Complainant Ashok Tiwari, Advocate, has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to withdraw the impugned demand of Rs.1990/- of 43 units raised in bill dated 22.11.2014 and fresh bill under ‘DS’ category be issued as per the consumed units and also to pay compensation to the tune of Rs.70,000/- for causing physical and mental agony harassment as well as embarrassment in the society and loss in the profession by the opposite party alongwith Rs.20,000/- as litigation expenses.
2. The case of the complainant in brief is that he is practicing lawyer at District Courts, Gurdaspur and enjoys a good reputation in the society and public at large. His legal profession is a Nobel profession and it is not a trade or a business. It is for earning his livelihood. It is settled that Legal Profession of practicing Advocates being run in Chamber or office in his own house or in any rented building in residential or commercial complex cannot be termed as a commercial establishment. He took profession of his newly constructed Chamber in the month of June 2014 after the inauguration of the Chambers by Sh.S.K.Garg, District & Session Judge, Gurdaspur. He availed the services of the opposite parties for the installation of electric meter in his Chamber No.178-C for which he paid security and connection charges. At the time of applying the electricity connection, he requested the opposite parties no.2 to 4 to release his connection under DS category as the profession of the Advocates is not a trade or a business, but the opposite parties no.2 to 4 refused to accept his request and intentionally applied the category of N.R.S. in their forms, submitted for installation of electric meter alongwith security and test report of the Chamber of its connected load to the opposite parties, deposited at the time of applying the connection which included ACD meter security. Opposite parties installed the meter in his chamber after two months from the deposit of security. He has further pleaded that the opposite parties issued the first bill No.4617914K221258559 dated 22.11.2014 of 43 units for Rs.1990/- under ‘NRS’ category, haphazardly without taking into consideration the date of installation of the meter and intentionally and willfully added security charges of the meter which they had already taken from him, which is implicit from the bill issued to him under account No.3000334246. Not only this, the opposite parties have not issued the Passbook to him as mandated under the Punjab Power Corporation Sales Regulations for recording the consumed units. He has next pleaded that after receiving the exorbitant bill, he approached the opposite parties and made oral request to amend the bill and change the category from ‘NRS’ to ‘DS’ as the imposition of commercial tariff of electricity upon their office is absolutely wrong and erroneous and issue passbooks to him, but the opposite parties flatly refused and threatened to disconnect his connection and failed to give satisfactory reply to him. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties who appeared through their counsel and filed their written reply by taking the preliminary objections that the complainant has no cause of action and locus standi to file the present complaint; Complainant is using the connection for commercial purpose and the connection is NRS i.e. Non-residential supply and as such the complainant does not fall within the definition of consumer as provided under Consumer Protection Act 1986. Section 2 (D) of Consumer Protection Act clearly exclude the commercial transaction from the scope of definition of consumer; the complainant himself applied for the connection in NRS category at the time of filling the electricity connection form and also demand notice issued in NRS Category, which the complainant has complied by depositing the security charges and service connection and as such the complainant is estopped by his own act and conduct from filing the present complaint; there is no deficiency in service on the part of the opposite parties. The bill has been sent as per actual consumption and as per applicable monthly minimum charges on NRS category. The minimum charges on NRS category is on the basis of connected load. The monthly minimum charges as per 1 kilowatt is Rs.190/- as per the rules and regulations of the department. Even the connection falls under the definition of NRS category. The Punjab State Electricity Regularity Commission, Chandigarh issued the general conditions of tariff and Schedules of tariff w.e.f. 01.04.2006 and also vide Commercial Circular No.43/2014 dated 27.8.2014. The Advocates who convert a part of their house as full time offices also fall under the category of NRS. The whole complex of the Advocates is commercial one, in which the Chambers were allotted to all the advocates and all are using it as full time offices. So, the bill has rightly been sent as per general conditions of tariff. So, there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed and challenged the jurisdiction of this Forum and stated that if complainant wants to any relief, he has to approach the appropriate remedy i.e. Commission as provided by the general conditions of tariff and schedule issued by Punjab State Electricity Regularity Commission, Chandigarh. On merits, the same contentions have been repeated while denying and rebutting the other allegations made in the complaint and prayed for dismissal of the complaint.
4. Complainant tendered into evidence his own affidavit Ex.C1, alongwith other document Ex.C2 and closed the evidence.
5. Sh.Harmanpreet Singh Gill S.D.O. PSPCL tendered into evidence his own affidavit Ex.OP-1, alongwith other documents Ex.OP2 to Ex.OP4 and closed the evidence.
6. We have carefully gone through the pleadings of both the parties; arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purposes of adjudication of the present complaint.
7. From the pleadings and evidence on record, We observe that the complainant was allotted the advocate chamber # 178-C in the Judicial Courts Complex, Gurdaspur; by virtue of his being a practicing advocate at the District Courts, Gurdaspur besides being a member of the local Bar Association for the sole purpose of using/utilizing the premises to attend to his legal chores comprising of legal practice work from the chamber premises and no other work of whatsoever. We also observe that the OP service providers charge the consumption tariff rates as per the usage and nature of the work/activity attended to/under taken with the electricity consumed and also of the ‘premises’ too, in which it is consumed/utilized. In terms of the displayed lone page ‘1’ of the Ex.OP2 these are the ‘consumers’ that stand categorized and not the ‘premises’ (i.e., the head has been titled as: ‘Category of Consumers’) that further falls under: 1A – Domestic (for loads up to 100 KW); 1B – Domestic (for loads exceeding 100 KW); 2A – Non-Residential Supply (for loads up to 100KW) and 2B – Non-Residential Supply (for loads exceeding 100KW); further Ex.OP3 – depicts General conditions of Tariff & Schedules of Tariff at its page’2’ under the head SV – Schedule of Tariff for Non Residential Supply (NRS): SV.1 – Availability: SV.1.1: Available for lights, fans, appliances like pumping set, central air-conditioning plant, lift …… and so on …. in non-residential premises such as business houses, cinemas, clubs….. guest houses etc. Note: All Sainik Rest Houses of Rajya Sainik Board shall be charges under Schedule DS – SVI; SV.1.4 categorizes Doctors running full time OPD clinics or hospitals etc fall under the category; SV.1.5: Separate connection in the residential premises shall be permissible under NRS category; last page: quarterly update: SV.1.3 d) …. In a part of residential premises …. Offices of any other professional service provider. All the above information as available in partial clarity/partial transparency amounting to somewhat ambiguity but in the light of the various clarifying interpretations as made out in the quoted (both sides) superior court judgments it shall be judiciously concurred that the ‘activity’ undertaken by the consumer shall determine the chargeable tariff schedules . Presently, we find that the complainant consumer undisputedly and admittedly consumes the ‘electricity’ made available to him by the OP service providers at his Judicial District Court’s Advocate Chamber # 178-C to propagate his professional activity to the exclusion of all other activity of whatsoever. Moreover, it is also the judicially-settled proposition that the advocates professional nature being ‘Commercial’ or ‘Not-commercial’ shall not alter its being continued to be classified under the ‘NRS’ category electricity-tariff for the premises being ‘exclusively’ used for ‘professional’ legal-work. The duly considered above ‘opinion’ of ours derives its strength from the propositions expressed by the honorable Supreme Court in ‘Chairman, M. P. Electricity Board & Ors Vs. Shiv Narayan & Anr. CA # 1065 of 2000; D/d 24.08.2005; (in which, although, the main adjudicatory matter was referred to the larger Bench) reads as:
“……. In essence the question is, what the character of the purpose of user of the premises by the owner or landlord is and not the character of the place of user. For example, running a boarding house is a business, but persons in a boarding house may use water for "domestic" purposes. As noted earlier the classification made for the purpose of charging electricity duty by NDMC sets out the categories "domestic" user as contradistinguished from "commercial" user or to put it differently "non- domestic user". The intent and purpose of the classifications as we see it, is to make a distinction between purely "private residential purpose" as against "commercial purpose". In the case of a "guest house", the building is used for providing accommodation to "guests" who may be travellers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context cannot be said to be for purely residential purpose. Then the question is, can the use of the premises be said to be for "commercial purpose”? Keeping in mind the context in which the phrases are used and the purpose for which the classification is made, it is our considered view that the question must be answered in the affirmative. It is the user of the premises by the owner (not necessarily absolute owner) which is relevant for determination of the question and not the purpose of which the guest or occupant of the guest house uses electric energy. In the broad classification as is made in the Rules, different types of user which can reasonably be grouped together for the purpose of understanding the two phrases "domestic" and "commercial" is to be made. To a certain degree there might be overlapping, but that has to be accepted in the context of things."
Further, the next paragraph reads as: ‘Even if it is accepted that the user was not domestic, it may be non- domestic. But it does not automatically become "commercial". The words "non- domestic" and "commercial" are not inter-changeable. The entry is "commercial". It is not a residual entry unless the user is commercial the rate applicable to be commercial user cannot be charged merely because it is not considered to be domestic user, as has been held in New Delhi Municipal Corporation's case (supra).’
Similarly, we also get support from the one recently decided WP # 6891 of 2010 D/d 04.08.2011 by the honorable Bombay High Court (titled: Rajendra G.Shah V/s Maharashtra State Electricity Distribution Co. ltd.,) in which the Hon’ble High Court in para 10 of its judgment has discussed the view of the Larger Bench of the Hon’ble Supreme Court (dt. 27.10.2005) in the matter of ‘Chairman, M.P. Electricity Board and others Vs Shiv Narayan which reads as:
“ 10. A copy of the decision, though unreported, rendered on the reference by a Bench of three Hon’ble Judges of the Supreme Court on 27th October 2005 in Civil Appeal No.1065 of 2000 (the Chairman, M.P.Electricity Board vs. Shiv Narayan), has been placed before me by the learned counsel for the petitioner. The Larger Bench of the Supreme Court held that the tariff entries classify user into two categories, namely (a) domestic purposes and (b) commercial and non-domestic purposes. This is done statutorily in exercise of the powers under section 49 of the Electricity (Supply) Act, 1948. The classification clubs the commercial and non-domestic purposes into one activity did not call for a decision for deciding the applicability of the rate of the charges for electricity used by him. As the user of the premises by an advocate for his office was admittedly not “domestic”. It would fall in the category of “commercial and non-domestic”. For any non domestic use, the commercial rates were to be charged. The Supreme Court further held that exclusively running an office (of an advocate) was clearly a non domestic uses.”
The Hon’ble High court further in para 12 of its judgment has clarified the law on the subject in controversy which reads as;
“12. The classification made by the MERC for charging electricity is not “residential use” as opposed to “commercial use”. The classification is made by the MERC as “domestic use” as opposed to “non-domestic use”. The use of any premises exclusively for an office of a lawyer or an office of a chartered accountant or a dispensary/clinic of a doctor cannot be regarded as domestic use. The domestic use in common parlance is where a person or family resides; it ordinarily has a living space and a cooking space. We are not concerned with exceptional cases wherein there may be a domestic use without there being a separate cooking space like a single person taking premises on rent for his residence but eating out every day with no cooking space in the premises occupied by him. Similarly, the premises which are exclusively used for profession may have a facility of a pantry or a cooking space where tea or coffee is prepared for serving to the staff and/or clients/patients but that would not make the use of the premises as a domestic use. The face of all professions is changing. Though still a vast majority of lawyers, who essentially carry on the profession of pleading in the Court, use their residence as an office where they meet their clients; and that may still be the face of a traditional lawyer practicing in smaller cities and towns. However, in large commercial metro-cities, multi partner lawyers firms dominate the legal profession. Some of them carry on every activity of legal profession but pleading in the Court. They do the drafting and conveyancing work relating to the sale and transfer of properties, they do legal financial work relating to public issues and raising of capital (debt or equity), they undertake completing all legal formalities for obtaining of various licenses, sanctions and do legal consultancy and every work other than pleading in the Court. Can their activity be regarded as a domestic activity? Even a man on the street would not call it to be a domestic activity. Similar is the case in respect of large firms of chartered accountants. Doctors have polyclinics, laboratories, diagnostic centers in their clinics. In such large offices and clinics, there may be a place used as kitchen or a pantry for preparation of tea and coffee and even for warming of food which the professionals may often consume in the office. But such use cannot be regarded as a “domestic use”. The tariff entries fixed by the MERC for charging for electricity consumed are “domestic” and “non-domestic” user and not “residential” or “commercial” user. Every non-domestic use may not be a commercial use, but nonetheless it is not a domestic use. The user of the premises by doctors, lawyers or chartered accountants exclusively for the purpose of carrying on their profession, in the facts and circumstances as they exist today, though cannot be regarded as a commercial use, is certainly not a domestic use. It is a non-domestic use and therefore the tariff payable for the electric power consumed would be as applicable for non-domestic user.”
8. The complainant has admitted in this complaint that the premises are used exclusively for the purpose of office i.e. Advocate chamber in the Distt. Court Complex. In view of the fact that the premises are exclusively used for the purpose of office, the complainant is not entitled to claim that he should be charged for electricity consumed at the rate meant for domestic use i.e. Residential use. The user of the premises is clearly a non-domestic and non- residential. In view of the law laid down by the Hon’ble High Court and Hon’ble Supreme Court, the opposite party has not committed any error in so far as charging of Non domestic tariff is concerned.
9. Somehow, we do find ‘adulteration of arbitrariness’ in the consumption Bills drawn by the OP service providers upon the present complainant and as also seen in the subject matter of many other similarly placed complaints by many other advocates so far as ‘clarity, correctness and transparency’ in the complained transactions is concerned. However, in the light of the main relief of ‘D S tariff’ having failed to find favor, we are inclined to dispose of the present complaint but by issuing the necessary directions to the OP service providers to draw transparent and self illustrated consumption Bills with the desired ‘clarity, correctness and transparency’ and the opposite party is further directed to issue a detailed demand notice (within a period of 30 days from the receipt of copy of orders) to the complainant giving all the details of the impugned bill and justification for charging of Rs.1990/- for only 43 units consumed by the complainant. It is a settled law that a consumer has right to know what he is paying and why he is paying. We find that the present litigation has been unduly forced upon the advocate complainant for want of clarity in the impugned bill and thus we ORDER the OP service providers to pay Rs.3,000/- to the complainant as cost and compensation within 30 days of the receipt of the copy of these orders.
10. Copy of the order be communicated to the parties free of charges. File is ordered to be consigned to the record room.
(Naveen Puri)
President
ANNOUNCED: (Jagdeep Kaur)
April 27 2015. Member
*MK*
