' MUNIR AHMED CHAUDHARY, J. --- This writ petition has been filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, through which two notices of Tehsildar (Recovery) Assistant Collector First Class Electricity Department Circle, Mirpur dated 16.06.2006 to each of the petitioners for recovery of Rs, 82,93,283/- has been challenged for having been issued without legal justification.
2. Precise facts of the petition are that Five Star Steel Moulding Private Limited, Bhimber was established by the owners of the Mill namely Muhammad Hashim son of Mukaram Khan, Muhammad Hanif son of Fazal and Farzand Ali Javaid son of Said Muhammad Mansha for which an electricity connection under Account No, B-3-4IND was obtained from the Electricity Department. The said Mill was closed in the year 1997 and possession of the same was taken by the creditor, Habib Bank. The said bank filed a suit for recovery of loan against the Mill in the Banking Court, Mirpur. A decree for recovery of Rs, 23,07,497/- was passed against the owners/directors of the Mill. The Banking Court published in the newspapers for auction of the said Mill. Petitioner No, 1 participated in the auction proceedings and offered his bid. Petitioner No, 1 purchased the said Mill through auction against a price of Rs, 11,68,000/-. The bid of petitioner No, 1 was confirmed by the Judge Banking Court, Mirpur vide its judgment dated 02.01.2003 and issued the requisite certificate in the name of petitioner No,
1. Thereafter, petitioner No, 1 obtained the possession of the land and property of the said Mill. It was further stated that petitioner No, 2 was performing as Manager of the said Mill when it was functioning and he was relieved when the Mill was closed.
3. The respondents moved an application for recovery of their electricity bills outstanding against the owners/directors of the said Mill during proceedings before Banking Court. The said application was dismissed by the Judge Banking COurt on 02.01.2003. The Electricity Department mala fidely and without jurisdictional competence made a request to the Collector District, Bhimber for recovery of outstanding electricity bills against the said Mill. The Collector forwarded the case to Tehsildar (Recovery) District, Bhimber who issued illegal notices for recovery of the outstanding electricity bills from the petitioners without legal justification. The petitioners were neither the Directors of the Mill nor the electricity meter was issued in their names, so they have no concern with the said outstanding bills. It was prayed to accept the writ petition and to declare the notices of recovery of outstanding electricity bills as illegal and without jurisdictional competence and to set-aside the same.
4. The respondents submitted written statement, stating therein that son of petitioner No, 1 was appointed as attorney by the directors/owners of the Mill before auction who used to seek time for clearance of outstanding bills, so petitioner No, 1 is bound to pay the said outstanding bills.
Petitioner No, 2 submitted an affidavit to pay the outstanding bills and requested to restore the electricity connection. Petitioner No, 1 moved an application to the worthy Prime Minister of Azad Jammu and Kashmir, through which the electricity connection was restored and instalments for the outstanding bills were fixed. The application for recovery of the outstanding bills before the Banking Court was not dismissed on merit and the said application was dismissed for non- prosecution. It was further stated that the recovery process initiated through the Collector District, Bhimber was made in accordance with the provisions of law. It was prayed to dismiss the writ petition.
5. Arguments were advanced by the learned counsel for the parties. Mr. Khalid Rasheed Chaudhary, Advocate, the learned counsel for the petitioners argued that the Directors/owners of the Mill before auction are responsible for the outstanding bills. The petitioners have no concern with the said bills and even they are not responsible for the same. The electricity meter and the concerned account number was not issued in the names of the petitioners and was issued in the names of the previous directors/owners of the Mill, The Electricity Department did not contest its claim before Banking Court, so the Electricity Department is debarred to claim the outstanding bill from the petitioners. The claim for arrears from the petitioners is without lawful authority. There is no proof on record that the petitioners are responsible for outstanding electricity bills regarding the period prior to the auction. The learned counsel requested to accept the writ petition and referred an un-reported case decided by the High Court of AJ&K titled as M/s. Amin Spinning Mills Limited v.
XEN Electricity Operation Division Mirpur and others (Writ Petition No, 65/1999) decided on 29.10.2005.
6. While controverting the learned counsel for the petitioners, Raja Niaz Ahmed Khan, Advocate, the learned counsel for the respondents contended that according to the rules, the premises are responsible for the outstanding electricity bills. Whoever is owner of the said premises is responsible for the arrears of electricity bills for the period of the previous owners. The plot of the said Mill has been cancelled by the concerned department, so the writ petition is not maintainable.
The learned counsel requested to dismiss the instant writ petition,
7. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and the precedent referred minutely. It is an admitted fact that the Mill namely Five Star Steel Moulding Private Limited, Bhimber was established by the owners named as Muhammad Hashim son of Mukaram Khan, Muhammad Hanif son of Fazal and Farzand Ali Javaid son of Said Muhammad Mansha. The electricity connection and the meter account number was issued in the name of the said persons. The said Mill was closed in the year 1997. Basically, the loan was granted by Habib Bank. When the loan was not recovered from the said owners/Directors of the Mill, the bank filed a suit for recovery of loan against the Mill' and its Directors in the Banking Court, Mirpur. A decree for recovery of loan was passed against the Directors of the Mill. The record reveals that the Electricity Department filed an application during proceedings before the Banking Court for adjustment and recovery of electricity bills outstanding against the said Mill from the directors of the Mill. The Electricity Department took no interest in pleading the said application and the same was dismissed by the Banking Court while recording the judgment. Later on, the said Mill was purchased by petitioner No, 1 Ch. Muhammad Siddique through auction conducted by the Banking Court.
8. It is an admitted fact that the outstanding electricity bill pertains to the period prior to the auction when the said Mill was functioning under the supervision of its previous owners/directors. It is also an admitted fact that the Banking Court has dismissed the application for recovery of electricity bills from the bid money and the Electricity Department has not filed any appeal or revision against the said judgment. So, the observation made by the Banking Court has attained finality and the matter is hit by the general principle of res judicata. The observation made by the Banking Court is a decision and the said order is of judicial nature. The said order cannot be treated as an administrative order. So, the general principle of res judicata applies regarding the matter in hand. It was enjoined upon the Electricity Department to challenge the order of the Banking Court through an appeal or any other appropriate proceedings before the higher forum, but the department failed to do so and the said order has attained finality and that will operate as res judicata. This principle has been laid down in the precedent referred by the learned counsel for the petitioners titled as M/s. Amin Spinning Mills Limited v. XEN Electricity Operation Division, Mirpur & others. It has been held in the said precedent that any order made on an application for adjustment of outstanding bills is a judicial order and the affected party should challenge the same before the higher forum.
9. It is evident from the record that petitioner No, 1 has become owner of the said Mill after purchasing the same through auction made by the Banking Court. It was brought on record that some outstanding electricity bills were claimed by the Electricity Department but the said department failed to pursue the said application for recovery of outstanding bills and the same was dismissed by the Banking Court. No liability of any outstanding bill or other arrears has been placed on the shoulders of the present petitioners by the Banking Court or by any other forum. It is also an admitted fact that the petitioner has purchased the said Mill as a result of the judgment passed by the Banking Court and auction made later on. Petitioner No, 1 was a successful bidder and a certificate regarding the same was issued in his name. The Electricity Department cannot claim any outstanding bill, at least from the present petitioners.
10. The respondents took this version that son of petitioner No, 1 has been pursuing the matters regarding payment of the outstanding bill being attorney of the previous owners, so petitioner No, 1 is responsible to pay the said bill. This version has got no footing. Petitioner No, 1 is not responsible for the actions of his son. What his son did, that was done on behalf of the previous owners being an attorney. Moreover, if petitioner No, 2 submitted any affidavit to pay the outstanding bill, that does not make petitioner No, 2 responsible to pay any bill on behalf of others.
11. It was also brought into notice of the Court that the plot of the Mill has been cancelled by the competent authority. The cancellation of plot does not matter in the present situation. The cancellation of the plot does not make the petitioners responsible to pay the electricity bill or the writ petition does not become incompetent.
' In the light of what has been stated above, I am of the view that the Electricity Department cannot initiate fresh proceedings in respect of the outstanding bills because the department has failed to challenge an adverse order passed against the department by the Banking Court. So, the proceedings for recovery of outstanding electricity bills from the present petitioners by the Electricity Department, the Collector of the District and Tehsildar/Assistant Collector are mala fide, without legal justification, without jurisdictional competence and liable to be set aside. All the proceedings initiated including the notices of Tehsildar/Assistant Collector Nos. 252 & 253 dated 16.06.2006 are hereby declared to have been issued without lawful authority and the said proceedings are of no legal consequences. The writ petition is accepted in the terms mentioned above. No order as to the costs.