SCA/7453/1995 of OM WIRES PVT LTD Vs DY ENGINEER on 13 December 1995

1. Whether Reporters of Local Papers may be allowed to see the judgements?

2. To be referred to the Reporter or not?

3. Whether Their Lordships wish to see the fair copy of the judgement?

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? of India, 1950 of any Order made thereunder? of India, 1950 of any O

der made thereunder? of India, 1950 of any Order made thereunder?

of India, 1950 of any Order made thereunder? of Indi , 1950 of any Order made thereunder? of India, 1950 of any Order ade thereunder? of India, 1950 of any Order made thereunder?

of India, 1950 of any Order made thereunder? of India, 19

0 of any Order made thereunder? of India, 1950 of any Order madehereunder? of India, 1950 of any Order made thereunder?

of India, 1950 of any Order made thereunder? of India, 1950 ofany Order made thereunder? of India, 1950 of any Order made there nder? of India, 1950 of any Order made thereunder? o India, 1950 of any Order made thereunder? of India, 1950 of anyrder made there

5. Whether it is to be circulated to the Civil Judge?

OM WIRES PVT LTD

vs

DY ENGINEER

Appearence:

MR NS SHETH for Petitioner

MR TUSHAR MEHTA for Respondent No. 1

MR RD DAVE for Respondent No. 4

At the request of both the parties, the matter is takenup for final disposal The grievance of the petitioner is that therespondent-Board has rejected the application dated 14th June1995 of the petitioner-company for temporary connection on theground that the dues of the previous consumer M/s. Nigam WiresPrivate Limited about Rs.2,00,811/- were not paid. Thepetitioner has prayed for a direction on the respondents forsupply of electricity for their factory. The stand of therespondent-Board that the petitioner could be given electricitysupply if the dues of the previous consumer were paid up, cannotbe sustained, in view of the decision of the Honourable SupremeCourt in the case of Isha Marbles vs. Bihar State ElectricityBoard & Another, reported in JT 1995 (2) SC. 626, in which theSupreme Court held that the auction purchaser cannot be saddledwith the contractual liability of the original defaulter. It washeld that though the auction purchaser had asked for electricityconnection as a new connection, it cannot be regarded as a newconnection and it was only a reconnection, since the premises hadalready been supplied with the electricity supply.

It was sought to be contended on behalf of therespondent-Board that the conne fresh connection. Such argument is not open in view of what hasbeen stated by the Supreme Court in the case of Isha Marbles(supra) in paragraphs 48 and 56 of the judgment. The SupremeCourt has categorically held that, though the purchaser asked forelectricity connection as a new connection,it cannot be regardedas a new connection, in view of the fact that the electricity wasalready supplied in the same premises and such connection was areconnection of electricity. It was held by the Supreme Courtthat:

"It is true that it was the same premises to which reconnection is to be given. Otherwise, with the change of every ownership new connections have to be issued does not appear to be the correct line of approach as such a situation is brought about by the inaction of th...

when they fall due or not providing itself by adequate deposits."

Therefore, there is no scope of arguing that the electricitysupply which was to be given in the same premises taken in publicauction by the petitioner would amount to reconnection.

It was further submitted that the observations of theSupreme Court in this paragraph are only obiter since the courtwas not called upon to adjudicate on such an issue. Theobservations are made in the context of the controversy which didarise before the Supreme Court and cannot be termed as obiter.Even if they were obiter, they are binding on this Court, sincethey amount to declaration on the point of law.

In view of the decision of the Supreme Court in the caseof Isha Marbles (supra), the respondents-authorities cannotinsist on the petitioner that they should pay up the dues of theearlier consumer, who was supplied electricity in the samepremises.

The respondents-authorities are, therefore, directed todecide the question of giving reconnection to the petitioner forthe electricity supply in light of the decision in the case ofIsha Marbles (supra), without taking into consideration the factthat the dues of the previous consumer were not paid. Thedecision may be taken within three weeks from today.

Rule is made absolute to the aforesaid extent with noorder as to costs.

����MR.JUSTICE R.K.ABICHANDANI