Allahabad High Court
Islam vs State Of U.P. And 4 Others on 24 June, 2013
Bench: Sunil Ambwani, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 32
Case :- WRIT - C No. - 33773 of 2013
Petitioner :- Islam
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- O.P. Gupta
Counsel for Respondent :- C.S.C.,Nripendra Mishra
Hon'ble Sunil Ambwani,J.
Hon'ble Surya Prakash Kesarwani,J.
We have heard Shri Om Prakash Gupta, learned counsel for the petitioner. Learned Standing Counsel appears for respondent nos.1, 4 and 5. Shri Nripendra Mishra appears for respondent nos.2 and 3.
The petitioner is a farmer and a consumer of electricity for running a tube well for which he has a valid electricity connection with sanctioned load of 7.5 HP. He is regularly paying his bills. On 15.1.2012 in a surprise inspection made in respect of four farmers including the petitioner in which it was found that the petitioner was using his electricity connection for running 'kolhu' unauthorisedly for crushing sugarcane by using a cable on the LT line. A provisional assessment was made and was sent to the petitioner to which the petitioner filed his objections.
In his objections dated 25.1.2012 the petitioner submitted that a false report has been generated against him. He is using electricity for authorised purposes. There is no electricity line or any electricity pole in or around the petitioner's residential premise or on his agricultural land. The electricity connection sanctioned to the petitioner authorises him to use it for agricultural purposes and which includes 'kolhu' and thrasher. He has relied upon an order passed by the General Manager, Paschimanchal Vidyut Vitran Nigam Ltd. dated 11th November, 2005 in which it is clarified that a farmer may use the private tube well connection sanctioned to him for the purposes of running 'kolhu' and 'kutti machine' and that no action may be taken, if he uses the authorised connection for tube well for agricultural purposes on the sanctioned load for 'kolhu' or 'kutti machine'. The order clarifies that in case a farmer uses the electricity connection for a load higher than the sanctioned load and installs second meter, action may be taken against him in accordance with law.
Shri Nripendra Mishra was required to seek instructions in the matter. He has produced an order of final assessment dated 25th June, 2012 in which the Executive Engineer has recorded finding that on 15.1.2012, on checking of the sanctioned connection no.5301/038149, a 'kolhu' was found crushing sugarcane. He has thereafter observed that under the Rules the use of the electricity for 'kolhu' will fall in the commercial category and accordingly the assessment was made. The Executive Engineer has further observed that if the petitioner was using sanctioned electricity load for running 'kolhu' for crushing sugarcane produced by him, he could have produced sufficient proof, which was not made available and thus checking report dated 15.1.2012 was found to be correct. The representation was accordingly rejected.
We find that though the petitioner has right to file an appeal under Section 127 of the Electricity Act, the orders passed by the Managing Director of the Paschimanchal Vidyut Vitran Nigam Ltd. dated 11th November, 2005 authorises the farmers to use the sanctioned load for running 'kutti machine' and 'kolhu', which is ancillary use of the electricity for agricultural purposes. The order does not specifically state that the ancillary use of the electricity connection by the farmer would amount to use of electricity for commercial purposes, unless he uses it for running machines with higher load than the sanctioned load and/or installs a second meter.
In the present case we find that in the first information report as well as the final assessment order there is no allegations against the petitioner that he was using the sanctioned load for crushing sugarcane for other farmers or for hire or for any commercial purposes. In case of allegation of theft the burden lies upon the person, who alleges that the electricity connection was used for commercial purposes to prove the fact. In such case the farmer is not required to produce any evidence in his defence. We also find that in the checking report the petitioner was not found using the load over and above the sanctioned load, or had installed a second meter.
For the aforesaid reasons, we are of the view that the action taken against the petitioner in lodging first information report of theft and in making provisional and thereafter final assessment was illegal and contrary to the policy of the department as spelt out in the letter of the Managing Director of the Paschimanchal Vidyut Vitran Nigam Ltd. The counsel appearing for respondent has not placed reliance on any provision of UP Electricity Supply Code, 2005, which could have authorised the department to take action against the petitioner on the ancillary use of the electricity connection within permissible sanctioned load for running 'kolhu' (crusher), for crushing sugarcane grown by him.
The writ petition is allowed. The impugned orders are quashed.
Order Date :- 24.6.2013/SP/
