BSES Rajdhani Power Ltd. v. Vineet Bajaj

1. Vide the present writ petition, the petitioner has challenged the order dated 05.06.2017 passed by the learned Additional District Magistrate (South-West), which is the Appellate Authority in the Appeal bearing NO. 3/2014 preferred by the respondent No. 1herein, under Section 127 ofthe Electricity Act, 2003. The Appellate Authority set aside the speaking order dated 04.10.2012 passed by the Assessing Officer thereby holding that by the inspection of Halka Patwari on 19.05.2016, there is enough crop/agriculture found inthe premises inquestion.

2. The brief facts of the case are that the petitioner filed the written 2018:DHC:8835 statement before the Appellate Authority that there is no agricultural activity found during the inspection conducted by Mr. Akbar Pasha, DGM of BSES.

3. However, during hearing, the Appellate Authority directed the Halka Patwari to conduct an inspection of the premises in question in order to determine the nature of land use over there. Vide his report dated 19.05.2016, the Halka Patwari stated that there is cultivation of crop in 2 Bigha 6 Biswa & grass land in 1 Bigha at the premises.

4. Accordingly, the Appellate Authority vide the impugned order held that the respondent herein was consuming electricity from agriculture cormection for running tubewell for irrigation purposes and not for domestic purposes. Thus, the Appellate Authority relied upon the report of the Halka patwari to conclude that there was enough crop/agriculture found in the premises.

5. Learned counsel for the petitioner submits that the Appellate Authority failed to differentiate between the activity of agriculture and horticulture.

6. It is pertinent to mention the provisions of Delhi Electricity Supply Code and Performance Standards Regulations, 2007 to specifically categorize as to what is Non-domestic category and what is agricultural category. For this purpose, the provisions of the said Regulations are re produced below, which reads as under "5. Non Domestic Low Tension(NDLT-l) i Connections under this category are provided for consumers having load upto 100 KWfor lighting, fan and heating/cooling power appliances in all nondomestic establishments as "defined below: a Hostels (other than those recognized/aided institutions of Municipal Corporation of Delhi or Govt. ofthe NCTofDelhi). b. Schools/colleges (other than those run by Municipal Corporation of Delhi or the Government ofNCT Delhi). c. Auditoriums. d. Hospitals, nursing homes/diagnostic centres other than those run by Municipal Corporation ofDelhi or the Govt ofNCT ofDelhi. e. Railways (other than traction) f. Hotels and restaurants g Cinemas h Banks i Petrolpumps j All other establishments i.e. shops, chemists, tailors, washing, dyeing etc. Which do not come under the Factories Act. k Cattle farms, fisheries, piggeries, poultry farms, floriculture, horticulture, plant nursery I Farm houses being usedfor commercialactivity m DMRC for its commercial activities other than traction n Ice-cream parlours and n Any other category of commercial consumers not in any category in this Section.

9. Agriculture Connection: © i Connections under agriculture category provided for tubewells for irrigation, threshing and kutticutting in conjunction with pumping load for irrigation purpose andfor lighting roadfor bonafide use in Kothra. a All connections shall be serviced through a Single Phase 230 V, 50 Hz supply or three Phase, 400 V, 50 Hz supply."

1. In view of above, the Appellate Authority in order dated 05.06.2017 has observed that cattle farm/horticulture/floriculture may be interpreted as non-domestic connection and electricity from,the meter was consumed for lighting, fan and heating cooling power appliance. In Section 5, the appliance used under the category was provided and there was no mention oftubewell used for the irrigation ofhorticulture or floriculture. However, Section 9provided that the Agriculture category was provided for tubewells for irrigation, thrashing and kutti-cutting in conjunction with pumping load for irrigation purposes and for lighting load for bonafide use in Kothra and by products of cultivation was not explicitly provided. Hence, it is clear from Section 9 that the electricity consumed by tubewell for irrigation purposes comes under agriculture connection.

8. Moreover, as per the inspection report of the Halka Patwari dated 19.05.2016, there was cultivation ofcrop in 2Bighas 6Biswa and grass land in 1Bigha inthe premises in question.

9. The petitioner herein, filed the written statement before the Appellate Authority stating that there was no agriculture activity found during the inspection but Mr. Akbar Pasha, DGM of BESES submitted that they Y conducted a site visit and found that the connection was used for agriculture also for the lawn developed and further the Caretaker's room inthe premises so it was decided that they cannot change the category to agriculture since there was mixed use of load.

10. I note, is observed in the impugned order that out of load of 13.605 KW, 80-90% of load was used for tubewell which was permissible under agricultural connection. The consumption of electricity by both the coimection showed that the consumption varied from time to time on agricultural connection and consumption on domestic connection showed the uniformity. This showed that the tubewell was drawing the power from the agriculture connection for irrigation purpose and therefore, the consumption of electricity varied from time to time as pertherequirement of the agriculture product and season.

10. After hearing the rival contentions of the parties, the Appellate Authority opined that the respondent was consuming electricity from agriculture connection for running tubewell for irrigation purpose and not for domestic purpose. Accordingly, the respondent could not be charged misuse charges as there were two separate connections (Domestic & Agriculture) and also there was enough crop/agriculture found in the premises as per the report ofthe Halka Patwari.

11. Learned counsel for the petitioner submits that on the date of inspection, there was no crop activity in thepremises in question whereas in the inspection report, nothing is mentioned about the same. It is submitted that the impugned order has been passed on the assumption that any activity which will be using tubewell is in the nature of agriculture, however, Section 9 of the Delhi Electricity Supply code & Perforaiance Standard Q Regulations, 2007 clearly lays down that only tube wells used for the purpose of irrigation, threshing & kutti-cutting will be considered under agricultural category. Hence, if a tubewell is being used for a nursery, garden or in horticulture activities, the same will not be considered as agricultural usage.

12. Moreover, the Appellate Authority had only opined to get verified the facts from the premises as to whether some activities were going on and what type of activities were going on. As per the report, a lot of activities were going on and it depends from season to season.

13. Accordingly, I do not fmd any irregularity and illegality in the impugned order dated 05.06.2017 passed by the Appellate Authority.