BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 22/2005 Filed on 17.01.2005 Dated : 15.06.2010 Complainant: Vettathu G. Sudhi, Advocate, 'Vishakhom', T.C 25/3002, Malloor Road, Vanchiyoor P.O, Thiruvananthapuram.
(By adv. M.G. Sudharman) Opposite parties :
The Managing Director, Kerala Water Authority, Jala Bhavan, Vellayambalam, Thiruvananthapuram. (By adv. Rajesh. R)
The Assistant Executive Engineer, Kerala Water Authority, Pattoor Section, Thiruvananthapuram.
(By adv. Santhamma Thomas & V.S. Hareendranath)
This O.P having been heard on 30.04.2010, the Forum on 15.06.2010 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant is the owner in possession of one cent of land with a building therein comprised in Sy. No. 1518/A/3 of Vanchiyoor Village, that the said building got watter connection under domestic category in 1987 vide consumer No. PCH 4424/D, that the said building having one bath attached room, that he started to function his advocate office in his residential building and applied for water connection in the year 1987, that complainant was making payment as per bills towards water charges until 03/02 under domestic category, that thereafter bills for water charges have been issued under non-domestic category unilaterally without any notice to the consumer, that complainant lodged a representation to Executive Engineer on 19.04.2004 requesting him to reduce the enhanced rate and to restore the original consumption category. Opposite party did nothing to effect conversion to original category. Hence this complaint to direct opposite parties to restore water connection under domestic category, to pay compensation and costs and to adjust the excess amount collected from 01.04.2002 in the future bills. Opposite parties filed version contending that water charge was changed into non-domestic category with effect from 04/02, since water consumption was for functioning an advocate office, that the quantity of water consumption alone is not taken as a ground for deciding the category, that the purpose for which water is being consumed is also taken as a ground for categorization of the consumer, that as per Sec. 37 of the Kerala Water Supply and Sewerage Act, advocate office does not come under the category of domestic connection. Consumption of water in respect of premises used solely for the residential purpose can be treated as domestic. Complainant is not entitled to get any compensation. There is no deficiency of service on the part of opposite parties. Hence opposite parties prayed for dismissal of the complaint. The points that arise for consideration are:- Whether the complainant is entitled to get bill under domestic category? Whether the complainant is entitled for refund/adjustment of excess amount? Whether there is deficiency in service on the part of opposite parties? Whether the complainant is entitled to compensation and cost? If so, at what amount?
In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P13. In rebuttal, opposite parties did not file affidavit or documents. Points (i) to (iv):- Admittedly, complainant is a consumer of the opposite parties vide consumer No. PCH 4424. There is no point in dispute that the said connection was under domestic category till 03/02. There is no point in dispute that the complainant was requested to remit water charges at non-domestic rate from 04/02 onwards. It has been the case of the complainant that he is the owner in possession of one cent of land with building in Sy. No.1518/A/3 of Vanchiyoor Village, that the said building got water connection in 1987 under domestic category and that he had been remitting water charges at domestic rate. It has also been the case of the complainant that from March 2002 onwards bills have been issued at non-domestic rate unilaterally without any notice to him, that even after a representation lodged to Executive Engineer requesting to effect the conversion of tariff from the alleged non-domestic to domestic rate, no action has been taken by opposite parties so far. It is the say of the opposite parties that the quantity of water consumed alone is not taken as a ground for deciding the category, rather the purpose for which water is being consumed is taken as a ground for categorization of the consumer. It is further argued by opposite parties that advocate's office is not a premises for residential purpose, but for the purpose of leading a profession. Complainant has been vehemently cross examined by the opposite party. In his cross examination he has deposed that there is a bath attached room in the said building where Almara, coat, bench, table, signboard etc. are placed, that one portion of the said room has been used for his advocate office. Complainant has further deposed in cross examination that he has been residing in the said building two or three days every week and has been using only 30 litre water per day. In his cross examination when a suggestion was put to him by opposite party stating that while residing there in the said building, is it not being used as a lodge, PW1 replied “No, it is not being used as a lodge”. Ext. P1 is the provisional invoice card wherein category mentioned is 'domestic'. Ext. P2 is the receipt dated 22.03.2002 for Rs. 98/-. Ext. P3 is the copy of the bill dated 28.02.2002. As per Ext. P3, consumer class is domestic, status of meter is 'not working', meter reading not recorded, average consumption mentioned is 10 KL, amount to be remitted is Rs. 22/- per month. Ext. P4 is the consumer bill dated 30.04.2002 wherein consumer class is recorded as 'non-domestic'. Ext. P5 is the receipt dated 17.02.2004 for Rs. 576/-. Ext. P6 is the bill dated 07.09.2004 wherein monthly charge is assessed at non-domestic rate, that is Rs. 102/- per month. Meter status is 'not working'. Ext. P7 is the receipt dated 01.10.2004 for Rs. 656/-. Ext. P8 is the bill dated 3rd September 2008 for Rs. 18,385/-. Ext. P9 is the bill dated 11 March 2009. Ext. P10 is acknowledgement card. Ext. P11 is the bill dated 31.03.2002 issued under domestic rate. Ext. P12 is the letter from opposite party's office stating that the existing rule does not permit a conversion from non-domestic to domestic. Ext. P13 is the bill dated 04.07.2005. It is pertinent to point out that, admittedly, the aforesaid connection was given to the complainant under domestic category, that he had remitted water charges under domestic category until 03/02, that thereafter without further notice to the consumer water bills have been issued under non-domestic category. Water Supply Regulation 16 deals with conversion of domestic connection into non-domestic and vice versa. It reads as under: (a) Whenever a change in the nature or occupancy of premises seen entailing the owner or occupier of the premises a revision in water tariffs, the owner or occupier as the case may be, shall bring the same to the notice of the Assistant Executive Engineer by a written application in Form No. X along with an application fee of Rs. 5/-. The revision in water tariff, if found eligible by the Assistant Engineer shall be effected from the date of application or from such date as he may deem fit. (b) The Assistant Executive Engineer shall convert a domestic connection to non-domestic connection from such date as he may deem fit for the purpose of collecting water charges when the nature of occupancy of a premise is reported by an officer duly authorized by him or the Authority, to have changed or the water supplied to the premises used for building purpose or other industrial, commercial or trade activities necessitating revision of tariff.” It is argued by the counsel appearing on behalf of the complainant that complainant started to function his advocate office in his residential building and applied for water connection which was given under domestic category in the year 1987. Opposite party did not furnish any document to show change in nature of occupancy of premises and consumption of water in building. Opposite party did not furnish any document to show the name of the officer who is duly authorized to report the change in category. The onus is on the opposite party to show the reason for conversion of water connection from domestic to non-domestic category. In this context, it will be worthwhile to mention the decision of the Hon'ble High Court in Mother Superior Vs. Kerala Water Authority reported in KLT 2005(1) 699. Hon'ble High Court has held that “A reading of Sec. 37 of the Kerala Water Supply and Sewerage Act would indicate that supply of water for residential purpose is coming under domestic purpose. The question to be decided in the above said case was whether the petitioner is entitled for water charges at domestic rate or not. The petitioner-convent is the residential place of women devoted to religious life and thus outside the purview of commercial establishments. Hon'ble High Court has observed that the mere fact that average consumption of water per month is very high is the reason to include the petitioner in the non-domestic category is not sustainable. The allegation that the petitioner has accommodated students in the convent would not show that it is a lodging house or any monthly rent has been collected from them, that apart the petitioner-convent is the residential place of sisters and nuns. Court found that the petitioner-convent is liable to pay rates for the water consumed at domestic rates and not at non-domestic rates”. In this case also opposite party has no case that the alleged building is a lodging house or the said building has been given on rent. The stand of the opposite party is that water consumption in the said building is for functioning an advocate's office which is the only reason to effect conversion of tariff from domestic to non-domestic. It is the settled position that legal profession is not a commercial activity. A professional activity must be an activity carried on by an individual by his personal skill and intelligence. The very case of the complainant is that one portion of the residential building is used for his profession of advocacy. Opposite party has not filed any affidavit to substantiate the contention in the version nor did they furnish any document in support of their version. Though complainant has been cross examined by the opposite parties, nothing was elicitated from him to disprove the case of the complainant. Admittedly,the connection was under domestic category. In view of the foregoing discussion and evidence available on record, we are of the considered opinion that the reason for conversion of tariff from domestic to non-domestic put forward by opposite parties is not sustainable in the light of settled position of law. As such complainant is entitled to get bill under domestic rate from 04/02 onwards. The action of the opposite party converting the tariff from domestic to non-domestic without the knowledge, consent or obligation of the complainant amounts to deficiency in service. In the result, complaint is allowed. Opposite party shall collect water charge from the complainant at domestic rate from 04/02 and shall convert the water tariff to consumer No. PCH 4424/D from non-domestic to domestic. The excess amount collected by the opposite party from the complainant from 01.04.2002 at non-domestic rate shall be adjusted in the future bills to be issued under domestic rate. There is no compensation in facts and circumstances of the case. Both parties shall bear and suffer their respective costs. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of June 2010.
G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER S.K. SREELA : MEMBER jb O.P. No. 22/2005 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Sudhi II COMPLAINANT'S DOCUMENTS : P1 - Copy of provisional invoice card P2 - Original receipt dated 22.03.2002 P3 - Copy of consumer bill dated 28.02.2002 P4 - Original consumer bill dated 30.04.2002 P5 - Original receipt dated 17.02.2004. P6 - Original consumer bill No. 268 dated 07.09.2004 P7 - Original receipt No. 154239 dated 01.10.2004 P8 - Original demand & disconnection notice dated 03.09.2008 P9 - Original demand & disconnection notice dated 11.03.2009. P10 - Acknowledgement card. P11 - Original consumer bill dated 28.02.2002 P12 - Letter dated 16.09.2004 issued by opposite party. P13 - Original consumer Bill No. 438 dated 04.07.2005 III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : NIL PRESIDENT
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