Sohan Lal Sachdev vs New Delhi Municipal Council
1996 Latest Caselaw 1025 Del

JUDGMENT

Usha Mehra, J.

(1) Deceased Sohan Lal Sachdev, appellant herein, was the landlord of premises bearing No.49, Golf Links, New Delhi. He occupies the ground floor of the said premises. He started using the first and Barsati floors as Guest House. He informed this fact to the New Delhi Municipal Council (hereinafter referred to as N.D.M.C.). Pursuance to this information, the electricity charges for the first floor and Barsati floor have been changed by the N.D.M.C. It started charging on commercial basis. Aggrieved by this action of the respondent, the appellant filed a suit for permanent injunction. The learned Sub Judge decided the issue No.1 in his favour by holding that the user of the premises for running Guest House cannot be termed as commercial user. However, on other issues it was held that the Ndmc was competent to charge varied electricity and water consumption rates. In conclusion it was observed that since user was neither domestic nor commercial, hence the N.D.M.C. was competent to charge the electricity at non domestic rates. Aggrieved by the decision on two other issues the appellant filed an appeal. The learned First Appellate Court not only decided the appeal against him but also reversed the finding on issue No.1 which was not challenged before him. It is against the First Appellate Court order that this appeal has been preferred.

(2) The main grievance of the appellant is that the learned Trial Court while deciding issue No.1 held that Guest House is not a commercial user. Against that decision neither party filed any appeal still the First Appellate Court upset the finding of fact and of law. Secondly, Delhi Electricity Control Order,1959 (in short DECO) lays down three categories of consumers under Clause 4(4) namely; (1) Domestic (2) Commercial and (3)Industrial. There is no consumer under Deco or under the Indian Electricity Act called non- domestic user. Hence in the absence of any category under the head non-domestic, the respondent has no basis for charging on non- domestic basis. Either it is domestic or it is commercial. There is no concept or the term "non- domestic". Having held that Guest House is not a commercial user, the electricity rates ought to have been charged on domestic user basis.

(3) In order to appreciate the challenge, we must know what does Sub-clause (4) of Clause 4 of the Deco says. The same is reproduced as under:- "4.Restriction on consumption of Energy (4) Use a load for purpose other than the purpose for which it was sanctioned in his favour without the permission of Administrator viz, a load sanctioned for domestic/ commercial purposes shall not be used for industrial purposes or a load sanctioned for domestic purpose shall not be used for a commercial purpose without the permission of the Administrator." Clause 4(4) as reproduced above, lays down restrictions for the use of electricity load. It says if a load has been sanctioned for domestic purpose it cannot be used for commercial purpose. Similarly load sanctioned for domestic/ commercial user cannot be used for industrial purpose. Therefore through this Sub-clause (4) Deco has specified only three categories namely; (1)Dopmestic (2)Commercial and (3)Industrial. No consumer can interchange the user without the permission of the Administrator. There is no category of non-domestic user under the DECO. The relevant provision of the Indian Electricity Act (in short the Act) relied by the respondent namely Section 23 of the Act is reproduced as under:- "23. Charges for energy to be made without undue preference - (1) A licensee shall not, in making any agreement for the supply of energy, show undue preference to any person. (2) No consumer shall, except with the consent in writing of the licensee, use energy supplied to him under one method of charging in a manner for which a higher method of charging is in force. (3) In the absence of an agreement to the contrary, a licensee may charge for energy supplied by him to any consumer- (a) by the actual amount of energy so supplied, or (b) by the electrical quantity contained in supply, or (c) by such other method as may be approved by the State Government. (4) Any charges made by a licensee under clause (c) of sub-sec tion (3) may be based upon, and vary in accordance with, any one or more of the following considerations, namely; (a) the consumer's load factor, or (b) the power factor of his load, or (c) his total consumption of energy during any stated period, or (d) the hours at which the supply of energy is required.

(4) Reading of Section 23 of the Act and Clause 4(4) of Deco show that the power to fix tariff have been statutorily conferred on the authority. So far there is no quarrel with the proposition of power of the authority to charge varied rates but this power has to be within the four walls of Deco and the Act. Nothing can be read into it. The question for consideration is when the user is not a commercial user or industrial user, can the authority still charge tariff on varied rates? The answer would be in the negative. In the absence of any expressed provision having been laid down in the Deco and the Act the respondent cannot charge energy supplied to the appellant on non-domestic rates. Non-domestic is nothing but commercial, but the Trial Court decided that issue in favour of the appellant. Court held that Guest House user is not commercial. This finding was never challenged hence that issue could not have been upset by the First Appellate Court.

(5) Admittedly, on the first and barsati floor Guest House is being run by the appellant. It is also an admitted fact on record that no kitchen is being run by the appellant for supplying food to outsiders. Running of Guest House has been held to be residential use by this Court in the case of R.Ramanujam Vs. Ajit Singh etc. reported in 1978 Rajdhani Law Reporter 378. In that case the premises was built on a plot of land. The Lease of the same provided that it has to be used for residential purposes only. The landlord let out the premises to a tenant. The tenant started running a boarding and lodging house. The landlord felt aggrieved that use of boarding and lodging was in violation of the terms of the lease. Matter came up before the Court. This Court after analysing various provisions of law concluded that serving the lodgers with food, the user will remain as residential. Position would have been different, if food is begun to be sold to outsiders. In this case also no kitchen is being run by the appellant. Instead of letting out these floors to a tenant, the appellant himself has started running the Guest House, where people come and stay on temporary basis. He is catering to their food requirements. To my mind, legal proposition as laid in R.Ramanujam's case (Supra) squarely apply to the facts of this case. Contention of Mr.B.B.Gupta, counsel for the respondent that R.Ramanujam's case was under the Delhi Rent Control Act hence is not applicable to this case, has no force. This Court was considering the position of lodging and boarding, whether it could be termed as commercial use or residential. This court after considering the provision of law held that such a user is residential. If that be so then electricity consumed would fall in the category of domestic user. Thus as per the decision of this Court in R.Ramanujam's case (Supra) the First and Barsati floors are being used by the appellant for residential purposes hence liable to pay electricity charges at domestic rates. The question is why can't a landlord instead of letting the premises on rent to a tenant cannot let out the same on licence basis for few days to some persons. The stay of such persons is temporary. They use the premises for residential purpose. Their food is supplied by the appellant. I have failed to understand how his case is different from that of R.Ramanujam case (Supra). When confronted Mr.B.B.Gupta conceded that if this premises had been given on rent electricity rates would not have been charged on commercial basis. If that be so, I cannot appreciate that for keeping people as guest in his Guest House appellant should be asked to pay for any other category than domestic user.

(6) That no evidence was led by the N.D.M.C. before the Trial Court to prove that on account of user of these floors as Guest House, the total consumption of energy had increased or consumer load factor had changed. In the absence of any such evidence, to my mind, the observations of the learned First Appellate Court made in the impugned order are contrary to facts on record and against the law. 6. Mr.B.B.Gupta's reliance on the decision of Supreme Court in the case of A.N.Kapoor V. Pushpa Talwar reported in 46 (1992) Delhi Law Times 712 (SC) is of no help to him. In that case the Apex Court was considering the case of the landlord keeping in view the provisions of Section 14(1)(e) of the Delhi Rent Control Act i.e. bonafide requirement of the landlord of a residential premises. Explanation to Section 14(1)(e) provides that the premises let out has to be used for residential purposes. In that case the tenant started using the tenanted premises for boarding and lodging of foreign students. Landlord claimed that user to be non-residential and, therefore, sought eviction for misuser as well as for bonafide requirements. It was in this background that the Apex Court on the basis of the evidence concluded that the landlord was aware that the tenant had been continuously using the building for the purposes of boarding and lodging of foreign students. The landlord and prior to her, her father had been aware of such user of the building by the tenant. They did not object rather have impliedly consented to such user. Therefore, they could not now object to the building being used for other purpose than residence. Since this user was impliedly with her consent, therefore, she could not take advantage of the provisions of Section 14(1)(e) of the Delhi Rent Control Act. The applicability of Section 14(1)(e) of the Act required that the premises was let out for residential purposes. It is required bonafide by the landlord. Court held that since as per landlord's own showing the premises was used for other purpose than residential with the consent of landlord hence the provisions of Section 14(1)(e) could not be attracted in the facts of that case. That the Apex Court was not called upon to decide whether the user was commercial or residential as was in the case of R.Ramanujam (Supra). In the case of A.N.Kapoor (Supra) Supreme Court was only dealing with the averments made by the landlord and the applicability of the provisions of Section 14(1)(e) of the D.R.C. Act. But that is not the point involved here. As already observed above, the Deco nowhere provides that if the premises is not used as commercial nor industrial still the electricity would be charged at varied rates at the whims of the authority. In the absence of any specific rates to be charged for non domestic purposes, the respondent cannot charge any other rate than domestic. The term "non-domestic" has been coined in this case by the Courts below. Respondent cannot be allowed to take advantage of the same particularly in the absence of any finding that the premises is being used for commercial or industrial purpose. The respondent can only charge energy supplied at domestic rates. Therefore, for these reasons the impugned order cannot be sustained. The same is accordingly set aside.

(7) For the reasons stated above the appeal is allowed but no order as to costs.