A.K. Singhla vs New Delhi Municipal Committee
1997 Latest Caselaw 531 Del

JUDGMENT

R.C. Lahoti, J.

(1) This order shall govern the disposal of Cwp Nos. 2346/91, 2533/91, 2952/91, 2953/91, 3005/91, 3006/91, 3205/91, 3300/91, 3447/91, 3449/91, and 5784/93. All these petitions raise a common question relating to the entitlement of the respondent-NDMC to levy misuser charges @ 200% of the tariff.

(2) It is not necessary to notice the facts in details of each individual case. Suffice it to state that all the petitioners herein are professionals and belong to 5 categories : (i) legal practitioners (ii) chartered accountants (iii) architects (iv) doctors running clinics and (v) agencies making available junior level employees. They are in enjoyment of electricity supply meant for domestic use. In view of the whole or part of the premises having been found being subjected to the use for office/clinic as above said, the respondent has billed the petitioners for misuse charges calculated @ 200% of the Tariff. It is not disputed that if the supply of electricity meant for domestic consumption cannot be used by the above said professionals for their professional purpose than the levying of misuse charges would be justified.

(3) The contention of the petitioners is that none of the above said professions is a commercial activity. The office of a professional cannot be called a shop, commercial establishment or an industry. At the most it is a service. The use of electric supply in the premises where such professional activities are carried on can be classified only as use for domestic consumption and hence it cannot be called a misuse justifying levy of misuser charges.

(4) The relevant period to which the demands raised by the respondent relate is mostly July 1991. In one of the cases it is January to June, 1991. The tariff for the years 1990-91, 1991-92 makes a major classification into domestic and non-domestic from the point of view of the user of the electric supply. Then there are classifications such as industrial - further sub-classified as small and large industrial, agricultural and others with which we are not concerned. For our purpose the relevant clarification is only between domestic and non-domestic. Domestic is available to residential consumers, while non-domestic is available to non-domestic establishments other than industrial. The terms domestic and non-domestic are not defined in the tariff. Black's Law Dictionary defines `domestic' to mean pertaining, belonging, or relating to a home, a domicile. The Chamber's Dictionary (New Edition) defines domestic as belonging, relating to the home or family; remaining much at home; private; tame; not foreign.

(5) The learned counsel for the petitioners have cited a good number of decisions in support of the proposition that use of premises for the purposes of a profession or for rendering professional services does not amount to a commercial user and does not convert the premises into shops/commercial establishment/industry. These decisions are Dr.Devendra M.Surti VS. The State of Gujrat, ; National Union of Commercial Employees & Anr. VS. M.R. Mehar, Industrial Tribunal, Bombay & Ors., ; V.Sasidharan VS. M/s. Peter & & Ors., ; The Punjab & Haryana High Court Bar Association & Anr. VS. The Chandigarh Administration & Ors., ; Mukhtiar Singh Rathi VS. Smt.Satwant Kumar, ; Sakharam Narayan Kherdekar Vs. City of Nagpur Corporation and Ors. ; P.K.Ramanathan Vs. The State of Kerala & Anr., 1991 Lab.I.C. 1408; Narendra Keshrichand Fuladi & Anr. VS. State of Maharashtra, 1986 Lab.I.C. 318.

(6) On the contrary, the learned counsel for the respondent has submitted that "residence" means use of place for human habitation of self and family; carrying on any activity other than residence amounts to non-domestic user. It was submitted that even a lawyer's profession can be a business and hence would certainly be a non-domestic activity. Reliance was placed on Subramania Mudaliar VS. Kolapur Traders, and S. Mohan Lal Vs. R.Kondiah. . A few observations made in The Punjab & Haryana High Court Bar Association & Anr. Vs. The Chandigarh Administration & Ors., were also referred to. Forceful reliance was placed by the learned counsel for the respondent on a recent decision of the Supreme Court in Municipal Corporation of Greater Bombay Vs. Mafatlal Industries & Ors., Air 1996 Sc 1445 there a guest house maintained by a company for use of its employees was held not falling within the category of tariff providing for any premises "exclusively used as a private residential premises."

(7) In our opinion it is not necessary to deal with the above said cases in very many details in as much as the cases deal with position of law under specific enactments such as shops and establishments acts, Rent Control Law or Industrial Law etc. To the extent of principles it is all right to refer to these decisions. However, they do not provide much assistance in solving the issue at hand.

(8) The Scheme of the tariff appears to be that as between domestic and non-domestic, what is not domestic would fall into non-domestic category. The tariff does not contemplate mixed domestic and non-domestic user. The question arises : how the consumption of electricity would be charged under the tariff, if the premises be used for domestic purpose and also for non-domestic purpose or conversely for non-domestic purpose as also for domestic purpose - proportion between the two varying in degree. In our opinion the theory of pre-dominant user shall have to be pressed into service for the purpose of finding out the solution. Only that would enable each user being brought into and covered by one or the other category.

(9) In Mool Chand Vs. Sheodutt premises were classified into residential and non-residential for the purpose of rent control law. The lease was silent on the point of purpose of letting. It was held if accommodation is let or used for both residential and non-residential purposes its class has to be determined by reference to its primary purpose.

(10) Section 3 of the Indian Electricity Act contemplates the State Government appointing licensees who would generate and supply the electricity. Section 23 provides for the supply of energy being made without undue preference. Sub-Section (2) of Section 23 provides that no consumer shall use energy supplied to him under one method of charging in a manner for which a higher method of charging is in force.

(11) In exercise of powers conferred by Section 22-B of Indian Electricity Act, 1910, the Chief Commissioner of Delhi has issued Delhi Electricity Control Order 1959. Sub-Clause (4) of Clause 4 of the said order also restrains a consumer from using a load for purpose other than the one for which it was sanctioned. It clearly prohibits a load sanctioned for domestic purpose being used for a commercial purpose except by permission of the administrator.

(12) The learned counsel for Ndmc has brought to the notice of the Court a copy of resolution No. 31 dated 10.4.92 passed by a high Level Committee of the NDMC. This resolution notices the earlier resolution No. 32 dated 18.4.91 whereby use of domestic electric connection for commercial activity was held liable to be charged with misuse charges @ 200% effective from three months retrospectively. This policy was represented against by consumers consisting of professionals who were using part of their premises for their professional purposes. The following procedure was considered more practicable and approved :- SINCE a part of the premises is no doubt being used for non domestic purposes, though not considered as violation of the terms of lease, it is prudent that some extra charge is levied as compoundable penalty. Since 25% of the premises is allowed to be used for this purpose by the Dda, it is appropriate to levy penalty of 25% misuse charge on the total consumption of electricity for the concerned premises. This, however, will be subject to the condition that the use of the premises is primarily for the residence and only a limited portion is used for professional purposes as permissible under the said DDA Resolution provided the professional is doing his regular activities by having a separate commercial premises. However, in case the said professional so desires he may have a separate commercial connection for the portion of the residence being used by him for professional purposes, in which the remaining portion will have exclusive domestic use will not have the 25% misuse charge. However, any extension from one portion to the other will be treated as a normal misuse and will attract misuse charge of 200%."

12.1The above said resolution also takes note of resolution No. 7 dated 20.4.76 passed by Delhi Development Authority which had allowed the occupants of the residential premises to use part of the premises for their professional work subject to the condition that the portion so used did not exceed 500 sq.ft. and 25% of the covered area whichever is less.

12.2The learned counsel for the respondent has further pointed out that the new Building Bye-Laws adopted vide notification dated 17th May, 1995 have now provided :-

"THE professional activity shall be allowed in residential plots/flats on any floor on the following condition : "THE resident of the premises shall be permitted to use part of his residence to the maximum of 25% or 50 sq.m. whichever is less for a non-residential but non-nuisance activity which is for rendering services based on his professional skills. In case of residential plots any one floor may be used provided the whole premises is occupied by the same professional.

The trade and industrial activity (excluding household industry on ground floor to the maximum extent of 30 sq.m.) shall not be permitted).

(13) In our opinion the resolution so adopted by Ndmc is a very reasonable and fair policy in the matter of levying tariff on the consumers. It is consistent with the principle of determination off the user of the premises by reference to the primary or pre-dominant purpose. It is true that a profession is not a business and certainly not a commercial activity in the sense in which `commerce' is understood. The fact remains that by engaging in a profession one does earn livelihood and maintains himself and his family. Profession is chosen as a career and is mostly a full time activity yielding earnings. When it comes to classifying a profession it will have to be placed under `non-domestic' and not `domestic' head. The premises where profession is practised shall therefore have to be held as being subjected to non-domestic use in contradistinction with domestic use. Still realising the fact that mostly the profession can be and is generally carried on by individuals from a part of the residential premises, the respondents have taken a very reasonable policy decision keeping in view the representation, convenience and practical difficulties of the professionals. The petitioners must feel satisfied with it.

(14) For the foregoing reasons, the petitions are partly allowed. The impugned demand raised against the petitioners is hereby quashed. The respondent shall afford each of the petitioners an opportunity of hearing after carrying out the inspection of the premises, if necessary. The respondent shall then determine if the user of the premises for professional purpose exceeds or does not exceed the permissible limit in terms of the resolution dated 10.4.92. Subject to such determination, the petitioners shall be charged consistently with the terms of the resolution dated 10.4.92. No order as to costs.