Date of Filing: 21-10-2016
Date of Order:24 -4-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Wednesday, the 24th day of April, 2019
C.C.No.535 /2016
Between
India Media services Private Limited,
Flat No.202, Aditya Ranjana, 1-2-594/4,
Gagan Mahal Colony, Domalaguda,
Lower Tank bund, Hyderabad,
Represented by its Authorized signatory,
Mr.M.A Jowher, Advocate
S/o.M.Y.Jowher, age: 62 years ……Complainant
And
- Superintending Engineer,
Assessment/TSSPDCL,
Door No.6-1-150, 2nd floor,
B Block, Corporate office,
Mint Compound, Hyderabad – 500 063
- The Chairman,
Telangana Electricity Board,
Mint Compound, Hyderabad ….Opposite Parties
Counsel for the complainant : M/s.M.Srinivas
Counsel for the opposite Parties : Mr. P.Ganeshwar Rao
.
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been preferred under Section 12 of C.P. Act of 1986 for a direction to the opposite parties to reclassify the tariff from tariff V to tariff IA treating it as domestic connection and not as a commercial establishment.
- Brief facts of the complaint are that the complainant is a law firm running office in its flat bearing No.202, Aditya Ranjana, 1-2-594/4, Gagan Mahal Colony, Domalguda, Lower Tank Bund, Hyderabad. The said premises is being used by the advocate of the Firm only for legal research work and legal team consultation with residential facilities in it. Except advocates or their clerks and daily cleaning staff, no other including clients and outsiders are being allowed into the premises. No income is being generated in or out of the premises and there is no trade or buying or selling is done as such it is not being used as a commercial premises.
While the matter’s stood thus the Asst. Divisional Engineer, operation, Indira Park conducted inspection of the flat bearing Service Connection No.F.6009539 category LT IB-Domestic on 24-5-2016.
In his report dated 25-5-2016 there is a mention that power supply is being utilized for the purpose of advocate office but service is billing under category –I and it amounts unauthorized usage of supply for other than sanctioned one.
Aggrieved by the said findings by the Asst. Divisional Engineer an appeal was preferred on 29-6-2016 before Divisional engineer assessment corporate office contending that the two terms “ domestic and commercial are not defined in the Act or the Rules. Hence the said expressions are to be given the common parlance meaning and must be understood in their natural, ordinary and popular sense. But the said appeal was rejected by an order dated 1-7-2016 without cogent reasons by holding that the office of the advocate is covered under commercial category.
Aggrieved by the said findings of the Divisional engineer assessment corporate office a 2nd appeal was preferred before the opposite partyNo.1 office. In the above said second appeal the judgment of the Hon’ble High Court in the case of Chairman, M.P.Electricity board and others Vs. Shiva Narayan was submitted. It was other urged that the authority has failed to take in to consideration while passing the orders that it does not require any strong order to justify the conclusion that the office of the lawyer or a firm of lawyers is not a shop as held in the case of V.Sasidharan Vs.M/s. Peter and Karunakaran reported AIR 1984 SC 1700. It was other urged that phraseology of the definition in Section 2 (15) is inapposite in the case of lawyer’s office or the office of a firm of lawyers. Therefore the commercial rate cannot be applied on consumption of the electricity. In spite of it the opposite party No.1 office failed to appreciate the judgment of Hon’ble Supreme Court submitted before it and without giving any opportunity or personal hearing, has passed final order on 11-8-2016 treating the complainant’s service connection under commercial category.
The Hon’ble Madras High Court in the case of K.Kanagasabai Vs. The superintending Engineer held that the office of Advocate does not come under the heading commercial for payment of consumption of energy at commercial rate. The profession of an advocate is different from commercial activity. Advocate profession is a professional activity requiring professional skill as against the commercial or business activities and therefore the tariff categorization having utilized a small portion of his house for the purpose of his profession is unlawful, illegal, irrational, arbitrary and in violation of Article 14 of the Constitution of India. Similarly in the case of V.Sasidharan Vs.M/s. Peter and Karunakar and other reported in AIR 1984 SCC 1700 the Hon’ble Supreme Court held that the office of the lawyer or firm of a lawyer is not a commercial establishment. Similarly in the case of Shiv Narayan & another Vs.M.P. Electricity Board & Ors reported in AIR 1999 it was held that classification of Advocate and Vakkil under the heading “commercial “ for payment of consumption of electricity energy at commercial rate is arbitrary and irrational. The labour and skill involved in a profession in predominantly mental or intellectual rather than physical or manual. The office of the opposite party No.1 did not consider the case law placed before it in proper prospective and treating the complainant’s service connection as commercial for billing purpose is illegal. Hence the present complaint.
- In the common written version filed for the opposite parties is contended that the service connection bearing No.F6009539 to the complainant office was inspected by Sri Chennaiah, Asst. Divisional Engineer/SB-II/DPE, Hyderabad on 24-05-2016 and noticed that supply is being utilized for the purpose of advocate office whereas billing is done under domestic, hence a case was booked under Section 126 of Electricity Act 2003 for the unauthorized usage of supply for other than the sanctioned one. The assessment has been made and issued a notice for payment of the assessed amount of Rs.9,334/-. As per the tariff order the LT Category II i..e., non-domestic /commercial has been subdivided into LT-II (a) and LT-II (b), LT-II (c) and LT-II (d). LT-II (a) and LT-II (b) is applicable to the consumers who undertakes non-domestic activity and the consumers who undertake commercial activity and the consumers who do not fall in any of the category LT-I, LT-III and LT –VIII categories etc. Thus, the activity of the advocate’s office comes under non-domestic i.,e LT category II. As per the orders of the Hon’ble Supreme Court dated 27-5-2005 in Civil Appeal No.1065 of 2000 upheld the action of the Madhya Pradesh Electricity Board in billing the service connection of Advocate’s office under non-domestic category. The said judgment was delivered by Divisional bench of Hon’ble Supreme Court on reference made by the Single Judge. After this judgment there is no other judgment from the Hon’ble Supreme Court to overrule/supersede the said orders.
The complainant preferred an appeal before the Divisional Engineer against inspection and assessment made by Asst. Divisional Engineer and same was dismissed on 1-7-2016. A second appeal was preferred before the opposite party No.1 office and a personal hearing was given to the complainant on 27-7-2016 but the complainant failed to attend the personal hearing as such the second appeal was finalized as per the records.
The office of advocate comes under non-domestic and bills were charged on the commercial tariff as per the clause 9.3.5 of the general terms and conditions of the supply. At the time of inspection of service connection by Asst. Divisional Engineer on 24-5-2016 he noticed one computer, one printer, one AC, 4 tube lights and 4 fans and there were no electrical appliances, such as Fridge, TV, Mixy etc to show that the premises is being utilized for residential purpose as such it is clear that the service connection is not being used for domestic category. If any consumer is using his premises both for office and some part of it for residential purpose one must apply for taking separate connections under LT category –II to the extent of office portion of the residence cum offices like advocates and doctors etc. as per the GTCS clause 3.4.1. After the expiry of the notice period if the consumer fails to take separate LT category –II connection then the appropriate load of office portion will be booked under unauthorized usage of supply. For the complainant’s office domestic service connection was taken but there is no domestic activity hence it comes under non-domestic and tariff was charged under commercial category as per the general terms and conditions of Electricity Act. Hence there are no merits in the present complaint and there is no deficiency of service on the part of the opposite parties in respect of complainant’s service connection. Hence the complaint is liable to be dismissed.
In the enquiry stage for the complainant the evidence affidavit of its authorized signatory Sri M.A. Jowher is got filed and the substance of his affidavit is identical to the grounds mentioned in the complaint and through him five (5) documents are exhibited. Similarly for the Opposite Parties the evidence affidavit of one Sri M.D.Anwar Pasha representing the second office is got filed and through him eight (8) documents are exhibited. Both the parties have filed written arguments and for opposite parties oral submissions are also made.
On a consideration of material available on the record the following points have emerged for consideration .
- Whether the complainant could make out a case of deficiency of service by the opposite parties in respect of service connection provided to its premises?
- Whether the complainant is entitled for the reliefs prayed for?
- To what relief?
Point No.1: Documents filed for both sides are not in dispute. Essence of the complainant’s case is categorization of service connection provided to its office as commercial for billing is illegal since no commercial activity is being carried on in the premises. Nature of the relief prayed in the complaint is a direction to the opposite parties in the form of declaration like in a suit. Admittedly complainant having aggrieved by the assessment made by the Asst. Divisional officer preferred statutory appeal to the Divisional engineer assessment and when said appeal was dismissed, the complainant carried the matter to second appeal before the office of the opposite party No.1 which were also dismissed. Then the present complaint has been preferred as if this Forum to decide the legality of the orders passed by the office of the opposite party No.1 as such it cannot be termed as a consumer complaint. The complainant to challenge the findings of the office of the opposite party No.1 in the second appeal the available legal remedy is to file a writ Petition or a Revision before the Hon’ble High Court. Consumer Forum cannot be decide the legality of an order passed by statutory authority. If the complainant preferred a consumer complaint before availing the statutory right of first and second appeal’s before the competent authority that would be enquired as to whether the serving of an assessment revising domestic category to non-domestic amounts to deficiency of service or not. When an order has been passed by office of opposite party No.1 as in the second appeal brought before it its legality has to be considered only in the form of Revision or Writ Petition before Hon’ble High Court. So on this ground the present complaint deserves to be dismissed.
The complainant made a reference of judgment of Hon’ble Supreme Court in the case of Shiv Narayan & another Vs. M.P. Electricity Board & Ors reported in AIR 1999 MP 246 and filed copy of said judgment along with written submissions. The facts in the said case in the nutshell are under: M.P. Electricity Board charged the office of the Advocate for Electricity consumption at the rate applicable for commercial consumers. The said demand was questioned by way of Writ Petition before the Hon’ble Madhya Pradesh High Court and the Hon’ble High Court held that legal profession does not involve in a commercial activity and therefore the rate applicable to commercial consumers is not applicable to the office of Advocate. Against the said findings a Civil appeal was preferred before the Hon’ble Supreme Court. A Division Bench of the Hon’ble Supreme Court did not agree with the view expressed earlier in the case of New Delhi Municipal Council Vs.Sohanlal Sachdev. Therefore referred the matter for consideration by a larger Bench. Accordingly a full Bench of three (3) judges examined the issue and held as under:
We find that the Tariff entry classifies into two categories viz. (a) “domestic purposes” and (b) “commercial and non-domestic purposes”. This classification has been done statutorily in exercise of powers under Section 49 of the Electricity Supply Act,1948. The classification clubs “ commercial and non domestic purposes” into one category. Thus the question whether an Advocate can be said to be carrying on a commercial activity does not arise for consideration. As the user is admittedly not “domestic” it would fall in the category of “commercial and non-domestic”. In such cases even for “ non-domestic” use the commercial rates are to be charged. Exclusively running an office is clearly a “ non-domestic” use.
Thus in our view the judgment of this Court in Sohan Lal Sachdev is correct and requires no reconsideration.
So full bench of the Hon’ble Supreme Court held that the view expressed in the case of M.P.Electricty Board Vs. Shivnarayan and another is correct and requires no consideration and it amounts the categories of the office of the advocate as non domestic as held Delhi Municipal Council Vs.Sohanlal Sachdev is correct one. A Division bench of Hon’ble High Court of A.P given in the Writ Appeal No.1169 of 2003 also relied in the case of M.P. electricity board and Shivnarayan and another and held that petitioner running a Chartered Accountant office in the flat definitely false under commercial and non-domestic category.
In view of the judgment in the case of M.P. Electricity Board Vs. Shivnarayan and another when an office of Chartered Accountant comes under non-domestic similarly running of office of advocate also comes under non-domestic . In the light of it, it can be safely said that the assessment of the service connection of the complainant in the category of non-domestic is valid. There is no deficiency of service on the part of the opposite parties. Hence the point is answered against the complainant.
Point No.2 In view of the above findings it is to follow that the complainant is not entitled for the directions sought.
Point No.3: In the result, the complaint is dismissed. No order as to costs.
Dictated to steno, transcribed and typed by her, pronounced by us on this the 24th day of April , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1- letter dated 25-05-2016 addressed to the complainant by Asst. Divisional Engineer, Operation, Indira Park, Hyderabad
Ex.A2- copy of appeal, dated 29-06-2016 of complainant filed before opposite party
Ex.A3- copy of order No.DEA/HYD/DAT.151953, D.No.3195, dated 1-7-2016
Ex.A4- copy of second appeal of complainant
Ex.A5 – copy of order, dated 11-8-2016 passed by opposite party No.1
Exs. filed on behalf of the Opposite parties
Ex.B1 –inspection report dated 25-5-2016 along with load particulars and assessment calculations
Ex.B2 – copy of O.N submitted to Superintendent Engineer/Assessments /HYD
Ex.B3 – Provisional Assessment order dated 25-5-2016 with calculation
Ex.B4 – Final assessment order dated 1-7-2016
Ex.B5- Appeal order of the Superintendent Engineer dated 11-8-2016
Ex.B6- personal hearing notice dated 19-7-2016
Ex.B7- statement of service connection of the complainant
Ex.B8- office notes of the Chief General Manager/ letter by Southern power distribution company of Telangana Limited.
MEMBER PRESIDENT
