The prayer in the writ petition is for a writ of Certiorarified Mandamus to call for the records relating to the impugned Assessment Order issued by the 4th respondent Assistant Executive Engineer in Letter No.AEE/O&M/R/Trichy dated 15/10/2010 demanding a sum of Rs. 12,000/- towards Compounding of offence and Rs.1,19,304/- towards Compensation Quash the Same and further Direct the respondents herein to repay Rs.12,000/- paid to them by the petitioner towards the compounding of offence.
2. The case of the petitioner is that the petitioner is owning an agricultural Farm at Sannasipatti Village in Trichy District at S.F.No.67/5 of Mathur Revenue Village, Trichy District. Agricultural crops viz., Mango, Sappotta, Guava, Coconut, Gooseberry, Hibiscus flower and Bamboo are cultivated in the Farm, especially, the bamboo is cultivated for the purpose of fencing the saplings to protect them from wind. Unique medicinal herbs are also cultivated in the Farm to educate the students and medicinal plants for farmers of the rural surrounding. The National Horticulture Board under the Ministry of Agriculture, Government of India, had clarified that the crops like Mango, Sappota, Amla, Guava, Coconut, Hibiscus and Pappaya are horticulture crops, which are part of Agriculture under border category. While so, the petitioner had applied for agricultural service connection under Tariff IV. The respondents Board, after effecting necessary inspection, gave agricultural service connection to the Farm of the petitioner in S.C.No.533/IV for running 5 HP motor pump during the year 2008. The three phase motor pump was disconnected to the said service connection and the same was subsequently replaced with a new electric motor, provided for the electricity service connection. The respondent Board has been collecting from the petitioner the minimum charges under Tariff IV agricultural service connection at the rate of Rs.140 per month.
3. While so, on 26.04.2010, the 4th respondent Assistant Executive Engineer and the 5th respondent Assistant Executive Engineer surprisingly inspected the petitioner's agricultural Farm and they themselves prepared a report. No clarification was asked from the petitioner and in fact, the petitioner was compelled to sign in the report prepared by them. The petitioner had signed it under their compulsion and no copy of the report was given to the petitioner.
4. Thereafter,the 4th respondent had issued an order of compounding amount, wherein, it was stated that during the inspection, theft of energy had been noticed by using the electricity for Nursery and Medicinal Farm. Therefore, the petitioner had been compelled to make the compounding fee of Rs.12,000/-, otherwise, the petitioner had to face the punitive actions at the hands of the respondents. The petitioner also was served with a working sheet of energy theft case dated 26.04.2010, wherein, the compensation charges for the alleged theft had been worked out at Rs.1,19,304/- and compounding amount of Rs.12,000/-. Thereafter, the petitioner had approached the third respondent giving representations on 28.04.2010 stating that the electricity was not misused for any other purpose other than the agricultural activities, for which, the service connection was obtained by the petitioner. However, no fruitful action was forthcoming from the respondents. They demanded the payment of Rs.12,000/- towards compounding fee, which, the petitioner had to pay.
5. The agricultural activities done by the petitioner, for which, the electricity service connection, was specifically obtained for the purpose of agriculture and accordingly, it was utilised. Therefore, it is not an activity within the meaning of 135 of the Electricity Act 2003 and therefore, the action taken on the part of the respondents fixing the petitioner, as if that the electricity was stolen and compelling the petitioner to pay the compounding fee is totally unlawful and unjustifiable. Therefore, challenging the order of the assessment issued by the 4th respondent dated 15.10.2010, the petitioner has approached this Court by way of the present writ petition, as the demand made through the said impugned assessment order from the petitioner to pay a sum of Rs.1,19,304/- is totally unlawful and unjustifiable.
6. Heard the learned counsel for both sides.
7. The learned counsel for the petitioner would submit that the petitioner's agricultural Farm is spreading to the extent of 20 acres of land, where the Horticulture Farm of agricultural activities is being undertaken by the petitioner, where the crops like the Mango, Sappota, Amla, Guava, Coconut, Hibiscus and Pappaya are maintained, which is part of agricultural activities. Only for the utility of the petitioner's Farm, saplings of these crops are also being produced and are kept, in fact, whenever it is required necessary to be planted these saplings, it will be utilised for the purpose of the petitioner's Farm. The usage of electricity service connection obtained for agricultural purpose under Tariff IV for horticulture activities shall not be construed as an activiy other than agriculture and in this regard, the learned counsel for the petitioner would rely upon the clarificatory order No.1 of 2012 dated 24.12.2012 issued by the Tamil Nadu Electricity Regulatory Commission, which gives the clarification as to what activities are to be treated as agriculture or its allied activities within the meaning of Tariff IV meant for free electricity service connection for agricultural purposes. The said clarificatory order reads thus:
?BEFORE THE TAMIL NADU ELECTRICITY REGULATORY COMMISSION CHENNAI Clarificatory Order No.1-4 of 2012 dated 24.12.2012 In the matter of : Issue of clarification in the Tariff Order 1 of 2012 on Determination of Tariff for Generation and Distribution
1.The Commission clarifies the meaning of the term ?group of activities? which shall be classified as allied activities of agriculture for the purpose of LT Tariff IV in the Tariff Schedule to the said Tariff Order No.1 of 2012 dated 30.03.2012.
i) Para 10.20.1 under LT Tariff IV of the said Tariff Order reads as follows:
This tariff is applicable to all agricultural and allied activities such as cultivation of food crops, vegetables, seeds, trees and other plants. Sericulture, floriculture, horticulture, mushroom cultivation, cattle farming, poultry and other bird farming, fish/prawn culture carried out as allied activities of agriculture shall be construed as agricultural activities.
ii) Para 10.17.7 under LT IIIA (1) of the said Tariff Order reads as follows:
This tariff is also applicable for sericulture, floriculture, horticulture, mushroom cultivation, cattle farming, poultry and bird farming, dairy units and fish/prawn culture who have not been covered under LT Tariff IV and which are run on commercial lines.?
8. By relying upon the said clarirficatory order issued by the regulatory commission, the learned counsel for the petitioner would submit that the horticulture is one of the allied activity of agriculture, so the same can be brought under the category of Tariff IV. Therefore, the present action initiated against the petitioner, which culminated in the impugned order to state that the petitioner has unauthorisedly used the electricity obtained under Tariff IV service connection for horticulture activities, is totally against the very said clarification issued by the Regulatory Commission and therefore, the same cannot be a sustainable one.
9. The learned counsel for the petitioner would further submit that allegations were made both in the Mahazar as well as in the averments made in the counter affidavit filed by the respondents that the petitioner is maintaining a Nursery from where saplings are being sold, therefore, for commercial purpose the Nursery is being maintained by the petitioner and therefore, the service connection, which was given to the petitioner under Tariff IV, shall not be utilised for the purpose of commercial activities of selling saplings and in that score, the usage of electricity is either unauthorised or theft. This contention on behalf of the respondents is totally unjustifiable because there is no proof to show that the petitioner had been involving in commercial activities of selling saplings from his nursery. In this regard, the learned counsel for the petitioner would assert that absolutely, there is no selling of any saplings and whatever saplings is being maintained there in the Farm of the petitioner is only for the utility of the petitioner Farm alone and not for commercial activities. Therefore, the learned counsel for the petitioner would submit that the entire action initiated against the petitioner, including the impugned order compelling the petitioner to pay the said sum towards compensation to the respondents is bad and therefore, the same is liable to be interfered with.
10. Per contra, the learned standing counsel for the respondents would submit that initially under Tariff III, made in the year 2003, this horticulture activities were not included in the Tariff III agricultural supply, because, the agricultural supply was specifically included in the Tariff IV. The Tariff IV free electricity supply would be applicable only for agricultural activities and for Government seed Farm. At the time of making the inspection by the respondents, it was found that the original 5 HP motor, which would be capable of running only through the three phase service connection was removed from the petitioner's service connection, wherein, a low HP motor capable of being run even under single phase service connection was fitted. This itself is against the norms of Tariff IV agricultural service connection. Moreover, the four thousand saplings were being maintained by the petitioner, such a large quantity of saplings cannot be maintained for their own purpose. This itself would show that the petitioner is maintaining the nursery for selling the saplings on commercial basis. If the saplings are being sold on commercial basis, certainly, the Nursery from, where such saplings are being produced, cannot be treated as an agricultural or allied activities and the same cannot be brought under the category of even horticulture Farm. Therefore, by making these findings from the spot inspection made by the respondents, Mahazars were prepared and based on the report given by the concerned official, who visited the spot of the petitioner, it was considered to be either an unauthorised use of electricity or theft of energy and immediately, the petitioner, since was requested to make compounding fee, has rightly agreed to make it and subsequently a compensation also was calculated and the same was directed to be paid to the petitioner by way of the impugned order. Therefore, the learned standing counsel for the respondents would submit that the usage of electricity from Tariff IV service connection ie., from SC No.533/IV for the purpose of maintaining a nursery for selling saplings on commercial basis, cannot be treated as an agriculture activity or an allied activity along with the agriculture. Therefore, the petitioner's activity cannot be also treated as agricultural activity within the meaning of Tariff IV. Hence, the action initiated against the petitioner, based on the surprise inspection made by the respondents, is fully justifiable.
11. In this regard, the learned counsel for the respondents would also submit that it is for the petitioner to prove that maintaining such a large number of saplings at their Nursery is only meant for planting it at their Farm itself. No prudent man would accept that thousands of saplings can be utilised for planting it in a Farm consists of 20 acres. Therefore, those saplings maintained in the Nursery of the petitioner is only meant for commercial activities and therefore, such commercial activity can be denied by the petitioner by establishing the fact that those saplings were utilised for their Farm. Since the burden of proof lies on the shoulders of the petitioner, they cannot make hue and cry that the respondents have initiated action against the petitioner, as if that the petitioner is utilising the power meant for Tariff IV agricultural activities, for commercial purpose. Therefore, whatever the defence now taken by the petitioner cannot be accepted, as the ground reality speaks for itself, which has been specifically recorded by the team of inspection, which had made a spot inspection and after separately inspecting the physical feature and the activities undertaken by the petitioner have recorded everything elaborately. Hence, the learned counsel for the respondents, would submit that the impugned orders are fully justifiable and requires no interference from this Court.
12. This Court had considered the rival submissions.
13. The only issue, which has to be resolved in this case is as to whether the agricultural/horticulture activities undertaken by the petitioner at his Farm is to be treated as an agricultural activity within the meaning of Tariff IV of the respondents or not. In this regard, the Tariff fixed by the Regulatory Commission in the year 2003, as produced by the learned counsel for the respondents would disclose the fact that low tension Tariff IV is for agricultural purpose. According to the paragraph No.10 Clause (2), this Tariff (Tariff No.IV) is applicable for the agricultural and the Government seed Farms. The word ?agriculture?in general term has been used and it has not been clarified or expanded. Whatever activities undertaken in the name of agriculture, then, it shall be construed that those agricultural activities can be brought under the Tariff IV. Though, in this regard, the learned counsel for the respondents would state that in Tariff No.III for low tension, those farming activities such as horticulture and Nursery Farms were initially brought in and since those horticulture activities were brought in under the Tariff III originally, which was subsequently separated and a clarificatory order was also issued in the year 2012, if the horticulture or nursery gardens that too for commercial purposes is maintained or undertaken, the same cannot be treated as an agricultural activity, unless and until, the same is maintained as an allied activity of agriculture. Therefore, the learned standing counsel for the respondents would submit that this exclusive activity of horticulture or maintaining nursery garden for the purpose of commercial activity never be treated as an agricultural activity or its allied activity. Therefore, at any rate, those activities cannot be brought under the category of Tariff IV. Therefore, she submitted that the activities of maintaining a Nursery garden with large number of saplings has to be treated only under the category of 3A and therefore, a different Tariff is to be calculated from the petitioner.
14. Insofar as the said submissions made by the learned standing counsel for the respondents is concerned, even prior to the 2012 clarificatory order, there is no specific exclusion made that horticulture activities are exempted from the category of agriculture, even under the 2003 Tariff IV regime. It is merely said that a Tariff would be applicable in the agriculture Farm and the Government seed Farms. It is generally stated that the Tariff would be applicable for agriculture. When the word 'agriculture' alone is used and when there is no specific exclusion is given, that activities such as horticulture etc., are to be exempted from the category of agriculture, even through the III Tariff regime, it shall be considered only for those horticulture activities also, which shall form part of agriculture activities.
15. Moreover, as has been clarified by the Regulatory Commission through their clarificatory order No.1 - 4 of 2012 dated 24.12.2012, as has been extracted above, it has been specifically clarified that activities such as sericulture, floriculture, horticulture, Mushroom cultivation, cattle farm, poultry and birdfarming, dairy units and fish/prawn culture carried out as allied activities of agriculture shall be considered as agricultural activities within the meaning of LT Tariff IV. When it is made to the extension of even carrying out Mushroom cultivation, poultry and other bird Farm, fish/prawn culture, these activities, certainly, would be on commercial basis. When these activities themselves are included within the meaning of allied activities of agriculture and therefore, was brought under the category of Tariff IV, then, certainly, the horticulture activities including the maintaining of Nursery can also be considered only as an allied agricultural activities.
16. Insofar as the contention of the respondents' counsel that if the horticulture is one of the allied activities of agriculture, it can be construed as Tariff IV activities, but if the same horticulture activities are carried out separately, that can be construed only as Tariff 3A category, is concerned, it is for the respondents to establish that the petitioner is doing only this Nursery farming separately and not allied with the regular agricultural activities.
17. In this regard, it may be pointed out that, as per the National Horticulture Board under the Ministry of Agriculture, Government of India, clarification dated 30.04.2010, the crops like, Mango, Sappota, Amla, Guava, Coconut, Hibiscus and Pappaya are horticulture crops, part of agriculture under border category. This clarification given by the National Horticulture Board cannot be brushed aside as these activities are part of agriculture and therefore, assuming that the petitioner is doing horticulture/carrying out horticulture and cultivating the crops within the meaning of horticulture, then also, it can be construed as an allied agricultural activities and by thus, it can be brought under Tariff IV category.
18. Therefore, viewing from any angle, the activities being carried out at the Farm of the petitioner cannot be said to be an activity other than the agriculture and therefore, the contention that agricultural Tariff NO.IV shall not be made applicable to the petitioner's agricultural activities, cannot be accepted. Therefore for all these reasons, this Court is of the considered view that the impugned order categorising the petitioner's activities as the one, which is other than the agricultural activities, cannot be sustained and therefore, the impugned order is liable to be interfered with.
19. If at all the respondents feel that the petitioner is doing only a commercial activity of selling the saplings being produced at their Nursery, it is open to the respondents Department to carry out an inspection afresh and to establish the said fact. Unless and until, the respondents are able to establish the fact that the activities of the petitioner is only meant for commercial purpose, as under which, the petitioner is selling saplings in large numbers under commercial basis, such kind of conclusion now arrived at, through the impugned order, is not possible for the respondents.
20. In the result, the following orders are passed in this writ petition:
(i) The impugned order is quashed;
(ii) It is open to the respondents to make a fresh inspection at the petitioner's agricultural/horticultural Farm, where the respondents can thoroughly inspect and it is for the respondents to establish that the petitioner is running the Nursery only for commercial purpose and in this regard, the selling of saplings on commercial basis also must be established by the respondents.
(iii) If the respondents is advised to do any such reinspection and if the same is carried out and the respondents are able to establish that the entire activities done by the petitioner at its Farm is meant for commercial basis, then, it is open to the respondents to initiate action in accordance with law.
(iv) It is made clear that the mere activities on the part of the petitioner in carrying out horticulture farm activities, where if the petitioner maintains a Nursery garden for its own purpose, then, it shall not be construed as a commercial activity and therefore, the petitioner's continuous usage of agricultural electricity service connection under tariff IV shall not be disturbed on that ground.
(v) In view of the impugned orders since having been quashed, the compounding fee of Rs.12,000/- paid by the petitioner shall be refunded to him within a period of four weeks from the date of receipt of a copy of this order.
With these observations and directions, the writ petition is allowed with the terms indicated above. No costs. Consequently connected Miscellaneous Petitions are closed.
To
1.The Chairman, Tamil Nadu Electricity board, Chennai,
2.The Superintending Engineer (Metro) Tamil Nadu Electricity Board, Trichy.
3.The Executive Engineer Operation and Maintenance (East) Tamil Nadu Electricity Board, Trichy.
4.The Assistant Executive Engineer Operation and Maintenance Tamil Nadu Electricity Board, Rural/Trichy.
5.The Assistant Executive Engineer (Enforcement) Tamil Nadu Electricity Board, Rural Trichy.