Madhya Pradesh High Court
The Deputy General Manager (B.I. Cell) ... vs M/S Sterling Agro Industries Limited ... on 12 April, 2019
THE HIGH COURT OF MADHYA PRADESH
WA.434.2019
The Dy. General Manager (B.I. Cell), MPMKVVCL & Anr.
Vs.
M/s Sterling Agro Industries Limited, Morena (MP)
1
Gwalior, Dated:- 12.04.2019
Shri Vivek Jain, learned counsel for the appellants.
Shri T.C. Singhal, learned counsel for respondent.
This appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 07.12.2018 passed in WP.22907/2018 which in turn was against the order dated 23/07/2018 passed by the Appellate Authority under Section 127 Electricity Act, 2003 (for brevity "Act"); whereby, an order dated 25/07/2017 passed by the Assistant Engineer (Vigilance) was set aside. That the order dated 25.07.2017 emanated from the objection raised by the respondent against holding them liable under Section 126(1) of the Act.
The relevant facts briefly are that, respondent owns a milk chilling and collection centre situated at AB Road, Morena (M.P.). It obtained electricity connection from the appellants for 100 KVA energy on high tension 33 KV line in the year 2007-08. The connection was billed at tariff category HV 3.1 i.e. HT Industrial. In 2013, respondent moved an application for converting of tariff category to HV 5.2 with a request for load enhancement to 150 KVA. Be it noted that Tariff Sch. HV 3 deals with industrial and non- industrial consumers. Whereas HV 5 has two plans, i.e. HV 5.1 tariff category applicable to lift irrigation schemes, group irrigation, public THE HIGH COURT OF MADHYA PRADESH WA.434.2019 The Dy. General Manager (B.I. Cell), MPMKVVCL & Anr.
Vs. M/s Sterling Agro Industries Limited, Morena (MP) 2 utility, water supply schemes, sewage treatment plants/sewage pumping plants and for energy used in lighting pump house. Whereas tariff category HV 5.2 applies to supply of power to other than agriculture pump connections i.e. the connection for hatcheries, fisheries, ponds, poultry farms, cattle breeding farms, grasslands, vegetables/fruits/floriculture, mushroom growing units etc. and dairy (for those dairy units where only extraction of milk and its processing such as chilling, pasteurization etc. is done). In other words, where milk is processed to produce other end products of milk, the billing is as per HV 3.1 category i.e. industrial category.
On 20.06.2017, surprise inspection was carried out by the vigilance team, which on the basis of 500 crates used for freezing water found in the premises observed that, a ice factory is being operated in the premises. Discarding the explanation given that the ice was manufactured for the purpose to chill milk which is collected from the farmers and sometimes supplied free of cost for social purpose demanded by the administrative authorities, the team recorded the finding that the consumer was indulged in commercial manufacturing of ice, accordingly found unauthorized use of energy. The billing was raised under Section 126 of the Act amounting to Rs.1,59,45,249/-.
An objection raised by the consumer was rejected by order THE HIGH COURT OF MADHYA PRADESH WA.434.2019 The Dy. General Manager (B.I. Cell), MPMKVVCL & Anr.
Vs. M/s Sterling Agro Industries Limited, Morena (MP) 3 dated 25.07.2017. In an appeal under Section 127 of the Act the Appellate Authority set aside the order on the finding that the Electricity Company failed to establish that the ice was manufactured for commercial purpose. It found that the material on record reflected and established that the ice manufacturing unit existed since 2008, i.e; even before when the tariff rate HV 5.2 was sought in the year 2013. The ice slabs manufactured were used for cooling milk during collection from the farmers. Though a crude method of keeping milk chilled before it is put through Brine Tank Agitator. Consequently, the appeal was allowed by order dated 23.07.2018 which was subjected to challenge in Writ Petition No.22907/2018.
Learned Single Judge vide impugned order upheld the appellate order, holding:
"It is an admitted position, as has been discussed by the appellate authority, that there is no evidence on record of respondent Unit selling ice. There is also no evidence that any other end product of milk is being produced by the respondent unit and therefore once there is a finding of fact that production of ice is ancillary to the aim and object of the unit i.e. chilling the milk, then such process can not be faulted with, with industrial production of ice for commercial purpose of sale.
Learned counsel for the petitioners submits that since ice is being produced which is not a purpose ancillary to chilling of the milk and chilling process is different, the impugned order deserves to be set aside.
The fact of the matter is that the petitioners have not been able to dispute that in given tropical condition, collection of THE HIGH COURT OF MADHYA PRADESH WA.434.2019 The Dy. General Manager (B.I. Cell), MPMKVVCL & Anr.
Vs. M/s Sterling Agro Industries Limited, Morena (MP) 4 milk does not require chilling of the milk from the point of collection to the point of pasteurization and therefore in the absence of any evidence that ice is being sold in open market, this court is of the opinion that production of ice being ancillary to the purpose of chilling of the milk and its collection, which is ancillary to the use prescribed under Tariff HV-5.2, no fault can be attributed to the impugned order (Annexure P/1) and therefore petition fails and is dismissed."
Considered rival submissions.
Evident it is from the project report that the unit in question is a milk-chilling centre with following plant and machinery with respective capacity:
Sr.N. Particulars Capacity. Nos. Amount (In Lacs)
1. Ice Plant 15 Ton 1 20.00
2. Storage Tanks 20 Ton 3 9.00
3. Plate Chiller 20 MT/Hr 1 3.00
4. Milk Pumps 20 MT/Hr 3 0.75
5. Brine Pumps 60 MT/Hr 2 0.30
6. Dump Tank 1500 Ltrs. 1 0.30
7. Weighing Machine 500 Ltrs. 1 1.20
8. Gen. set 160 KVA 1 6.00
9. Pipe Lines & Valve Fittings 62 mm size 1 1.20
10. Electrical Installations Lump Sum - 1.00
11. Lab Equipments Lump Sum - 0.80
12. Hose Pipes Lump Sum - 0.45
13. Furniture & Fixtures 1 Set 1 1.00
14. Computer with Printer - 1 0.50 Total 45.50 Further with the request made by the consumer on 27.05.2013 for enhancement of load and for conversion from tariff Sch. HV 3.1 to THE HIGH COURT OF MADHYA PRADESH WA.434.2019 The Dy. General Manager (B.I. Cell), MPMKVVCL & Anr.
Vs. M/s Sterling Agro Industries Limited, Morena (MP) 5 HV 5.2 the consumer disclosed the list of Plant and Machinery:
Sr. Particulars LOAD IN NOS Load at on
No. H.P. time
Option-I Option-II
1 KC-4 100 1 100
2 KC-3 75 1 75
3 BRINE TANK AGITATOR 1 7.5 1 7.5
4 BRINE TANK AGITATOR 2 7.5 1 7.5
5 CONDENSOR PUMP 1 10 1 10
6 CONDENSOR PUMP 2 7.5 1 7.5
7 ETP PUMP 1 3 1 3 3
8 ETP PUMP 2 3 1 3 3
9 ETP PUMP 3 3 1 3 3
10 MILK PUMP CHILLER 1 5 1 5 5
11 MILK PUMP CHILLER 2 5 1 5 5
12 MILK PUMP UNLOADING 5 1 5 5
1
13 MILK PUMP LOADING 1 5 1 5 5
14 BRINE WATER PUMP 7.5 1 7.5 7.5
CHILLER 1
15 BRINE WATER PUMP 7.5 1 7.5 7.5
CHILLER 2
16 SUMMERCIBLE WATER 5 1 5 5
PUMP
TOTAL 256.5 16 166.5 139
Add: Office & Lighting Load 3.5 3.5 3.5
Total connected load 260 170 142.5
Average Load required 55% 85% 90%
Connected Load required 143 144.5 128.25
Revised connected load 150 150 150
applied
Thus, it appears that the Milk-Chilling Unit underwent upgrading. However, the ice plant, it appears, continues to exist and the ice so produced has been used for chilling milk collected from the THE HIGH COURT OF MADHYA PRADESH WA.434.2019 The Dy. General Manager (B.I. Cell), MPMKVVCL & Anr.
Vs. M/s Sterling Agro Industries Limited, Morena (MP) 6 farmers, not by mixing it with milk but by putting milk containers over the ice slabs carried in the collection vehicle. It appears from the record that the inspection team which carried out the inspection on 20.06.2017 was carried away by 500 ice crates in the premises and drew the presumption of commercial manufacturing of ice, without collecting any cogent material to substantiate the presumption.
No cogent material has been commended at by the appellants before the Appellate Authority, before Writ Court and even before us as would substantiate the allegation that the commercial production of ice is undertaken by the respondent.
In view whereof, we do not perceive any error of judgment in the impugned order as would warrant an indulgence.
Consequently, appeal fails and is dismissed. No costs.
(Sanjay Yadav) (Rajeev Kumar Shrivastava)
Judge Judge
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PAWAN
DHARKAR
2019.04.17
13:34:31
-07'00'