BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. No. 392/2003 Filed on 5/12/2002

Dated: 31..12..2009

Complainant:

Alex Selvaraj, A T House, Kuzhipallom, Nellimoodu, Athiyannoor Village, Neyyattinkara.

(By Adv. Sreekantan Thampi)

Opposite parties:

1. The Assistant Executive Engineer, Electrical Major Section, Kanjiramkulam.

    

2. The Secretary, Kerala State Electricity Board, Vydyuthi Bhavan, Pattom, Thiruvananthapuram.

(By Adv. Madavoor V. Mohanan)

This O.P having been heard on 30..11..2009, the Forum on 31..12..2009 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant is a consumer of opposite parties vide consumer No. 8279 under Kanjiramkulam Major Section, that opposite parties issued an additional bill dated 15/9/2000 for Rs. 31,720/- wich was cancelled by this Forum vide order in O.P.No.504/2000 and the opposite parties were directed to make a local inspection, to ascertain the facts regarding the nature of the consumption, whether the connection is for commercial and agricultural purposes, to prepare a mahazar and on that basis to ascertain the arrear amount, if any. It is submitted by the complainant that the connection is for agricultural purpose, to that effect the certificate was issued by the Krishi Officer, that the connection from 1992 onwards has been under Tariff V, complainant has no arrear to be paid to the opposite parties. Opposite parties issued one Revision bill dated 20/4/2003 for Rs. 83,927/- thereby. Opposite parties cancelled all the bills issued from 4/92 to 6/2003 and fresh demand raised on the basis of actual consumption under LT V tariff upto 12/98 LT VII A tariff from 1/99. After getting the said bill and notice complainant filed objection with details of arrear amount to the Executive Engineer, Neyyattinkara and Assistant Executive Engineer, Kanjiramkulam on 26/9/2003. Opposite parties did not take any action so far. Opposite parties inspected in the premises on 3/6/2003 and prepared a mahazar. Since it is the agricultural connection, complainant says he is not liable to pay any amount as alleged in the notice. Hence this complaint.

2. Opposite parties filed version contending that an additional bill for Rs. 31,720/- was issued to the complainant during 9/2000, that the energy supplied for a specific purpose under a particular tariff was used for different purpose without the knowledge of the KSEB, that complainant filed O.P. 504/2000 before this Forum and cancelled the impugned bill and direct the opposite party to make a local inspection and ascertain the facts regarding the nature of consumption and prepare a site mahazar and on that basis ascertain any arrear amount, that on compliance of the said order the opposite parties inspected the site on 6/3/2003 and prepared the site mahazar, that the premises named as 'Kuzhipallom Botanical Gardens' is an agricultural nusery comprising about 1.75 acres of land, that different kinds of plants are cultivated and kept in polythene bags throughout the entire area, that coconut trees are also planted in the premises, that electrical energy is used for lifting water from a well using a pumpset for irrigating the plants and coconut trees, that the plants are sold from the same premises, and that complainant is growing and selling plants within the same premises. It is ascertained that complainant is using electrical energy for agricultural nursery purpose with sales in the premises and hence is not eligible for inclusion under LT V tariff, that the tariff applicable to such consumers are LT VII A. The complainant wrongly enjoyed the concessional tariff under LT V upto 12/99, that the misuse was detected during 12/99 and the consumer was charged under LT VII A with retrospective effect from 1/99 and the impugned bill was issued for the short assessment made under tariff LT V instead of LT VII A from 1/99, that Agricultural Officers are not entitled to fix the tariff of energy under the statute, that the complainant has not paid any amount towards current charges since 11/99 except an amount of Rs.368/- paid during 8/2000, Rs. 469/- during 10/2000 and Rs. 186/- during 12/2000, that he had defaulted the current charges from 9/98 to 10/99 and remitted the amount as arrear on 14/10/99. As per the direction of this Forum opposite parties issued a revised bill to the complainant on 20/9/1993, that after ascertaining the purpose for which energy is being used all the bills issued from 4/92 to 6/2000 were cancelled and a fresh demand raised based on the actual consumption. The total demand from 4/92 to 6/2003 comes to Rs. 1,09,850/-, that the complainant remitted the monthly current charges only upto 10/99 and the total remittance is only for Rs. 25,923/-, that the balance amount comes to Rs. 83,927/-, that no interest is charged for the said amount. Complainant has obained the service connection for agricultural purpose originally and has changed the purpose for agricultural nursery involved in growing and selling of plants. Complainant is conveniently suppressing the facts that business in the premises is growing and selling of plants. Hence opposite parties prayed for dismissal of the complaint with exemplary cost.

3. The points that arise for consideration are:

1. Whether the complainant has availed electricity for agricultural purpose or commercial purpose?

    

2. Whether the opposite party is entitled to claim arrear amount vide Revision bill dated 20/9/2003?

    

3. Whether the opposite party has collected excess amount of Rs.11,309/- from the complainant?

    

4. Whether there is deficiency in service on the part of opposite parties?

    

5. Whether the complainant is entitled to get compensation and costs. If so, at what amount?

4. In support of the complaint, complainant has filed proof affidavit of himself as PW1 and Exts. P1 to P17 were marked. Complainant has been cross examined by the opposite parties. Witnesses have been examined as PW2 to PW5 and cross examined by opposite parties. In rebuttal, 1^st opposite party has filed counter affidavit and cross examined by the complainant. Opposite parties have furnished three documents which have been marked as Exts. D1 to D3.

5. Points (i) to (v): Admittedly, complainant is a consumer of opposite parties vide consumer No. 8279 under Kanjiramkulam Major Section and opposite parties have issued a Revision bill dated 20/4/2003 for Rs.83,297/- to the complainant, which is under challenge herein. It has been the case of the complainant that opposite parties issued an additional bill for Rs.31,720/- dated 15/9/2000 which had been challenged by the complainant before this Forum by O.P.No.504/2000 and the same was cancelled vide order dated 22/10/2002 in O.P. No.504/2000 and the opposite party was directed to make a local inspection and ascertain the facts regarding the nature of consumption and prepare a mahazar and on that basis ascertain arrear amount, if any. It has also been the case of the complainant that opposite parties issued a new bill for Rs.83,927/- dated 20/4/2003 thereby all bills issued from 4/92 to 6/2003 was cancelled. It is submitted by the complainant that after getting the notices he filed objection to the 1^st opposite party on 26/9/2003 but no action was taken by the opposite parties. It is the specific case of the complainant that he has availed electricity connection for agricultural purpose which is put under tariff LT V. Ext. P1 is the copy of the Provisional Invoice Card. As per Ext. P1, consumer No.is 8279, connected load is 8 HP, Tariff is LT V, and units are seen enhanced from 210 to 1000 units. Ext. P2 is the copy of the premises meter card. As per Ext. P2 date of connection to consumer No.8279 is 26/3/1992 and meter reading is recorded upto 1/97, Ext. P3 is the copy of the premises meter card showing meter reading for 4/97 to 8/2000. Ext. P4 is the copy of the letter dated 14/1/2000 addressed to the 1^st opposite party by the Agricultural Officer, Krishi Bhavan, Athiyannoor stating that Sri. Alex Raj, consumer No. 8279 is a bonafide progressive farmer in Athiyannoor Grama Panchayat, that the power is utilised for irrigating agricultual crops and the connection is utilised only for agricultural purposes. Ext. P5 is the copy of the receipt for Rs.9.560/- issued to consumer No. 8279 towards arrears 9/98 to 10/99. Ext. P6 is the copy of the letter issued by the Agricultural Officer, Ext. P7 is the copy of the letter dated 15/9/2001 addressed to the complainant by the 1^st opposite party stating that the bill dated 20/8/2001 for Rs.3,374/- under LT VII A issued to the complainant has been transferred temporarily under LT V. Ext. P8 is the copy of the identity card issued by the Block Development Officer, Athiyannoor. As per Ext. P8, complainant is an IRDP beneficiary of the Athiyannoor Block. Ext. P9 is the copy of the letter dated 19/7/2001 addressed to the complainant by the Block Development Officer, Athiyannoor informing him of the IRDP trade fare. Ext. P10 is the copy of the identity card issued by the BDO to the complainant. Ext. P11 is the copy of the letter dated 3/3/1992 addressed to the complainant by the Executive Officer, Athiyannoor Panchayat Office sanctioning him to use Panchayat public well subject to conditions. Ext. P12 is the copy of the letter addressed to consumer No. 8279 by the Assistant Engineer, Electrical Major Section, regarding the additional cash deposit realisation of LT V. Ext. P13 is the copy of the order dated 27/12/2002 in O.P.No.504/2000. Ext. P14 is the proceedings of the Assistant Executive Engineer along with the revised demand cum remittance statement of consumer No.KJM 8279. It is seen stated in Ext. P14 that as per order in O.P.No.504/2000, the 1^st opposite party had inspected the premises on 3/6/2003, and prepared the site mahazar, that the premises named as Kuzhippallom Botanical Gardens is an agricultural nursery comprising in about 1.75 acre of land, that different kinds of plants are cultivated and kept in polythene bags through out the entire area, that coconut trees are also planted in the premises, that electrical energy is using for lifting water from well using a pump set for irrigating the plants and the coconut trees, and that the plants are selling at the premises. It is further stated in Ext. P14 that as the consumer is growing and selling plants in the same premises the tariff change effected from 1/99 to LT VII A is correct and in order as per the Board Order No. plg.com.3447/97 dated 22/9/1997, but the consumer is eligible for LT IV tariff with effect from 1/11/2001 as per Board Order No.2238/2001 (plg. Com.4304/2001) dated 8/11/2001 as the consumer is using electrical energy only for pumping water for irrigating the plants. It is further stated in Ext. P14 that all the bills issued from 4/92 to 6/2003 is cancelled and fresh demand raised based on the actual consumption. LT V tariff assigned to the consumer upto 12/98 is retained and LT VII A is charged only from 1/99 that tariff changed to LT IV with effect from 11/2001, that accordingly total demand comes to Rs. 1,09,850/-. Out of which, the consumer paid Rs.25,923/-, and balance to be paid comes to Rs.83,927/-. Complainant was directed to remit the arrear within 7 days from the date of the said order. On going through the revised demand cum remittance statement issued by the opposite parties, it is seen that revised demand is seen calculated from 4/92 to 6/03. Ext. P15 is the copy of the objection to the revision bill filed by the complainant. As per Ext. P15 complainant has raised objection contending that the connection is for agricultural purpose, that revised bill issued without making alteration in prior bills, that tariff is calculated under LT VII A, and that an amount of Rs.9,560/- remitted on 14/10/1999, which is not seen recorded in the revised bill. At this juncture, it is to be pointed out that opposite party had already issued a bill dated 18/9/2000 for Rs. 31,720/- which was challenged and the same was quashed by this Forum vide order in O.P.No. 504/2000 by Ext.P13. On a perusal of Ext. P14 it is seen that revision bills is seen prepared from 1992 onwards. In his cross examination complainant (as PW1) has deposed that farming field held by him and his brothers would come to an extent of 1 acre and 75 cents, wherein, flowering plants, jack plants etc.....are being grown of which most of them are saplings, that these saplings are being sold at distant places, that there is no counter sale in field or premises itself nor being it exported. PW1 has further deposed that he would participate in the flowers show, that tariff LT VII cannot be applicable to any nursery item, and that the bill in dispute has been prepared by opposite parties by targetting him only. When asked "കാര്‍ഷികാവശൃത്തിന് വേണ്ടി കറണ്ട്എടുത്ത് opposite party-യെ തെറ്റിദ്ധരിപ്പിച്ച് വ്യാവസായികാ വശൃത്തിനുപയോഗിച്ചതിനാലാണ് താരിഫ് മാറ്റിയത് എന്നു പറയുന്നു. (Q) ഇത് ഒരിക്കലും ശരിയല്ല. (A) കൃഷി ഭവനില്‍ നിന്നും 2000-ന് ശേഷം എനിക്ക് ssubsidy കിട്ടുന്നില്ല.. അത് താരിഫ് മാറ്റിയതുകൊണ്ടാണ്. Subsidy കിട്ടാത്തത് കൃഷി ആഫീസര്‍ വന്ന്പരിശോധിച്ചുപോയ ശേഷമാണ്. Electricity bill അടയ്ക്കാതിരിക്കുന്നതിനു വേണ്ടി നിങ്ങള്‍ കളവായി ccase file ചെയ്തതല്ലേ (QQ) അല്ല (A). Agricultultural Officer, Athiyannor Krishi Office, has been examined as PW2. In his examination in chief PW2 has deposed that he knows the complainant, that as per records, the said electric connection was taken only for agricultural purposes and that Ext.P4 certificate was issued from the Krishi Bhavan, Athiyannoor. In his cross examination PW2 has deposed that, Ext. P4 was not issued by himself, and that he took charge in the said office in June 2003. PW2 has added that the certificate like Ext. P4 has been issued on the basis of application received and inspection done; when asked him about whether he had inspected the field after he has taken charge in the said office, PW2 has replied that after receiving the summons from this Court he has enquired about the complainant and his field of agriculture. Although PW2 has agreed to furnish the movement register showing the inspection of the field of the complainant, the same was not seen furnished by PW2, nor has opposite party made a suggestion that PW2 has never inspected the field of the complainant. The member of the panchayat concerned has been examined as PW4. In his cross examination PW4 has deposed that he knows the complainant and his agricultural field and various items of plants are being cultivated therein. PW4 has further deposed that complainant conducts the agriculture for his livelihood. Athiyannoor Panchayat Secretary has been examined as PW3. In his chief examination, PW3 has admitted Ext. P11 certificate issued by the Panchayat concerned to the complainant to lift water from the Panchayat well by using pumpset in order to water the plants in his field of argiculture. In his cross examination PW3 has deposed that Ext. P11 was issued not by himself but by the former Panchayat Secretary, that he knows the place of agriculture, that after receiving the summons from this Forum, he has inspected the place and found around 150 coconut trees along with other plants therein. On the part of opposite parties the Assistant Engineer, Kanjiramkulam has been examined and cross examined as DW1. In his examination in chief, DW1 has deposed that connection for agricultural purpose comes under LT V tariff, that tariff is determined in accordance with the Board Order, when asked DW1 about the formality for disconnection, if connection given for a particular purpose is used for another purpose, DW1 has replied that the said connection will be cut after serving notice on the subscriber. It is deposed by DW1 that when tariff is changed the same will be informed the consumer through the bill. DW1 has deposed further that if there is misuse of electricity for another purpose the tariff will be changed, DW1 has deposed that agricultural nursery has been stifted to tariff LT IV from 11/2001 onwards. In his examination DW1 has deposed that if light load has been segregated, light load will be brought under LT VII A and motor load under LT IV. It is admitted by DW1 that connection was given in 1992 only after the inspection of the complainant's spot. DW1 has deposed that connection was given to 2 HP motor. DW1could not know the extent of the area of cultivation. It is submitted by the opposite parties that in 1997 complainant had applied to opposite parties that since the land extent enlarged to 1.75 acre, and 2 HP load was insufficient instead it required 8 HP load, that accordingly after inspection of the spot, load was enhanced to 8 HP. It is admitted by opposite parties that even at the time of enhancement of the load, the tariff was under LT V, and complainant had remitted tariff under LT V upto 10/99. It is admitted by opposite parties that complainant had not defaulted in payment of electricity charge prior to 10/99. DW1 has deposed that he had taken charge as Assistant Engineer in the opposite parties' office on 31/7/2002, prior to that he never inspected the site. No evidence adduced by opposite parties to show that there was sale of plants in the site, except the mahazar prepared by the Assistant Executive Officer on 3/6/2003 vide order in O.P. No.504/2000. The official who is claimed to have inspected the site prior to tariff change has not been examined by the opposite partis. The initial burden is upon the opposite parties to prove that complainant has taken connection for agricultural nurseries doing sales. As per Ext. D3 dated 28/4/2002 the Deputy Chief Engineer is seen informed the Chief Engineer that he had inspected the premises of consumer No.8279 on 17/8/2004 and found that consumer is using electrical energy for lifting water using a pumpset for nurseries in a large area comprising more than 2 acres, that the products are sold on wholesale and also on retail at the site, and hence as per B.O.No.plg.com.3447/97 dated 30/7/99 the tariff assigned to the consumer in LT VII A which is correct. Ext. D1 is the letter dated 17/1/2001 from the Chief Engineer to the Secretary, Power Department regarding the change of tariff request from Sri. Alex Selvam. The mahazar prepared by the Assistant Executive Engineer, dated 3/6/2003 and copy of the notification (Tariff for Agricultural Nurseries fixing of - orders issued) by the KSEB dated 8/11/2001 are on the records. As per the notification dated 8/11/2001 the KSEB issued the following amendments:

1. "In part IV, Low Tension Tariff, the words, 'Agricultural Nurseries doing sales in the premises in addition to water pumping for nurseries' appearing under LT VII A commercial category shall be deleted and the following shall be added:

"For agricultural Nurseries,

i.If sale is the purpose of the agricultural nursery, then pump station (pump and allied connection) shall be charged under LT IV and installations other than the above shall be charged at LT VII A.

ii. if the consumers agree for segregation of their motor load for pumping and for installation of separate meter at their cost LT IV tariff shall be applied for pumping and LT VII A shall be applied for other activities in the same premises.

2. The notification read above shall be modified to the above extent. This order will take effect from 1/11/2001.

Facts would evidently show that for the last so many years the aforesaid connection was treated for agricultural purpose, under LT V tariff and not under LT IV industrial tariff and LT VII A commercial tariff. As per the KSEB notification dated 24/10/2002, in the case agricultural nurseries (without sale) the tariff applicable will be LT IV and if the agricultural nurseries do the sale also in the same premises, the tariff applicable will be LT VII (A) (Commercial). In this context it is pertinent to note that DW1 had taken charge as Assistant Engineer, Kazhakkuttom on 31/7/2002, prior to which he had never inspected the site. The person who had conducted the inspection has not been examined as the witness. While the person in whose presence the inspection was carried out, is examined. As against this complainant submitted his own detailed affidavit stating that he has availed connection under LT V tariff for agricultural purpose and has denied the allegations raised by opposite parties in their version. It is not in dispute that the Assistant Executive Engineer had inspected the site on 3/6/2003 and prepared a mahazar. The misuse (commercial use) of the power prior to 3/6/2003 was not established by way of affidavit by any person who had conducted inspection before 3/6/2003. The Rules framed by opposite parties lay down general conditions for supply of electricity energy and one such condition is that if energy supplied for a specific purpose under a particular tariff is used without the Board's knowledge and/or consent for different purposes not contemplated in the contract for supply and for which higher tariff is applicable then the electricity consumption bills already rendered for the service shall be revised changing appropriate higher tariff for the previous six months from the date of detection of misuse unless in the opinion of the Engineer, there are convincing reasons for adopting a different period. On this count, the demand for payment of additional charges from 1992 to 6/2003 raised by the Board is liable to be quashed. As per Ext. P5 it is seen that the bills raised upto 10/99 were paid by the complainant. The site was inspected by the Assistant Executive Engineer on 3/6/2003. Hence tariff change effected from 1/99 to LT VII A need be revised in the light of the decision of the Madhya Pradesh State Commission in Balkrishna Patidar Vs. J.E., MPEB, 1(1999) CPJ 643, that in view of the clause (d) condition 31 of the General Conditions for Supply of Energy by MPEB., the demand ought to have been raised for a period of 6 months prior to the date of detection of misuse, even otherwise the demand could not be made for a period which was beyond the period of limitation for raising the demand. As per Ext. P14, LT V tariff assigned to the consumer upto 12/98 is retained and LT VII A is charged from 1/99 and tariff charged to LT IV with effect from 11/2001. Taking into consideration of the totality of the circumstance of the case evidence and aforesaid decision of the Madhaya Pradesh State Commission we are of the considered opinion that justice will be well met if opposite party is directed to assign LT V tariff to the consumer upto 4/2000, LT VII A tariff from 5/2000 to 10/2000 and LT IV tariff from 11/2000.

In the result, complaint is partly allowed. The revision bill dated 20/9/2003 for the period from 4/92 to 6/03 raised by the opposite party is hereby cancelled. Opposite parties are directed to raise fresh bill under LT V tariff from 10/99 to 4/2000, LT VII (A) tariff from 5/2000 to 10/2000 and LT IV tariff from 11/2000. Amounts, if any, remitted by the complainant after 10/99 shall be adjusted in the fresh bill. In facts and circumstances of the case there will be no compensation. Both parties shall bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31^st day of December, 2009.

G. SIVAPRASAD,

PRESIDENT

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.392/2003

APPENDIX

I. Complainant's witness:

PW1 : Alex Selvaraj

II. Complainant's documents:

P1 : Photocopy of the Provisional Invoice Card.

P2 : " premises meter card.

P3 : " "

P4 : " letter dated 14/1/2000 addressed to the 1^st opp. Party.

P5 : " receipt for Rs.9,560/-.

P6 : " issued by the Agricultural Officer

P7 : " letter dated 15/9/2001 addressed to the complainant.

P8 : " Identity Card.

P9 : Copy of the letter dated 19/7/2001 addressed to the complainant.

P10 : Photocopy of the Identity card.

P11 : " letter dated 3/3/1992 addressed to the complainant.

P12 : " letter addressed to consumer No.8279.

P13 : " order dated 27/12/2002 in O.P.No.504/00.

P14 : Proceedings of the Asst. Executive Engineer,

P15 : Photocopy of the objection to the revision bill filed by the complainant.

P16 : " letter addressed to the complainant.

III. Opposite parties' witness:

DW1: Jinson

IV. Opposite parties' documents:

D1 : Photocopy of the letter dated 17/01/2001

D2 : " letter dated 20/7/1997.

D3 : " letter dated 24/8/2000.

PRESIDENT.