IN THE MATTER OF  :

Petition for refunding the amount deposited by the residents of village Pipaltha, District Jind, Haryana with the respondents with regard to the electricity bills.

AND

IN THE MATTER OF  :

Versus

ORDER

1.     The petition dated 8.5.2005 of Gram Panchayat Pipaltha, Tehsil Narwana, Distt. Jind through its Sarpanch  Sh. Tehal Singh was received in the  Commission on 9.5.2005,  in the matter of  refunding the amount deposited with the respondents, by the residents of village Pipaltha, District Jind, Haryana,  in respect of  electricity bills.  The petitioner has stated  :

1.1    That the petitioner is the Gram Panchayat of Village Pipaltha, Tehsil Narwana, District Jind. The present petition is being filed in the general interest of the residents of the village Pipltha, Tehsil Narwana, District Jind through Shri Tehal Singh, Sarpanch of the petitioner-Gram Panchayat who has been duly authorized by the petitioner-Gram Panchayat to file and pursue the present petition before the Haryana Electricity Regulatory Commission.

1.2    That Vide Sales Circular No. 14/98 dated 13.5.1998, erstwhile Haryana State Electricity Board implemented the tariff, for consumption by the Agriculture tube-wells on the basis of depth of the tube-wells, determined on the basis of survey carried out by the Ground Water Cell, Haryana.

1.3      That in accordance with the orders dated 27.3.2003, issued by the Hon’ble Punjab & Haryana High Court, Chandigarh, Director, Agriculture, Haryana got fresh survey, regarding the depth of tube-well, carried out. Vide endst. No. 813 dated 18.6.2003 Sub Divisional Agriculture Officer has forwarded a copy of the report  to the Respondent No. 3 for further necessary action. That the petitioner represented to the respondents no. 1 and 3, many times in person, for implementation of the survey report at the earliest to enable the residents of the village to pay the electricity charges accordingly.

1.4      That w.e.f. 15.8.2004, UHBVNL has implemented uniform tariff, irrespective of the depth of the tube-wells for energy consumed by the Agriculture pump sets.

1.5      That the action of the respondents, by not setting the claim of the residents of the village, from 17.4.2003 to 15.8.2004, is illegal, arbitrary, unconstitutional, discriminatory and against the principles of natural justice. Therefore, a direction is liable to be issued to the respondents to implement the survey report dated 17.4.2003.

1.6   That Hon’ble Punjab & Haryana High Court, in its order dated 11.4.2005, in CWP No. 15956 of 2003, has desired HERC to consider the representation, in its correct perspective, if filed within a month from the date of order. 
It is therefore prayed that the respondents may be directed to charge tariff on the basis of survey report dated 17.4.2003 and refund the excess amount already charged along with interest @ 18% p.a. from 17.4.2003 to 15.8.2004.  

2.           Vide notice dated 16/18.5.2005,  the Commission directed the respondents to file the reply to the petition by 11.6.2005. The respondents , vide filing dated 9.6.2005 requested the Commission for extension of time upto 30.6.2005, to submit the reply. The Commission considered the request of the respondents and approved the extension upto 30.6.2005 for filing the reply. The respondents submitted their reply vide filing dated 29.6.2005. The filing of the respondents comprised of  two parts viz. preliminary submission and para-wise reply. 

3.          In preliminary submission, the respondents, while putting forward the main arguments, have stated as under :  

a)          That the Hon’ble High Court, while disposing of the CWP No. 15956 of 2003, which was treated as a Public Interest Litigation, had granted leave to the individual consumers to make appropriate representations to this Hon’ble Commission. In view of the order passed by the Hon’ble High Court the present petition in representative capacity is neither competent nor maintainable, as such, the present petition deserves to be dismissed outrightly.

b)          The Department of Agriculture had carried out the survey in the first instance by questioning the farmers in respect of depth of tubewell installed by them and the information was with a reasonable level of accuracy in view of the fact that the farmers gave true and correct information, not knowing exactly the purpose for which the survey was carried out. The tariff was, accordingly, structured based on majority of depth of tube wells in a Block as a “unit” which was subsequently modified to Patwar circle as a “unit”. The exercise was a one time process and there was no intention to carry out any further surveys for fixation of power tariff. It is submitted that any attempt to carry out a re-survey based on the method of re-call would only have resulted in the tutored information, as by then, the farmers became aware of implication of such type of survey. To take undue advantage so as to fall into the lowest slab of tariff, they would have indicated the depth of their tubewell as more than 200 ft.

c)           That the respondents were charging the amount/tariff as per the survey report submitted by the Agriculture Department in the first instance and this survey report was not set aside by any competent court of law at any point of time and was binding on all the consumers including petitioners until 15.8.2004.

d)          The writ petition of the petitioners came up for hearing on 27.3.2003 before the Hon’ble division bench comprising of Hon’ble Mr. Justice Amar Dutt and Hon’ble Mr. Justice S.S. Grewal. It was disposed of with  observation that Respondent No. 4 (SDO, Department of Agriculture, Narwana, Distt. Jind) would decide the representation by passing a speaking order within 3 months from the date on which a copy of the petition together with a copy of the order was served upon him. In pursuance of the aforesaid order passed by the Hon’ble High Court, the Director of Agriculture, Haryana conducted the survey. However, it is submitted that the said survey has been conducted only with regard to one village and adopting the same for whole of the state will be contrary to the policy of the answering respondents on the basis of which the defendant was charging slab-based power tariff. It is relevant to point out that the implementation of the said survey report for a particular village will be contrary to the policy of the Nigam as well as the Government of Haryana, and, as such, the same cannot be adopted for making it a basis for fixation of power tariff.

e)          It is submitted that power tariff as per Sales Circular No. D-71/2001  was based on the orders issued by the Hon’ble Commission and the same was binding on all the consumers including the petitioner till 15.8.2004.

f)     That the report in itself is contradictory to the records of the respondent department. It is submitted that as per the records of the answering respondents there are about 408 tube-well connections in village Pipaltha and out of the 408 tube-wells, 264 tube-wells are working on low BHP motors. It is pertinent to mention that in the event of the depth of water level being more than 200 ft. the water can be pumped out only by using a motor having capacity of 20 BHP and as per the records of the answering respondent in village Pipaltha only one motor of 20 BHP rating has been installed. As per the earlier survey report in Patwar circle Pipaltha which has two villages namely Pipaltha and Garhi there are 444 tube-wells under 0-100 ft. depth zone and as such the tariff in this category has been made applicable to the village.

g)    That the petitioners have also concealed the fact that they are defaulters with regard to the payment of tube-well bills since long. It is submitted that the petitioners being wrong doer themselves are not entitled to any benefit. It is pertinent to mention that as per the records of the answering respondents an amount of Rs.47.08 lakhs is outstanding against the petitioners as on 31.5.2005. 

4.     In para-wise reply, the respondents have stated  :

4.1   That the contents of this para are denied for want of knowledge. It is submitted that the present petition as a representative petition on behalf of the residents of village Pipaltha, Tehsil Narwana is neither competent nor maintainable. As submitted in preliminary submissions, the Hon’ble High Court had granted leave to the individual consumers to approach this Hon’ble Commission in their individual capacity. In view of the orders passed by Hon’ble High Court, the petition deserves to be returned to the petitioner for filing individual petitions. It is denied that the Sarpanch is competent to file and maintain the present petition.

4.2   That the contents of this para are admitted. The answering respondents were charging tariff for  the tubewells on the basis of survey report of 1998 carried out by the agriculture department making a Patwar circle as a depth zone and further as per Sales Circular No. 14/98 and 15/98. It is pertinent to mention here that vide Memorandum dated 7.10.2004 issued by the Superintending Engineer (Commercial) UHBVNL, the power tariff for agricultural pumping supply has been made uniform irrespective of the depth zones. It is pertinent to mention here that prior to 15.8.2004 the slabs for electricity charges were fixed as mentioned in Sales Circular 14/98. It is further relevant to mention here that earlier, as per the policy, the depth zone was on block level. However, vide Memo. dated 21.1.1999, the depth zone was converted into Patwar Circle level by the answering respondents. It is submitted that there are about 408 tube well connections as per the records of the answering respondents in village Pipaltha and sanctioned load is as below :

                3 BHP         -       4 Nos.
                5 BHP         -      66 Nos.
                   7.5 BHP       -    194 Nos.
                   10 BHP        -      98 Nos.
                   12.5 BHP     -      36 Nos.
                   15 BHP        -       9 Nos.
               20 BHP        -        1 No.
                                    408 Nos.

        From a bare perusal of the above said sanctioned load, the contents of the survey report dated 17.4.2003  are contradicted. The depth of the tubewells does not seem to be as per the survey report, as  264 motors of low BHP (upto 7.5 BHP) are working and as such the present petition and the representations made by the petitioners does not call for any action.

4.3   That the contents of this para so far pertaining to the judicial records are not denied. Rest of the averments made in this para are denied being false. It is submitted that the fresh survey was done by the Agriculture Department as per the directions of Hon’ble High Court, which was never adopted by the Board of Directors of the answering respondents, nor the same was notified by the Government of Haryana. It is submitted that survey  has been carried out only for a single village and as a matter of policy of the answering respondents, it cannot be made basis for charging the power tariff for whole of the State. It is respectfully submitted that as per the policy of the department, the depth zone is the basis for the levy of electricity tariff and as such implementation of the survey report of one village during 2003 will be contrary to the policy of the Government as well as answering respondent. It is further submitted that the said survey has neither been notified by the Government nor the same  has been adopted by the answering respondent. As such, the same cannot be made a basis for fixing the tariff. It is further submitted that the petitioners are defaulters with regard to the payments of the electricity bills and as such they were not entitled for any concessional tariff as per the policy of the Government and Board. It is agreed that the representations were made but since the matter was a policy matter as such decision could not be taken by the SDO without approval from Government of Haryana/Nigam. It could not be implemented by the S.D.O.

4.4   That the contents of this para are admitted to be correct.

4.5      That the contents of this para are denied being false and misconceived. It is submitted that the claim of the petitioners could not be granted in view of the fact that the implementation of the survey report of 2003 will be contrary to the policy under which the concessional tariff was being charged. As a matter of fact the implementation of the survey report of 2003 which has dealt with only one village i.e. Pipaltha cannot  be made basis for the levy of concessional electricity tariff for the pumping sets of other areas in this State. It is submitted that as per the policy, the depth zone is constituted of a Patwar circle and as per the survey of 1998, the Pipaltha Patwar Circle constitutes of two revenue villages i.e. Pipaltha and Garhi and report only pertains to one village. The implementation of the report will mean further classification of power tariffs within a Patwar circle, which is defined as a depth zone as per the policy of the answering respondent and the same would be against the policy framed by the answering respondent and the Government. The answering respondents, as such, were not required to implement survey report of 2003. However, it is submitted that there is no way to verify the information regarding the depth of tube-well except to dismantle the tube-well and measure the depth thereof, and the survey based on re-call method at this stage is only a tutored one as submitted in the preliminary submissions.

4.6   That the contents of this para are denied. It is submitted that the date of order given in the para under reply is vague. However, it is submitted that the order was passed on 11.4.2005 by the Hon’ble High Court in CWP No. 15956 of 2003. The contents of the order are matter of record; however, the present petition in representative capacity is against the spirit of the order passed by the Hon’ble High Court.

        In view of the submissions made herein above, it is, therefore, most respectfully prayed that the present petition merits dismissal and may kindly be dismissed in the interest of justice.

5.      Background of the case prior to filing of the petition before the Commission:

The background of the case and the circumstances which led to the filing of the petition  by the petitioner before the Commission are as under :

5.1   The erstwhile HSEB introduced in 1998 the concept of concessional tariff for agricultural pump sets based on depth of  tube-wells, in deference to a persistent demand of the farmers especially the farmers located  in South Haryana where the water level was low and which used to result in increased input costs to the farmers.

5.2   The  HSEB, vide circular No. 14/98 and 15/98 dated 13.5.1998 fixed  four slabs of electricity tariff for agriculture pump-sets based on depth of tube-wells in feet (upto  100, 101-150, 151-200, above 200). Implementation of above tariff was based on block-wise average depth of tube-wells, compiled by the State Agriculture, Department (which was annexed with the circular No. 14/98).

5.3    Subsequently, the representations were received by HVPNL whereby it was impressed upon that block-wise  average depth of tube-wells did not make a true representation of tube-well depth and should rather be based on smaller unit compared to a block. The HVPNL considered the matter and the CE/Comml., HVPNL vide Memo. No. Ch-95/IR 72 (90)/L/CWP/Vol.-2  dated 21.1.1999, conveyed to S.Es. (Op.) the decision of the Nigam   that the average depth of tube-wells for the purpose of concessional tariff should be  based on Patwar circle as a unit, as per the survey conducted by Department of Agriculture.

       The report of Asstt. Geologist, Ground Water Cell, Jind indicating  Patwar Circle wise  depth of tube-wells was forwarded to Research officer (GWC), Haryana, Chandigarh  with a copy dated 3.11.98 to Dy. Director of Agriculture, Jind. According to this report, 366 and 78  tubewells of village Pipaltha and Garhi are  shown  to have depth upto  100 feet  out of  total 386 and 97  tubewells respectively, for  Pipaltha  Patwar Circle.   

5.4   The petitioners filed a petition No. 4675 of 2003 in the High Court of Panjab and Haryana for conducting fresh survey of water level with respect to tube-wells being used and electricity tariff charged by the Respondent No. 2 (HVPNL). This petition was disposed of on 27.3.2003 with the observation that the Respondent No. 4 (SDO, Department of Agriculture, Narwana, District Jind) would decide the representation by passing a speaking order within 3 months from the date on which a copy of petition together with a copy of the order was served upon him.

5.5   The Director, Agriculture, Haryana vide his letter No. 879/GWC/7D dated 11.6.2003 addressed to the Sub-Divisional Agriculture Officer, Narwana intimated that as per directions dated 27.3.2003 of Hon’ble High Court of Panjab and Haryana, fresh survey of village Pipaltha was carried out by Assistant, Geologist, Jind. He also  supplied to the Sub-Divisional Agriculture Officer, Narwana the detail of number of  electric tube-wells under different depth zones as per survey carried out by the Assistant, Geologist, Jind. He further directed Sub-Divisional Agriculture Officer to send the report to the concerned implementing authority. The report of the survey was forwarded by the Sub-Divisional Agriculture Officer, Narwana vide Endst. No. 813 dated 18.6.2003 to SDO, HSEB Garhi for necessary action. According to this report 345 tube-wells were shown having depth more than 200 feet out of total 408  tube-wells in village Pipaltha.

5.6   Subsequently, the petitioners represented to the respondents no. 1 (MD, UHBVNL) and 3 (SDO ‘OP’,  Dub-Division, Garhi, UHBVNL, Narwana) many times in person for implementation of survey report but the needful was not done. As such, the petitioners, on 9.10.2003,  filed a Civil Writ Petition No. 15956 in the High Court of Panjab and Haryana for directing the respondents to implement the survey conducted by the Director, Agriculture, Haryana, Chandigarh for charging from the petitioners (i.e. the residents of village Pipaltha) the power tariff on the basis of fresh survey report conducted in 2003.

5.7   During the pendancy of the case in the High Court the respondents placed before the Hon’ble High Court a copy of the Memo. dated 7.10.2004, issued by Superintending Engineer, UHBVN setting out  the power tariff for agricultural pumping (AP) supply (abolishing the slabs based on depth of tube-wells), effective from 15.8.2004. The Counsel for the petitioners agreed that in  view of above, the grievance of the petitioners stood redressed w.e.f. the date of revised order. He, however, submitted that the petitioners were entitled to some relief for the past period for which he sought permission of the Hon’ble High Court to approach Haryana Electricity Regulatory Commission.

5.8   In view of the submission made by the petitioners the Hon’ble High Court disposed of the writ petition with leave to individual consumers to make appropriate representation to the said Commission. The Hon’ble High Court also expressed its confidence that in case any representation was made within a month from  the date of the order the same shall be considered in its correct  perspective keeping in view the revised rates of tariff fixed in terms of memorandum dated 7.10.2004.

6.     In their preliminary submission, the respondents  raised the  point that the Hon’ble High Court in its orders dated 11.4.2005 had granted leave to the individual consumers to approach this Hon’ble Commission, as such, the present petition filed by Sh. Tehal Singh,  Sarpanch of village Pipaltha, as a representative petition on behalf of the residents of village Pipaltha, Tehsil Narwana, was not maintainable. The Commission considered this aspect  in view of the an affidavit submitted by the  Sarpanch of the village Pipaltha stating that the applicants in the above matter have duly authorized him to make the affidavit before the Commission and  a copy of the  resolution dated 8.5.2005, passed by the Gram Panchayat of village Pipaltha  and attested by the Sarpanch, authorizing Sh. Tehal Singh, Sarpanch to file the petition before HERC, with regard to matter relating to refund of amount deposited by the residents of village Pipaltha. Since the grievance of the petitioners and cause of action was same in all the cases, as such, it was considered appropriate by the Commission to entertain the petition of all the petitioners through the Sarpanch of the Gram Panchayat, Pipaltha, as had earlier been done by the Hon’ble High Court of Punjab and Haryana in respect of the similar matter  for which the above cited order had been passed.

7.     The  hearing of the case was fixed for 6.9.2005, but the same could not be conducted as Sh. Tehal Singh, Sarpanch, Village Pipaltha,  Tehsil Narwana, Distt. Jind (Haryana)  was not present in person for pleading the  case  and the representatives  from village Pipaltha who came to attend the hearing on his behalf  did not have the requisite authority. As such, the Commission decided to postpone the hearing and the new date of hearing was fixed as 11.10.2005. The Commission also observed that the data on defaulting amount of  petitioners, supplied by the respondents with their reply dated 29.6.2005, was not complete as the date of default of the amount was not mentioned which was essential for the analysis of the case. The Commission,  therefore, directed the respondents to supply the detail of the defaulting amount against each petitioner of village Pipaltha alongwith the date of default  by 25.9.2005. The requisite information was not supplied by the respondents   within stipulate period, as such, the Commission directed the respondents, on 6.10.2005 to file the desired information by 7.10.2005 positively so that the staff of the Commission could analyse the  same before the next hearing. The desired  reply of the respondents dated 6.10.2005 was received in the Commission  on 7.10.2005.  As scheduled, the hearing of the case was held on 11.10.2005.

8.      COMMISSION’S VIEW AND ORDER

After going through the record and hearing the petitioner as well as respondents,  on the issue of refunding the amount deposited by the residents of village Pipaltha, Distt. Jind,  Haryana, with the respondents, in respect of  the electricity bills,  the Commission observes as under :  

8.1   The main features of the Sales Circulars No. 14/98 dated 13.5.98 issued by the erstwhile HSEB  vide which slab-wise concessional tariff (Annexure-I of the circular), depending on block-wise average depth of tube-wells, based on data compiled by the State Agriculture Department, was introduced  for the Agriculture Pumping Supply Consumers (modified subsequently by HVPNL to patwar circle-wise average depth of tube-wells vide Memo. No. Ch-95/IR-72(90) L/CWP/Vol.-2  dated  21.1.99) and according to which relief is claimed by the petitioners, are as under :

        ‘The concessional  tariff, as notified above was applicable to  those consumers who fulfilled the following conditions:

a)         The outstanding electricity bills (all bills whose payment was due and which have not been paid upto 30.4.1998 will be considered as outstanding) for both domestic and agriculture connections are paid in four, equal quarterly installments. The first quarterly payment will have to be deposited on or before 30.6.1998. The subsequent quarterly installments will be due for payment by September 30, 1998; December 31, 1998 and March 31, 1999.

b)          In case of those domestic and agriculture consumers who fulfill the condition at (a) above, the delayed payment surcharge levied on the outstanding bills during the period 1.1.1994 to 30.4.1998 will be waived off. However, the final adjustment of surcharge will be done after 31.3.1999 when all the outstanding dues have been paid.

c)          The above concessions would be admissible only in case the consumer ensures regular and timely payment of the current electricity bill. Bills falling due in May 1998 and thereafter for agriculture and domestic consumers, are to be treated as current bills.

        Any default in payment of the quarterly installments or current bills due to any reason whatsoever, would result in withdrawal of the concessions declared above and the consumers will have to pay their electricity bills for agricultural pumping supply on normal tariff.’

8.2   The study of the petition filed before the Commission, with reference to the stipulations of the Sales Circular 14/98, reveals that :

i)          The implementation of slab-wise concessional tariff was specifically with reference to the patwar circle-wise data of  depth of tube-wells obtained in the year 1998, from the State Agriculture Department. No provision was made in the above referred circular  for  re-assessment,  in future, of the depth of tube-wells in the State, and corresponding revision of tariff, despite every likelihood of some variation in the depth of sub-soil water with the passage of time and manner of use. However, in the present case the survey was conducted by the Agriculture Department in 2003, with reference to the directive of the Hon’ble High Court of  Panjab and Haryana, but  the  Respondent No. 4 (SDO, Department of Agriculture, Narwana, District Jind) did not  decide the representation by passing a speaking order, as was directed by the Hon’ble High Court of  Panjab and Haryana.

ii)     The smallest basic unit of area for determination of average depth of tube-wells for implementation of slab-wise tariff was adopted as a Patwar-circle, while the survey conducted by the Agriculture Department in the year 2003, with reference to the directive of the Hon’ble High Court of  Panjab and Haryana, pertains only to village Pipaltha,  which is a smaller unit of area than the relavant Patwar Circle which comprises village Pipaltha and Garhi.

iii)    The above concessions were admissible only in case the consumers who ensured regular and timely payment of bills falling due upto 30.4.1998  and thereafter, for agriculture and domestic consumption. As per the above referred circulars, any default in payment  due to any reason whatsoever, would have resulted in withdrawal of concessions  and the consumers would have to pay for agricultural  pumping supply on normal tariff.  As per the detail supplied by the  respondents  to the Commission, most of the  petitioners  are defaulters with regard to the payments of the electricity bills. The study of the detail of defaulters supplied to the Commission by the respondents reveals that, in all, there were 383 defaulter consumers of tube-well connections of village Pipaltha in respect of  ‘OP’  Sub-division, UHBVN, Garhi, ending 31.12.2003, out of which about  50% of the defaulters  pertained to year 2003 and the balance  became defaulters during the year 2001 and 2002.

iv)    The report of fresh survey conducted by the Agriculture Deptt., Haryana  as per directive dated 27.3.2003, of Hon’ble High Court of  Panjab and Haryana,  states that  345 pump-sets out of total 408 pump-sets of village Pipaltha are in the depth zone of more than 200 feet. However, the scrutiny of this report  reveals that though total depth  of bore for 345 pump-sets has been shown more than  200 feet yet the  position of pumps (majority of them submersible type) is in depth zone indicated below :

        Since submersible motor pump  sets   run submerged in water,  and most of the centrifugal pumps are shown to have depth much less than 100 feet, the  sub-soil water level for all  the pump-sets in village Pipaltha is certainly  less than 150 feet. Hence, the report of Agriculture Deptt., Haryana  indicating that the 345 tube-wells (out of total 408 tube-wells) are having depth more than 200 ft. gets contradicted from the detailed data given in this report itself.

8.3   In view of the facts brought out in para 8.1 and  8.2 above, the Commission dismisses the petition of Gram Panchayat Pipaltha, Tehsil Narwana, Distt. Jind, filed through its Sarpanch  Sh. Tehal Singh and decides  that no refund becomes payable from the amount already charged from the agriculture pump-set consumers of village Pipaltha for the period  17.4.2003 to 15.8.2004 as prayed in the petition,  on account of fresh survey conducted in the year, 2003, in respect of depth of tube-wells, by the Agriculture Department, Haryana.

       This order is signed, dated and issued by the Haryana Electricity Regulatory Commission on 19th December, 2005.