(Delivered on 05/10/2016)

Per Mr. S.B. Sawarkar, Hon’ble Member.

1.         The instant appeal is filed against the order of the learned Additional Forum, Nagpur in CC No.  82/2013 dated 13/06/2014 granting partly  the complaint  against the opposite party (in short O.P.) Assistant Engineer , M.S.E.D.C.L ., Butibori and thereby  the bills  showing  the power tariff under 04/LT II COMM1 PH 20 KW  given  to the  complainant  for  November 2011 are cancelled  and               direction given  to O.P.  to give revised bill  under  tariff LT I : LT- residential  tariff  according to  prevalent  rate  for the  concerned period and no   interest, fine late fee  be added to the bill. The complainant had paid Rs. 26,680/- on 26/03/2013 and  Rs. 1,50,000/- on 29/02/2012 and  Rs. 6,300/- on 31/03/2012. Hence,  the amount  along with  any other amount  paid by the complainant be taken  into consideration from which the amount of the   re-corrected bill  be  appropriated  and  the remaining  deposited amount be returned  to the complainant  from the date of deposit i.e. from  29/02/2012  with interest at the rate of 9% p.a.  till  final payment.

            The complainant be given  Rs. 2500/-  for  physical and mental  harassment  with cost of Rs. 2500/- by the  O.P. which  the  O.P.  can  appropriate  in the  future  dues  from the complainant. The O.P.  to comply  with the order in the span of  30 days from the date of the receipt of the order.

2.         The complainant  Madhav Kuty Madhyamic Shala through Head Master Sashikant Anandrao Tadas filed  a complaint against the O.P.- Assistant Engineer, M.S.E.D.C.L. Butibori that  the complainant  is running  a school for  backward and  mentally  retarded  children which is run under the Indira Smruti Manav Seva Samaj Institute Nagpur on  no profit  no loss basis.  The school has a secretary by name  Ramesh  Digambar Bhandari  as  complainant No. 2 who has taken a connection for  domestic purpose   in his name from the O.P.  dated  22/10/2008. The connection  is  taken in domestic   category.  The above referred  children live  and  take education in the school.  The school is a beneficiary of the Secretary who has taken the connection.

3.         The complainant further submitted that  the school  receive the  electricity consumption bills  as a  domestic consumer from  22/10/2008 till  October-2011 which  were regularly paid by them. However, in November-2011 it was given a bill of Rs.2,27,277.71 for  consumed unit  of 23312 which is  illegal and wrong  as the bill is given  after 36 months  against the  rules.  As  the complainant  could not pay the bill  the electrical connection  was snapped  and  was threatened to   deposit the bill. Hence,  the complainant  under the fear of  no electricity  paid it.

4.         The complainant further submitted that  the electrical connection taken for domestic  use  and is to be used  at a place which is meant for residence. However, the O.P.  from  January 2013 started giving  the bill at commercial  rate by adding the  arrears of  12 months of  757 units and arrears of Rs. 18,660, totaling to  Rs. 26160/- which is illegal.   The complainant  filed a complaint  in above respect before the O.P. but  was not  replied properly . Therefore, the complainant  filed a complaint before the learned Forum with a prayer to  direct the O.P.  to cancel the bill of  November 2011 of  36 months   of arrears of Rs.2,27,277.71 and  to refund  the amount  with interest at  the rate of 24% with  fine  late fee and electricity duty. Further direct the O.P.  to  provide the revised  bill from January 2013 with  residential tariff in place of  commercial tariff  and  the extra amount taken  be directed  to be  refunded  and direct  O.P.  to thereafter provide the bill at  residential tariff rate. Further provide Rs. 1,00,000/- as compensation for physical and mental harassment and Rs. 50,000/- for  the  harassment as penalty  and Rs. 30,000/- as cost.  

5.         The complainant then  amended the  complaint  by adding  the Secretary Ramesh  Digambar Bhandari as complainant No. 2 , Resident  of 174, Vijayanand Society, Narendra Nagar, Nagpur  27 in whose name  the  residential   connection stands.

6.         On notice, the O.P.  appeared and  countered the  complaint  by filing  written version and submitted that  the  complainant No. 2 had taken a residential connection for the school in his name and has  paid the bills from the year  2008 to 2011. The O.P.  noted that  the meter reading was too less  and was running slow hence, the meter was changed on 27/08/2011 when  it found  the  use of  21,600 units. Therefore, the O.P.  fitted a new meter which  showed the use of  1713 units for November-2011. Hence,  the bill of   Rs.2,27,277/- was given of  arrears  which the complainant paid  in two installments. Thereafter   the complainant is given the bill at a commercial rate as  the  connection holder Secretary has given his  residential  meter  connection   to the school  for commercial use without the permission of the supplier company as per  the Circular No. 175 of the O.P.  Company.  Also the flying squad of the supplying company gave direction dated 31/12/2012 to recover the arrears of Rs.18,660/- from the complainant  for using household meter for commercial purpose. Hence, such bill was given in January -2013 which was paid by the complainant No. 2 on 30/03/2013.  The O.P.  therefore submitted that as the complainant used a residential  meter for commercial used hence,  the Forum has no jurisdiction to try it and hence it be dismissed.

7.         Both parties filed evidence on affidavits. The learned Forum  perused the evidence and heard both parties.  The learned Forum  considered that the complainant was running a school which was approved for  backward and mentally  retarded students as was approved by the Government of Maharashtra. The complainant  was given  the domestic supply in the name of Secretary under LT I: LT tariff . However, from January-2013 the tariff was changed  into commercial and was given  the arrears of Rs.18,660/- which was paid  by the complainant.

8.         The learned Forum  found that  in the LT 1 Domestic Tariff  is applicable from   01/05/2007 includes  Education Institution and Student Hostels.  Also  as per  section 56 (2) of  Electricity Act  no sum  due from any consumer  shall  not be recoverable  after the period of two years  from the date when  such sum became first due  unless  it is  shown  continuously  as recoverable. Thus the Forum  held that  as the school is a educational institution it falls in the LT 1 : LT-Residential Tariff.  The O.P. therefore   gave wrong bills  and is  liable  to compensate  and pay the cost.  Hence, the learned Forum passed the order supra.

9.         Aggrieved against the order the O.P. filed the appeal and hence, is referred as appellant. Advocate Smt. Deo  appeared for appellant.  The original complainant is referred as  respondent  and advocate Sahare appeared on behalf of respondent Nos. 1&2  original complainant Nos. 1&2.  Both parties filed written notes of arguments. 

10.       The advocate for the appellant reiterated the contentions as were raised before the learned Forum stating that  the arrear bill given in November 2011 of Rs. 2,27,277.71 was  given   as  the meter was found to be running  slow.  The respondent  No. 2 paid the bill. Hence,  the respondent cannot now raise  objection against it. The flying squad inspected  the meter of the  respondent No. 2 and  found that  it is used for commercial purpose when it is residential purpose. Hence, an arrears bill  of Rs. 26160/- as per the report of the flying squad  dated 31/12/2012 was given which  the respondent paid  without protest.  As  the action was correct in the breach of condition by the respondent  by  using domestic  meter  for  commercial use. However,  the learned Forum passed  erroneous order which needs to be  set aside.

11.       The advocate Mr. Sahare for the respondent Nos. 1&2 contested stating that  he has filed  the amended copy of the complaint in which  though  the connection was domestic it was used for the  residential educational institute for  backward class students. Hence,  as per the  circular No. 346 of the  appellant  company dated 04/12/2007 it should be  charged under the  prominent prevalent  use. In the school the students  were living  for 12 hours  and the school was run  for  7 hours a day.

12.       The advocate further submitted that section 56(2) of the Electrical   Act,  2003 clearly prohibits  raising of bill beyond the period of two years. However, the  appellant gave the bill of  30 months in November 2011 and  the second arrears bill of Rs. 18,660/- for 38 months  in January 2013. Therefore, the bills were illegal. Also  the educational institution come under the tariff  of LT 1 residential  which is  rightly  considered  by the learned Forum. 

            He submitted  the MSEDCL Low Tension  Tariff Booklet applicable with effect from  01/05/2007 in which  LT1 Domestic includes  residential places , educational institutes and students hostels affiliated to  education institutes .

            The advocate for the respondents relied on following judgments.

i.          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 found that  previous electricity bill included   arrears of  preceding  period of two years  and   held that  section 56(2) of Electricity  Act ,2003 clearly prohibits raising  of bill for a period  beyond  two years. Hence, deficiency in service is  proved and  compensation and  cost awarded.

ii.          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 was  taken in the name of builder services. However it was  enjoyed  by  complainant,  as   beneficiary and hence, he is  included  in the  definition  of  consumer.  The Commission further held that  complainant charged bill for  41 months on the  ground  that  services were availed by him for commercial use. Although  relevant provision  contemplate three months  additional bill in case of unauthorized  use and  no prior notice for disconnection was given. It was held that  additional bill is miscalculated  and  illegal. Also  further  held that  notice before  disconnection  of electricity supply is a protection  to consumer. Unless  notice is given  in the manner  provided  by section 171 of Electricity Act same would not be  considered  to be  a service of notice under section 56(1)  of Electricity Act.

iii.         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.

iv         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 like layers 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.

            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 in service   by giving  the arrears bill against section  56(2) of Electricity Act and  applied  wrong tariff. Hence,  the learned Forum passed  the correct order which needs to be confirmed, by providing more compensation to the respondent.

13.       We considered  the contentions of both the parities and perused the evidence. The appellant  gave  an arrears bill of Rs. 227277.71 in November 2011. The amount  was paid  by the respondent  as  the  electricity connection was disconnected.  We do not find any evidence given by the appellant  to show  as to why the arrears  bill was given . The appellant submitted that  it found the residential meter of the respondent No. 2  being slow and hence,  it was replaced.  The arrears were given  as  the  recording was more than the previous meter. However, there is  no evidence,  on  record to show the reason  for the  slowing  of the meter. Whether it was tampered. What was the  inspection report . What were the readings. What was the cause. What was the  percentage of slowing. What notice was given. What reasons were recorded.  What assessment  under which section was done.  In the absence of  any evidence  we do find that  the disconnection of electricity, if any, would  be  a deficiency in service. Hence,  we find the learned Forum  is correct in passing the order directing to refund the amount by appropriation in the forth coming consumption bills of the respondent.

14.       The appellant further submitted that  the respondent No. 2 was  given the arrear bill from  January -2013 at commercial tariff  by adding the arrears of 12 months . The appellant has submitted that  the respondent No. 2 took  a residential  meter for domestic purpose and used it  in the  supply of electricity to  a well defined  Society  run school. Hence,  it was against  the circular No. 175 of the  company  of the appellant and the arrears were given as per the directions  issued by the  flying squad  of the  appellant.

15.       We perused the commercial circular No. 175  issued by the  company of the  appellant  titled  as  “Revision in Electricity  tariff, Implementation thereof” issued on 05/09/2012. It is issued  with reference to  Maharashtra Electricity  Regulatory   Commission (for short MERC) tariff order dated 16/08/2012. In the above circular the following  directions are 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, and 3600 units   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 library 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 annum   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 the  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 all students hostels which needs  to be charged as per LT 1-LT commercial if the use of electricity is more than 300 units per month.

16.       The appellant  has also submitted  a chart showing  the  consumption of electricity  by the  respondent No. 2 per month and its calculation under LT1 residential  for residential purpose and LT commercial  for  commercial purpose showing  the difference in the amount  starting from  December-2012 onwards.

17.       We find that  the bill  of the electricity consumption  submitted by the respondent   shows,  the consumption of units to be almost  more than 500 units per month by the respondent No. 2 from February 2012 till December-2012. It shows that  the consumption of electricity  by the respondent No. 2 though has taken the meter in residential category  but  is more than  300 units per month.  The circular submitted by the appellant  is issued  in  the year 2012 and is the  outcome  of  the tariff directed by the MERC, a tariff deciding judicial authority. It shows that the meter of the respondent  No. 2 falls in the direction issued vide clause 2 of the  order No. 175 of company of appellant.   

18.       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  categorized   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  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 judicial direction of the  MERC(for short Maharashtra Electricity  Regulatory  Commission).

19.       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 so far as the directions issued  in the  clause No. 2 in the  impugned order.

20.       We therefore decide to  set aside direction given in  the clause No. 2 of the order of the  learned Forum and modify it by substituting  clause No. 2 at  its place.  Hence, the order below.

ORDER

i.          The appeal is partly allowed.

            The  direction  given in the clause No. 2 of the  impugned order is set aside and  following  direction   is introduced  at  its place.

ii.          The  bill of arrears  of Rs. 2,27,277.71 given by the appellant  in  November 2011 is  cancelled. Appellant to return the amount recovered against it  to respondent  No. 2 by adjustment of the same  in the  future bills of consumptions of  respondent No. 2.

iii.         Rest of the order of the learned  Forum is confirmed.

iv.        Parties to bear their own cost.

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