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Judgment
MINI PUSHKARNA, J (ORAL)
The present writ petition has been filed challenging the order dated 11th September, 2024 passed by the Appellate Authority, District West in Appeal No. 01 & 02/ADM(W)/Elec./2024, with further prayer to quash the order of assessment dated 20th March, 2023, issued by respondent no. 1.
Learned counsel appearing for the petitioner submits that the petitioner is a senior citizen of around 75 years of age and is the owner of property bearing no. C-86, Sudershan Park, Moti Nagar, New Delhi-110015.
It is submitted that the petitioner had let out the aforesaid property to girls, who were pursuing higher studies, competitive exams or being employed temporarily, in Delhi. The said category of tenants, were inducted by the petitioner, with a view to safeguard the petitioner’s interest, in his property, from tenants that would attempt to grab the property in view of the old age of the petitioner.
Thus, it is the case of the petitioner that since the property in question is being used only as a residence for girl students/professionals, no commercial activity can be said to be ongoing in the said property. He further submits that no commercial activity is being conducted by any of the petitioner’s tenants, thus, the tenants who are young girls, are students/professionals, and using the property only for the purposes of studies.
Per contra, learned counsel appearing for the respondent-Tata Power Delhi Distribution Limited, submits that the premises in question is being used by the petitioner for running a girls Paying Guest (“PG”), which is a commercial activity. Thus, he submits that the electricity bill was rightly raised for non-domestic use, as use of a property for PG, cannot be considered as a domestic use.
He submits that two meters are installed in the aforesaid premises, wherein, for one meter bearing no. 11045247, the sanctioned load is 9 Kilo Watt (“KW”), however, during the course of inspection, the connected load of 13.940 KW, was discovered.
He further submits that for the second meter bearing no. 11045548, the sanctioned load is 6 KW, however, during inspection, connected load of 39.905 KW, was discovered.
Having heard learned counsels appearing for the parties, this Court notes that vide order dated 11th September, 2024, the learned Appellate Authority, District West, in its order, whilst dealing with a challenge by the petitioner herein, to the Final Assessment Orders dated 20th March, 2023 and 24th March, 2023, has held as follows:
“xxx xxx xxx
16.It is an admitted fact that the said premises is used for the purpose of giving on rent and let out to individual girls as Paying Guest who come for higher studies and competitive examination from all over India and the electricity is being used in the premises provided by the respondent. During the inspection, it has been observed that the gym and common mess is also found running in the premises and electrical load sanctioned for the domestic category was found being unauthorizedly used for the non-domestic purposes. The said use of the premises comes under non-domestic category and is covered as unauthorized use of electricity u/s 126 of the Act, 2003 and DERC guidelines i.e., for the purpose other than for which the usage of electricity was authorized. Also, as per the terms and conditions of the prevailing Tariff Order of DERC, Paying Guests/Hostels/Schools/Colleges are given in the non-domestic category.
xxx xxx xxx
19.In this case, the premises in question is not rented to girls for bonafide residential purpose as domestic use rather they are residing as Paying Guest which comes under non-domestic category as per section 126 of the Act, 2003 and DERC guidelines. As per decision of the Hon'ble Supreme Court in Union of India v. Dudh Nath Prasadmere temporary residence or residence by compulsion at a place, however long, cannot be equated or treated as a place of ordinary residence.Hon'ble Supreme Court in NDMC v. Sohan Lal Sachdeva observed that "in the case of a "guest house" the building is used for providing accommodation to "guests" who may be travelers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context cannot be said to be for purely residential purpose."
20.In my opinion, the guests who come to the premises in question cannot be said to be staying there for residential purpose and the electricity used for them is of domestic category. It would be a different matter if the appellant had given the premises on rent to girls for stay there for a long time along with their families for residential purpose. In that case, it could be said that the premises is being used for residential purpose and electricity is being used for domestic purposes. But that is not the case here.
xxx xxx xxx”
(Emphasis Supplied)
Perusal of the aforesaid order clearly shows that there is a categorical factual finding by the learned Appellate Authority with respect to a PG for girls, being run by the petitioner herein, in the premises in question.
This Court takes note of the Tariff Order for the Financial Year (“FY”) 2021-2022 as handed over by learned counsel appearing for the respondent no. 1, wherein, the domestic category as well as the non-domestic category, has been enumerated. Thus, as per the said Tariff Order for FY 2021-2022, the domestic category would include any PG, provided the premises in question have a sanctioned load up to 5 KW under the domestic category. However, as noted above, in the present case, the sanctioned load is more than 5 KW, as one meter has been sanctioned for 9 KW and the other has been sanctioned for 6 KW. Therefore, in case, there is a PG being run from the premises of the petitioner, the electricity cannot be stated to be within the domestic category in view of the said Tariff Order.
This Court further notes that the said Tariff Order for the FY 2021-2022, also records the non-domestic category, which clearly stipulates the PG other than covered under the domestic category. Therefore, it is evident that the usage of electricity by the petitioner in his premises would fall within the non-domestic use.
Further, this Court also takes note of the submissions made by the petitioner in the present petition, wherein, the petitioner has stated as follows:
“xxx xxx xxx
5.After construction of the said property, the petitioner let out it to girls who came for higher studies, competitive exams or being employed temporarily in Delhi. With only to safeguard petitioner's interest to save his property from grabbing it by the tenants as the petitioner is a senior citizen having 75 years of age.
6.It is submitted that apart from the residence of the girls, there is no commercial activity is going on in the above said property. No commercial activity is being conducted by any petitioner's tenants as the petitioner strictly disallowed any action of activity by any of the tenants. The property, in question, was/is provided to the tenants only for studying in the property.
xxx xxx xxx”
(Emphasis Supplied)
Reading of the aforesaid averments in the petition itself clearly shows that the petitioner has categorically admitted that he has rented out the premises to girls, who have come for higher studies, competitive exams, or being employed temporarily in Delhi.
Thus, in view of the averments and the sanctioned load of the petitioner, it becomes apparent that a PG accommodation is being run by the petitioner from the premises in question.
This Court also takes note of the Inspection Report dated 11th January, 2023, filed by respondent no. 1, which with respect to the first meter bearing no. 11045247, categorically states that against the sanctioned load of 9 KW, the connected load is 13.940 KW. The relevant portion of the Inspection Report on record with respect to meter no. 1, is reproduced as under:
This Court further notes that the Inspection was conducted on 11th January, 2023, for both the meters in the petitioner’s premises. However, the Inspection Report dated 11th January, 2023 with respect to the second meter only records the meter reading of 25624 KWH. Pursuant to the same, the respondent thereafter passed the Provisional Assessment Order dated 31st January, 2023, wherein, it is recorded that for the second meter bearing no. 11045548, against the sanctioned load of 6 KW, the connected load is 39.905 KW. The relevant portion of the Inspection Report along with the Provisional Assessment Order, is reproduced as under:
“xxx xxx xxx
xxx xxx xxx
xxx xxx xxx”
This Court also takes note, that towards the said Inspection Report, respondent no. 1 passed Final Assessment Order dated 20th March, 2023 with respect to first meter bearing no. 11045247. The said Assessment Order is reproduced as under:
- That you were advised to construct rooms with the purpose to rent out to girls who come for higher studies.
- That considering the fact that girls vacate the premises after their studies you heeded the advice of your friend.
- That you did nothing wrong to rent out your property to various girls.
- That the tenants were asked not to do any commercial activities while residing there.
- That how has it become commercial activity.
- That it is factually wrong that the premises was videographed and photographed.
- That upon your request and since it was a women accommodation the team leader was asked not to enter into premises and therefore, they sent a lady inside who was technically aware of the requirements.
- That signature of photographer is fake.
- That why your signatures were not obtained.
- That both the notices mentioned total connected load as 53.845. Is the cable sufficient to take this much load?
- That your internal wiring is not having that much capacity.
- That the person inspecting the premises could not differentiate between demand load and connected load. For example, if geysers are in use, then ACs and fans are not in use.
- That you have 10 kw of solar panels in the building which helps meet your energy requirements.
- That the lady or the photographer did not notice the solar panels.
- That the fact about the solar panel is known to NDPL.
Thereafter, you submitted another representation which was attached in the representation dated 21.02.2023 wherein you contended that you are owner of the entire building and that you have applied for another meter for third and fourth floor.
There is no gainsaying the fact that you again sent a representation which was received in Enforcement Assessment Cell on 27.02.2023. Among other assertions and allegations, you reiterated your contentions and contended that you were not allowed to enter into the office. However, you further conceded that the security guard was kind enough to acknowledge your submissions. You also informed that the security guard also informed about the next date of hearing. Through your submission dated 27.02.2023 you also wished the decision to be taken urgently.
Reply to your representations and submissions
The submission put forward by you at the personal hearings were given due consideration, but it is averred that you have failed to put forward any tangible and cogent reason which may convince that the case made out against you is not correct.
Your submissions that you are a senior citizen and that you heeded the advice of your friend needs no reply. Whether you were correct in your decision to rent out your property to various girls also is a matter of record and the licensee has no opinion to make on this fact.
Apropos your contention that the use of CA No. 60026464275 for commercial activity which was sanctioned for domestic purpose is fine and justified, it is affirmed that this wrongdoing means and implies unauthorized use of electricity under sec. 126 of the electricity act, 2003.
•With regard to your averment that it is factually wrong that the premises was videographed and photographed, it is submitted that the photographs taken during the inspection stand testimony of the fact that photographs were indeed captured during inspection.
Further, relying upon the observations of the inspection report it is emphasized that when an attempt to obtain your signature was made on the inspection report, it was rejected by you. Moreover, you have admitted that inspection was indeed conducted, and photographed during inspection corroborate the findings. Therefore, there is no ambiguity in this regard.
Furthermore, it is wrong to assume and surmise that the connected part of the inspection was calculated as 53.845 KW. The inspection report and the provisional assessment order explicitly mentions the connected load as 13.940 KW and not as being alleged by you. It is relevant and imperative to mention here that the bill is prepared by meticulously adhering to the DERC supply code and regulations, 2017 and other relevant provisions of law.
As regards your submission that you have 10 kw of solar panels in the building and that the fact about the solar panel is known but discarded by NDPL, it is asserted that even if your averment is regarded as correct it is unambiguously confirmed that the units consumed through solar unit are duly adjusted and appropriated.
A perusal of your representations and point wise reply to your contentious clearly establish that you have no substantial and tangible grievance from the licensee. You have feigned ignorance about the case which have been made out against you. During inspection it was observed that the supply of active CA No. 60026464275 which is sanctioned for DL purpose was found being used for Girls PG at III floor of the premises, which is a commercial activity. Therefore, the findings of the inspecting team revealed above is an abundant illustration of your incrimination. In this context, it is imperative to mention here that through your representation you have admitted that CA No. 60026464275 was being used as rental accommodation for girls. Therefore, the supply was being used for commercial activity is not a matter of conjecture and surmises when it is adequately corroborated by inspection report and photographs.
Further, it is unequivocally affirmed that the contents of the inspection report and provisional assessment orders are correct in every aspect. It is submitted that the licensee took every step as per the provisions of law and meticulously adhered to the Electricity Act, 2003 and DBRC guidelines. It is relevant to mention here that the case of unauthorized use of electricity has been booked as per the provisions laid down in the law and not on any false ground.
There is no gainsaying the fact that you are the registered consumer/user of the above-mentioned CA No. and therefore entirely answerable for the omission and commission. It is underlined that the findings of the inspection report are legitimate, tenable, reasonable and justified.
The submissions made by you during the personal hearings are extraneous to the subject matter being dealt with. You have preferred to remain silent on the findings of the inspection report. The findings in the inspection report are suggestive of ulterior action on your part.
In the paramount interest of natural justice, you were again given an opportunity of personal hearing vide show cause notice dated 28.02.2023 for 16.03.2023 but to no avail as you failed to turn up. In the given circumstances, the company is left with no option than to proceed ahead with your case. It is assumed that you have nothing to say in the matter besides the submissions you have already made.
It needs no mention that the inspection was carried out in the presence of your representative. Besides inspection report laid out some findings and made some observations which was refused to be signed your representative. Therefore, there is no reason to disbelieve the inspection report and photographs.
The findings in the inspection report are suggestive of transgression on your part. Further, the observat of the inspecting team stand testimony of your wrongdoings.
FOR INTERNAL REFERENCE AND PURPOSES: -
FILE NO: 306001
NOTIFICATION NO.: 2032708754
DISTRICT: MOTI NAGAR
DISPATCH NO. & DATE:
POLE NO.: 1303-45/5/1/1/2
Regd. Off: Tata Power Delta Distribution Limited, NDPL House, Hudson Lines, Kingsway Camp, Delhi-110009 Tel.: 66142222 Fax: 66142222 Email: [email protected], CIN NO: 0340109DL2001PLC1152
Towards the second meter bearing no. 11045548, respondent no. 1 passed Final Assessment Order dated 24th March, 2023. The said Assessment Order is reproduced as under:
on 21.02.2023, whereupon you turned up and submitted your representation. Your representation dated 21.02.2023 interalia contained the following submissions:
- That you are 72 years old.
- That you were advised to construct rooms with the purpose to rent out to girls who come for higher studies.
- That considering the fact that girls vacate the premises after their studies you heeded the advice of your friend.
- That you did nothing wrong to rent out your property to various girls.
- That the tenants were asked not to do any commercial activities while residing there.
- That how has it become commercial activity.
- That it is factually wrong that the premises was videographed and photographed.
- That upon your request and since it was a women accommodation the team leader was asked not to enter into premises and therefore, they sent a lady inside who was technically aware of the requirements.
- That signature of photographer is fake.
- That why your signatures were not obtained.
- That both the notices mentioned total connected load as 53.845. Is the cable sufficient to take this much load?
- That your internal wiring is not having that much capacity.
- That the person inspecting the premises could not differentiate between demand load and connected load. For example, if geysers are in use, then ACs and fans are not in use.
- That you have 10 kw of solar panels in the building which helps meet your energy requirements.
- That the lady or the photographer did not notice the solar panels.
- That the fact about the solar panel is known to NDPL.
Thereafter, you submitted another representation which was attached in the representation dated 21.02.2023 wherein you contended that you are owner of the entire building and that you have applied for another meter for third and fourth floor.
There is no gainsaying the fact that you again sent a representation which was received in Enforcement Assessment Cell on 27.02.2023. Among other assertions and allegations, you reiterated your contentions and contended that you were not allowed to enter into the office. However, you further conceded that the security guard was kind enough to acknowledge your submissions. You also informed that the security guard also informed about the next date of hearing. Through your submission dated 27.02.2023 you also wished the decision to be taken urgently.
Reply to your representations and submissions
The submission put forward by you at the personal hearings were given due consideration, but it is averred that you have failed to put forward any tangible and cogent reason which may convince that the case made out against you is not correct.
Your submissions that you are a senior citizen and that you heeded the advice of your friend needs no reply. Whether you were correct in your decision to rent out your property to various girls also is a matter of record and the licensee has no opinion to make on this fact.
Apropos your contention that the use of CA No. 60026464002 for commercial activity which was sanctioned for domestic purpose is fine and justified, it is affirmed that this wrongdoing means and implies unauthorized use of electricity under sec. 126 of the electricity act, 2003.
With regard to your averment that it is factually wrong that the premises was video graphed and photographed, it is submitted that the photographs taken during the inspection stand testimony of the fact that photographs were indeed captured during inspection.
Further, relying upon the observations of the inspection report it is emphasized that when an attempt to obtain your signature was made on the inspection report, it was rejected by you. Moreover, you have admitted that inspection was indeed conducted, and photographs taken during inspection corroborate the findings. Therefore, there is no ambiguity in this regard.
Furthermore, it is wrong to assume and surmise that the connected load during the inspection was calculated as 53.845 KW. The inspection report and the provisional assessment order explicitly mentions the connected load as 39.905 KW and not as being alleged by you. It is relevant and imperative to mention here that the bill is prepared by meticulously adhering to the DERC supply code and regulations, 2017 and other relevant provisions of law.
As regards your submission that you have 10-kw of solar panels in the building and that the fact about the solar panel is known but discarded by NDPL, it is asserted that even if your averment is regarded as correct it is unambiguously confirmed that the units consumed through solar unit are duly adjusted and appropriated.
A perusal of your representations and point wise reply to your contentions clearly establish that you have no substantial and tangible grievance from the licensee. You have feigned ignorance about the case which have been made out against you. During inspection it was observed that the supply of active CA No. 60026464002 which is sanctioned for DL purpose was found being used for Girls PG at Ground, First and Second floor of the premises, which is a commercial activity. Therefore, the findings of the inspecting team revealed above is an abundant illustration of your incrimination. In this context, it is imperative to mention here that through your representation you have admitted that CA No. 60026464002 was being used as rental accommodation for girls. Therefore, the supply was being used for commercial activity is not a matter of conjecture and surmises when it is adequately corroborated by inspection report and photographs.
Further, it is unequivocally affirmed that the contents of the inspection report and provisional assessment orders are correct in every aspect. It is submitted that the licensee took every step as per the provisions of law and meticulously adhered to the Electricity Act, 2003 and DERC guidelines. It is relevant to mention here that the case of unauthorized use of electricity has been booked as per the provisions laid down in the law and not on any false ground.
Thus, in view of the Inspection Report dated 11th January, 2023 and the Final Assessment Orders dated 20th March, 2023 and 24th March, 2023, it is manifest that when the premises of the petitioner is being used as PG, the same would fall within the non-domestic use, for which the respondent no.1 has rightly assessed the electricity as non-domestic use.
In view of the aforesaid, this Court is of the view that no interference is required in the factual findings as given by the Appellate Authority vide its order 11th September, 2024. The Appellate Authority has made due considerations to the contentions raised by the petitioner herein with respect to the Final Assessment Orders, and arrived at the conclusion with respect to the PG being run by the petitioner.
This Court further takes note of the submission made by learned counsel appearing for the petitioner that petitioner has installed solar panels in the property in question and thus, the petitioner ought to be given benefit of the same.
However, responding to the same it is the case on behalf of respondent no. 1, that any electricity which is generated through the solar panels, is not included in the electricity meter installed by respondent no. 1. Thus, the aforesaid submission made by learned counsel appearing for the petitioner, is baseless.
Considering the detailed discussion hereinabove, the present writ petition is bereft of merit, and is accordingly, dismissed.