(Per: Mr. D.K. Tyagi, Member):

            These two appeals, one by the complainant and the other by the opposite parties, under Section 15 of the Consumer Protection Act, 1986 are directed against the judgment and order dated 24.07.2007 passed by the District Forum, Haridwar in consumer complaint No. 365 of 2006. By the impugned order, the District Forum has allowed the consumer complaint and directed the opposite parties to pay Rs. 1,000/- towards litigation expenses and also directed the opposite parties to provide electricity connection in the shop of the complainant and also amend the bill dated 29.11.2005 for Rs. 4,556/- and bill dated 30.06.2005 for Rs. 5,993/- as bills of domestic rates and issue fresh bills after amendment. 

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant Sh. Kanhayalal Gupta is doing his business in his shop. The complainant had applied for commercial electricity connection in the office of the opposite parties, for which he had deposited a sum of Rs. 1,003/- on 13.10.2003 through book No. UA064260.  The opposite parties issued the electricity connection No. 748/08841 to the complainant, but the opposite parties did not connect the electric wires to his shop and no electricity meter was installed.  The complainant had informed the opposite parties verbally as well as in writing, but all went in vain.  The complainant suffered physical, mental and economical loss by the act of opposite parties, who have not supplied the electricity to complainant despite deposition of connection charges.  The complainant is the ‘consumer’ of the electricity department.  The complainant sent notices to the opposite parties himself as well as through his counsel and also sent complaint to Hon’ble Lokayukt and Power Minister at Dehradun.  It is alleged that the opposite parties sent him a bill dated 29.11.2004 for Rs. 4,556/- and bill dated 30.06.2005 for Rs. 5,993/- whereas there is neither any electricity supplied in the complainant’s shop nor any electricity meter is installed in the shop.

3.       The opposite parties filed written statement before the District Forum and pleaded that the employees of the U.P.C.L. visited several times at the premises/shop of the complainant for electricity connection, but the complainant was using unauthorized electricity, therefore, he created hurdle in the electricity supply in his shop, to evade payment of electricity bills. The complainant used domestic power in his shop and when the electricity department sent bills to him of commercial rates, then the complainant filed a consumer complaint before the District Forum with false allegations.  The complainant is a shrewd man who had applied for electricity connection, but create hurdle in installation of electric lines.  The complainant does not want to pay the commercial charges of electricity.  It is wrong to say that the complainant had suffered any mental, physical or economical loss.  There is no deficiency in service on the part of the opposite parties.  The opposite parties had always ready and willing to supply electricity for commercial purpose, but the complainant intentionally creating hurdle in the installation of electric wires.  The opposite parties never received any notice or application from the complainant’s side.  The consumer complaint filed by the complainant is not legally maintainable and is liable to be dismissed.

4.       The District Forum on an appreciation of the material on record has allowed the consumer complaint vide order dated 24.07.2007 in the above terms.  The Chairman of the District Forum also passed an order on the same date, thereby dismissing the consumer complaint.  Not satisfied with the relief awarded by the District Forum, the complainant has filed First Appeal No. 273 of 2007 to allow the appeal and to dismiss the impugned order dated 24.07.2007, whereas the opposite parties assailing the propriety and legality of the impugned order passed by the District Forum, the opposite parties have filed First Appeal No. 322 of 2007.  Since both the two appeals arise out of the same order passed by the District Forum, therefore, these appeal are being disposed of by this Common order. 

5.       We have heard learned counsel for the Electricity Department and have also perused the record.  None is present on behalf of the complainant-Sh. Kanhayalal Gupta. 

6.       So far as the First Appeal No. 273 of 2007 filed by the complainant    Sh. Kanhayalal Gupta is concerned, the complainant has taken a stand that the impugned order passed by the District Forum dated 24.07.2007 is against the law.  The District Forum has not applied the legal brain while passing the impugned order.  The District Forum has passed the impugned order without even perusing the evidence filed by the complainant. The opposite parties in their written statement has not pleaded about the jurisdiction of the District Forum.  There are two orders passed in the District Forum on 24.07.2007.  In one order, which is passed by the Chairman of the District Forum, the consumer complaint has been dismissed and in the other order, which is passed by the two Members of the District Forum, the consumer complaint is allowed and Rs. 1,000/- was imposed as litigation expenses and to amend the electricity bills.  Both the order have been passed without applying the legal mind. 

7.       From the perusal of the record of First Appeal No. 273 of 2007, it is evident that the orders/judgments have been passed by the District Forum on 24.07.2007, one order passed by the Chairman of the District Forum, in which it is clearly observed that admittedly the complainant had applied for commercial electricity connection for his shop and also deposited required fees for the same.  The Commissioner Report filed on the record also reveals that there are four shops of the complainant having electric fitting therein.  According to the version of the opposite parties, the complainant is still using unauthorized electricity in the shops.  Learned Chairman of the District Forum has expressed his views that as the electricity connection in question is for commercial use, therefore, District Forum has no jurisdiction to hear and decide the matter and the consumer complaint is not maintainable.  Only Civil Court has the jurisdiction to hear and decide such matters.  Being consumer complaint not maintainable, the same was dismissed.  The order passed by two Members of the District Forum is contradictory to that of order passed by the Chairman.   The order passed by the two Members of the District Forum that the opposite parties are directed to issue/supply electricity connection to the complainant for his shops in which the complainant is doing his business and also directed to amend the bills at the rate of domestic supply and issue new amended bills and also directed to pay Rs. 1,000/- as litigation expenses.  The complainant has challenged both the orders of the District Forum.  Legally an order, which is a majority judgment passed by the two Members of the District Forum can be challenged before this Commission.  The order passed by the two Members is in favour of the complainant and against the opposite parties.  In this way, the order passed by the two Members of the District Forum in favour of the complainant is not maintainable at all.  Similarly, from the perusal of the consumer complaint filed by the complainant, it is clear that in Para 2 of the consumer complaint the complainant has expressed that he had applied for commercial electricity connection for his shops, in which he is doing his business.  As the complainant had applied for commercial electricity connection before the Electricity Department, therefore, according to the provisions of Section 2(d)(ii) of Consumer Protection Act, 1986, the complainant is not the consumer of the Electricity Department.  In this way, the impugned order passed by the two Members of the District Forum cannot be sustained, therefore, the First Appeal No. 273 of 2007 filed by the complainant-appellant is fit to be dismissed.

8.       So far as the First Appeal No. 322 of 2007 filed by the appellants-Electricity Department is concerned, the appellants have pleaded that the impugned order passed by the District Forum is against the law and facts on record.  The District Forum did not appreciate the facts and evidence adduced by the appellant-Electricity Department.  The District Forum having held vide order dated 24.07.2007 passed separately that the electricity connection applied for was of commercial connection and so it had no jurisdiction to pass another order on the same date to hold that the bills in question are liable to be revised to domestic tariff.  Learned District Forum has failed to appreciate that there were four shops and as per report of the Commissioner on record, there were complete fittings for electric connection in those shops and the business of the shops cannot be run without electricity as per nature of business, which would be clear from the perusal of the report of Commissioner.  Learned counsel for the Electricity Department has submitted that the District Forum has failed to appreciate that the respondent was using the electricity from his house to these shops as such he was liable for commercial tariff.  It also amounts to theft, but the electricity Department instead of taking action against the complainant for theft has merely sent bills for commercial tariff which the respondent is liable.  It is wholly immaterial that when the Commissioner went to the shops they were not connected to the electricity.  The District Forum did not appreciate the facts that the employees of the electricity department went several times to give connection at the shop, but the respondent did not allow them with the sole intention to use the domestic connection for commercial purpose.  Had the connection not been given to the respondent-complainant after lapse of so much time?  Nobody stopped the complainant from approaching the Consumer Grievances Redressal Forum established under Section 42 of the Electricity Act where the grievances of the respondent would have been redressed in a very short time and without any expense.  The complainant did not get the new connection and did not install new meter and continued to give supply to others in the shop due to which the bills of DS were being issued, as indicated in the bills. 

9.       We have gone through the documents filed on the record.  The Commissioner report (Paper No. 36-39) reveals that Sh. Parmeshwar Rathore, Advocate was appointed Advocate Commissioner to inspect the shops of the complainant and about present position of the electricity connection in the shops.  The Advocate Commissioner went to the spot on 17.04.2007 at 04:00 p.m. at New Subhash Nagar, Jwalapur, Haridwar where the complainant-                 Sh. Kanhayalal Gupta was present and none was present for the Electricity Department. The Commissioner inspected the spot in presence of witness    Sh. Kunwarpal and Sh. Sushanpal.  The Commission found four shops at the spot, in one shop the complainant himself doing business in the name of Gupta Hardware & Paints Store.  There was an electric wire and electricity fitting present in this shop, one fan, one tube light and one bulb were fitted and other electric wire was also present.  There was wire and fitting of two bulbs in the other room of this shop.  One switch board was also fitted in the shop having 11 switches and one plug, one charger and one tube light.  The Commissioner has expressly mentioned in the report that there was a black cable wire coming from the roof of this shop.  There was a cemented electric pole in front of this shop from which several electricity connections were provided by the Electricity Department to other persons. But there was no connection from this electric pole to the shop of the complainant.  The Commissioner also observed that besides these shops there were other three shops.  The tenant Sh. Kunwarpal is using one shop in the name of Shrishti Property Dealer. In this shop also there is electric wire and fitting of electricity for one sealing fan, one bulb and one other switch.  A switch board having 5 switches and one plug with indicator was also present.  There was no meter in this shop.  Other shop namely ‘Singh Electric and Repair’ was there in which tenant Sh. Sushanpal is doing business of electrical apparatus and appliances for sale and repair work.  There was also wiring and fitting of electricity in this shop.  There was one sealing fan, tube light, two bulbs and six bulb holders on board were also found.  There were 3-4 sealing fans kept in this shop for repair.  One switch board having six switches and four plugs was present.  One black thick cable was also present in this shop.  One portable black & white T.V. was also there.  There is no meter in this shop.  One other shop in possession of tenant Sh. Amrish Kumar, who was doing business of chemist namely ‘Amrish Medical Store’.  There was a wiring and fitting of electricity in this shop.  One table fan having stand, one tube light, one sealing fan and one bulb were present there.  The Commissioner has observed lastly in his report that there was no light at the time of his inspection and it was told by some persons of locality that light used in the night.  Some have told that battery is used for light in the night.

10.     From the perusal of the Commissioner Report, it is very much clear that the respondent Sh. Kanhayalal Gupta is having a domestic connection in his house and near his house there are four shops in which one of the shop is in possession of respondent himself in which he is doing business and other three shops are used by the tenants, who are doing their business.  All these four shops are having electricity wire and fitting of some fans, tube lights and bulbs.  The Commissioner also found a black thick cable coming out from the roof of the shop of the respondent.  In this way it is clear that the respondent himself as well as three tenants are using electricity from the wire coming from the house of respondent.  There is no electricity, supplied in the shops by the electricity department.  As per submissions of the learned counsel for the appellant there were complete fittings for electricity connections in the four shops and the business of shops cannot be run without electricity.  The respondent was using the electricity from his house to these shops as such he was liable for commercial tariff.  It also amounts to theft, but the electricity Department instead of taking action against the complainant for theft has merely sent bills for commercial tariff which the respondent is liable.  Learned counsel for the appellant has also submitted that the employees of the appellant went several times to give connection at the shop, but the respondent did not allow them with the sole intention to use the domestic connection for commercial purpose.  The complainant did not get the new connection and did not install new meter and continued to give supply to others in the shops due to which the bills of DS were issued. 

11.     Learned counsel for the Electricity Department has cited a decision of this Commission in the case of First Appeal No. 110 of 2006; Bal Kishan vs. Executive Engineer, U.P.C.L., Nainital decided on 13.02.2008.  The State Commission has observed that the submissions of the appellant-complainant that even if the electricity connection was for commercial purpose, the complainant should be deemed to be a consumer and could have sought the proper relief from the Consumer Redressal Forum, but this Commission has held that the submissions of the appellant/claimant do not carry conviction in view of the provision of Section 2(d)(ii) of the Consumer Protection Act, 1986, which provide that a person, who avails service for any commercial purpose, is not a consumer.  This citation is applicable in the instant case also.  Learned counsel also cited a decision of the Hon’ble National Commission in the case of Hotel Corp of India Ltd. vs. Delhi Vidyut Board and Others; 2006 (3) CLT.  The Hon’ble National Commission has observed that the electric line for installation whereof the amount was deposited by the complainant with OP No. 1, was to be utilized for commercial purpose by Centaur Hotel.  The complainant, thus, is not a consumer and the consumer complaint held not maintainable.  In the present case also, the complainant has applied for commercial electric connection for his shop in which he is doing business of hardware goods, therefore, the complainant is not a consumer and due to this reason the consumer complaint filed by the complainant is not maintainable.

12.     We are satisfied with the submissions and the reasons expressed by the learned counsel for the Electricity Department and also from the perusal of the documents on record.  Especially the Commissioner Report, which clearly reveals that the respondent-complainant is using unauthorized electricity in his four shops, in which he as well as three tenants are doing commercial business.  These shops are fitted with electric wires and fittings having electrical appliances, fans, tube lights and bulbs etc. and these appliances are being used with the electric supply from the house of respondent through a thick black cable wire.  The tenants of these shops are doing their commercial business alongwith the respondent, who is also doing business for commercial purpose and using the domestic supply in his shops.     

13.     The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot be legally sustained and is liable to be set aside.  As such the First Appeal No. 322 of 2007 is fit to be allowed.

14.     For the reasons aforesaid, the First Appeal No. 273 of 2007 filed by the complainant is dismissed and the First Appeal No. 322 of 2007 filed by the Electricity Department is allowed.  Order impugned dated 24.07.2007 passed by the District Forum, Haridwar is set aside and consumer complaint No. 365 of 2006 is dismissed.  Costs of the appeals made easy.

15.     Let the copy of the order be kept on the record of First Appeal No. 322 of 2007.

(MRS. VEENA SHARMA)                                                               (D.K. TYAGI)