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TMI Blog2011 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... , Pune in favour of the petitioner on 5th May 2001. The Court granted a declaration that the petitioner was a domestic user of electricity and was not using electric power for commercial use. Accordingly it granted permanent injunction restraining the MSEB from charging tariff applicable for commercial use as opposed to the residential use. Appeal filed by the MSEB was dismissed by the District Court, Pune on 1st August 2001. 2. Subsequent to the decision of the appeal, operations of MSEB were divided into different companies formed for carrying out different operations like generation, transmission and distribution of electricity. The operations of distribution of power to the retail consumers were taken over by the Maharashtra State Electricity Distribution Company Limited - the respondent herein. After taking over of the operation of retail distribution of electricity to the consumers, relying upon various orders passed by the Maharashtra Electricity Regulatory Commission (hereinafter referred to as "the MERC"), the respondent sought to bill the petitioner for the electricity supplied at the rate applicable to non-domestic users. The petitioner objected to the change of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner submitted that the decree passed in RCS No. 194 of 2000 became final on it being upheld by the District Court in appeal. The decree passed by the Civil Court cannot be set aside by an enactment passed by the legislature. The decree would continue to be binding on the parties and since the respondent was successor of the MSEB, it was bound by the decree. It cannot be disputed that a legislature cannot set at naught a decision of a Court by passing a legislation overruling the decision. However, where a decision of a Court is based upon an interpretation of any provision of law, it is open for the legislature to amend the provision. If the provision on which the decision is based is so altered that the very basis of the decision of the Court goes away, then the decision would become inapplicable and would cease to be binding in future. I am fortified in my view by a decision of the Supreme Court in the case of Indian Aluminium Co. v. State of Kerala, AIR 1996 SC 1431. After considering its several earlier decisions, the Supreme Court summarised the position of law in paragraph 56 of its decision. Sub-para (9) of paragraph 56 is material and reads thus: "(9) The consiste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications of consumers made by MSEB in the tariff ceased to apply with effect from the date the MERC determined the electricity tariff in accordance with the power conferred on it by section 62 of the Electricity Act, 2003. The trial Court, therefore, committed no error in holding that the decree passed in RCS 194 of 2000 was not enforceable when the execution petition was filed as new tariff filed by MERC was applicable. 6. The next question that arises for my consideration is: What is the rate applicable for use of electric power consumed by professionals like doctors, lawyers, professional engineers and chartered accountants as per the tariff fixed by the MERC? The respondent has produced before me copies of the orders of MERC dated 18th May 2007, 20th June 2008, 17th August 2009 and 10th September 2010 under which tariff has been fixed or revised for retail consumption of electricity by the MERC. The tariff fixed by the MERC by its order dated 18th May 2007 was to remain in force from 1st May 2007 to 31st March 2008 and its period was extended until further orders by an extension order dated 1st April 2008. The tariff was revised and refixed by the order of the MERC dated 20t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... user as contra-distinguished from "commercial" user or to put it differently "non-domestic" user. The intent and purpose of classification was to make a distinction between purely private residential purpose as against commercial purpose. The use of the guest house may be for residence by the guest but the user of the premises by the keeper of the guest house must certainly be commercial user and that was the purpose for which the keeper of the guest house must be using the premises. The levy of electricity charges by the NDMC for commercial user was thus upheld by the Supreme Court. 9. In M.P. Electricity Board v. Shiv Narayan, (2005) 7 SCC 283, another Bench of co-equal strength of two judges of the Supreme Court differed with the view taken in the case of New Delhi Municipal Council v. Sohanlal (supra). In that case, respondent no.2 - G.D. Padraha, an advocate, was occupying a house as a tenant. He used it for the residential purpose till the year 1981. Thereafter he shifted to his own house but he maintained his office in the tenanted premises. In January 1986, the officials of the Electricity Board inspected the service meter and served a notice to the landlord alleging that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make a classification of users. Consequently, the relevant entries in the classification made by the MERC in fixing the tariff would be relevant for the purpose of determining what rate would be charged for the electricity used for a particular activity or avocation carried out by the consumers of electricity. 12. It is in the light of the entries in the tariff fixed by the MERC for various categories of users that it would have to be determined what tariff would be application for the electric power consumed for a professional activity like (i) an office of an advocate or a chartered accountant or (ii) a dispensary/clinic of a doctor. The MERC has fixed the tariff by different orders referred to above and each of the orders fixes the tariff for different periods, each being about an year. Every year new tariff is fixed and while doing so, the MERC has also tweaked in some of the categories of users. The relevant period for our purpose is the financial year 2008-2009 when the respondent demanded from the petitioner the charges for electricity consumed at the rate applicable to non-domestic user. Paragraph 6 of the MERC order dated 20th June 2008 states that the tariff (fixed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. But certainly these vocations are not domestic vocations like avocation of a housewife. 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 everyday 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r determining the applicable entry/classification in the tariff. For the financial year 2009-20 10, low tension consumers have again been classified into 9 categories which are - (1) LT - I ... Residential - (a) BPL (Below Poverty Line) (b) Non-BPL (2) LT - II ... Non-residential or commercial (3) LT - III ... Public Water Works & Sewage Treatment Plants (4) LT - IV .... Agriculture (5) LT - V .... Industry (6) LT - VI .... Street Lights (7) LT VII .... (A) Temporary Supply (Religious) (B) Temporary Supply (Others) (8) LT - VIII .. Advertisements and Hoardings (9) LT - IX .. Crematoriums and Burial Grounds Counsel invited my attention to the note appearing below the category "LT I - Residential". The note is titled as "Electricity used at Low/Medium Voltage for operating various appliances used for purposes like lighting, heating, cooling, cooking, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Surgical Wards or Hospitals." (underlining supplied) The note similar to clause (g) is also found in the tariffs fixed by the MERC for the earlier and subsequent years. The note is only absent in the tariffs for the financial year 2008-2009. I would therefore consider the effect of clause (g) of note appearing in the tariff fixed by the MERC for almost all years except F.Y. 2008-2009. The note says that the residential premises used by the professionals like lawyers, doctors, professional engineers, chartered accountants, etc. in furtherance of their professional activity in their residences, shall be charged at the residential tariff. In my view, key words in clause (g) of the note are "in furtherance of their professional activity in their residences". These words show that the lawyers, doctors, professional engineers and chartered accountants, who carry on their professional activities in their residences, i.e. the very premises in which they reside, would be charged the tariff meant for "Residential use". The note does not authorise the respondent to determine what is the dominant user of the premises. The lawyers, doctors, professional engineers and chartered accountants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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