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2009 DIGILAW 756 (GUJ)

GUJ. VIJ. COM. LTD. v. BABULAL BIRABHAI RENPARA.

2009-12-14

ABHILASHA KUMARI

body2009
JUDGMENT ( 1 ) THIS petition has been preferred invoking the provisions of Articles 226 and 227 of the Constitution of India with a prayer to quash and set aside the judgment and order dated 26-10-2005 passed by the 9th Fast Track Court, Gondal, Camp: Dhoraji in Civil Misc. Appeal No. 8 of 2004 whereby the order dated 22-10-2003 rendered below exh. 5 by the Trial Courtin Regular Civil Suit no. 270 of 2003, has been confirmed. ( 2 ) THE brief facts of the case, necessary for the decision of the petition are that, the respondent herein, who is a practicing advocate, filed the above mentioned Civil Suit, inter alia, praying for the relief of declaration that the Office of an advocate should be billed as per the 'residential' Tariff by the defendant-Gujarat Electricity Board (now pashchim Gujarat Vij Company Ltd.) who is the respondent in the petition (referred to as 'the Electricity Company' for sort ). Along with the Suit, the plaintiff preferred an application at Exh. 5 for grant of an interlocutory injunction. ( 3 ) THE petitioner (original defendant) filed its reply to the said application, contending that as per the Tariff Order passed by the gujarat Electricity Regulatory Commission ('gerc for short), the Office of Advocate is required to be charged as per RATE LFD-II category, which applies to 'non-residential' premises such as shops, work shops, hotels restaurants, show rooms, offices, etc. The trial Court, by order dated 22-10-2003 allowed the application at Exh. 5 filed by the respondent (original plaintiff) by holding that the activities carried on by an advocate cannot be said to be commercial in nature, therefore, the Office of an advocate cannot be billed as per non-residential Tariff by the electricity Company. The petitioner-Electricity Company preferred an appeal before the district Court, which has been dismissed by passing the impugned judgment dated 26-10-2005, confirming the findings of the Trial court. Aggrieved thereby, the petitioner-Electricity Company has approached this court by filing the present petition. ( 4 ) MS. Lilu K. Bhaya, learned counsel for the petitioner submits that the impugned order of the lower Appellate Court is erroneous, as is the order of the Trial Court, as both the Courts below have erred by misreading and misconstruing the pleadings of parties as well as the material on record. ( 4 ) MS. Lilu K. Bhaya, learned counsel for the petitioner submits that the impugned order of the lower Appellate Court is erroneous, as is the order of the Trial Court, as both the Courts below have erred by misreading and misconstruing the pleadings of parties as well as the material on record. That the courts below have failed to appreciate that the GERC, in exercise of powers under Section 29 of the Electricity Regulatory Commissions Act, 1988, is empowered to determine the Tariff and the petitioner- Electricity Company has acted in accordance with the Tariff determined by the GERC. That both the Courts below have lost sight of the fact that the Tariff rates applicable to the consumers of the petitioner-Company are effective from 10-10-2000,. vide orders dated 10-10-2000 and 22-12-2000. for supply of electricity at Low tension. The Schedule of Tariff for supply of Low and Medium Voltage is classified into various categories, namely. RATE LFD-I (for Residential premises), and ratelfd-II (for Non-residential premises), therefore, as the Office of the respondent is situated in a Commercial Complex, RATE lfd-II (for non-residential premises), is rightly being charged from the respondent. That the Trial Court as well as the lower appellate Court have exceeded their jurisdiction while interpreting the term Office and holding that activities carried on by an advocate are not 'commercial' activities, as this question is not relevant for determining the category for billing and has not been gone into by the Supreme Court in the decision of the larger Bench, which now holds the field. That as the orders of the Trial Court as well as the lower Appellate Court are contrary to the law laid down by the Supreme Court in the judgment of the Larger Bench in Chairman, M. R Electricity Board and others v. Shiv Narayan and another, Civil Appeal no. 1065 of 2000, dated 27-10-2005, the impugned order as well as the order of the Trial court deserve to be quashed and set aside, and the petition allowed. ( 5 ) THE respondent has been duly served but none has put in an appearance on his behalf before this court. ( 6 ) HAVING heard the learned counsel for the respective parties and having perused the documents on record, it is evident that the trial Court has passed order dated 22-10-2003 below Exh. ( 5 ) THE respondent has been duly served but none has put in an appearance on his behalf before this court. ( 6 ) HAVING heard the learned counsel for the respective parties and having perused the documents on record, it is evident that the trial Court has passed order dated 22-10-2003 below Exh. 5 on the premise that, as the respondent, who is a practicing advocate is not engaged in commercial activities and it cannot be said that the activities carried on by advocates are commercial in nature, the electricity Company should bill the office premises of respondent as per the residential tariff. This finding has been upheld by the lower Appellate Court in the impugned judgment dated 26-10-2005. ( 7 ) A number of judgments have been cited by the learned counsel for the respective parties before the Courts below which have been reproduced in the respective orders. However, as the question involved in the matter has now been decided by the larger Bench of the Supreme Court in Chairman, M. P. Electricity Board and others v. Shiv Narayan and another, vide Civil Appeal No. 1065 of 2000. by judgment dated 27-10-2005, the controversy can be set to rest, in terms of the ratio of the judgment of the Supreme Court. ( 8 ) THE issue whether domestic or non-domestic Tariff should be levied on the office premises of an advocate was referred to a larger Bench for consideration when a Bench of the Apex Court did not agree with the view expressed by another Bench of the Apex court in the case of New Delhi Municipal council v. Sohan Lal Sachdev, 2002 (2) SCC 494 : ( AIR 2000 SC 1859 ). The relevant, extract of the decision of the larger Bench of the Supreme Court in Chairman, M. P. Electricity Board and others v. Shiv Narayan and another is reproduced herein-below: "we have heard Mr. M. L. Jaiswal, learned senior counsel for the Appellant. We have perused the Circulars and seen the Tariff entries under which the levy has been made. We find that the Tariff entry classificatesjnto two categories viz. (a) 'domestic purpose' and (b) 'commercial and non-domestic purposes', this classification has been done statutorily in exercise of powers under Section 49 of the Electricity Supply Act, 1948. The classification clubs 'commercial and non domestic purposes' into one category. We find that the Tariff entry classificatesjnto two categories viz. (a) 'domestic purpose' and (b) 'commercial and non-domestic purposes', this classification has been done statutorily in exercise of powers under Section 49 of the Electricity Supply Act, 1948. The classification clubs 'commercial and non domestic purposes' into one category. Thus the question whether an Advocate- can be said to be carrying on a commercial 'activity does not arise for consideration. As the user is admittedly not domestic it would fall in the category of 'commercial and non-domestic'. In such cases even for 'non-domestic' use the commercial rates are' to be charged. Exclusively running an office is clearly a non-domestic use. Thus, in our view the Judgment of this court in Sohan Lal Sachdev is correct and requires no reconsideration. We clarify that we have not gone into the question as to whether or not an advocate can be said to be carrying on commercial activity. We, therefore, set aside the impugned judgment and allow the Appeal. There will no order as to costs. ( 9 ) AS is seen from the above quoted Judgment, the question as to whether or not an advocate can be said to be carrying on commercial activities has not been gone into by the Supreme Court, as the said question does not arise for consideration insofar as the classification of 'domestic' and 'non-domestic' purposes for billing is concerned. It has been categorically held by the Supreme Court that as the user is admittedly not domestic, it would fall in the category of 'commercial' and 'non-domestic' and in such cases even for non-domestic use, commercial rates would apply. It has further been clarified that exclusively running an office is clearly a non-domestic use. ( 10 ) AS per the judgment of the Supreme court quoted hereinabove, it is clear that the user of the premises would be relevant to determine the classification for billing for electricity charges, and the question whether or not an advocate can be said to be carrying on 'commercial' activities, is not relevant for classification of the Tariff. Admittedly the respondent is running his office in a Commercial Building. There is no doubt regarding the fact that the user of the office is not residential, therefore, it would fall in the category of RATE LFD-II, which is 'non-residential'. Admittedly the respondent is running his office in a Commercial Building. There is no doubt regarding the fact that the user of the office is not residential, therefore, it would fall in the category of RATE LFD-II, which is 'non-residential'. Applying the principle of law enunciated in the judgment of the Supreme Court in Chairman, M. P. Electricity Board and others v. Shiv Narayan and another (Supra), to the facts and circumstances of the present case, in this case, there are two categories and since the user of the, above mentioned respondent is not 'domestic' or 'residential', it would necessarily fall within RATE LFD-II (non-residential ). The petitioner-Company has, therefore, correctly billed the respondent as per Non-residential category. ( 11 ) BOTH the Courts below have exceeded their jurisdiction in going into the question whether, or not, an advocate can be said to be carrying on commercial activities, instead of deciding the question of user, in order to determine the classification,, for the purpose of levy of electricity Tariff. ( 12 ) IN view of the ratio of the judgment propounded by the Supreme Court in chairman. M. P. Electricity Board and others v. Shiv Narayan and another (Supra), the impugned judgment and order dated 26-10-2005 passed by the learned Presiding Officer, 9th Fast Track Court, Gondal (Camp at dhoraji) is quashed and set aside. Consequently, the order dated 22-10-2003 below exh. 5 in Regular Civil Suit No. 270 of 2003 passed by the Trial Court will also not survive. ( 13 ) THE petition is allowed. Rule is made absolute. There will be no orders as to costs. Petition allowed. --- *** --- .