JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally by consent of learned Counsel appearing for the parties.

2. By this petition, the petitioners are challenging the final order dated 24.10.2018 whereby respondent No.2 Appellate Authority

has quashed and set aside the Demand Bill issued to respondent No.1 i.e. consumer by holding that the assessment bill is erroneous. The Appellate Authority has also issued the ancillary directions, which are also under challenge.

3. The facts in brief are as under :

On 13.06.2018, Spot Inspection was carried out in the premises, which were used by respondent No.1. It was found that the supply of electricity was originally sanctioned under the Industrial Category as it was being used for manufacturing of the mattresses. Further, it was found that the purpose of use of electricity was changed to commercial category. It was not informed to the petitioners that the consumer had used the electricity for commercial purpose. The consumer i.e. respondent No.1 has installed the water filtering plant, cooling the same and selling it in Packaged Water Cans and as such, it amounts to using the electricity for commercial purpose.

4. After hearing the respondent No.1, the final order was passed under Section 126 of the Electricity Act, 2003 on 17.07.2018. It was held in the final order that the action taken by MSEDCL was in accordance with law and that the bill issued to the respondent No.1, for the sum of Rs.02,19,000/- was correct and respondent No.1, was liable to pay the same.

5. Respondent No.1 has filed the appeal challenging the order passed by the MSEDCL before the respondent No.2 i.e. the Appellate Authority. Respondent No.2 passed the final order dated 24.10.2018 and set aside the order passed by the MSEDCL. Feeling aggrieved by the said order, the petitioners have filed this appeal.

6. The learned Counsel for the petitioners has stated that, respondent No.2 – Appellate Authority has not understood the purport of Section 126 of the Electricity Act, 2003 and, therefore, erred in setting aside the demand order. The original consumer respondent No.1 was sanctioned electricity supply for manufacturing of mattresses, however, respondent No.1, who was the occupier at the time of inspection, was found using the electricity for the purpose of Filtering, Cooling, Packaging Water in Cans and further selling them to his customers. According to the MSEDCL, such activity was not an industrial activity but a commercial activity. The Flying Squad Personnel upon inspection in presence of the respondent No.1 has found that the electricity was being used for the purpose other than the purpose for which it was authorized/sanctioned. The Flying Squad Personnel, therefore, came to the conclusion that there was unauthorized use of electricity. Accordingly, Provisional Assessment and Final Assessment orders were passed by the Competent Authority in accordance with Section 126 of the Electricity Act, 2003. The activity of respondent No.1 in the matter of RO Plant, such as Lifting, Filtering,

Cooling and Selling does not come under the industrial activity. It is not informed to the petitioners while shifting the original business. It is therefore, the case of the unauthorized use of electricity. Hence, prayed to set aside the order passed dated 24.10.2028 by the Appellate Authority in Appeal No.1/2018 by allowing this petition.

7. The respondent No.1 has filed reply and opposed the petition stating that there are various categories of tariff which includes Industrial, Residential, Commercial etc.. The action taken by the petitioner - MSEDCL is not supported by MERC tariff order and nowhere in tariff order the aforesaid activity is covered within the scope of commercial activity. There is no reference of any order of MERC either in the documentary process done at the time of giving provisional assessment or at the time of passing the final order acting as a quasi judicial authority. The respondent No.1 submits that