Bachittar Singh vs The Chairman, Punjab State Electricity Board

N.K. Kapoor, J.—The Petitioner has made a prayer for issuance of an appropriate writ order or direction in the nature of mandamus/prohibition for the purpose of directing the Respondent to charge the Petitioner on domestic basis, keeping him out of the category of businessman and also for quashing the order dated 13.5.1980-Annexure P-8 as well as staying the realisation of the amount contained in electricity supply bill dated 18,4.1980. Annexure P-6 against account No. A-235.

Briefly stated the Petitioner is a practising Advocate in the High Court in Punjab and Haryana at Chandigarh and is presently residing and doing his legal work at premises. No.257, Phase- 1, SAS Nagar, District Ropar. It is the case of the Petitioner that he is a tenant in respect of the above-mentioned premises and electricity bills are issued in the name of Mohinder Singh owner of the permisses but are being paid by the Petitioner. It is Petitioner''s case that for the first time of the premises but are being paid by the Petitioner. It is Petitioner''s case that for the first time the Respondent issued a bill bearing No. 58229 dated 8.8.1979 requiring him to pay a sum of Rs. 543.85 which was on the basis of rates leviable on commercial basis. For this no notice was issued by the Respondent-Punjab State Electricity Board and its functionary before assessing the electricity consumed by the Petitioner on the basis of commercial rates and so with a view to resolve the matter, the Petitioner approached the Sub-Divisional Officer-respondent No. 4 who advised him to see the Director (Commercial), Punjab State Electricity Board. Since the matter involved a number of practising Advocates who had their offices at their residential places the president of the Bar Association of Punjab & Haryana, Chandigarh, addressed a letter to the Director (Commercial) of the Board as per Annexure P-2. However before this matter could be examined Respondent No. 4 disconnected the electric supply line of the Petitioner''s premises which was got restored by depositing the amount due on account of the bill issued as well as paying the penalty. The Director (Commercial)-respondent No.3-expressed his inability to do anything in the matter and advised the Petitioner to approach the Chairman of the Board. The President Bar Association once again addressed a letter to the Chairman of the Board requesting him to charge the Advocates residing in Punjab as on the pattern of Chandigarh Administration who have decided not to charge the Advocates on commercial basis. In the meantime, the Petitioner received another bill for the electricity consumed on the basis of commercial rates-Annexure P-6 as well as communication from the Director (Commercial)/Chief Engineer Respondent No. 3 expressing his inability in the matter in view of the instructions of the department-Annexure P-8. Hence the present writ petition.

Reply on behalf of ;he Respondents is to the effect that the consumers of the Punjab State Electricity Board are to be governed by the Tariffs and other Regulations made by the Board and not of any other State. As per existing provisions under Schedule Domestic Supply to PSEB Tariffs, is a portion of the house is regularly used for the conduct of business, then such a premise is to be billed under appropriate commercial supply or industrial power Tariffs. In case separate circuits are not provided then the entire supply will be classified under commercial supply. Besides this, objections were raised with regard to non-maintainability of the writ petition on the ground that the matter in dispute is contractual. Otherwise too, the Petitioner can go for arbitration u/s 52 of Indian Electricity Act, 1910 Section 76 of the Electricity (Supply) Act, 1948 and u/s 30 of the Abridged Conditions of Supply.

The Crux of the dispute involved in this case is as to whether the Petitioner who admittedly is an Advocate can be termed as "business" and so can be charged with regard to the electricity consumed on commercial basis. According to the Petitioner, an Advocate cannot be termed as a businessman for the simple reason that the profession of law is quite distinct and differs from carrying on of a trade of business and this way clubbing him with the category of businessman and charging him commercial rates is not borne out on the plain reading of the expression used in notification dated June 2,1977. Since the basis for charging the electricity consumed by the Petitioner is the notification of June 2, 1977 the same is hereunder reproduced as reference will have to be made for proper adjudication of the point in dispute:

SCHEDULE D.S. DOMESTIC SUPPLY:

(1) AVAILABILITY.

Available to single private house or flats for lights, fans, domestic pumping sets and household appliances private dwelling in which space is occasionally used for conduct of business by person residing therein shall also be served under this tariff. Where a portion of the dwelling is used regularly for the conduct of a business, the consumption in that portion will be separately metered and billed under the appropriate commercial or Industrial power tariffs, if separate circuits are not provided, the entire supply will be classified under Commercial Supply.

A bare persual of this provision clearly reveals that the same applies to a private building which is occasionally used for the conduct of business by person residing therein. The expression ''trade'' or ''business'' connotes a commercial activity, whereas ''profession'' refers to vocation especially the one which involve some branch of advance learning of medicine. Normally, this expression is used for (sic), law and medicine. This way it can be said that the profession of law is quite different from the expression trade or business. Even this distinction is made in Article 91(1)(g) of the Constitution of India where the expression is that all (sic) shall have the right to practise any profession or to carry on any occupation, trade or business. Even the Rule made by the Bar Council of India under the Advocates Act, 1961, prohibit an Advocate from engaging himself in any business. A Division Bench of the Kerala High Court in case reported as M.P. Sethurama Menon v. Thaiparambath Kun Amma''s daughter, Meenakshi AIR 1969 Ker 88, considered the distinction between the expression ''trade or business'' and ''profession'' and after elaborate discussion came to the conclusion that both are distinct and held that it cannot be said that the profession of an Advocate is to be a commercial activity. This court too had the occasion to consider this particular aspect (sic) the controversies as to whether residential building used for professional purpose by a lawyer can be clubbed with educational institutions, hospitals, community centres, charitable institutions and the building used as government office etc. for the purpose of determining the rate of water consumed. My brother S.S. kang, J. (as. he then was) held that clubbing of residential building for use as commercial purpose by a lawyer, for the purpose of determining the rate of water consumed with educational institutions etc. is wholly arbitrary, illegal, irrational and is violative of Article 14 of the Constitution of India. Dilating upon the characteristics in a residential building or part there of being used for professional purposes by a lawyer and the other institutions/establishment, it was observed that there is no similarity between the two. Practice of law is a unique profession. A person in order to be able to protect law has to attain a standard of ability and competence prescribed by an organised professional body like the Bar Council. The success of a lawyer depends upon his personal skill, intelligence, intellect, competence, knowledge, efficiency and integrity. There characteristics separate the legal profession from the commercial activity, which is primarily dependant upon the co-operation of a labour and capital. This way work of a legal practitioner does not partake of a commercial or semicommercial in character. Since the notification dated 2.6.1977 applies to private dwelling which are occasionally being used for the conduct of business by a person, the same cannot be said to be en-compass the use of a room in his residential accommodation as an office by the Advocate. Before concluding, it would be appropriate to deal with other two objections raised by the Respondents i.e. with regard to the maintainability of the writ petition and the existence of the alternative remedy in the nature of arbitration proceedings under the Electricity Act, I am constrained to observe here that the Respondents have not cared to put in appearance despite being aware of the pendency of the writ petition on the daily list. On merits, both these objections are frivolous. Admittedly, the Respondents had been charging the Petitioner for the electricity consumed as per domestic rate earlier to the issuance of the instructions for charging the premises in occupation of an Advocate at commercial rate as per Annexure P-9 dated June. 2, 1977. As per averment in the petition, no notice was issued by the Respondents before issuance of these instructions nor any opportunity was granted to him to prove that the profession of an Advocate is quite distinct from an activity of commercial nature. Similarly there is no merit in the objection that the Petitioner has an alternative remedy to get the redressal of his grievance under the Electricity Act. No doubt the Courts on their own have imposed a restraint on exercise of its jurisdiction under Article 226 of the Constitution of India, but the same cannot be construed as a bar. This rule is merely a rule of convenience. In any case, it does not oust the jurisdiction of the Court. Accordingly, I allow this writ petition and restrain the Respondents from issuing bills for the electricity consumed at the commercial rates. The excess amount realised by the Respondents on the basis of commercial rate in respect of the premises in occupation of the Petitioner shall be paid/adjusted by the Respondents. No order as to costs.