Lalchand Agarwal vs EXECUTIVE ENGINEER, CITY DIVISION WEST/M.P.E.B.

BOTH these appeals under Section 15 of the Consumer Protection Act, 1986 are directed against the same order dated 16.11.2004 in Complaint No. 137/2004 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short), hence they are being disposed of by this common order.

INDISPUTABLY, the complainant Lalchand Agarwal is the proprietor of Small Scale Industries Unit registered in the name and style of "Sanyog Offset Private Ltd.," Samta Colony, Raipur since 10.4.1990. He obtained electric service connection from the respondent in that year to run the said unit. He was admittedly being billed as per industrial tariff, by the opposite party Electricity Board (CSEB). The dispute arose as the Electricity Board demanded additional bill of Rs. 1,07,747 by letter dated 4.9.2000 relating to the electricity consumed by the aforementioned unit of the complainant, during the period 1998-2000. It was stated in the said letter and the correspondence which followed thereafter, that the complainant''s service connection as per audit report was required to be charged, as per commercial tariff and not as per industrial tariff. Hence, the difference of amount of the said period as above was being demanded. It appears that other letters were also issued by the respondent Electricity Board, from time to time, towards recovery of the said amount from the complainant. The complainant protested against the said recovery. After serving legal notice, to the respondent, the complainant approached the District Forum praying that the said demand of Rs. 1,07,747, raised by letter dated 17.8.2000 be quashed, and compensation be awarded. The complaint was resisted by the Electricity Board. It was averred by it, that as per Circular No. 908 dated 11.3.1991, the complainant was required to pay electricity charges as per commercial tariff. Hence the demand as above was justified. There was no deficiency in service by the Electricity Board and the complainant was not entitled to get the relief sought by him.

The District Forum in the impugned order observed that the agreement for supply of electricity was as per industrial tariff. It was further observed that the Electricity Board has not been able to justify the demand of additional bill for the electricity consumed for the period from April, 98 to June, 2000. It was also observed by the District Forum that the Electricity Board is free to enter into a fresh agreement with the complainant if it wants to charge the latter; electricity charges as per commercial tariff. However, the prayer of the complainant to quash the bill was not allowed and instead it was directed that O.P. Electricity Board should approach the Review Committee for resolving the dispute regarding the additional bill as above, and it was further directed the recovery of the said bill would remain suspended till the decision of the review committee.

WE have heard the learned Counsel for the parties and perused the record. The salient features of the complainant, which are, not in dispute are, that the O.P. Electricity Board had got executed from the complainant, an agreement for charging industrial tariff, some time in the year 1990. The demand as per letter dated 4.9.2000 for payment of additional bill was issued on the basis of audit report. It also appears that the stand of the Electricity Board was that the complainant was liable to pay the electricity charges as per commercial tariff, instead of industrial tariff as per their Circular No. 908 date 11.3.1991, copy of which has been placed on record of this appeal. Before proceeding further, it would be useful to quote the relevant portion of the said circular, which was issued by Chief Engineer (Commercial) of the M.P.E.B. and was addressed to the Chief Engineer, M.P.E.B. The relevant portion reads: "Sub : Change in Tariff from "Commercial" to "Industrial". Kindly refer to your letter No. 051-01-SKV/10150 dated 17.11.1990. It has been decided by the Board that change in tariff from Commercial/Non-domestic tariff to Industrial Tariff may be permitted with prospective effect to such of the units which are registered as "Industrial Unit" with District Industries Centre after proper verification and also if a representation in this regard is received from them. This is for favour of your kind information. The field SEs/EEs. under your control may kindly be advised suitably. It may kindly be noted that it would be necessary to obtain the option of the consumer out of the various alternatives available in tariff for industrial installations for ensuring proper billing."

IT would be clear from the perusal of the above quoted circular that it related to change in tariff from ''commercial to industrial'', while in the instant case the change proposed by the Electricity Board was from industrial to commercial tariff. Moreover, the said circular clearly spelt out that, change as above from commercial to industrial tariff could be permitted to such of the units registered as industrial units on receiving a representation from them in regard to the change as above. The circulation also clarifies and is explicit that such change would be from prospective effect. Therefore, neither the said circular indicates that industrial tariff could be changed into commercial tariff nor there was any application by the complainant for any such change, and lastly and most importantly the change, if any, could only be in prospective in nature. In the instant case, the demand as above admittedly is being for electric consumption, in the past and thus even if the terms of circular are to be applied, it would mean that the conditions of the circular were sought to be applied retrospectively which was certainly neither in the spirit nor the meaning of the circular. In no case, the additional demand as above, could be raised, under the garb of the said circular. Therefore, the Electricity Board was not justified in raising the contention that demand as above was in pursuance of Circular No. 908 dated 11.3.1991. It also appears that Additional Superintending Engineer of the Electricity Board by letter dated 18.9.2000 had called upon the complainant to change its agreement within a period of one month and to enter into a fresh agreement for commercial power tariff instead of industrial tariff. It was further stated in the said letter that even if the agreement as above would not be entered into by the complainant, he would be charged on the basis of commercial power tariff from the date of default. The above letter dated 18.9.2000 would also clearly indicate that even according to the Electricity Board commercial tariff was proposed to be charged prospectively, after the expiry of one month from the receipt of the said letter. However, in the instant case as already noticed, demand related to the electricity consumed for the period from April, 1998 to June, 2000, and thus applies retrospectively. Such a demand was clearly not justified, even in the context of Circular No. 908 dated 11.3.1991 as well as letter of Assistant Superintending Engineer dated 18.9.2000. It is also settled law that demand raised solely on the basis of audit report is not justified and cannot be permitted. More over, alleged audit report has also not been placed on record and there also appears to be no justification for demand of commercial tariff, while the industrial power tariff agreement between the parties was in existence.

IN the foregoing circumstances, the prayer of the complainant deserves to be allowed that the bill of Rs. 1,07,747 for electricity already consumed in the past, and having retrospective effect deserves to be quashed. However, needless to say that the observation and findings in this appeal would be limited to the above bill and shall not prejudice and affect the rights of the Electricity Board to recover such electricity charges from the appellant which are not in consideration in the complaint, as may be legally permissible.

ACCORDINGLY, Appeal No. 575/04 of the complainant Lalchand Agarwal is allowed. The bill of Rs. 1,07,747 is quashed. Consequently, Appeal No. 591/2004 of the O.P. Electricity Board is dismissed. Appeal No. 575/2004 allowed. Appeal No. 591/2004 dismissed.