Haryana

StateCommission

A/609/2018

UHBVNL - Complainant(s)

Versus

SUNIL DAHIYA - Opp.Party(s)

B.D.BHATIA

27 Mar 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                                         First Appeal No. 609 of 2018

Date of Institution: 11.5.2018

                                                               Date of Decision: 27.03.2019

 

1.      SDO ‘OP’ Sub Urban Division, UHBVNL, Sampla.

2.      Chief General Manager Commercial, UHBVNL,Shakti Bhawan, Sector-6, Panchkula, Haryana.

3.      Executive Engineer, Sub Urban Division No.II, UHBVNL, Rohtak.

…..Appellants

Versus

 

Sunil Dahiya S/oSh.Ram Kuwar Prop. M/s Divine Mushroom Farm, Village Barona, Tehsil Kharkhoda, Distt.Sonepat.

                                      …..Respondent

 

And

 

                                                         First Appeal No.910 of 2018

Date of Institution:23.07.2018

                                                               Date of Decision: 27.03.2019

 

1.      SDO ‘OP’ Sub Urban Division, UHBVNL, Sampla.

2.      Chief General Manager Commercial, UHBVNL,Shakti Bhawan, Sector-6, Panchkula, Haryana.

3.      Executive Engineer, Sub Urban Division No.II, UHBVNL, Rohtak.

…..Appellants

Versus

 

Sunil Dahiya S/oSh.Ram Kuwar Prop. M/s Divine Mushroom Farm, Village Barona, Tehsil Kharkhoda, Distt. Sonepat.

                                      …..Respondent

 

CORAM:             Mr. Ram Singh Chaudhary, Judicial Member.

                             Mrs. Manjula, Member                  

 

Present:              Mr. B.D. Bhatia, Advocate for the appellants alongwith Ms. Suman AEE. in both appeals.

                              

Mr. Pardeep Solath, Advocate for the respondent.

                             in both appeals.

 

                                                   O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

As the issues involved in both the appeals are inter-related thus the same are decided together as under:-         

First Appeal No. 609 of 2018

1.      Delay in filing the appeal is condoned for the reasons stated in the application filed for condonation of delay.

 

2.      The present appeal has been filed against the impugned order dated 11.12.2017 passed by District Consumer Disputes Redressal Forum, Sonepat (In short “District Forum”) vide which the complaint instituted by the complaint was allowed.

 

3.      Briefly stated, the facts of the case are that the complainant wanted to setup an integrated mushroom cultivation project. He has invested huge money after availing the bank loan for the said project to earn his livelihood by means of self employment. The project was established in rural area having khata No. 93/115 comprised in agriculture land in killa No. 19//25/2, 29//4/3, 5/1 at village Barona, Tehsil Kharkhoda, District Sonepat under the guidance of Indian Council of Agriculture Research & Chaudhary Charan Singh, Haryana Agriculture University, Hisar. Upon the request of the complainant, the District Horticulture Officer, Sonepat issued intimation letter memo No. 2206 dated 19.03.2013 (Ex.C3) to the respondents for issuance of the electricity connection under the Agriculture/Horticulture scheme. The complainant also took NOC from Director, Town & Country Planning Department, Haryana, Chandigarh for the project on agriculture land which was issued vide letter dated 19.09.2013 (Ex.C1). Another letter from Director General, Town & Country Planning Department, Haryana, Chandigarh was issued in favour of complainant vide letter dated 07.05.2014 (Ex.C2). The complainant applied for electricity connection under horticulture category vide application dated 25.03.2013 (Ex.C4) and deposited Rs.2,20,000/-. The connection was sanctioned in the favour of complainant on 09.09.2013. The complainant received 1^st bill in October, 2013 and found that the respondents charged the bill under NDS category (Non Domestic Supply) instead of under horticulture category. The tariff for the horticulture category connection is 20 paisa per unit and under NDS category is Rs.7/- per unit approximately. The complainant immediately filed application on 17.12.2013 (Ex.C6) for the correction of the tariff charge. The respondent No.1 vide letter dated 27.12.2013 sought clarification from respondent No.3 and the respondent No.3 vide letter dated 30.12.2013 (Ex.C7) advised the respondent No.1 to charge the tariff for the electricity connection under agriculture tariff as per circular No. 02/2001 (Ex.C12). The respondent No.1 still issued another letter dated 31.12.2013 (Ex.C8) to respondent No.3 with similar quarries. The respondent No.3 vide letter dated 01.01.2014 (Ex.C9) sought clarification from respondent No.2. The respondent No.2 i.e. Chief General Manager/Commercial, UHBVN, Panchkula vide letter dated 28.01.2014 (Ex.C10) specified that the tariff for the Mushroom cultivation has to be charged as per agriculture tariff. Inspite of the clarifications by respondent No.2 & 3, the respondent No.1 keep charging tariff under NDS category. The electricity bills of the complainant were not corrected and were continuously issued wrong. The complainant kept making complaints dated 30.03.2016 (Ex.C20), 26.04.2016 (Ex.C21), 20.04.2017 (Ex.C22) etc. and representing the respondents.  

          Despite several representations, the O.Ps. failed to convert the existing electricity connection from commercial NDS to agriculture connection. The O.Ps. continue to charge electricity under NDS/RDS category upto 6/2016 and thereafter shifted the connection to industrial feeder/supply. Another bill in the month of 09/2017 was issued alongwith industrial tariff, which was illegal and unjustified.  There was huge difference between the industrial and agriculture category. Thus, there was deficiency in service on the part of the O.Ps and complainant filed Consumer Complaint before the District Forum for the change of the electricity connection from NDS to agriculture/horticulture tariff and to adjust the excess amount paid by the complainant. The complainant also paid for interest on the excess amount charged from him alongwith Rs.2,00,000/- compensation and Rs.22,000/- litigation charges.  

 

4.      Notice being issued in the complaint. Opposite parties (O.Ps.) contested the complaint and it has been alleged in the written version that  complainant applied for the electric connection under the name of his firm for the mushroom project and has deposited the amount of Rs.2,20,000 on 25.03.2013. O.Ps. provided the electric connection in NDS category under RDS feeder. It was also stated that the complainant requested the OPs to change the connection from RDS feeder connection to industrial feeder vide request letter dated 14.06.2016 as there was highly irregular supply. The bill was issued as per the terms and conditions of the department. The complainant used the electricity supply under the industries feeder and he was liable to pay the charges for the same. Thus, there was no deficiency in service on the part of the O.Ps.

 

5.      After hearing both the parties, Learned District Forum allowed the complaint vide impugned order dated 11.12.2017 and directed as under:-

“Accordingly, we hereby direct the respondents to charge the tariff under agriculture category in respect of the electricity connection of the complainant w.e.f. 09.09.2013 till the change of category of electricity connection under agriculture tariff and to refund the excess amount paid by the complainant without interest within a period of 60 days from the date of passing of this order and expiry of 60 days, the respondents shall pay interest on the excess amount paid by the complainant at the rate of 09% per annum till its realization. With these observations, findings and directions, the present complaint stands allowed.”

 

6.      Feeling aggrieved therefrom, O.Ps.-appellants have preferred this appeal.

 

7.      The arguments have been advanced by Mr. B. D.Bhatia, the learned counsel for the appellant’s alongwith Ms. Suman AEE as well as Mr. Pardeep Solath, the learned counsel for the respondent. With their kind assistance the entire original record as well as that of the appellate record has been properly perused and examined.

 

8.      The limited issues raised in the appellant are that as the complainant is using large supply of 198 kv load therefore, he is liable to pay in the NDS tariff. It is also stated in the appeal that the complainant applied under the category of HT/NDS supply and even requested for change of his connection from RDS feeder to industrial feeder and he is agreed to pay industrial tariff. It is also averred in the appeal that the Ld. District Forum has no jurisdiction to entertain the complaint and there was no deficiency on the part of the appellants. 

 

9.      Admittedly, the complainant is engaged in the agriculture activity with cultivation of mushroom crop. There are various types of incentives given by the State Government or the Central Government for motivation of youth to engage in the self employment in the agriculture activities. The basic question, which arises for adjudication before this Commission is as to whether the electric connection issued in the name of the complainant falls in the agriculture or horticulture category or the non-domestic or industrial category?

 

10.    Undisputedly, the activity of cultivation of mushroom falls under the agriculture category and even the department of horticulture has also requested the present appellants vide letter dated 19.03.2013 (Ex.C3) to issue the electricity connection under agriculture/horticulture scheme. The complainant has also taken NOC vide letter dated 19.09.2013 (Ex.C1) & 07.05.2014 (Ex.C2) to setup the mushroom project in the rural agriculture land. It is also undisputed fact that the project is installed in the agriculture land in rural area as per the revenue record (Ex.C11). It is also a fact that the appellants have charged the complainant with tariff under NDS category from the date of sanction of electricity connection i.e. 09.09.2013. It is also an admitted fact that the complainant has requested the appellants several times continuously for the correction of the electricity bill. Further, the respondent No.3 i.e. the highest officer of the appellants vide letter dated 28.01.2014 (Ex.C10) clarified that the mushroom cultivation in agriculture land in rural area has to be charged with horticulture tariff from the complainant. However, the immediate officer dealing with complainant i.e. SDO (OP), Sub Urban, UHBVN, Sampla kept on charging NDS/commercial tariff from the complainant inspite of several clarifications from the higher officers. The complaiant meets all the requirements of the sales circular No.2/2001 and deserves to be charged at Horticulture charges. The bare perusal of the sales circular No.2/2001 (Ex.C12) clearly stipulates as under:

“In view of the above, it has been decided that Mushroom cultivation which is carried out mostly in one or two rooms may be charged tariff as per the category from which connection has been taken. When Mushroom cultivation is undertaken in agriculture land in rural areas than it would be charged at agriculture metered connection rate for which the farmer would seek separate metered connection. In case this activity is carried in rural domestic and urban domestic houses/areas then the farmer would require a separate connection and would be charged at domestic supply tariff. However, if the Mushroom cultivation is done in a Non-domestic/commercial areas then the Non-Domestic tariff would be applicable and a separate connection under Non-Domestic supply category would be sought by the farmer”.

 

11.    There are large number of the correspondence, by which the department was advised in the case of the complainant that it would be considered as “horticulture connection” for which, a specific circular No.U-02/2001 was issued, wherein, certain clarifications were made regarding charging of the tariff applicable in the case of Mushroom farming in respect of the M/s Divine Mushroom Farm account No.T-2-01.  The reasons are beyond the understanding of this Commission as to why inspite of the fact that a large number of the correspondence was taken place and it was advised to the department from time to time that the case of the complainant falls in the category of “horticulture connection”; still he was charged under NDS category. As per the guidelines of the department, the charges are to be vary that of agriculture or the non-domestic or the industrial connection. Still, the reasons are best known to the department as to why the connection of the complainant has not been treated as a “horticulture connection”.  If things run like this and there is every possibility that a system of the Government agencies would fall and pathetic for the consumers would be in dilemma. 

          While addressing the arguments, as per record this fact was also brought into the notice of this Commission, that the amount of Rs.9,79,428/- had been paid by the complainant to ensure that there is a regular supply of the electricity connection.  Even one application has been obtained which does not appear to be voluntarily act of the complainant that he would pay the charges as per the industrial connection. Circular issued by the department is squarely clear what the tariff is to be charged from the complainant then what was the circumstances when an application has to be submitted by the complainant that he is ready to bear all expenses for the purpose of getting his connection with the industrial feeder

          Once it is settled for all times to come. As per the correspondence, the demand at the various levels and the particular circular that the category of the mushroom cultivation would fall in horticulture category. The Ld. Counsel for the respondents placed reliance upon the decision rendered by the Hon’ble High Court of Punjab & Haryana in RSA No.807 of 2016 titled as Dr. Vivek Gupta Vs. Uttar Haryana Bijli Vitran Nigam Limited decided on 25.10.2017, wherein a similar observation was recorded that the plaintiff or the appellant would be entitled to be charged only at agricultural metered rates applicable to the tubewell pump sets, horticulture and fisheries. The relevant observations of the Hon’ble High Court are as under: -

2. As per the case set up by the plaintiff, he is the proprietor of M/s G & G Agro Foods, located at village Bhulla Kheri, P O Kandaiwala, Tehsil and District Panchkula. The firm was stated to be dedicated to the “horticulture activity” of mushroom farming, on agricultural land bearing Khasra No.53, Hadbast No.313, Bhoj Rajpura, Morni Hills, Panchkula. It was further stated in the plaint that on 14.08.2012 the plaintiff had applied for an electricity connection under the “horticulture category”, after which the officials of the Nigam inspected the site, and the plaintiffs' application was allowed and an electricity connection under that category was provided to him (as contended).

        However, in June 2013 when he received his first electricity bill, it was seen that the tariff charged was the one applicable to connections falling under the “Industrial Category”. The plaintiff having visited the office of the Nigam requesting them to charge tariff for a 'horticulture connection', his pleas were stated to have been ignored, with a direction issued to him to immediately deposit the amount charged, failing which his connection would be disconnected.

3. The plaintiff therefore filed a complaint with defendant no.2, i.e. the consumer forum of the Nigam itself, on 05.09.2013, which was admitted on 12.09.2013.

        It was further contended that in order to avoid a huge loss, the plaintiff deposited the amount of the bill in question, but thereafter he was again charged at the same rates. Thus, by October 2013 the amount claimed by the Nigam was Rs.2,19,733/-.

        The plaintiffs' contention was that agricultural tariff was to be charged @ 20 paise per unit, whereas industrial tariff was being charged at Rs.7 per unit.

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36. Undoubtedly, as noticed by the lower appellate Court, the application made by the plaintiff on 14.08.2012 for an electrical connection for his mushroom farming (Ex. PW2/A, as pointed out), was on an application and agreement form in respect of the 'HT industrial category', but it is also seen to be accompanied by an affidavit (Ex. PW-2/B), specifically stating therein that the applicant had a need for a three phase electricity connection as per agricultural tariff rate.

        Hence, the intention of the plaintiff was clear, to avail of the concession in terms of the existing Government policy for granting lower tariff rates to agricultural activity, and mushroom farming undertaken on agricultural land in a rural area.

        Though I have no doubt in my mind that he must have applied on a form meant for a connection under the industrial category, so that it was dealt with at a quicker pace, however, the application not having been rejected and undoubtedly the activity being mushroom cultivation, known to the respondents, in my opinion it would be the policy applicable for mushroom farming that would rule, rather than the kind of application form used by the plaintiff.

        The observation of the lower appellate Court, that the plaintiff having consciously applied for a change of tariff to agricultural tariff, it implied that he had applied under the industrial category, is not an observation without basis; but again, in view of the fact that tariff to be actually applied would be in terms of the policy of the Government and not based on the kind of application form filled in, the plaintiff should have been levied agricultural tariff in the opinion of this Court.

37. Though no penalty clause for filling up a wrong form has been pointed out from the evidence produced before the courts below, even by way of any document attempted to be brought on record at the stage of this second appeal, yet, even while upholding the plaintiffs claim to be charged for electricity supply at rates applicable to metered agricultural connections for pumping sets, horticulture and fisheries, if any penalty is leviable upon the plaintiff for having filled in a wrong form, the respondents would be at liberty to impose any such penalty after following due procedure.

XXXXXXX

41. In view of what has been discussed heretofore, this appeal is therefore allowed and the impugned judgment and decree of the learned first appellate Court is set aside, with the appellant-plaintiff held entitled to be charged only at agricultural metered rates applicable to tubewell pump sets, horticulture and fisheries.

        However, if any penalty is leviable on him as per law, for having filled in a wrong application form, the respondent would be at liberty to initiate proceedings for the same, by due procedure, as observed in paragraph 37 hereinabove.

        The appellant plaintiff having filled in a wrong application form, he is left to bear his own costs.

 

          The bare perusal of the application form filled by the complainant shows that there are several cuttings and corrections made in the application form. The handwriting and the pen used appear to be different. The complainant/respondent who is present in the court stated that the corrections were made by the department itself and there is no initial made by him. Be it the case may be, the Hon’ble High Court in Dr. Vivek Gupta Vs. Uttar Haryana Bijli Vitran Nigam Limited (supra) clearly held in para 37 of the judgment that it is not the application form which will determine the tariff to be charged. The department has to charge the tariff as per the activity and not as per the application form. In the present case, the complainant is engaged in mushroom cultivation which is an agriculture activity thus the complainant has to be charged under horticulture tariff only.

 

12.    The several correspondence of the complainant on record shows that the supply given to the project of the complainant was highly irregular and have caused huge loss to the complainant due to no electricity supply for several hours. This has forced the complainant to apply for change of his feeder which was the only option he had. The attitude of the appellants/department is very regressive and against the public policy to encourage self employment. The respondent/complainant has also relied upon the judgment passed in Income Tax appeal No. 1015-1018 HYD/2015 wherein the income from mushroom cultivation has been declared to be agricultural income and exempted u/s 10(1) of the Income Tax Act.    

 

13.    This commission has also observed wherein a similar question was involved and accordingly, while appeal preferred by the UHBVNL was equally dismissed in case ttiled as SDO UHBVNL & Ors Vs. Durga Devi Appeal No. 450 of 2015 decided on 28.05.2015. Hence, with the above observation and discussion, the question is answered with the observation that the case of the complainant-M/s Divine Mushroom Farm falls in the category of the horticulture and the charged only at agricultural metered rates would accordingly be recovered from the complainant, and if excess payment received by the O.Ps, then to refund the excess amount paid by the complainant.  The bills issued from time to time would also be rectified and in future also, the bills for consumption of the electricity units would accordingly be issued as being the horticulture electric connection.  Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Forum does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.

 

First Appeal No. 910 of 2018

          Delay in filing the appeal is condoned for the reasons stated in the application filed for condonation of delay.

The issues raised in the present appeal is that the appellants have levied MDI penalty to the complainant in the bill for the month of 09/2017 & 10/2017 treating the connection of the respondent/ complainant as industrial or commercial category and not agriculture tariff. In view of the fact that the connection of the respondent/ complainant is held to be under agriculture category i.e. horticulture tariff the MDI penalty cannot be levied upon him.      

          As the entire controversy involved in this appeal is accordingly answered, while writing the judgment in appeal bearing No.609 of 2018 and hence, it does not render any further observation. Therefore, in view of the decision in appeal No. 609 of 2018 (supra), the present appeal is also dismissed.  

 

14.    The statutory amount of Rs.25000/- deposited at the time of filing of the appeal bearing No.609 of 2018 & appeal bearing No.910 of 2018 be refunded to the appellants against proper receipt and identification.

 

15.    The original judgments be attached with appeal No.609 of 2018 and with appeal No.910 of 2018.

 

 

March 27th, 2019  Mrs.Manjula                   Ram Singh Chaudhary                                          Member                          Judicial Member                                                   Addl.Bench           Addl.Bench          

S.K.