Girish Chandra Gupta, J.@mdashThis application is for a writ in the nature of mandamus directing the respondent Nos. 1, 2 and 3 to supply high tension energy to the tune of 2750 Kilowatt to the petitioner at its factory at Falta Industrial Growth Centre. A prayer has also been made for a writ in the nature of certiorari and a writ prohibiting the respondents Nos. 1, 2, and 3 from demanding the dues of Falta Steels Private Ltd. from the petitioner Nos. 1. There is also a prayer for a declaration that the petitioner No. 1 is not liable to pay outstanding dues of Falta Steels Private Ltd., and a declaration that the West Bengal State Electricity Board (hereinafter referred to as the ''Board'') cannot insist upon liquidation of the outstanding dues of Falta Steels Private Ltd. as a condition precedent and a prayer for mandatory injunction directing the Board to commence supply of high tension energy to the petitioners in terms of their requisition dated 5th April, 2005.
2. It would at once become clear from the prayers made by the petitioners themselves that the Board has not refused to supply electricity to the petitioners altogether. They have, on the contrary, refused to supply unless the dues of the erstwhile consumer namely Falta Steels Private Ltd., are paid. In paragraph 14 of the writ petition the following allegations have been made:
Your petitioners have now been informed by the WBSEB, albeit verbally, that unless the previous arrear dues of Falta Steels Pvt. Ltd. are cleared, electricity will not be supplied to your petitioner No. 1 at its factory at Falta Industrial Growth Centre, Sector III, Plot Nos. A-1, A-2, Falta, P.O. Nainan, P.S. Diamond Harbour, District 24-Parganas (South). This condition precedent his been communicated by the officers of the WBSEB to Sri Jitendra Agarwal, the Director of your petitioner No. 1 when he went to enquire about the fate of your pettioner No. 1''s application.
3. In paragraph 10 of the affidavit-in-opposition affirmed by one Sri Benoy Sen on 6th July, 2005 the contents of the paragraph 14 have been virtually admitted and the following statements have been made:
As stated hereinbefore the petitioners have no right to obtain connection of electricity to the said industrial unit and/or factory, and, in any event of the matter without payment of the said outstanding dues of Rs. 5.66 crores of the Board.
4. In paragraph 9 of the affidavit-in-reply the petitioners have "denied that the petitioners have no right to obtain connection of electricity to the said industrial unit and/or factory or that in any event of the matter without payment of the said outstanding dues of Rs. 5.66 crores of the Board as alleged or at all."
5. The petitioners have also claimed and contended in paragraph 10 of their affidavit-in-reply that the "dues of Falta Steels Private Ltd. cannot be a ground to refuse to supply electrical energy" for there is no provision of law authorising the Board to recover the dues of the erstwhile consumer from a new consumer who may come to occupy the premises.
6. It would therefore appear that the only question which falls for determination in this writ petition is "whether the refusal to supply electricity except upon payment of the outstanding dues of the erstwhile consumer is justified?" To put it differently the question can also be posed thus "Did the Board arbitrarily refuse to give supply of electricity to the writ petitioners?"
7. The petitioners have themselves in ground Nos. 2, 5, 9 and 11 have alleged that the Board acted unreasonably, arbitrarily and contrary to the principles of equity. The petitioners have prayed for writs in the nature of certiorari and prohibition. Refusal on the part of the Board to give supply of energy to the writ petitioners can be quashed or the Board can be prohibited from insisting upon such payment provided the refusal is arbitrary. Unless the refusal is arbitrary neither can refusal be quashed nor a writ in the nature of mandamus directing the Board to suppply high tension energy to the writ petitioners can be issued for the Courts retain the "discretion to withhold the remedy where it would not be in the interest of justice to grant it" See
8. The Board in its affidavit has sought to justify its refusal on a number of grounds which include:
(a) In sub-paragraph (a) of paragraph 5 of the affidavit-in-opposition it has been alleged that the writ petitioners were fully aware of the outstanding dues of the Board. The unit was sold to them on ''as is where is'' basis subject to payment of statutory liabilities. The dues of the Board are claimed to be a statutory liability and therefore should be deemed to be a part of the consideration price.
(b) Falta Steels Private Ltd. succeeded in avoiding to pay for electricity consumed by them during the period between November, 2000 and May, 2001 on the basis of an interim order dated 18th January, 2001 passed by this Court in Civil Suit No. 37 of 2001. By virtue of the aforesaid order the Board could neither recover the dues for the aforesaid consumption during the aforesaid period nor could disconnect the supply of electricity and in the process almost a sum of Rs. 4 crores became due. It has been alleged that a sum of Rs. 5.66 crores approximately together with further claims on account of pilferage of electricity is outstanding.
(c) It has been disputed that there is no nexus between the petitioner No. 1 and the said Falta Steels Private Ltd.
9. The writ petitioners by their letter dated 21Bt March, 2005 offered to buy the unit at a sum of Rs. 66 lakhs on the condition that "WBSEB should not claim any past liabilities from us since the liabilities, if any, pertain to Falta Steels Pvt. Ltd."
10. The West Bengal Financial Corporation made a counter-offer dated 30th May, 2005. The counter-offer does not contain any stipulation as insisted upon by the writ petitioners in their offer dated 21st March, 2005. On the contrary the counter-offer contains the following relevant clauses:
Clause 4. The aforesaid fixed assets will be sold to you strictly on ''as is where is'' and whatsoever there is basis u/s 29(1) of the State Financial Corporation Act, 1951 (as amended upto date) and our Corporation will not be responsible for payment of any arrear/current statutory/Government dues/taxes/labour dues and/or any other dues relating to those assets and/or of Falta Steels Pvt. Ltd. or any of their partners/directors.
Clause 8. Only after receipt of the full payment of sale consideration the assets will be sold/transferred/assigned in your favour subject to compliance of the terms and conditions of the original deed of lease executed by and between WBIIDC as lessor and Falta Steels Pvt. Ltd. as lessee and payment of all unpaid dues under the lease agreement and other statutory liabilities, if any.
11. There is thus no manner of doubt that the writ petitioners were fully aware of the outstanding dues of the Board. The writ petitioners wanted to purchase the unit free from liabilities. But the West Bengal Financial Corporation did not accede thereto.
12. The second ground advanced by the Board in its affidavit-in-opposition also appears to be factually true. Falta Steels Private Ltd. has been made a party to this writ petition. They have however not entered appearance. The writ petitioners naturally have not sought to dispute the aforesaid case of the Board.
13. Insofar as the nexus between the writ petitioners and the Falta Steels Private Ltd. is concerned the writ petitioners have disclosed their Memorandum of Association. Articles of Association and the share-holding pattern. It is however not possible to come to any definite finding; on the basis of the records disclosed by the writ petitioners in their affidavit-in-reply, that there is no nexus between the promoters, directors and shareholders of Falta Steels Private Ltd. and those of the writ petitioner No. 1. A detailed enquiry is needed for that purpose. On the basis of records disclosed by the writ petitioners it is not even possible to make any comparison because the particulars of the directors, promoters and shareholders of Falta Steels Private Ltd. are not forthcoming. Besides there are corporate shareholders of the writ petitioner No. 1. The burden of proof about absence of any nexus between the writ petitioner No. 1 and Falta Steels Private Ltd. is unquestionably on the petitioners themselves because it is their case in paragraph 15 of the writ petition. As a matter of fact it is on this ground that they want to avoid to pay the liability of Falta Steels Private Ltd. It is for them to prove the assertion which they have not been able to prove even primo facie. A mere allegation to that effect is not enough.
14. It would thus appear that the reasons advanced by the Board for refusing to commence supply except upon payment are not arbitrary.
15. I shall now notice the submissions made by the learned Counsel appearing for the parties. Mr. Pratap Chatterjee, learned senior Advocate appearing for the writ petitioners relying upon the judgment in the case of
In our opinion, the present two case are cases of fresh connection. The learned Counsel for the respondents (auction-purchasers) have stated that they have taken fresh connections and they have no objection if their connections are treated as fresh connections given on the dates on which the supply of electricity was restored to the premises. We are clearly of the opinion that in case of a fresh connection though the premises are the same, the auction-purchasers cannot be held liable to clear the arrears incurred by the previous owners in respect of power supply to the premises in the absence of there being a specific statutory provision in that regard. Though we find some merit in the submission of the learned Counsel for the appellant calling for reconsideration of the wide propositions of law laid down in
16. Mr. Anindya Mitra, the learned senior Advocate, appearing for the Board disputed that the writ petitioner is an auction purchaser. He submitted that it was a private sale and therefore the judgment relied upon on behalf of the writ petitioners has no manner of application.
17. His second submission was that the writ petitioners purchased the property on the condition that they are liable to pay the statutory liability. Relying on a judgment in the case of
18. When the petitioners have purchased the unit with an undertaking to discharge the statutory liability they cannot avoid to pay the dues of the Board.
19. His third submission was that as on the date of presenting the writ petition the petitioners were holding the unit on behalf of the West Bengal Financial Corporation. As a matter of fact Annexure ''P-3'' to the writ petition bears out this submission:
RMPL will hold the possession of the assets only on behalf of WBFC till full and final payment of the consideration is made.
20. It is only during the pendency of the writ petition that the writ petitioners have made the balance payment. Therefore, as on the date of presenting the writ petition they were not even purchasers.
21. Relying on the authority of
22. Lastly he submitted that a writ in the nature of Mandamus cannot be issued in the absence of violation of a legally protected right or omission to discharge a legal duty. He relied on a judgment in the case of
The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to something or to abstain from doing something.
23. Mr. Chatterjee, the learned senior Advocate submitted in reply that there can be no distinction between a purchaser and auction pruchaser. According to him any failure on the part of the writ petitioner to pay the dues of the West Bengal Financial Corporation can have consequences in between the petitioner and WBFC but not, between the petitioner and the Board.
24. I have considered the rival submissions made by the learned Advocates for the parties. Section 43 of the Electricity Act, 2003 casts a duty upon the licensee to supply electricity on request. It would be convenient to notice Section 43 of the Electricity Act, 2003 in extenso which provides as follows:
Duty to supply on request.- (1) Every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply:
Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission:
Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.
(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in Sub-section (1):
Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.
(3) If a distribution licensee fails to supply the electricity within the period specified in Sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default.
25. There can be no denial of the fact that a duty is cast upon the Board to-supply electricity but the question which calls for a determination has already been formulated above. The writ petitioners'' principal contention is based on the judgment of the Apex Court in the case of Ahmedabad Electricity Co. Ltd. (supra). That judgment to my mind has no manner of application to the facts of the present case. In that case the dues of the erstwhile consumer had already been paid and the dispute was whether the respondents, who had already paid the dues of the erstwhile consumer to the appellant, were liable to pay such arrears regard being had to the fact that they were auction purchasers having no possibility of any connection with the erstwhile consumer. The question before me is whether the Board arbitrarily refused to supply electricity to the writ petitioners who may or may not have any nexus with the erstwhile consumer.
26. That there is no nexus between the writ petitioners and Falta Steels Private Ltd. is the basis on which liability to pay for the dues of the erstwhile consumer is sought to be avoided. That premise has not been proved before me nor is it possible to decide such a question on the basis of affidavit evidence. There is no doubt that the writ petitioners wanted to purchase the property free from liabilities to the Board but they did not succeed in their intention. The question with regard to nexus in my view can only be gone into in an appropriately constituted suit.
27. Moreover there may not be a distinction between a purchaser and a purchaser. But there can be a distinction between an auction purchaser and a purchaser by private treaty. In the case of Ahmedabad Electricity there is no indication that the terms of auction contemplated payment of statutory liability which is not the case here as I already have discussed.
28. I am as such convinced, in the facts of the case, that the refusal on the part of the Board in the absence of any clear cut finding or proof of absence of any nexus between the erstwhile consumer and the present applicant for supply of electricity, was not arbitrary.
29. There are other weighty reasons to my mind why an order as prayed for should not be passed. The Board is engaged in a public utility service. Charges of electricity recovered by the Board are fixed by a Commission constituted under the provision of the statute. Sections 61 to 64 of the Electricity Act, 2003 provide for tariff and tariff regulations. The proviso to Section 61 indicates that the terms and conditions for determination of tariff contained in the Electricity Supply Act, 1948 and the Electricity Regulatory Commission Act, 1998 amongst other shall continue to apply for a period of one year or until the terms and conditions for tariff are specified u/s 61. The terms and conditions; for tariff have not as yet been specified by any amendment to Section 61 of the Electricity Act, 2003. Therefore, the provisions contained in the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998 continue to apply for fixation of the tariff. u/s 29 of the Electricity Regulatory Commission Act, 1998, the provisions contained in Schedule VI to the Electricity (Supply) Act, 1948 have been made applicable for the purpose of fixation of the tariff. Paragraph 17(2)(b)(vii) of Schedule VI to the Electricity (Supply) Act, 1948 provides that "bad debt" shall be considered as an allowable expenditure for generation, purchase, distribution and sale of electricity. One of the components, thus, to be taken into consideration while fixing the per unit rate of electricity is the amount of "bad debt". The amount of debt which the Board could not recover would naturally be classified as a "bad debt". The result therefore is that the debt incurred by one entrepreneur if not paid by him has to be paid by the society at large. It can never be in the interest of the society to allow this kind of a situation to prevail. What the debate is about? The writ petitioners are contending in effect that X cannot be made liable for the dues of Y for no better reason than that he has come to occupy the premises previously occupied by Y. But the position would not be largely different if Z (Society or body of consumers as a whole) is made to pay for the dues of Y. There is some privity between X and Y, be the same as little as that X has come to occupy the premises which Y occupied previously, but there is none between Y and Z.
30. I am thus convinced that the question formulated above has to be answered in the negative. I am also convinced that in the facts of the case it would not be in the interest of justice to issue a mandamus.
31. The petition is, thus, dismissed. There shall be no order as to costs.
32. Urgent xerox certified copy of this judgment, be supplied to the parties, if applied for.
