(Delivered on 19/06/2018)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed  by the original  opposite party Nos. 1,2&3 feeling aggrieved  by an order dated 08/02/2010 passed by the District Consumer Forum, Bhandara, by which  the consumer complaint  filed by the respondent  herein  bearing No. 01/2010 has been partly allowed and  following  directions  are  given.

i.          Electricity bill for Rs. 37,065/- issued by the appellant  to the respondent  towards less  billing charges  is cancelled.

ii.          The appellant shall pay to the respondent litigation cost of Rs. 1,000/-.

2.         Notice issued by this Commission to the respondent was duly served as seen from the acknowledgement received by Commission duly signed by the respondent. However,  though  after service of  that notice Mr. Govind Gondane, the clerk of Advocate Mr. S.S. Paliwal  appeared for the respondent  on 10/11/2017 before this Commission but the respondent failed to appear subsequently from 10/11/2017  till  this date,  for final hearing. Moreover, though the appellant filed written notes of argument, the respondent   failed to   file written notes of argument. Today also none appeared for the respondent. Hence, we  heard appellant’s advocate finally today and perused the entire record  and  proceedings of the appeal.

3.         The following facts are not disputed.

            The respondent is an Agricultural Produce Marketing Committee and appellant provided electric connection to the respondent.  The respondent paid electric bills from time to time which were  charged on the basis of industrial Power (I.P.)  category. However,  Flying  Squad  of the appellant  inspected  premises of  the respondent  on 09/09/2009 and  found that  though the electricity  connection is  under Industrial Power (I.P.) category  but the energy is being  used  for Commercial  purpose.  Therefore,  the  appellant  prepared  the  inspection note and assessed  the electricity bill  on Commercial  Category  basis  for the period  from October-2006 to June-2008  and June -2008 to September-2009,  an amounting  to  Rs. 37,065/-   towards less billing.  The appellant demanded  the said amount from  the respondent.  However, the respondent  did not pay that amount.  Hence,  the appellant issued  show cause notice calling upon  the respondent  to pay the  said amount of the  bill, within time given  in that  notice  and informing it that  otherwise the electric connection  of the respondent  will be disconnected without prior  intimation.

4.         The original complainant /respondent herein   alleging deficiency in service on the part of the appellant, filed consumer complaint bearing No. 01/2010 under section 12 of the Consumer Protection Act, 1986 before the District Consumer Forum, Bhandara. According to  the case of the respondent  as set out by it, if  there is any type of less billing  then why it was  not brought  to its  knowledge  and the appellants  cannot  compel  it  to pay arrears  on account of less billing.  The demand of money  made by  appellants is totally illegal and contrary to the provisions of law.  No  manufacturing work is under  taken by the complainant. The appellants have no right to recover arrears under commercial  category charges. Moreover,  the appellants have no right to  covert the electricity connection  of the complainant  from category of  I.P  to Commercial category. Therefore, the complainant prayed that direction  may be given to the appellant   to assess the bills as per I.P.  Category   and not  as  per  Commercial Category and to pay him compensation of Rs. 5000/-.

5.         The appellants appeared before the Forum below and filed reply. The appellants  submitted in brief  that  the  though  the electric connection  is meant for  Industrial Power (I.P.) category but there  is no manufacturing  activity. But actually  the  electric energy  is being used for commercial purpose. The tariff rates for Industrial Power connection are less than for Commercial.  The complainant used the  electrical energy  for commercial purpose. Hence, complainant is liable to pay electric charges applicable for commercial use. As bills are issued  as per I.P. category, they are of loss amount  called as less billing. It is denied that the appellants have no right to recover arrears as per commercial tariff.  It is also denied that  the appellants have no right  to  covert connection from Industrial Power (I.P.)  Category  to  Commercial  Category (C.L.).  The appellants  denied the  allegations made in the  complaint and submitted that  as  the  electric use is for  commercial purpose  and as there is  less billing, the bill of Rs. 37,065/- issued is correct and properly  assessed  for  arrears and hence, it was requested  by the  appellants that  the  complaint  may be dismissed.

6.         The learned  District Consumer Forum below  after hearing both the parties and considering evidence brought on record, partly allowed  the complaint as above  by passing  impugned order.

 7.         The learned advocate of the appellant has drawn our attention to the documents filed on record, tariff booklet and order passed by the Maharashtra Electricity Regulation  Commission ( M.E.R.C.) in case No. 19/2012.  The advocate of the appellant submitted that  the District Consumer Forum below   did not  consider the tariff  applicable to the present case and  inspection  report filed  on record.  According to him as  admittedly the electric  connection was used for  non  residential  purpose  the  tariff applicable  to the said connection  is for commercial  charges  and not for industrial  purpose.   The electricity was  not used for manufacturing purpose or industrial purpose. He also submitted that the Forum below erroneously placed reliance on the decision of the Commissioner of Income Tax Vs. Agricultural Produce and Market Committee. According to him the said case is relating to  matter of   Income Tax and the Forum below thus erred in relying on the said  decision.  He filed copy of the said decision. He also submitted that  as per provisions  of section 45 of the Electricity  Act,2003,  the appellants have  power to  recover the arrears of  electricity charges when  it was found  that  there is less billing.  According to him, there  is no  question of taking  advantage  of wrong by the appellants when at the time of giving  electric connection  the purpose was different but  respondent  changed that purpose, as  found at the time of  inspection  by flying squad. He also submitted that  the Forum erred  in holding  that  the tariff is applicable  only for the   period  from 01/10/2006 to 31/03/2006  and submitted that  the said tariff  is subsequently  not changed  as observed by the  learned MERC in the case bearing No.  19/2012. Thus, the learned advocate of the appellant submitted that the impugned order passed by the Forum is illegal as discussed above and it  is liable to be set aside.

8.         As observed above,  none appeared  for the respondent  though  served  with notice.  After perusal of the record and proceedings of the appeal, we find substance  in the aforesaid  submission of the learned advocate of the appellant.   It is not disputed by the respondent that the electric connection though initially was taken  for construction purpose but   subsequently  when  construction  was  completed  the said purpose of  electric connection  was changed and it was used for  non residential  purpose. The tariff produced on record shows that the same  tariff is applicable to the electricity which is used for non residential, commercial and  business  premises.  Moreover,  the learned MERC in the case  bearing No. 19/2012  of which copy  filed on record specifically  observed that  same tariff is applicable  to  both  non residential  and commercial  purpose.

9.         Therefore, we find that  when  the appellants   found on 09/09/2009 at the time of  inspection  that  the electricity  was used for non domestic purpose  then they have  rightly  applied the tariff for commercial purpose for the period  from October-2006 to June-2008  and  from June -2008 to September-2009.  They  also produced  calculation sheet along with  inspection report which were   filed  by the  respondent  before the  Forum below.

10.       Moreover, we also find that after respondent did not pay amount of bill he was given  show cause notice as discussed above  by the appellant. Thus opportunity was also given to him by the appellant by receiving bill and notice.

11.       We also find that  the decisions relied on by the learned Forum below are not applicable  to the facts and circumstances  of the present case  as they are totally different  from those  of the present case.

12.       The appellants  are entitled  to recover  the arrears due to  less billing, from the respondent.  We also find that the tariff was initially  made applicable from 01/10/2006 to  31/03/2007 and subsequently  same tariff was  continued. The appellant rightly issued the bill for less billing as per tariff applicable to the electricity used by the respondent. Thus in our  considered view, the impugned order cannot be sustainable in law. Therefore, it deserves to be set aside.

ORDER

i.          The appeal is allowed.

ii.          The impugned order is set aside.

iii.         The complaint stands dismissed.

iv.        No order as to cost in appeal.

v.         Copy of order be furnished to both  parties, free of cost.