land on 01.07.2009 when land was lying vacant.  OP No.2 assured the complainant  that the land purchased by him was free from all encumbrances. The complainant approached OP No.1 for installation of new electricity connection in the premises so purchased by him from OP No.2. OP No.1 refused to install the new electricity connection in the premises of the complainant on the ground that outstanding arrears were due against the previous owner of the land. The complainant insisted that he has purchased it without any encumbrances from OP No.2. The complainant has filed the consumer complaint against the OPs directing OP No.1 to install the new electricity connection at the premises of the complainant after completing the formalities.

2.      Upon notice, OP No.1 appeared and filed written reply raising preliminary objections that complainant has no cause of action to file the complaint. There has been balance of Rs. 1,20,508/- against the Kataria Cotton Mills, the previous owner of the property in question. The new electricity connection cannot be released to the complainant without clearance of the outstanding arrears of the premises. The complainant cannot take the connection in view of Circular No.3.3.1 and hence complaint merits dismissal on that score. It was denied that complainant is consumer of OP No.1. The OP No.1 also withstood  the allegations contained in the complaint of the complainant even on merits and prayed for dismissal of the complaint.

3.      OP No.2 filed its separate written reply raising preliminary objections that complaint is not maintainable against it. The complainant has no locus standi or cause of action against OP No.2. Material facts have been suppressed from the Consumer Forum by the complainant. OP No.2 was the owner of the premises in dispute and as per the order of the Debt Recovery Tribunal, the complainant purchased the property in auction after verifying the encumbrances. The OP No.2 denied the averments of the complainant even on merits and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence the affidavit of complainant Ex.C-1, copy of order of confirmation of sale as Ex.C-2, copy of certificate of sale Ex.C-3, copy of receipt dated 5.4.2011 Ex.C-4, copy of electricity supply regulation no.123.7 Ex.C-5, copy of connection file applied to OP No.1 as Mark-A. As against it, OPs tendered in evidence affidavit of SDO Suman Singh Ex.OP-A, copy of performa of application Ex.OP-1, copy of circular no.167 Ex.OP-2, copy of circular no.3.3.1 Ex.OP-3. On conclusion of evidence and arguments, the District Forum, Sri Mukatsar Sahib, dismissed the complaint of the complainant by virtue of order dated 29.07.2011. Dissatisfied with the order dated 29.07.2011 of District Forum, Sri Mukatsar Sahib, the complainant now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case, whereas none has appeared on behalf of respondent no.1 at the time of arguments in this appeal. We have carefully examined the pleadings of both the parties on the record in this case, coupled with the evidence on the record. The affidavit of Sh. Rajesh Kumar complainant Ex.C-1 is also examined by us, Ex.C-2 is the order of Debt Recovery Officer Chandigarh, the specifications of the property is detailed in it, which was purchase in auction by the complainant, which earlier belongs to M/s Kataria Cotton Mills  and Others, Ex.C-3 is certificate of sale issued in favour of the complainant by the Debt Recovery Tribunal Chandigarh, Ex.C-4 is the receipt dated 05.04.2011, vide which complainant deposited Rs.60,000/- with the OPs. Mark A is the application for new connection of the complainant to the OPs. The OPs relied upon affidavit  Ex.OP-A of Suman Singh, SDO , P.S.P.C.L Sub Division Bariwala, he stated in the affidavit that since arrears were due from the previous owner of the property in question and in view of Circular 3.3.1, no new connection can be released therein without clearance of the arrears of the consumption charges, Ex.OP-2 is the Circular No.3.3.1 to the effect that an applicant/consumer applying for new connection shall give an affidavit on non-judicial stamp paper that he was not involved in case of any theft of power and no case of recovery for amount charged against him was pending before any Forum and no amount is due against him of the disconnected electricity connection. Similarly, Circular No.3.3.1 has been pressed into service by the OPs to the effect that no application for new connection or extension in load may be accepted from a consumer, who has failed to pay 50% of the amount billed to him due to any of the above-mentioned reasons. On the basis of above circular, submission of the OPs coupled with affidavit Ex.OP-A is that unless and until the arrears from previous owner are cleared, no electricity connection can be provided.

6.      The counsel for appellant referred to law laid down by Delhi Consumer Disputes Redressal Commission in Delhi Vidyut Board  V. Kewal Kishore Arora reported in 2005(1) CLT Page 444-445, wherein it has been held that liability of arrear of a previous contract cannot be put on subsequent purchaser of property. The Delhi Consumer Disputes Redressal Commission Delhi  relied upon law laid down by Apex Court in M/s Esha Marbles Vs. Bihar State Electricity Board and another, reported in 1995(2) SC 626 Supreme Court  to the effect that there can be any charge over property and the electricity authority cannot seek the enforcement of contractual liability of the original defaulter against the third party, who was a purchaser and sought reconnection. It was further held that it was impossible to impose on purchaser a liability, which was not incurred by him and law in inadequate to enforce the liability of the previous contracting party against the prospective purchaser. The matter has also examined by West Bengal State Consumer Disputes Redressal Commissio, Calucutta in W.B.S.E.B  Vs…. Jyotirmoy Mondal reported in  2003(1) CLT Page 534-35 to the effect that a huge amount outstanding against one 'R' and a Civil Suit is pending for recovery of dues. 'R'  who does not have any nexus with the present complainant is not liable. It was held that OP cannot withhold the new connection to the complainant on the plea that outstanding dues in respect of the erstwhile occupier 'R'. The Apex Court has also examined this point in Bihar State Electricity Board : Isha Marbles Vs.  Bihar State Electricity Board : Waxpol Industries, reported in 1995(2) CPSC 180, wherein it has been held that auction purchaser is not a new entity and previous consumer liable for past arrears. On the basis of law laid down in the above referred authority, the District Forum has not appreciated the controversy involved in this case. The District Forum proceeded to dismiss the complaint of the complainant by ignoring law laid down in the above-referred authorities. The order of the District Forum cannot be sustained in the appeal and is liable to be set aside. The remedy of OP No.1 is to proceed against previous owner who is liable for the arrears of the outstanding consumption charges to the OPs only and not the complainant, who is only subsequent auction purchaser therein. The OPs has independent remedy to recover the outstanding consumption charges from the previous owners of the premises.

7.      As a result of our above discussion, we accept the appeal of the appellant and by setting aside the order of the District Forum Sri Mukatsar Sahib dated 29.07.2011, we hereby accept the complaint of the complainant and direct the OP No.1 to release the new connection to the complainant in the premises in question on completion of the entire formalities by the complainant along with deposit of the requisite dues therefor within a period of one month from the date of receipt of certified copy of the order.

8.      Arguments in this appeal were heard on 24.04.2015 and the order was reserved. Now the order be communicated to the parties.

9.      The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                              PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                               MEMBER

 

                                               

                                                               (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

April 29  2015.                                                               

(ravi)