BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986) MEDAK AT SANGAREDDY

Present : Sri. P.V. Subrahmanyam, B.A. B.L.,President

Smt Meena Ramanathan, B.Com., Lady Member

     Sri. G.Sreenivas Rao, M.Sc.,B.Ed.,LL.B., PGADR (NALSAR)

                Male Member

Friday, the 15^th  day of April 2011

C.C. No. 29 of 2010

Between:

I.Chandramohan s/o late Ramulu,

aged 48 years, Occ: Business,

R/o H.No.3-4-22, near FRS,

Sangareddy – 502 001.                                                          …….Complainant

And

1)         Additional Assistant Engineer,

OP/APCPDCL, Sangareddy-II,

Medak district – 502 001.

2)         Assistant Divisional Engineer,

OP/APCPDCL, Sangareddy-II,

Medak district – 502 001.

3)         Divisional Engineer, OP/APCPDCL,

Sangareddy-II, Medak district – 502 001.                      …Opposite parties

This case came up for final hearing before us on 31-3-2011 in the presence of Sri Ch.Nagender, Advocate for Complainant and that of M/s B.A. Srinivas Reddy, Advocates for the Opposite parties, and upon hearing arguments of both sides, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:

O R D E R

(Per se Smt Meena Ramanathan, Member)

1.           Complainant filed this complaint under section 12 of C.P. Act, 1986 alleging that he was given the electricity connection bearing No.3762 under Category-V of Agriculture.  This connection was issued in the name of Ganga Nursery, Rajampet.  This service is existing since last 30 years and the Opposite parties have been collecting Rs.20/- per month.  All of sudden, vide Lr.No.AAE/OP/SNG-T-4/F.No.20/08, D.No. 841/09, dated 27-1-2009 the opposite parties raised the demand for Rs.29,717/- and demanded the complainant to pay the same.  In that regard, complainant met the opposite parties and explained that the bill in dispute pertains to commercial purpose whereas but his nursery pertains to agricultural use and that previously the bills were raised under Agriculture category.  The complainant also stated to have shown and furnished the copy of orders passed in W.P.No.7396/1996 by the Honourable High Court.  Complainant even stated to have explained that the nurseries do not fall within the definition of commercial clause.  On his request, the opposite parties stated to have informed him to wait for the orders from their higher-ups.  They also informed that the service will not be disconnected and since the last two years, the same reply is being given.  On the contrary, the Opposite parties disconnected the service connection on 27-5-2010 without any notice.  On agitating their action, the opposite parties stated to have disconnected the service at the instructions of their higher officials.  Disconnection was made in spite of strong agitation by the persons present there and in spite of explaining that the entire plants in the nursery would die on account of non-supply of water.  

                    It is further alleged that on 28-05-2010 the Complainant paid Rs.10,050/- including reconnection charges of Rs.50/- under protest vide receipt No.21084454.  Even then, the opposite parties failed to reconnect the service but on the approach of complainant to the opposite parties on 29-5-2010, they assured to send the lineman for reconnection but in vain.  On 30-5-2010 complainant made a written representation under certificate of posting to the opposite parties, at last, the opposite parties reconnected the service connection on 1-6-2010 in the evening at 5-00 p.m.  By which time, the complainant sustained huge loss to the tune of Rs.5,45,000/- and several plants numbering 5500 dried up.  After this incident, the complainant exhibited the mangoes in an exhibition at Hyderabad and won the rewards.  Hence filed the present complaint alleging deficiency in service on the part of the opposite parties and praying to withdraw the demand for Rs.29,717/- and further direct the opposite parties to pay Rs.5,45,000/- towards loss of 5500 plants and further to pay Rs.75,000/- towards mental agony and Rs.10,000/- towards costs of the complaint.

2.                 Opposite parties filed counter admitting the release of S.C.No. 3762 under category-V agriculture in favour of complainant but stated that as per Memo No.CGM/Comml/DE/C/ADE-I/F.CMD meeting/D. No.1795/07, dated 5-1-2007, the categorization of nurseries falls under commercial category and during all Chairman’s and Managing Director’s meeting held on 18-12-2006, it has come to notice that some of the nurseries are being billed other than commercial category.  As per the tariff conditions in force, the activity of nursery falls under Commercial category.  In view of the above, the Superintending Engineer, Operation were directed to ensure that the entire nurseries in their jurisdiction are charged under commercial category.  So a notice dated 27-1-2009 demanding Rs.29,717/- through letter No.AAE/OP/ APCPDCL/SNG-T-II/F.No.20/08/D.No.841/09 has been issued to the complainant.

                    They further stated that after the enactment of A.P. Electricity Reforms Act, 1998, the A.P. Electricity Regulatory Commission is empowered to fix the tariffs under Section 26 of the A.P. State Electricity Reforms Act, 1998.  The power that is exercised by the Regulatory Commission in fixing the tariff in exercise of the power under Section 26 of the Act is a legislative function and essentially is a matter of policy and the judicial review in the matter of fixation of tariff, the courts would not interfere unless the power is exercise arbitrarily.  Further stated that the Electricity Act 2003 has come into force on 10-6-2003 and the provisions of the A.P. Electricity Reforms Act 1998 are saved under section 185(3) of the Electricity Act, 2003. 

                    It further stated that the Govt. of A.P. vide its letter No.6166/PR.II/200-04, dated 1-2-2008 informed that the free power supply will be provided to Horticulture Nurseries in the Rural areas and directed to take necessary action for filing review petition before the A.P. Electricity Regulatory Commission indicating the Government’s intention to extend the existing power tariff under Agriculture category to Horticulture nurseries only in the rural areas in the State of A.P.  And that the APCPDCL in the ARR & Tariff proposals for the 2008-09 submitted 30-11-2007 to the APERC vide appendix-51.1 that the Government’s intention to extend the power supply to rural nurseries under the free power supply category and also submitted the financial commitment if the rural nurseries are billed under free power category.  That after such application, the tariff proposals are taken on record and a public notice calling for objections/suggestions from the public.  In this regard, the Nurseries Association of A.P. have represented for classification of the nurseries under agricultural category stating that it is an agricultural activity.  The said representation of the association was considered and the Regulatory Commission at para-200 of the tariff order dated 20-3-2007 stated that in view of the free power supply being allowed for agricultural category as per government policy, the Commission is not in a position to accede to the request unless the nurseries are specifically covered under the agricultural policy announced by the State Government in January 2005 and unless the Government agrees to provide requisite subsidy.  It is pertinent to mention here that any subsidy has to be paid by the Government in advance as envisaged under Section 65 of the Electricity Act, 2003 and the same has to be approved by the A.P. Electricity Regulatory Commission.  In so far as the horticulture is concerned, the Regulatory Commission has rejected the request of the Association to treat the same under Agriculture category and hence, falls under Category-II.  As the tariff is binding on the Distribution Company, the Chief General Manager after quoting the tariff order has issued a memo dated 5-1-2007 and also the letter to the legal services authority.

                    The opposite parties stated that the Judgment relied upon by the Complainant bearing W.P.No.7396/1996 relates to the issue which arose prior to enactment of A.P. Electricity Reforms Act, 1998 and the Electricity Act, 2003.  As the complainant has not been paying the current consumption charges of the service under category-II, his service was disconnected on 27-5-2010.  The complainant had been charged from January 2008 under the commercial category in accordance with the orders of the CPDCL of A.P. and accordingly the CC bills were issued to him from 1/2008 till date under category-II for horticulture nursery.  The complainant has paid only agricultural bill amounting to Rs.448/- but the commercial category charges are not paid to the department.  That, in January 2008 the consumption of the energy was Rs.1583/- as the complainant was not paying regularly the CC bills issued to him under commercial category, the arrears of CC bill amounted to Rs.29,717/- till 27-1-2009.

                    So a notice for arranging the payment of arrears of CC bills was issued on 27-1-2009 but he has not paid any amount of the said notice.  As the complainant was defaulting in paying the commercial charges charged for the use of power towards horticulture, an amount of Rs.62,777/- upto April 2010 from January 2008 (the date for conversion of service commercial category), his service was disconnected on 27-5-2010 for non payment of accrued arrears under commercial category.  On 28-5-2010 complainant paid Rs.10,050/- including reconnection charges and immediately the service was reconnected and the complainant has been using the energy without any break from reconnection date 28-5-2010 till this day.  Hence, question of sustaining loss of Rs.5,45,000/- does not arise.  Issuing of notice dated 30-5-2010 by complainant is denied.

                    The opposite parties further submitted that Rajampet village of Sangareddy Mandal is within the limits of City Municipality and now it is included under the Greater Hyderabad Municipal Corporation of A.P.  The Government of A.P. through its letter No.6166/PR.II/200-04, dated 1-2-2008 declared that the free power supply will be provided to Horticulture nurseries in Rural areas only and directed to take necessary action for filing review petition before the APERC indicating the government’s intention to extend the existing power tariff under Agricultural category to Horticulture nurseries in the Rural areas in the State of A.P.  In the instant case, there is no relaxation of free supply of power to the nurseries existing in the Cities and City Municipalities of the A.P.  So, the categorization of nurseries within the municipal limits of Sangareddy Municipality as commercial category is reasonable and levying of charges under said Category-II is proper and lawful.  Therefore, the complainant is bound to pay the charges under the commercial category for the use of power whose nursery is within the Municipality of Sangareddy.  There is no deficiency in service on their part.  Hence, the claim of Rs.75,000/- towards mental agony and Rs.10,000/- towards costs of the litigation is not reasonable and not payable by the opposite parties.  Upto 7/2010, the total accumulated arrears of charges under commercial category of service of the complainant is Rs.62,883/- as per statement of demand.  Hence, prayed to dismiss the complaint with costs in the interest of justice and equity.

3.                 Both the parties have filed their affidavits reiterating the facts stated in the complaint and the counter respectively. On behalf of the complainant, Ex.A1 to A5 are marked. On behalf of the opposite parties, Ex.B1 to B6 are marked.  Both sides also filed written arguments.

4.                 The point for consideration is 1) whether the Complainant is entitled for the reliefs as prayed for?  2) Whether there is deficiency of service on the part of the opposite parties in disconnecting the power supply?  And if so to what relief the complainant is entitled to?

5.                 Ex.A1 is the letter dated 27-01-2009 issued by the first opposite party asking the complainant to pay the arrears of Rs.29,717/- on or before 28-1-2009.  Ex.A2 is the certified copy of the order passed in CC 14/2009 on the file of this Forum.  Ex.A3 is the under certificate of posting receipt made to the opposite parties herein.  Ex.A4 is the Certificate issued by the Village Revenue Officer, Sangareddy and Ex.A5 is the copy of written representation dated 30-5-2010 by the complainant to the opposite parties as regards to non-restoring of power supply to his service in spite of making payment of Rs.10,050/-.

6.                 Ex.B1 is the Photostat copy of the Tariff Order dated 20-03-2007 wherein the findings at para No.199 to 201 are given is marked as exhibit.  Ex.B2 is the Photostat copy of the tariff order pertaining to discussions of the order at paras 1 to 6.  Ex.B3 is Photostat copy of Ex.A1 demand notice.  Ex.B4 is the Photostat copy of the order passed by Transco Lok Adalat on 11-4-2008 in case Nos.23 and 24/2007 and 3, 4 and 5 of 2008.  Ex.B5 is the Photostat copy of internal letter of the opposite parties informing that the activity of nursery falls under commercial category.  Ex.B6 is the Photostat copy of letter addressed by Chief General Manager, APCPDCL, Hyderabad to Administrative Officer, A.P. State Legal Services Authority, Hyderabad. 

7.                 There is no dispute as regards to raising of demand for Rs.29,717/- from the complainant by the opposite parties.  The only dispute is that the complainant’s nursery falls under agricultural clause and not commercial clause.  And further that the complainant sustained loss of Rs.5,45,000/- on account of non-restoration of power supply to his service in spite of paying Rs.10,000/- by complainant.  To vouch-safe his own allegation, the complainant exhibited A1 to A5 documents.  Ex.A1 is the demand for Rs.29,717/- raised by the opposite parties.  Ex.A5 is the representation of complainant made to the opposite parties on 30-5-2010 sent under Ex.A3 certificate of posting and Ex.A4 is the certificate obtained by him as regards to the damage sustained by him on account of non-supply of electricity power.

To contradict the contention of the complainant, the opposite parties filed Exs.B1 to B6, as stated supra.  The opposite parties very particularly stated in their counter that after enactment of A.P. Electricity Reforms Act, 1998, the A.P. Electricity Regulatory Commission is empowered to fix the tariffs under Section 26 of the A.P. State Electricity Reforms Act, 1998.  Section 26 of said Act deals with Tariffs which is reproduced herein:

Licensee’s revenues and tariffs:

(1) The holder of each licence granted under this Act shall observe the methodologies and procedures specified by the Commission from time to time in calculating the expected revenue from charges which is permitted to recover pursuant to the terms of its licence and in designing tariffs to collect those revenues. 

(2) The Commission shall subject to the provisions of sub-section (3) be entitled to prescribe the terms and conditions for the determination of the licencee’s revenue and tariffs by regulations duly published in the Official Gazette and in such other manner as the Commission considers appropriate:

Provided that in doing so the Commission shall be bound by the following parameters:

(a)  The financial principles and their implications provided in the Sixth Schedule to the Electricity (Supply) Act, 1948 read with sections 57 and 57A of the said Act,

(b)  The factors which would encourage efficiency, economic use of the resources, good performance, optimum investments performance of licence conditions and other matters which the Commission considers appropriate keeping in view the salient objects and purposes of the provisions of this Act; and

(c)  The interest of the consumers.

…………           …………….

Tariff means a schedule of standard prices or charges for specified services which are applicable to all such specified services provided to the type or types of customers specified in the tariff notification.

                    As can be seen from the above, it is understood that any each licence has to observe the methodologies and procedures specified by the Commission and the Commission shall subject to sub-section(3) of the Act be entitled to prescribe the terms and conditions for the determination of the licencee’s revenue and tariffs by regulations duly published in the Official Gazette and as the Commission considers appropriate and that the Commission shall be bound by the parameters such as interest of the consumers.

8.                 Except filing the copy of order, no copy of Tariff Notification is filed to show that the tariffs are published in Official Gazette.  Ex.B6 shows that the decision of the APERC on categorization of rural nurseries under free power category is yet to come and that the Government of A.P. has not announced any relaxation to the nurseries existing in the cities of A.P. so far.

9.                 In so far as the complaint of complainant regarding nursery falls under category of “agriculture” is concerned, in view of Judgment of Honourable High Court as rendered in Mohammed Ziaul Hussain Vs. APSEB, Hyderabad reported in 2002 ALD-6 at page 601, the term “agriculture” includes horticulture, forestry, breeding and rearing of livestock, dairying, butter and cheese-making, husbandry etc.,.  In the instant case, it has to be seen that the case of the petitioner is that it is only a plant nursery, which is used for floriculture, which is more or less, horticulture and he is growing the plants.  The Apex Court in I.T. Commissioner Vs. Benoy Kumar, (Reported in Judgment of the Hon’ble High court, in Mohammed Ziaul Hussain Vs. APSEB, Hyderabad reported in 2002 ALD-6 at page 601) after considering various meanings of the term ‘agriculture’ given by various dictionaries had held that the term ‘agriculture’ has been used both in the narrow sense of the cultivation of the field and the wider sense of comprising all activities in relation to the land including horticulture, forestry, breeding and rearing of livestock, dairying, butter and cheese-making, husbandry etc.  In the said Judgment (supra), the Honourable Supreme Court has even held that it is possible that by virtue of an admixture of two or more items or by virtue of processing, a different commodity or item may come into existence and even though a different commodity may come into existence, it would still be an ‘agricultural produce’. 

                    The decision rendered above is a direct decision wherein it was held that if the plants sold in pots were the result of basic operations on the land expending human skill and labour thereon and if after performance of the basic operations on land, the resultant product grown or such part thereof was suitable for being nurtured in a pot with water or by placing them in the green house or in shade or after performing several operations such as weeding, watering, manuring, etc., and are made ready for sale, all these operations are agricultural operations and the plants are products of agriculture.  As discussed, the complainant’s nursery falls within the meaning and definition of “agricultural” clause but not “commercial” clause.

10.               The opposite parties stated that before disconnection, it served a notice on the consumer as regards to conversion of service from agriculture to commercial.  But nothing is brought on record by the opposite parties to prove the same.  Ex.B3 is nothing but a demand notice asking the complainant to pay the arrears of Rs.29,717/-.  No notice is served on the complainant as regards to change or conversion of service from category-V to commercial.  Even the opposite parties failed to produce any copy of the Tariff notifications as fixed by the APERC.  On other hand, the opposite parties have stated that the decision regarding the categorization of rural nurseries under free power category is yet to come.  No proof is placed by the opposite parties as regards to passing of any order by the APERC in the above regard.  The opposite parties simply stating that the Rajampet village is covered by the Sangareddy Municipality and that now the same is included in Greater Hyderabad Municipality, nothing is placed on record.

11.               The opposite parties except stating in their counter that the power supply is restored to the complainant’s service on 28-05-2010 itself, filed no record.  On other hand, the complainant by way of exhibiting the documents Ex.B5 and B3 proved that the power supply was not restored to him even on 30-05-2010.  The opposite parties failed to explain why they failed to serve any notice before converting the service of complainant from category-V to other category.  Further, it is not in dispute that earlier prior to service of bill for Rs.29,717/- the complainant was paying the charges under category-V.  

12.               For the foregoing reasons, it can be held that ‘plant nursery’ falls under ‘agricultural’ clause and cannot be treated as ‘commercial’ in view of the decision rendered by the Honourable High Court of A.P. in W.P.No.7396/1996, which is binding on this Forum.  In view of clarification in the above Judgment, the demand made by the opposite parties under Ex.A1 for Rs.29,717/- is not in accordance with law.  As the opposite parties raised the above demand, in lieu of Ex.B1 to B6, negligence can be attributed against them, but inter alia, deficiency in service in disconnecting the power supply to the complainant even after making payment of Rs.10,000/-, as admitted by both sides, hence, the points are answered in favour of the complainant and against the opposite parties.

13.               On other hand, for grant of compensation towards damage of plants, except submitting a bald account that he sustained loss to the tune of Rs.5,45,000/- towards drying up of 5500 plants, no evidence is brought on record except the Certificate issued by the Village Revenue Officer.  It is to be seen whether the Village Revenue Officer is competent to certify such damages and if so, whether it is within his purview.  Complainant took no steps to show that Village Revenue Officer is competent to certify the damage to the extent of Rs.5,45,000/- and why the Complainant has chose the VRO is also not explained.  The complainant too is responsible for the damage of his own plants in view of the fact that the demand for Rs.29,717/- was made by the opposite parties as long back on 27-01-2009 and the disconnection was made only on 27-5-2010.  In Ex.A1 notice, it was clearly stated that if the complainant fails to pay the amount on or before 28-1-2009, the service will be disconnected without any further notice.  The complainant has kept quiet all these years and filed the present complaint only after disconnection of service and after the damage he alleged to have sustained, accordingly granted.

14.               There was no occasion for the complainant to approach this Honourable Forum if at all there was any damage sustained by him.  But for the reasons mentioned above, we disbelieve the very damage and loss put forth by the complainant and in the circumstances of the case, it is proper and justified to grant the compensation of Rs.5,000/- to the complainant for the damage he is alleged to have sustained.

15.               In the result, we partly allow the complaint of Complainant declaring that the demand for Rs.29,717/- under Ex.A1 letter under commercial category is not in accordance with law and hence accordingly direct the opposite parties to issue the bill afresh to the complainant within one month under agricultural category-V and collect dues from the complainant, if any,.  In case if the opposite parties collected any amount in excess already, by treating the service under commercial category, such excess amounts shall be repaid to the complainant including Rs.10,000/- or else the same be adjusted in the future bills, within one month.  The opposite parties are further directed to pay the complainant a sum of Rs.5,000/- towards compensation and  Rs.2,000/- towards costs.  Time for compliance of above order is four weeks.

       Typed to dictation, corrected and pronounced by us in the open forum this     15^th          day of April 2011.

        Sd/-                                          Sd/-                                         Sd/-

   PRESIDENT                         LADY MEMBER                      MALE MEMBER

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Complainant:                                                                                For Opposite parties:

            -Nil-                                                                                                     -Nil-

 EXHIBITS MARKED

For Complainant:                                                        For Opposite parties:

                                                                                                             Sd/-

MEMBER

Copy to:                        Copy delivered to the Complainant/

1. The Complainant                                        Opp.Parties On ___________
2. The Opp.parties                     
   3. Spare copy                                        Dis.No.       /2011, dt.