Bharatkumar Pandya, Member

The present revision petition has been filed by the petitioner/opposite party against the order dated 13.11.2014 passed by the State Commission, Bihar in FA/988/2006 against the order of District Forum dated 18.09.2006 in CC/87/2022 and FA/649/2007 against order dated 05.11.2007 passed in Execution case no. 48/2006 arising out of CC/87/2002, whereby State Commission dismissed both the appeals filed by the petitioner and upheld the order of the District Forum.

2. The case of the petitioner/opposite party is that the respondent/complainant was using his domestic electric connection for commercial purpose. During local inspection by the Junior Electrical Engineer, Sikta, the respondent was found running business of cloth by using electricity, which was supplied under domestic category and therefore the JEE vide Letter No. 29 dated 18.04.2000 requested the AEE to prepare the bill under commercial tariff. Later on, JEE made another inspection to the premises of the respondent and found that the meter was in DS category and still energy was being used for commercial purposes for running the said cloth shop. This report was sent to the AEE, Narkatiaganj vide Letter No. 41 dated 02.09.2002, who on the basis of this report rectified the bill of the Complainant on meter reading under commercial service category which was earlier charged on the basis of minimum monthly consumption. The Complainant paid the energy bill on 30.11.2002 without any protest. Respondent/complainant was having an electric connection bearing Consumer No. 204 SKT D/S under the domestic services (D.S.) category in the name of his father late Mukti Narayan Gupta. His bill was being served after meter reading. However, it is the allegation of the respondent that from May, 2007 onwards he was being billed illegally under Commercial Service (CS) category without any meter reading and sometimes he was charged @ 60 units p.m. and sometimes @ 40 units and since January, 2022 he was being charged permanently @ 288 units per months, which was wrong. Complainant filed a consumer complaint before the District Forum for rectification of his meter reading in D.S. Category and also prayed for compensation of Rs.6,500/-. Petitioners entered their appearance on receiving notice and challenged and objected to the allegations on several grounds by filing written version. Junior Electrical Engineer inspected the premises of the respondent and found him running the business of cloth and using the electricity for the commercial purposes. Another inspection was also conducted by the JEE and on the basis of that inspection he was charged under the Commercial services category. Respondent made various payments under commercial category without any protest. Petitioners protested the complaint filed by the complainant and through their written version also called upon the complainant to pay his bills. However, District Forum, as per the petitioner, without considering the defence of the petitioners and without perusal of the record, passed an order dated 18.09.2006 in favour of the complainant. The operative portion of the District Forum's order is as under:

                   " .........

                   Under the entire facts and circumstances it is found that the electric consumption at best was being used from 18.02.03 for commercial purpose in the shop as per report of Asstt. Engineer. There is nothing on record on behalf of the O.P. that the information was laid to the complainant that D.S. is changed into C.S. because complainant uses electric consumption in the shop for commercial purpose. It was not justified for O.P. the electricity department without prior information and notice to the complainant to change D.S. into C.S. so at best it will be deemed that the complainant used electric consumption in the shop for commercial purpose from the date of verification by Asst. Engineer, Electricity Deptt., Sikta or from some days before it but not from the date of changing D.S. into C.S. from which the electric bill for C.S. were being sent to the complainant because of the fact also that there is no report of Electricity Department that the electric consumption is being used for commercial purposes long before the period or year of report of Asstt. Engineer, Electricity Deptt. There is nothing and no paper on behalf of O.P. from when or from which month and year the electric consumption was being used by the complainant in the shop for commercial purpose.

                   Under the entire facts and circumstances it is found that the electric consumption at best were being used from 18.02.2003 for commercial purpose in the shop as per report of Asst. Engineer, Electricity Department so the O.P. is entitled to realize C.S. bill at best from 18.02.2003 but not prior to that on account of no information and notice to the complainant in respect of changing D.S. into C.S.

                   It is therefore ordered that the complaint petition is allowed so the O.P. is directed to send revised bill as D.S. to the complainant from the period prior to 18.02.2003 and the complainant will deposit the revised bill accordingly for D.S. but will deposit the C.S. bill from 18.2.08 until the commercial purpose is stopped. The O.P. is directed to pay compensation and cost of litigation of Rs. 2000/- (two thousand)."

3. Being aggrieved and dissatisfied with the above order dated 18.09.2006 the petitioners filed appeal bearing First Appeal No. 988 of 2006 before the State Commission, Patna challenging the findings of the District Forum on several grounds. During pendency of the said appeal, the execution proceeding in Execution Case No. 48/2006 was initiated against the petitioners before the District Forum and order for sentence to undergo imprisonment for a period of one month for non-compliance of the order dated 18.09.2006 was passed by the District Forum vide order dated 05.11.2007. Against that order petitioners immediately moved stay application before the State Commission in the said First Appeal No. 988/2006 on 11.12.2007. Hon'ble State Commission vide order dated 12.12.2007 directed the petitioners to file appeal against the said order of the District Forum passed in execution case. Pursuant to the order dated 12.12.2007 of the State Commission, petitioners filed separate appeal bearing First Appeal No. 649 of 2007 against the said order dated 05.11.2007 passed in Execution Case No. 48/2006 by the District Forum. After hearing the matter at length, both the said appeals were dismissed by the Hon'ble State Commission vide order dated 13.11.2014, the relevant portion of which is reproduced below:

                   "4. Considering the submissions of the appellant as also the material available on record, it would appear that the District Forum has taken note of the letter of the concerned Assistant Engineer vide letter dated 18.02.03 that the consumption of the electricity is on commercial basis and as such directed the Electricity Board not to change the bill for consumption on commercial basis.

                   5. Having considered the same we do not find any different view in the matter. In the result for the reasons mentioned above, we do not find any merit in the appeal and the appeal is accordingly dismissed. The Appeal no. 649 of 2007 filed by the appellant-Bihar State Electricity Board against the Execution case no.48 of 2006 filed by the complainant for implementing the order dated 18.09.06 passed in complaint case no.87/02 filed by the respondent- complainant. In view of the dismissal of Appeal no.988/06, we do not find any illegal impediment in taking steps by the appellant for taking recourse of law for implementing the order. Accordingly, the Appeal no. 649 of 2007 equally stands dismissed. However, the learned Forum while proceeding for execution of the order shall allow opportunity to implement the order by the appellant - Board before taking any coercive action. "

4. Being aggrieved by the above order of the State Commission, petitioner/OP electricity board filed the present revision petition by challenging the same on the following grounds:

                   (i) State Commission failed to appreciate that the complaint was liable to be dismissed as complainant was using his Domestic electric connection for commercial purpose, hence his complaint was not maintainable and his case falls under the purview of Section 126 of the Indian Electricity Act.

                   (ii) State Commission has failed to appreciate that the date of converting the tariff of the Complainant from D.S. to C.S not 18.02.2003 and is instead 18.04.2000.

                   (iii) State Commission should have directed the Complainant to pay the bill as was charged as per report of the JEE vide Letter No. 29 dated 18.04.2000 until the commercial purpose was stopped.

5. We have heard learned Mr. Sanjeev Kumar Verma, advocate for the petitioner and have carefully gone through the entire material on record including the written arguments filed by the respondent-complainant. It is the submission of the petitioner/electricity board that inspection of the premises of respondent/complainant was done twice in April, 2000 by the JEE and the AEE and it was found that respondent was running the business of cloth and the electricity was being utilized for commercial purpose and then only the bill for the respondent was prepared under the commercial tariff. Since then the tariff of the respondent was changed and he was being billed under the commercial tariff. On the basis of inspection report dated 02.09.2002 done by the AEE, the bill of the respondent was rectified as commercial service category and respondent paid the energy bill on 30.11.2002, without any protest. Before that, the bills raised under tariff for commercial purpose were also paid by the complainant on 29.05.2000 and on 30.10.2000. Petitioner denies the averment of the respondent in which it is stated that he applied for disconnection of his energy line. In fact, respondent did not make any request for disconnection of his electric line. Besides, it is mandatory to pay disconnection charge for permanent disconnection. In this case also the Complainant neither deposited the said requisite amount nor filed any receipt showing that he had deposited such amount for permanent disconnection of his electric supply as per rule. Hence the petitioner Board was not bound to disconnect the electric line of respondent/complainant. Rule 15.4 (D) OF Tariff Notification also states that, "If the Consumer has any dispute over the bill he must make a complaint in writing to the Officer of the Board who has issued the bill but meanwhile payments in full as per the bill must be made "under protest" within the due date to avoid disconnection or payment of "interest for delayed payment". Apart from pleading the perversity of the orders of the fora below, the learned counsel also submitted that the fora below have passed the orders when they had no jurisdiction in view of the settled position of law in this behalf, and hence, as the matter goes to the root of the matter, the following issues on points of law as raised in the petition need to be considered and the petition needs to be allowed.

                   5.1 It has been strongly urged that the complaint has been filed without proper affidavit and the complainant is not the person in whose name the electricity connection exists. Therefore there is no privity of contract between the complainant and the electricity board and therefore, the complainant does not qualify as a consumer as held in Neelam Chhabra Vs. UHBVNL, III (2012) CPJ 65(NC) and Hari Prasad Vs. UHBVNL, II (2010) CLT 558, wherein it is laid down that the person other than the one in whose name the electricity connection exists, cannot be a beneficiary within the meaning of section 2(1 )(d) so as to entitle him to maintain a complaint. Further, the second legal ground is that the complainant was found to be using the services of electric connection for his shop which is not disputed and therefore the transaction between the parties was that of a commercial nature and therefore also the complaint was not maintainable. Relying on judgements in The Executive Engineer & Anr. Vs. M/s Sri Seetaram Rice Mill in C.A. No. 8859 of 2011, and in Chandramajeet Vs. Bihar State Electricity Board, III (2017) CPJ 362 (NC) it was further contended that the matter/grievance of the complainant was a dispute which came within the purview of the section 126 of the Electricity Act and therefore in view of the law laid down by this Commission, the consumer complaint is not maintainable. It has also been contended that once the District Forum came to a conclusion that from a given date (18.02.2003), the complainant was in fact enjoying the services for commercial purpose thereby rendering the connection to be not domestic but commercial, it was for the complainant to have established that such commercial use was from 18.02.2003 and not from an earlier date. Once the complainant has not led any evidence in this behalf and once no further appeal has also been filed by the complainant, and once the complainant has also paid the bills raised as commercial connection as late as till 30.11.2002, the State Commission has erred in treating the connection as commercial only from the date of 18.02.2003. Further reliance has been placed on the following judgments:

                   (i) MSEB Vs. M/s Swastik Industries, III (1996) CPJ 71 (NC),

                   (ii) Phool Chand Agarwal Vs. Bihar State Electricity Board & Anr. I (1994) CPJ 45 (NC),

                   (iii) Ramnath Panjiyar vs. Urban Electric Supply Division & Ors. IV (2014) CPJ 143 (NC)

6. Per contra, it is the averment of the respondent/complainant in the written arguments that as the question of facts has already been concurrently decided by the fora below; the same cannot be assailed before or gone into by this Commission in revisional jurisdiction. There is nothing on record to show that any shop was existing in his premises. In fact no prior intimation was given by the petitioner to him for conversion of bill from the category of domestic to commercial. Since May, 2000, he was being billed illegally under commercial service category without any meter reading and such act of petitioner electricity board amounts to deficiency in service and harassment causing great financial and mental pressure to him.

7. We have carefully appreciated the respective contentions and also gone through the record. It is seen that the matter is indeed petty wherein the complainant has obtained the relief by way of concurrent finding of facts leading to the conclusions of deficient service. The complaint was filed not because the "electricity consumption for cloth shop" is considered to be "non-domestic", and therefore, liable for "commercial service tariff, but because a huge arrears bill of nearly Rs. 14000 was issued without proper supporting evidence and without due process of valid notice and opportunity. The short written versions of the OP before the District Forum were also ambivalent with regard to date of inspection and the date from which the commercial service rates were made applicable and basis thereof. The evidence on record and the facts are also hazy and it is not clear whether the electric connection is in a shop or the business is run from the residence and how long the cloth business is running. In these circumstances, the fora below have found deficiency in service primarily on the basis that the process of changing the tariff from domestic to commercial as adopted by the electricity board is not fair and that no proper notice and opportunity of rebutting the allegation of commercial use was provided to the complainant. There is even no reliable document placed on record by the petitioner electricity board to establish that the "commercial use of the power" started from a particular date or before 18.02.2003. In these circumstances, the fora below, in our opinion,, rightly found that the demand/application of commercial service tariff from a date before 18.02.2003, without due process, is a dimension of deficiency in service. We also do not agree, on these facts, that the dispute is relating to tariff. As such, the dispute essentially revolved around the transparency and due process followed by the electricity board while changing the tariff for service enjoyed by the respondent/complainant. Also, the complainant, being indisputably the son/heir of the deceased in whose name the connection stood, and who used the connection for his own use and who also paid the bills, cannot be considered but a beneficiary under section 2(1)(d). Also, the complainant has very dispute with regard to the issue of domestic v. commercial tariff for the period preceding 18.02.2003 and, therefore he could not have been non-suited on the ground of "commercial purpose". Otherwise also, non-suiting a complainant on the ground of the service being "for the purpose of commercial activity which has direct nexus with profit generation" required, the positive pleadings and evidence to be brought on record by the petitioner and adjudication thereon by the fora below which has not happened and evidence on record does not indicate such nexus. While no fault can be found in the contentions of Mr. Varma based on the legal principles emanating from the decisions relied upon by him, on facts, we do not find it necessary or expedient in the peculiar facts and circumstances of the present case, to interfere with the orders of the fora below. In view of the above, the revision petition is dismissed. The order of the State Commission is upheld. Pending lAs stand disposed off.