Delhi

North

CC/17/2021

MOHD. NASIR - Complainant(s)

Versus

TATA POWER DDL & Ors - Opp.Party(s)

JUNED ALAM

24 Aug 2021

ORDER

1. This Order shall dispose of an Application moved on behalf of the complainant under Order VI Rule 17 r.w. Section 151 CPC. for the amendment of the present complaint.

 

2. By way of this application the complainant has sought the amendment of the present complaint on the following grounds:

 

1. Originally the complaint was filed on 01.02.2021 u/s 12 of the Consumer Protection Act instead of Section 35 of the Consumer Protection Act, 2019;
2. The property in question where the electricity meter is installed is being used as office, though not on regular basis, with working hours from 08:00 PM to 10:00PM and the said property is also being used for the hospitality of guests viz., only for the stay of guests but the food facility is provided to the guests from the home of the complainant, which is just in front of the property in question.  

 

3.       Heard the Ld. Counsel for the complainant and perused the record. 

 

4.      With regard to Point (1), it is relevant to mention that the New Consumer Protection Act, 2019 had come into effect from 20.07.2020 and the complaint at hand has been filed on 01.02.2021. This being a technical defect, the present application is allowed in respect of said Point (1).

 

5.       Further, with regard to Point (2), it is observed that the Complainant has added new facts to the original complaint and has endeavoured to change the nature of the present complaint through this amendment.  By way of the said Amendment Application the complainant introduction has sought the introduction of new facts about the usage of the property in question primarily as a guest house without kitchen facility and also for using the said property, though not on regular basis, for running his law office.   Amendment in complaint can be made subject to the condition that the same does not change the face of the complaint or affect the party in a way that the other party cannot be compensated in terms of money as it tends to cause injustice to the other party.  In the guise of amendment of the complaint the complainant has ventured to introduce the facts which were earlier in fact concealed by him in the original complaint.  This is a sheer and deliberate abuse of the process of law. 

 

6.       As such the present application is allowed in part to the extent of Point (1) and dismissed in respect of Point (2) as mentioned above.

  

 

7.       In view of the above, the present amendment application is allowed only to a limited extent of technical defect i.e., the Act and the section under which the consumer complaint is to be filed and dismissed with regard to Point(2). 

 

8.       Even otherwise without prejudice to the foregoing, if we take into consideration the new facts as introduced in the amendment application it is not in dispute that primarily the property in question is being used as a guest house, though with no kitchen facility as averred by the complainant. This fact has been reaffirmed in Para 3 of the Affidavit filed in Evidence by the Complainant alongwith the application for amendment of the present complaint which is pending for admission before this Commission.    It is pertinent to mention here that on this account also the relief sought by the complainant for changing the category of the electricity connection from “Commercial” to “ Domestic” cannot be allowed  in view of the Judgment of the Hon’ble Apex Court in the case titled New Delhi Municipal Council Vs. Sohan Lal Sachdev (Dead) represented by Mrs. Hirinder Sachdev, w/o late Sohan Lal Sachdev, (2000)2 SCC 494, wherein the Hon’ble Supreme Court held that the New Delhi Municipal Council is entitled to charge for use of electricity in the Guest House at the rate applicable to 'commercial' use.  While allowing the appeal filed by New Delhi Municipal Council the Hon’ble Apex Court observed as under:

 

12. The two terms domestic and commercial are not defined in the Act or the Rules. Therefore, the expressions are to be given the common parlance meaning and must be understood in their natural, ordinary and popular sense. In interpreting the phrases the context in which they are used is also to be kept in mind. In Strouds Judicial Dictionary (5th Edn.) the term commercial is defined as traffic, trade or merchandise in buying and selling of goods. In the said dictionary the phrase domestic purpose is stated to mean use for personal residential purposes.  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 classification, 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 for which the guest or occupant of the guest house uses electric energy. “

 

9.      Reference has been placed on New Delhi Municipal Council case (supra) by the Hon’ble NCDRC in the judgment dated 03.12.2004 in the case titled M/s. Harsoliya Motors vs. M/s. National Insurance Co. Ltd.  while dealing with the concept of “Commercial Purpose” as contained in the Consumer Protection Act.

 

10.       Taking into consideration the discussion made supra and the reasons stated in the foregoing paragraphs, we are of the considered opinion that the present complaint is liable to be dismissed in limine and it is accordingly dismissed.

 

Copy of this order be sent to the parties as per rules and be uploaded on the website www.confonet.nic.in. 

 

Announced on this 23^rd Day of March, 2021.

 

 

 

 

ARUN KUMAR ARYA                              POONAM MALHOTRA

(President)                                                    (Member)