SUB. DIV. OFFICER, H.S.E.B.,HISAR vs JAIMAL SINGH, ADVOCATES

FIRST Appeals No. 585 and 593 of 1993 have been both preferred by the Haryana State Electricity Board against the virtually identical order of the District Forum, Hisar allowing the respondentAdvocate''s complaint. Learned Counsel for the parties are agreed that the primal issues of fact herein are identical and this order will govern both of them.

FOR the limited purpose of remanding the matter back for trial on the substantial question involved, it is unnecessary to delve too deeply into the facts and the merits. The representative matrix of f acts may be noticed from First Appeal No.585 of 1993 ''S.D.O.H.S.E.B., Hisar v. Jaimal Singh, Advocate and Others''. In the Judicial complex at Hisar, there are chambers constructed for Advocates, which had been built by the State Government and allotted to the learned Members of the Bar on payment of the requisite charges. All the chambers enjoyed the facility of sanctioned electricity connections, for which purpose individual meters have been installed in the respective chambers. The complaint was jointly preferred by six learned Advocates on the primal ground that in the electricity bills for the said chambers, the charges had been levied at the commercial rate of electricity which according to them could not be charged at all because those meters were provided in the chambers wherein the Advocates used it for the purpose of their clients for consultation, guidance etc. and hence, non-commercial rate of electricity is to be charged. In contesting the complaint, the appellant-Board raised three preliminary objections including the one that the respondents were estopped from filing the complaint, because they had themselves applied for electricity connection for commercial supply, which was further clear from the agreement effected into between the parties. On merits the plea was that the activities of the complainants were clearly commercial in nature and even the application had been for the said purpose. In Para 5 of the reply, it was in terms pleaded that as per the clarifications made by the H.S.E.B. for the purpose of supply of electricity, the respondents were under the category of commercial supply consumers. The other allegations in the complaint were also stoutly controverted.

It would appear that neither side chose to put in any meaningful evidence in support of their respective cases and the cases were argued out on the pleadings alone. The District Forum noticed that the solitary point for consideration was whether the chambers occupied by the lawyers are meant for commercial purpose or not? Relying primarily on the observations in AIR 1984 Supreme Court 1700 "V. Sasidharan v. M/s. Peter and Karunakar and Others'' and ''Punjab and Haryana High Court Bar Association v. Chandigarh Administration'' 1988 Haryana Rent Reporter 300. The District Forum summarily concluded that the lawyers chambers were not meant for commercial purposes and forthwith allowed the complaint with the direction that the appellant-Board is not entitled to charge the rates for commercial purposes from the respondents.

MR. Jagat Narain, learned Counsel for the appellant has forcefully projected an argument, which entirely changes the complexion of the case, as tried before the District Forum. It was pointed out that the conditions of Electricity supply were duly changed and promulgated on the 25th of October, 1990. Thereby, the Board in terms decided to change the nomenclature of commercial supply to that of non-domestic supply, henceforth. Reliance was placed on AIR 1983 Supreme Court 1296 ''M/s. Jagdamba Paper Industries (Pvt.) Ltd. and Others etc. v. Haryana State Electricity Board and Others etc.'' and AIR 1986 Supreme Court 1999 ''Kerala State Electricity Board v. M/s. S.N. Govinda Prahhu and Brothers & Others'', for rightly contending that the appellant-Board was perfectly within its right to amend the conditions of electricity supply or the tariff leviable upon the consumers unilaterally. The judgments relied upon by the District Forum were sought to be distinguished and the core of the argument was that the real issue after the change in the conditions of supply was whether the chambers of the respondent-Advocates could be levied with non-domes tic supply and charged accordingly. It redowned to the credit of the learned Counsel for the respondent that when the factum of the amended conditions for supply notified on the 25th of October, 1990 was brought to his notice, he did not dispute the factum of the amendment. The primal stand taken was that the appellant-Board had been remiss in not expressly pleading the amended conditions of supply in terms, but had done so only by an oblique reference.

IN vie w of the fair stand taken by both the sides, it is now manifest that by Sale Circular No.49/90 dated the 25th of October, 1990, the appellant-Board had duly notified a change with regard to the nomenclature and the tariff for the domestic and non-domestic supply of electricity to its consumers. By the aforesaid Sale circular, it was duly conveyed to all the concerned authorities as under: "Sub: Change of nomenclature of Commercial Supply (CS) to Non-Domestic Supply (NDS). It has been decided by the Board to change the nomenclature of commercial supply (CS) to "Non-Domestic Supply (NDs)", hence-forthwith. The term Non-Domestic Supply (NDS) may be incorporated in all documents/Sales Manual/Schedule of Tariff and may be used in all Correspondences being made whether external or internal, in future. The above instructions may be brought to the notice of all concerned for strict compliance."

Now once a change in the conditions of supply and the tariff had been duly promulgated, it would be obviously clothed with legality in view of the authorities relied upon by the appellant-Board in M/s. Jagdamba Paper Industries (Pvt.) Ltd. and Others etc. v. Haryana State Electricity Board & Others etc. (supra). It was held by the Final Court that under Section 49 of the Electricity Supply Act, the Board can unilaterally revise the conditions of the supply of electricity and the charges and security for meters comes within the ambit and any enhancement or variation thereof was unassailable. To the same tenor are the observations in the later case of ''Kerala State Electncity Board v. M/s. S.N. Govinda Prahhu and Brothers & Others'' (supra), holding that the Board is entitled to fix different tariff for different consumers having regard to the nature of supply and purpose of supply etc. and those matters are squarely within the competence of the Board. It necessarily follows, therefore, that the amendment of the conditions of supply in October, 1990 must, therefore, hold the field. Once it is held as above, it would appear that after the amendment of the conditions of supply and the tariff, the distinction primarily drawn is between domestic supply and non-domestic supply as such. The contention of the learned Counsel for the appellant is plausible that the concept of commercial tariff has been abrogated and instead the issue is one of non-domestic supply or non-residential premises for the purpose of the levy of charges. This aspect plainly enough has not even been remotely urged before the District Forum nor adjudicated upon by it.

IN the aforesaid context, the reliance of the District Forum and the learned Counsel for the respondents on V. Sasidharan v. M/s. Peter and Karunakar and Others (supra) is plainly distinguishable. Therein the primal issue was whether the office or chamber of a lawyer was a commercial establishment within the meaning of the Kerala Shops and Establishment Act, and further whether the office of a lawyer was a shop or otherwise. The ratio of the said case now ceases to apply when the issue primarily is whether the tariff is to be levied on the basis of the domestic supply or a non-domestic supply. What has been said with regard to the Supreme Court case, is equally applicable to ''Punjab & Haryana High Court Bar Association v. Chandigarh Administration'' (supra).

IT is somewhat plain from the above that the parties before the District Forum were somewhat remiss in not projecting the real issue for consideration after the admitted factum of the amendment of the conditions of electricity supply. The respondent-complainants apparently in ignorance thereof attempted to assail the levy of charges on the basis of a commercial supply, which had long since been substituted by a non-domestic supply charge. The appellant-Board also did not in terms bring out the statutory conditions applicable and only made an oblique reference to a clarification of the consumer by the H.S.E.B. for the purpose of supply of electricity without pleading and specifying the details of the amendment enforced since October, 1990. Inevitably, the District Forum mis-directed itself by considering the question as one of commercial or non-commercial supply, whilst the crucial issue was whether the tariff was to be levied on the lawyers chambers for a domestic supply or a non-domestic supply in view of the amended conditions. In the light of the above, we find no option, but to remand the matter back for re-trial on the primal question involved. Both the parties would be entitled to make the necessary amendments in the pleadings and to further lead adequate evidence in support of their respective stands in order to enable a proper adjudication of the lis.

Both these appeals are consequently allowed in the terms aforesaid and we leave the parties to bear their own costs. Appeal allowed. ______________