BOMBAY ELECTRIC SUPPLY AND TRANSPORT UNDERTAKING vs Pophale Nursing Home

THIS is an appeal against the order dated 10.2.1992 of the State Commission, Maharashtra in Complaint Case No.37 of 1991. By this order the State Commission directed the appellant B.E.S.T., not to proceed with the recovery of the bill dated the 5th June, 1990 amounting to Rs.94,938.32 paise. It further directed that the question of the liability of the respondent -complainant to electrical duty rested with the State Government of Maharashtra.

THE details of the bill are as under : 1. Difference in Electricity Tariff (''H'' and ''S'') for the period from 14.7.1986 to 12.7.1989. Rs. 62,348.63 2. Electricity Duty for the period from 14.7.1986 to 12.7.1986 Rs.32,589.59 Rs.94,938.32

So far as the electricity duty is concerned Dr. Pophale made representation to the Electricity Duty Inspector who decided 1991 that the Nursing Home was liable to duty and upheld the bill so far as the electricity duty component is concerned. The Bombay Electricity Duty Act provides for appeal before the State Government against the decision of the Electricity Duty Inspector regarding the liability to Electricity Duty. But, the respondent complainant did not pursue the statutory remedy before the State Government and filed a complaint before the State Consumer Disputes Redressal Commission in respect of electricity duty disputing the levy of duty (and also arrears billing on the basis of electricity tariff) for the period from 14.2.1986 to 12.7.1989 amounting to Rs. 82,348/ -. So far as the electricity duty is concerned this is in the nature of tax levied and recovered by the State Government and the B.E.S.T. is only an agent of the State Government in collecting the duty on behalf of the State Government. It is not a consideration paid for the consumption of electricity by any consumer. As such any dispute about the levy and recovery of electricity duty cannot be the subject matter of a consumer complaint under the Consumer Protection Act, even though the Electricity duty is a percentage of the bill for consumption of electricity and that bill is itself under challenge. The Order of the State Commission, in so far as it relates to the levy of electricity electrical duty is concerned, is beyond jurisdiction and therefore quashed.

NOW we turn to the second component of the bill viz. arrears on account of difference in the electricity tariff for the period from 14.7.1986 to 12.7.1989.

ACCORDING to the appellant there has been no deficiency in service viz. non -supply of power in any manner and the disputes regarding the arrears arises from the tariff applicable and, therefore is in the realm of pricing. This cannot be the subject matter of a dispute before Consumer Forums. The appellant has also explained the circum -stances in which the arrear bill was issued in 1990.

DR . Pophale was the consumer from 27th July, 1961 and two meters were installed in his premises which were being used for residential purpose. For residential purpose electricity tariff ''R'' was applicable. On 30th July, 1971 on the application of Ms. Sudha Pophale as well as Dr. Pophale the meters were transferred in the name of the former on the ground that the flat had been shifted in the name of Ms. Sudha Pophale, and the premises in which the electricity was consumed was shown as Hospital/ Treatment and Family Planning Centre. Consequently, the consumer became liable to electricity tariff ''S'' which was then applicable to premises used for religious, charitable purposes and educational institutions and hospitals. The appellant has emphasised that at that point of time there was no difference in electricity tariff for residential (R) and hospital premises (S).

WITH effect from 6th June, 1984, the electricity tariff ''H'' was introduced which is applicable to private hospitals, as distinguished from the charitable institution registered under the Bombay Public Charitable Trust Act, 1950. According to the appellant on inspection on the 6th of July, 1989, they discovered that the Pophale Nursing Home was being run as a private hospital and only the Family Planning and Medical Aid Trust is running as charitable institution registered under the Bomaby Public Charitable Trust Act, 1950. Consequently, the Pophale Nursing Home became liable to the electricity tariff ''H''. Since the dispute relates only to the Nursing Home and not to the bills in respect of the Family Planning and Medical Trust, it is not necessary to go into the question of tariff applicable to latter.

SO the question that has to be considered is whether the Pophale Nursing Home is being run as private hospital and if so, whether it is liable to electricity tariff ''H'' w.e.f. 6th July, 1984.

THE Order of the State Commission observed that the electrical meters in question stood transferred in the name of the aforesaid Public Trust (Family Planning and Medical Aid Trust, Bombay). Thus, the State Commission held that the meters are in the name of the Trust. According, however, to the appellant one meter No.R -77005 is for the Family Planning and Medical Aid Trust and the second meter No. R -890032 is in respect of the Pophale Nursing Home. (These were higher capacity meters installed in 1989 at the request of Dr. Pohale and Ms. Pophale). This is borne out on Dr. Pophale''s statement in his letter of 31st August, 1989 to the General Manager, B.E.S.T., requesting for high capacity meters. He has stated therein that "I, therefore, request you to be kind to give separate power meters of high K.V. one for Pophale Nursing Home and the other for Family Planning and Medical Trust". He also requested that the billing for the meters should also be done separately. In this connection also reference is invited to Dr. Pophale''s letter of 21st September, 1988 to the Divisional Engineer (Commercial), (South), B.E.S.T. This conclusively establishes that the arrear bill raised by the B.E.S.T., is in respect of Pophale Nursing Home and not in respect of the Family Planning and Medical Trust. The fact that the complainant is doing charitable work in the Family Planning and Medical Trust and has been aided by the State and Central Governments, is therefore, not relevant to the tariff applicable in respect of the power supplied to private hospital w.e.f. 6th June, 1984 when tariff H'' was introduced whereas he was billed for at the lower tariff rate ''S''. In the light of the above facts, we hold that the appellant was correct and justified in raising the arrear bill at the appropriate tariff ''H''. A priori, the complainant became liable to electricity duty as already discussed above.

THE only question that remains to be considered is whether the arrear claimed is barred by limitation. The arrear bill was issued on 5th June, 1990 and pertained to the period from 14th July, 1966 to 12th July, 1989. The arrears prior to 5th June, 1987 would be barred by limitation being over 3 years from the date of issue of the arrear supplementary bill. In other words, the arrear claimed on account of difference in tariff ''H'' and ''S'' for the period from 14th July, 1986 to 4th June, 1987 is disallowed being time barred. The appeal succeeds in part. The Order of the State Commission is set aside except to the extent indicated above. There is no order as to costs.