9911796707
TMI Blog2011 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... for the electric power at the rate applicable for residential use. In the year 2000, the Maharashtra State Electricity Board (for short the MSEB ) sought to charge the petitioner for the electric power at the rate applicable for commercial use. The petitioner filed a suit, bearing Regular Civil Suit No. 194 of 2000, for a declaration that the petitioner was not using the electric power for a commercial use and for an injunction restraining the MSEB from applying tariff meant for commercial use instead of residential use. The suit was decreed by the Civil Judge, Junior Division, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fs by the MERC and the decision has ceased to have a binding force. The contention of the respondent was accepted by the executing court which by its order dated 29th March 2010 held that the decree in RCS No. 194 of 2000 cannot be executed. Aggrieved by the decision of the executing Court, the petitioner has approached this Court. 4. Before I proceed to consider what is the appropriate tariff to be charged for the electric power consumed by thepetitioner in the suit flat, it would be necessary to consider the effect of the decree passed in RCS No. 194 of 2000. Learned counsel for the 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctricity tariff for retail sale of electricity by the respondent. The tariff determined by the MERC in accordance with the powers conferred on it by section 62 would override the tariff which was fixed by the MSEB in the past. The tariff which was in force and the classification for different kinds of uses that were fixed by the MSEB prior to the fixation of the new tariff by the MERC would cease to apply with effect from the date from which the MERC determines the tariff. Therefore, the tariff which was in force when RCS No. 194 of 2000 and the appeal arising therefrom were decided and the classifications 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, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re NDMC was not entitled to charge electricity on the basis of commercial user. On appeal by special leave, the Supreme Court by reversing the decision of the High Court restored the decision of the trial Court. The Supreme Court held that the term domestic user and commercial user were not defined in the Act and therefore the expressions must be given common parlance meaning and must be understood in their natural, ordinary and popular sense. It then referred to the classification of uses made in the tariff and held that for the purpose of charging electric power, the NDMC had set out category of domestic 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 Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. These decisions make it clear that the statute, namely section 49 of the Electricity (Supply) Act, 1948 conferred power on the Board to make a classification for the purpose of tariff. After the enactment of Electricity Act, 2003 the power to fix tariff for supply of electric power is conferred on the Electricity Commission (in this case on MERC) by section 62. For fixing the tariff, the MERC is entitled to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of lawyers, who essentially carry on the profession of pleading in the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, washing/ cleaning, entertainment/leisure and pumping in the following places. (a) ) (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e attributed to professional use. It would not be necessary for such professionals to have separate meters or submeters, one to be used for measuring domestic consumption of power and another for measuring consumption for professional activity. That is the object of the note . In respect of the premises which are used by the professionals like lawyers and doctors for their own residence, the tariff for the electricity supplied to the premises would be charged on the basis of domestic use irrespective of the fact that the premises are used for whole or part of the day also for the purpose of carrying on their professional activity in the whole or part of the premises. 14. Initially it was contended that the petitioner was also residing in the suit premises. However, when he was asked to file an affidavit along with the necessary documents showing his residence, learned counsel for the petitioner fairly stated that the petitioner does not intend to file the affidavit nor press his case of composite use. Averments in the plaint in RCS No. 194 of 2000 also indicate that the suit premises are used exclusively for the profession. The plaint states: The plaintiff is a tenant ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
