(Delivered on 05/10/2016)
Per Mr. S.B. Sawarkar, Hon’ble Member.
1. The present appeal is filed against the order of the Additional District Forum, Nagpur passed in CC No. 81/2013dated 13/06/2014 partly granting the complaint against the opposite party (for short O.P.) Assistant Engineer, M.S.E.D.C.L. The Forum directed to cancel all the bills given from January-2013 to complainant under the tariff plan 04/LT II COMM 1 PH 20 KW. In place of them directed to give the bills according to the August-2012 tariff LT-1:LT-Residential tariff according to the rate prevalent for respective period and not to include the interest , penalty and late fee surcharge upon it. The Forum directed to appropriate the bill amount paid by the complainant with the O.P. from January-2013 from the recorrected bill and the extra amount remaining be paid from the date of deposit i.e. 27/01/2013 with interest of 9% p.a. till the final payment. The learned Forum further directed the O.P. to provide Rs. 2500/- for physical and mental harassment and Rs. 2500/- as cost to complainant and to appropriate the amount in the future receivable bills by the O.P. The Forum directed to comply with the order in the span of 30 days from receipt of the order.
2. The complainant herein filed a complaint that he is running a Madhav Kuti Primary Residential School from October-2008 in which the mentaly retarded and backward students live and take education. The school is run under the Indira Smruti Manav Seva Samaj Sansatha, Nagpur on no profit no loss basis. The Secretary of the School one Ramesh Digambar Bhandari, resident of 174, Vijayanand Society, Narendra Nagar, Nagpur, 27 has taken a domestic electric connection from the O.P. from 22/10/2008 of which the school is a beneficiary.
3. The school was given regular domestic bill by the O.P. from 22/10/2008 till 31/12/2012 which were regularly paid by the complainant. However, in January-2013 the complainant was given a bill with arrears of Rs, 24740/- of 12 months totaling to Rs. 33000/- under commercial rate by the O.P. The complainant further submitted that as per the electric supply company circular No. 346, dated 04/12/1997 it is clarified that where the category of use of electricity is more predominant then the bill be given according to prominent category. Hence, the O.P. company should have given the bills as per the domestic use of electricity and not by commercial use. The complainant therefore, filed the complaint with a prayer to direct the O.P. to give the bill as per residential tariff by recorrecting the bill given by the commercial tariff from January-2013 and to return the extra amount recover in the bills. Further direct to continue to give the bill at residential rate provide the complainant Head Master Rs. 20,000/- for physical and mental harassment and a penal compensation of Rs. 20,000/- for threatening to disconnect the electricity. Further direct to provide cost of Rs. 20,000/-.
4. The complainant amended the complaint and introduced the electric connection holder secretary of the school as O.P. No. 2 i.e. Ramesh Bhandari, resident of Snehanagar, Nagpur .
5. On notice the O.P. appeared and filed written version on affidavit stating that the electric meter is taken by the Secretary of the school by name complainant No. 2- Ramesh Bhandari for domestic use. However, the meter was used for the school without permission of the O.P. which is against the circular No. 175 of the Electric Supply Company. Therefore, the O.P. calculated the bill as per the commercial tariff and gave it to the complainant. The flying squad of the company vide letter dated 31/12/2012 also directed to give the bill as per commercial rate and directed to recover the arrears of Rs. 24740/- which the complainant No. 2 deposited on 30/03/2013 without objection. As the meter is used for commercial purpose the Forum cannot entertain the complaint which therefore needs to be dismissed.
6. Both parties filed the evidence in form of affidavit, tariff book and the bills given along with the recognition letter from Government Department of the school being run for backward class students.
7. The learned Forum heard both the parties and held that the complainant runs residential school under the Indira Smruti Manav Seva Samaj Sanstha for backward class students as approved by the government. It is given with low tariff household connection in the name of secretary Ramesh Bhandari. It is given with a bill in January-2013 with arrears of Rs. 24740/- which the complainant has paid on 26/03/2016. However, as per the tariff booklet of the supply company of O.P. dated 01/05/2007 the LT1 domestic tariff includes educational institute and the section 56(2) of the Electricity Act,2003 prevents the recovery of arrears beyond the period of two years. The school of the complainant is a residential school and hence the tariff of the supply company of LT1 –LT residential is applicable to the school. Therefore the complainant is liable to get the bill under the LT1 –LT tariff. Hence, the O.P. committed deficiency in service. Therefore, the learned Forum passed the order supra.
8. Aggrieved against the order, the O.P. filed this appeal & hence, is called as appellant. Advocate Smt. Deo appeared on behalf of appellant. The original complainant Nos. 1&2 are referred as respondent Nos. 1&2 and Advocate Mr. Sahare appeared on their behalf. Both parties filed written notes of argument. We heard them.
9. The advocate for the appellant submitted the same ground as were placed before the learned Forum stating therein that the respondent No. 2 had given his residential meter to the respondent No. 1 against circular No. 175 of the company of the appellant . Hence, it was a commercial use. The appellant received the report of the flying squad dated 31/12/2012 of the inspection on 08/11/2012 that the respondent No. 2 was using the residential connection in commercial purpose and therefore, he was given the bill of Rs. 33,000/- with arrears of Rs. 24,740/- which he paid on 30/03/2013 without any protest. As the bill was according to the circular it is correct and needs to be confirmed. The advocate further stated that the learned Forum wrongly interpreted section 56 (2) of the Electricity Act,2003 and held it to be applicable. But as per the circular No. 175 of the O.P. company the respondent is a public service institution and therefore needs to pay the electricity bill as per the LT commercial as per the chart submitted by her. She further submitted that the compensation and cost are not required which are given on wrong presumption . Hence, the order needs to be set aside & the appeal be allowed.
10. The advocate for the respondent reiterated the same ground as were submitted before the learned Forum. The advocate submitted the tariff booklet of the appellant company dated 01/05/2007 showing that the LT 1 Domestic tariff provides the billing of electricity consumption for residential places , educational institution , students hostels and hostels for destitute, mentally derailed persons etc. He then submitted that the electricity bill needs to be given under the tariff of LT1. He submitted the following cases to support his contentions .
- M.P. State Commission Judgment passed in M.P. Madhay Kshetra Vidyut Vitaran Company Limited Vs. Munnalal Jain, published at III (2010) CPJ 9 in which the Hon’ble Commission held that in previous electricity bill including arrears of preceding period of two years issued held that section 56(2) of Electricity Act clearly prohibits raising of bill for a period beyond two years.Hence, deficiency in service proved , compensation cost awarded.
- Maharashtra State Commission Judgment passed in Reliance Energy Ltd. Vs. Ranjan Agrawal , published at 2012 (1) ALL-MR (Journal) 21. Wherein the Hon’ble Commission held that electricity connection taken in the name of builder services however enjoyed by complainant resident status is beneficiary included in the definition of consumer. The Commission further held that complainant charged bill for 41 months on ground that services were availed by him for commercial use. Although relevant provision contemplate three months additional bill in case of unauthorized used no prior notice for disconnection given . Held additional bill is miscalculated and illegal. Also further held that notice before connection of electricity supply is a protection to consumer. Unless notice is given in the manner provided by section 171 same would not be considered to be a service of notice under section 56(1).
- Bombay High Court judgment passed in Osho International Foundation Vs. Maharashtra Electricity Regulatory Commission and another , published at 2013(4) ALL-MR 11. Wherein the Hon’ble High Court held that the service oriented spiritual organization be included in the newly created category of HT IX public services.
- The respondent filed Departmental Circular No. 344 dated 04/12/1997 wherein it is directed that where the domestic connection is partially used for commercial purpose along with residential like lawyers etc. then the tariff applicable be for the predominant use i.e. if the use is more for domestic category then domestic billing be done, if the commercial use is more then commercial tariff will apply.
11. The advocate for the respondent therefore submitted that the respondent being a recognized institution where the students for backward class study the appellant caused deficiency by giving the arrears bill against Rule 56(2) of Electricity Act and applied wrong tariff. The learned Forum passed the correct order which needs to be confirmed. However, by providing more compensation to the respondent.
12. We considered the contention of both the advocates. We find that the appellant has raised the grounds that the respondent No. 2 took the residential connection but had given it to the respondent No. 1 a well defined trust running the school . Hence, it being a commercial use it needs to be charged under LT X commercial (Educational Tariff) as per circular No. 175 dated 05/09/2012.The advocate of the appellant submitted circular No. 175 issued by the company of the appellant.
13. We perused the circular issued by the company of the appellant titled as Revision in Electricity tariff Implementation thereof issued on 05/09/2012 No. 175. It is issued with reference to MERC( for Maharashtra Electricity Regulatory Commission) tariff order dated 16/08/2012. In the above circular the following direction is given directing it to be operative from August 01, 2012. It says:
“Tariff for small shops operated from home. For residential consumer who run small business from their household but consume less than 300 units a month per year are in the last financial year to be covered under LT-1 (Domestic Tariff Category). This category is applicable for all house hold consumer who run small shops workshop office liberarrary etc, from their houses which actually comes under LT-2 (Non Residetial or commercial ) LT-V (L.T Industry and LT-X (Public services) and who consumed less than 300 units a month and who have consumed less than 3600 units per annam in the previous financial year. The applicability of this tariff will have to be assessed at the end of each financial year in case any consumer has consumed more than 3600 units in the previous financial year then the consumer will not be eligible for tariff under this category and will be charged as per appropriate category of LT-II /LT-V/LT-X as the case may be. Also in case he crosses 300 units per month the consumer will be required to take separate connection under relevant tariff category. This connection in tariff will be applicable only to be specifically be marked /flagged consumers. Field Officer will be required to complete this exercise within one month”.
Under this circular in the annexure A LT1-LT residential includes private residential premises and all students hostels.
14. The appellant has also submitted a chart showing the consumption of electricity by the respondent No. 2 per month and its calculation under LT1:LT residential for residential purpose and LT commercial for commercial purpose showing the difference in the amount starting from December-2012 onwards.
15. We find that the bill of the electricity consumption submitted by the respondent No. 2 shows, the consumption of units to be almost more than 500 units per month from February 2012 till December-2012. It shows that the consumption of electricity by the respondent No. 2 who has taken the meter in residential category, but is more than 300 units per month. The circular submitted by the appellant is issued in 2012 and is the outcome of the tariff directed by the MERC, a tariff deciding authority. It shows that the meter of the respondent No. 2 falls in the direction issued vide clause 2 of the said order.
16. We thus find that the respondent No. 1 is a beneficiary of respondent No. 2 . It is also an educational institution drawing electricity through domestic meter. But as per the circular which became operative in the year 2012, it needs to be charged in the category of LT-II commercial, as the consumption is more than 300 units per month. This also shows that the appellant has acted upon the direction given by the flying squad of the company of the appellant which is on record. The bill also shows the consumption of electricity for the previous 12 months defining the actual use of electricity . Thus the section 56 (2) of Electricity Act, 2003 also does not become applicable in this respect as the action by the appellant is done as per the directions issued in the circular No. 175 which are inconsonance with the directions of the MERC.
17. We thus find that the learned Forum overlooked the directions issued by the circular No. 175 and wrongly held that the residential and educational institution used electricity under domestic category by the respondent Nos. 1&2 to fall in the category of LT-I LT. It does fall in the category of LT-I LT but the bill needs to be paid as per the LT-II Commercial category as per the circular. Hence, we find that the category applied by the appellant does not become wrong. Thus the order of the learned Forum proves to be erroneous.
18. The respondent has submitted that it is the educational institute providing education to the backward as well as mentally week students. However, the connection taken in domestic category. Hence, as per the request of the respondent it has to be billed in LT 1 –LT residential tariff. However, as per the clause No. 2 of the circular issued by the company of the appellant, it has to be billed as per the consumption of electricity units. We find that the respondent has submitted the bill of electricity of his domestic meter which gives the previous consumption of electricity starting from March 2012. The consumption of every month is much more than the required use of 300 units per month. It shows that the consumption has to be billed as per LT-II commercial as per the circular issued under the directions of MERC. The circular also gives the direction that the field officer to properly categories the domestic user in the category and would complete the process of giving them revised bill in the span of 30 days. The flying squad of the company of the appellant has given a direction to the appellant in this respect. The bill also shows the exact use of electricity in the last 12 months of the consumption. Hence, it is possible to calculate the arrears for the period . Therefore, the section 56(2) of the Electricity Act does not become applicable in the present case.
19. We find that the learned Forum overlooked the directions issued to the appellant by the circular of the year 2012 who as acted as per the circular. Hence, appellant cannot be attributed deficiency in service as regards providing the bill as per the LT-II Commercial to the respondent. Hence, the order now needs to be set aside.
20. With reasons recorded so we set aside the order of the learned Forum and pass the order as below.
ORDER
i. The appeal is allowed.
ii. The order of the learned Forum is set aside.
iii. The complaint stands dismissed.
iv. Stay if any stands vacated.
v. Parties to bear their own cost.
vi. Copy of the order be given to both the parties free of cost.
