SH. SANJAY KUMAR, PRESIDENT

1. In brief facts are that complainant is a religious Public Charitable Trust registered with Sub Registrar, Delhi on 21.09.1994 and maintaining a Dharamshala at State Bank Colony, G.T Karnal Road for public utitlity purposes. Shri Vir Parkash is one of the trustee and Secretary of the trust and is duly authorized to institute the present complaint. It is stated that complainant is registered consumer of electricity connection vide K No.36105071556 installed on 06.02.2006. It is further stated that earlier K No.31100140757X was installed but same was disconnected on 28.01.2006 on account of non-payment. Therefore new connection was applied and revised dues of Rs.75,780/- paid without prejudice on 01.02.2006 and Rs.370/- under compulsion. It is stated that in a very clandestine illegal and arbitrary manner TPDDL has disconnected the electricity connection on 23.03.2006 and a complaint vide complaint no.596516 dated 24.03.2006 was lodged but supply was not restored and another representation was given on 04.04.2006.

2. It is stated that this conduct also amounts to gross deficiency in service, unfair practice and harassment of complainant. It is stated that complainant earlier filed a complaint before this Forum on 07.04.2006, however OP took objection and stated that already a connection installed in the society, therefore, complainant is not entitled for new connection. It is stated that that a civil suit pending before complainant and OP3 V.S Gupta so called secretary having civil suit no. 274/04 in the court of Sh. Vinay Singhal and as per order of the Civil Court as on date the complainant is only entitled party in respect of matters relating to accounts of Dharamshala where complainant was granted new connection with K No. 36105071556. The complainant has withdrawn that complaint and filed present complaint.  It is stated that so called society has already become defunct as per order no. 591 dated 28.03.1990 and winding up of society by office of the Deputy Registrar Co-op. Society, Delhi.

3. It is stated that all the details were verified by NDPL at the time of granting of new connection and also received the amount of Rs.75,780/- and Rs.370/-. It is stated that there are two claimants regarding the looking after works of the old employees housing society ltd and there is a dispute in between them so both secretaries of the society have been included.  The complainant has no objection for restoration of old connection. Hence present complaint filed seeking the restoration and supply of electricity against K No.36105071556 installed at Trust Dharamshala at SBI colony, G.T Karnal Road, Delhi, payment of damages and compensation of Rs.50,000/- and cost of Rs.5000/-.

4. NDPL (hereinafter referred to as OP1) filed detailed WS. It is stated that complainant has not come with clean hands and suppressed the material facts that already exist a connection bearing no.31100140757 at the time of applying of new connection, therefore, complaint is liable to be dismissed. It is further stated that at the time of applying the new connection, site was visited on 07.12.2005 and again on 28.01.2006 regarding existing connection in premises but representative available informed that there is no meter and there are housing society from the          but on again visit on 28.01.2006 a meter vide K No.31100140757 was found existing at the premises with old service line with joint in service line, therefore, complainant obtained the fresh connection. But as per policy and rule if there exist a connection no new connection can be installed. The disconnected connection will be restored with name change in case there is transfer of ownership.

5. On merit all the allegations denied. It is stated that a notice was sent through coruier and thereafter supply was disconnected on 23.03.2006 as the facts come after investigation that already a disconnection connection exist in the premises. It is stated that complainant is not entitled for a new connection or restoration of electricity through new connection. The complainant may apply for restoration of old connection with name change. Therefore, the complaint is liable to be dismissed.

6. Sh J.C Malhotra so called secretary (hereinafter referred to as OP2) filed detailed WS and taken preliminary objection that complainant has not come to the Hon’ble Forum with clean hands and suppressed the material facts. The present complaint is on false and frivolous grounds. It is stated that Sh. Vir Prakash has no concern with the Dharamshala Dharmarth Trust as he is neither the secretary or the trustee of the trust. It is further stated that the a civil suit is pending before Sh. Vinay Singhal Ld. Civil Judge, Delhi and Sh H.C Jain has claim himself to be the secretary of the trust whereas Vir Parkash also claimed to be secretary of the trust and matter is subjudice before the Civil Court. It is stated that complainant obtained the interim orders of representation of facts from this hon’ble  forum.

7. It is stated that OP2 is the secretary of the society named “State Bank of India Employees Co-op. Housing Society Ltd.” situated at State Bank Colony, G.T Karnal Road which was registered in the year 1957 and during 1993-95 funds were collected by the society for the construction of Dharamshala on the peace of land which form the part of leace land allotted to the society by the DDA in the year 1967 and Dharamshala was constructed from the funds. All the meetings of the society, discussions and other day to day work in respect of society is being conducted in the office of the society. It is further stated that all the important records, almirah, furniture etc. of the society are also lying there since then. Even the last  meeting of the society was held on 04.06.2004 which can ascertain from the minutes book of records of the society. Sh. H.C Jain remained secretary of the society w.e.f 1980 to February 1999 and become a founder trustee to run the management of Dharamshala in violation of society by laws.

8. It is stated that the creation of the trust was illegal and against the provisions of by laws of the society thereafter various efforts were made to hand over the official charges of the dharamshala but of no avail. There are correspondence on 31.03.2004 by the society and notice was also issued but of no avail. It is further stated that 04.06.2004 general body meeting of the society was also held to settle the issue of trust. Sh. H.C Jain so called secretary of trust instead of complying the said notice filed false and frivolous suit for permanent injustice against OP2. Sh. J.C Malhotra, Vir Parkash and M.K Sarin who are the Secretary, President and Sr. Vice President without impleading the society as the necessary party. It is stated that H.C Jain leveled false and frivolous allegations against them as a counter blast to the notice  issue by the society to him. It is further stated that during the proceedings civil court observed that there is joint possession of parties and parties were directed to maintain status-quo in respect of possession of the premises i.e Dharamshala.

9. It is stated that on 07.06.2004 complainant in the suit with a view to further achieve his illegal designing the changes. The locks which were earlier being used on the main gate of dharamshala and one key of the same was with the society but new lock on the main gate prevented the entry of office bearers and members in dharamshala. OP2 immediately approached to police station and lodged the complaint and thereafter legal notice was also sent for restoration of the possession on 05.06.2004. It is further stated that complainant under the garb of alleged trust trying to grab the property of society and S.C Jain remained secretary for the period 1980-99 and created his own interest. It is further stated that Sh. H.C Jain for Sh. Vir Parkash complainant has no right titled or interest in the land/property belonging to society. Therefore, present complaint is liable to be dismissed.

10. It is stated that complainant intentionally concealded the true facts that they tried to take separate electricity connection on 19.01.2006 which was revised by OP1 NDPL as there was huge dues and connection was disconnected on 28.01.2006.  However, complainant malafidely got installed new meter and thereafter OP1 on enquiry found out true facts therefore meter was removed on 23.02.2006. The complainant concealing all the facts from the Hon’ble Forum filed the present complaint and got temporary connection despite K No. 3100140757 already existed in the name of society.

11. It is stated that this effect is brought to the notice of NDPL vide letter dated 31.01.2006 and matter was investigated by OP1. It is stated that society deposited entire dues to OP1 NDPL on the demand notice dated 03.04.2006. It is further stated that already K No.3100140757 exist in the name of society therefore no new connection either in the name of trust of in the name of other cannot be sanctioned in the dharamshala. It is stated that society has not defunct as alleged by complainant but Registrar of Delhi Co-op Society issued a winding up notice dated 28.03.1990 but no liquidator appointed by Deputy Registrar even after lapse of 16 years.

12. It is stated that elections were held in May 1999 and new elected managing committee decided to appeal to the registrar cooperative society against the winding up on 03.09.1999 which is pending. The society has been functioning regularly and deposited lease mentioned in DDA and DDA also issued no objection certificate for getting the property lease hold to free hold. It is stated that Sh. H.C Jain whose sole intention was to grab the Dharamshala, therefore, trust has no authority to maintain SBI Colony Dharamshala. It is stated that complaint is liable to be dismissed.

13. On merit all the allegation made in the complaint are denied and facts mentioned in the preliminary objections are reiterated. It is stated that present complaint may be dismissed with heavy cost and OP1 may be directed to take action complainant in respect of mis-representation and concealment.

14. Sh. V.S Gupta so called secretary (hereinafter referred to as OP3) filed detailed WS. It is stated that complainant is looking after and maintaining account of Dharamshala. The OP3 supported the facts mentioned in the claim by the complainant. It is stated that it is very unfortunate that electricity has been disconnected by OP1 NDPL and there is gross deficiency of service. It is further stated that complainant deposited all the dues pertaining to previous electricity connection installed at Dharamshala. The Dharamshala trust has already been wended up vide order no. 591 dated 28.03.1990 and being the secretary of the society no one interested  for restoration of previous electricity connection. It is stated that complainant is entitled for damages and compensation from NDPL OP1.

15. Evidence filed by complainant by way of affidavit of Sh. Vir Parkash. Complainant relied on copy of authority letter dated 04.04.2006 Ex.CW1/A, copy of authority letter Ex.CW-A, copy of letter dated 07.11.2005 Ex.CW1/B, copy of documents of installation of electricity connection meter Ex.CW1-C, copy of letter of disconnection for non payment Ex.CW1/D, copy of documents of completion of commercial formalities Ex.CW1/E, copy of payment of dues Ex.CW1/F dated 19.12.2005, copy of document of deposit of Rs.75,780/- Ex.CW1/H, Copy of demand draft Ex.CW1/I, Copy of letter dated 04.04.2006 Ex.CW1/J, copy of order of civil court dated 05.06.2004 Ex.CW1/K, copy of winding up of society Ex.CW1/M dated 16.12.2004.

16. OP2 filed evidence by way of affidavit of Sh. J.C Malhotra and reiterated the facts and contents mentioned in the WS.

17. Written arguments filed on behalf of complainant, OP1 (NDPL), OP2 (J.C Malhotra) and OP3 (V.S Gupta).

18. We have heard Sh. Pankaj Jain counsel for complainant and Sh. Harish Purohit AR for OP1 and perused the record.

19. The factual matrix of the present case establishes that there is a dispute among the office bearers of the SBI Colony Employees Housing Society on SBI Colony Dharamshala Dharmarth Trust registered. It is admitted fact on record that a civil litigation also filed by office bearers in the year 2004. It is a civil suit 274/2004. The proceedings before Deputy Registrar Co-op. Society Delhi also initiated of winding up of the society on 28.03.1990. The facts further establishes that the society winding up proceedings were also pending. The present case involves complex facts and adjudication of legal rights of office bearers for electricity connection. The law is well settled that a Consumer District Commission can not adjudicate complex factual and legal issues and nature of proceedings are summary in nature.

20. In these circumstances Hon’ble Supreme Court settled the law and in the latest judgment The Chairman & Managing Director, City Union Bank Ltd. & Anr. VS R.Chandramohan, Civil Appeal No. 7289 of 2009 decided on 27.03.2023 held as under:

The counsel for the  appellants has rightly relied upon the decision of this Court in case of Ravneet Singh Bagga (supra) as under:

“5. Section 2(i)(o) defines “service” to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or  lodging or both, entertainment, amusement or the purveying of news  or other information, but does not include the rendering of any service free of charge or under a contract of personal service. Section 2(i)(g) defines “deficiency” to mean any fault, imperfection, shortcoming or  inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.

“6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is  upon the person who alleges it. The complainant has, on facts, been found to have not established any  willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortious acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic). If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances during the transaction and that their action  or the final decision was in good faith,  it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service”.  

21. We have gone through the dispute raised with regard to the electricity connection. It is admitted fact on record that already one electricity connection exist at Dharamshala bearing no.31100140757  which was disconnected due to non-payment. In view of the fact that there is legal dispute of legal right with respect to the SBI colony Employees Housing society or trust. The fact further establishes that when new connection installed  vide K No.36105071556 then complete facts were not brought.

22. Now it is clear that a new connection has been installed on the basis of incomplete facts and without disclosing the disputes pending with regard to society and trust. In these special circumstances the action taken by OP1 NDPL is legally justifying and this District Commission cannot go into the question with regard to legal rights of complainant represented through Vir Parkash.

23. As per electricity bills filed by complainant, it is a non-domestic NDLT connection. In these circumstances the Hon’ble Supreme Court in the case of Shrikant G. Mantri Vs Punjab National Bank laid down the prinicple of law in civil appeal no.11397 of 2016 dated 22.02.2022 that

32. The purpose of the said Act has been succinctly described by this Court in the case of Laxmi Engineering Works vs. P.S.G Industrial Institute, which is as under:

“10. A review of the provisions of the Act discloses that the quasi-judicial bodies-authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of the civil court. They are quasi-judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumers’ association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchase and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for “business-to-consumer” disputes and not for “business-to-business” disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal”.

33. It could thus be seen that this Court has clearly held that the idea of enacting the said Act was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. It has been held that the entire Act revolves round the consumer and is designed to protect his interest. It provides for “business-to-consumer” disputes and not for “business-to-business” disputes. It has been held that forums/commissions provided by the said Act are not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services.

34. In the case of Laxmi Engineering Works (supra), this Court, while considering the scope of the definition of the expression ‘consumer’ with relation to Section 2 (1)(d)(i) of he said Act and the Explanation added by 1993 Amendment Act, observed thus:

“11.Now coming back to the definition of the expression ‘consumer’ in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (I) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression ‘resale’ is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. ‘Commercial’ denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’means “financial transactions especially buying and selling of merchandise, on a large scale” (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a ‘consumer’ within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion-the expression “large scale” is not a very precise expression-Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose”- a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others’ work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works  on typewriter or plies the car as a taxi himself, her does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e, by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz, “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions “used by him”, and “by means of self-employment” in the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words.”

41.In the case of Leelavati Kirti Lal Mehta Medical Trust (supra)wherein this court after considering the earlier judgments held thus:

“19. To summarise from the above discussion, though a strait jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is “for  a commercial purpose”:

19.1. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, “commercial purpose” is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

19.2 The purchase of the good or service should have a close and direct nexus with a profit-generating activity.

19.3 The identity of the person making the purchase or the value of the transaction is nto conclusive to the question  of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to  facilitate some kind of profit generation for  the purchaser and/or their beneficiary.

19.4 If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their  beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of “generating livelihood by means of sel-employment” need not be looked into.”

42. It is thus clear, that this Court has held that the question, as to whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, “commercial purpose” is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit-generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not. What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

24. Now applying the above discussed principle of  law  the electricity connection of complaint is of NDLT nature therefore this commission has no powers to adjudicate and present case is squarely covered by the judgment of ShriKant G. Mantri (supra). 
25. On the basis of above observation and discussion present complaint is dismissed. No order as to cost.

26. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry.

Order be uploaded on www.confonet.nic.in.

Announced in open Commission on   04.08.2023.

SANJAY KUMAR                                              NIPUR CHANDNA                                      

PRESIDENT                                                                 MEMBER