Whether the office of a Lawyer is a commercial establishment and thus liable to be charged for the use of electricity under Tariff-V at the rate applicable to commercial consumption is the point falling for consideration in this appeal.
2. Brief facts are that 2nd Appellant - N.Vittobai is the owner of the property at No.6, First Cross Street, Anaikatti Maidan, Beema Nagar, Trichy-1. 2nd Appellant is using the ground floor portion of the said property as her residence. First floor portion was let out to the 1st Appellant who is a practising Advocate for running his office. While taking the meter reading in the month of August 2010, the Assessor of the Electricity Board noticed use of first floor premises as an Advocate office and reported the matter to the 4th Respondent - The Assistant Executive Engineer, O & M/Urban, TNEB, Trichy-1. Thereafter, the Enforcement Wing of Respondents' Board had made a surprise inspection of the premises in question on 25.09.2010 and claimed that the payment of domestic Tariff was unlawful. Immediately, a compounding fee of Rs.4,000/- was collected from the 2nd Appellant and the 2nd Appellant is also said to have agreed to pay the consumption charges.
3. Fourth Respondent raised a demand by the impugned communication dated 27.09.2010 raising provisional assessment charges to the tune of Rs.90,490/-. Out of the said amount, 1st Appellant paid Rs.15,000/-. Challenging the said demand, Appellants have filed W.P.(MD) No.12587 of 2010. In the Writ Petition, Respondents contended that the LT Tariff 1-A is applicable only to the buildings used for residential purposes. Respondents' Board also contended that Tariff 1-A is applicable only if the consulting rooms of any professionals are attached to the residence of such professionals, provided no trading is undertaken. Since the office of the 1st Appellant is not attached to his own residence, it would not come under the category of LT Tariff 1-A.
4. Learned Judge observed that there is no rationale behind limiting the application of Tariff I-A only to those Advocates having consultation rooms in their own residences and not extending the same benefit to those having consultation rooms in the residences of other people. However, observing that action of the Respondents in treating the Advocate's office located in places other than his own residence as not coming under Tariff I-A, but coming under Tariff V, is in accordance with the order passed by the Tamil Nadu Electricity Regulatory Commission by virtue of Section 86(1) of the Electricity Act, 2003, learned Judge disposed of the Writ Petition directing the Appellants to make a representation to the Tamil Nadu Electricity Regulatory Commission under Section 86(1) of the Act seeking for clarification. Since the 2nd Appellant wanted to demolish the premises and the request for disconnection are pending, the learned Judge directed the Appellants to execute personal bonds for payment of the balance amount of demand of Rs.75,490/- in the event of the clarifications issued by the Regulatory Commission going against the claim of the Appellants.
5. Mr.S.Ramesh, learned counsel for Appellants contended that the usage of portion of the house as consultation room by itself will not make the user of the premises commercial and use of energy for the purpose of Advocate office will not constitute "theft". It was further contended that the major usage of the building is for residential purpose of the 2nd Appellant and the 1st Appellant is using the first floor for consultation purposes alone and would not in any way become "commercial" in nature. Learned counsel for Appellants then contended that having found that there is no difference between "Advocate office" run in his residence or in the house of another, learned Judge ought not to have directed the Appellants to approach the Electricity Regulatory Commission.
6. Drawing our attention to the classification of Low Tension Consumers for the purpose of fixation of Tariff, Ms.S.Srimathi, learned counsel for Respondents contended that Advocate office located in a building other than his residence falls under Tariff-V and therefore, the action of the Respondents in levy of electricity consumption charges under Tariff-V is in accordance with the provisions of the Act and also the Tamil Nadu Electricity Regulatory Commission (Terms and Conditions for Determination of Tariff) Regulations, 2005 and therefore the order of single Judge warrants no interference.
7. The facts are not in dispute. Admittedly, 1st Appellant/practising lawyer is having his Advocate office in a rented building owned by the 2nd Appellant. Tamil Nadu Electricity Regulatory Commission Act, 1998 was repealed by the Electricity Act, 2003. Thereafter, the Commission notified the Tamil Nadu Electricity Regulatory Commission (Terms and Conditions for Determination of Tariff) Regulations, 2005 on 03.08.2005 under Section 61 read with Section 181 of 2003 Act. Learned Judge in extenso referred to various categories for the purpose of fixation of Tariffs and we feel it is not necessary for us to re- extract the same. As per Tariff rates, electricity consumption charges for the Lawyers' office not attached to his own residence is charged under "Tariff-V" - Commercial and others.
8. The question as to whether "office of the lawyer or firm of lawyers" is a commercial establishment and thus liable to be charged for the use of electricity at the rate applicable to commercial consumers came up for consideration in (2005) 7 SCC 283 [M.P. Electricity Board and others v. Shiv Narayan and another]. After referring to various judgments and the view expressed in New Delhi Municipal Council case [(2000) 2 SCC 494], the matter was referred to a Larger Bench.
9. In Paragraph-20, the learned single Judge observed as follows:- "20. In any case, there is no rationale behind limiting the application of Tariff 1-A only to those Advocates having consultation rooms in their own residences and not extending the same benefit to those having consultation rooms in the residences of other people. While it may be possible to distinguish a consultation room located in a residential building from a consultation room located in a non-residential one, the distinction sought to be made on the basis of ownership, cannot be accepted."
10. It is in the context of above observation, the learned Judge directed the Appellants to apply to the Tamil Nadu Electricity Regulatory Commission under Section 86(1) of the Act for clarification and that the said direction of the learned Judge reads as under:-
"23. ..... (i) Within 4 weeks of receipt of a copy of this order, the first respondent shall apply to the Tamil Nadu Electricity Regulatory Commission under Section 86(1) of the Act, for a clarification as to whether a classification between Advocates having consultation rooms in their own residences and Advocates having consultation rooms in other places would be a reasonable classification and as to whether it would be fair to place the format category of Advocates under Tariff 1-A and the latter category of Advocates under Tariff V.
In the light of the observation of the learned Judge made in Paragraph-20, the learned Judge has rightly directed the Appellants to apply to the Tamil Nadu Electricity Regulatory Commission seeking for clarification and we do not find any infirmity in the said direction of the learned Judge.
11. Insofar as the second direction regarding execution of personal bonds for payment of the balance amount of demand viz., Rs.75,490/-, since the 2nd Appellant has applied for demolition and she seeks for disconnection, in order to safeguard the interest of the Electricity Board, learned Judge has rightly directed the Appellants to execute personal bonds for payment of the balance amount of demand viz., Rs.75,490/- in the event of the clarifications issued by the Regulatory Commission going against the claim of the Appellants. We do not find any error or infirmity warranting interference with the order of the learned Judge.
12. In the result, the appeal is dismissed. Consequently, connected M.P. is closed. No costs.
Sd/-
24.04.2012 24.04.2012:
We have heard the arguments of the learned counsel for Appellants as well as the Respondents on 19.04.2012 and posted the matter for Orders on 24.4.2012. On 23.04.2012, the learned counsel for the Appellants has produced the typed set of papers containing the cause list of the Tamil Nadu Electricity Regulatory Commission for the date on 19.04.2012.
2. By perusal of the said cause list, it is seen that the subject matter in issue has been listed as Item No.2 before the Commission. In this regard, the learned counsel for the Appellants had also submitted that notice has been sent to the Appellants 1 and 2 and the 1st Appellant received it on 19.04.2012. It is further stated that the matter before the Tamil Nadu Electricity Regulatory Commission has been adjourned for four weeks. The learned counsel for the Appellants raised objections regarding to giving effect to the levy with retrospective effect. Since the Tamil Nadu Electricity Regulatory Commission has also seized of the matter, as per the direction of the learned single Judge, it is for the 1st Appellant to raise all the objections before the Commission. The Commission shall consider and dispose of the same in accordance with law.
To
1.The Tamil Nadu Electricity Board, rep. through its Chairman, Anna Salai, Chennai-2.
2. The Superintending Engineer, Trichy Electricity Distribution Circle/Metro, Tamil Nadu Electricity Board, Trichy-20.
3.The Executive Engineer, O&M/Urban, Tamil Nadu Electricity Board, Trichy-17.
4.The Assistant Executive Engineer, O&M/Urban, Tamil Nadu Electricity Board, Trichy-1.