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Official Citation: 2025 LHC 3958
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-04-30
Parties: LESCO through its Chief Executive Officer, Lahore etc vs M/s. Exporient Knitters (Pvt.) Ltd. etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-04-30, officially reported as 2025 LHC 3958. In this matter between LESCO through its Chief Executive Officer, Lahore etc and M/s. Exporient Knitters (Pvt.) Ltd. etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025LHC3958
Court Name: Lahore High Court Judge(s): Abid Aziz Sheikh, Shams Mehmood Mirza, Khalid Ishaq Title:LESCO through its Chief Executive Officer, Lahore etc vs M/s. Exporient
Knitters (Pvt.) Ltd. etc Case No.: W.P. No. 40246 of 2016 Date of Judgment:2025-04-30 Reported As: 2025 LHC 3958 Result: Order Accordingly Judgment
JUDGEMENT KHALID ISHAQ, J. This judgment shall decide the following question, which requires determination for decision in this and all connected petitions listed before this Bench today, mentioned in 'Schedule-A' attached herewith. Whether the statutory limitation of 90 days under section 26(6) of the Electricity Act, 1910 (Electricity Act), for decision of an application, continues to remain in force despite promulgation of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act) ? For the purpose of determination of the above question, the facts of case in hand shall suffice. 2. Respondent No.1 is a Consumer of Lahore Electric Supply Company Limited (LESCO) having B- 2a(10) (Industrial) Tariff with 241KW sanctioned load. The electricity meter installed at the premises of the Consumer was checked at site on 12.06.2012 by the Standing Committee of LESCO. Certain discrepancies were detected, leading to issuance of a demand notice No. 4926 dated 27.07.2012 to the Consumer on account of 33% slowness of the metering equipment. This formed the basis for issuance of detection bill amounting to Rs.35,58,470/- against 406613 net-chargeable KWH Units for the period from March, 2011 to May, 2012 (15 months). On 30.05.2013, the Consumer challenged the issuance of detection bill by filing an application under section 26(6) & 24(2) of the Electricity Act, read with section 38 of NEPRA Act before respondent No.2 (Provincial Office of Inspection/Electric Inspector). Petitioner/LESCO joined the proceedings by filing its contesting reply. During the proceedings before respondent No.2, the metering equipment was rechecked on
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17.06.2013 by the representative of respondent No.2 in presence of both the parties and the same was found 33.39% slower instead of 33% detected earlier. Respondent No.2 handed down its decision dated 22.10.2013, which decision was assailed by the Consumer by way of filing an appeal under section 38 of the NEPRA Act before the National Electric Power Regulatory Authority (NEPRA). The appeal filed by the consumer was decided by NEPRA on 13.10.2014 (Impugned Order) whereby the decision of respondent No.2 was modified in the terms that the slowness of the meter was charged for six (06) months instead of fifteen (15) months. The Impugned Order has been assailed before this Court by filing the Constitutional Petition in hand. 3. This petition as well as connected petitions, raise multiple grounds of attack but the common ground in all such petitions necessitates determination of the above question, which is premised on the submission that since the Impugned Order has been passed beyond the statutory period of 90 days, as mandated by section 26(6) of Electricity Act, therefore, the same is inconsequential as respondent No.3/NEPRA had become functus officio, thus any/all order(s) passed by NEPRA beyond 90 days' statutory period are thus statute barred. 4. Conversely, the Consumer(s) as well as NEPRA have taken the stance that the requirement to decide the matter within 90 days under section 26(6) of the Electricity Act is no more applicable as the Impugned Order(s) has been passed by NEPRA while assuming and exercising jurisdiction under section 38 of the NEPRA Act, which provision does not carry any such statutory limitation of 90 days. 5. This and connected petitions were taken up for hearing on 30.11.2017 by the learned Single Judge in Chambers and while considering the conflicting views by learned Single Benches of this Court in the cases reported as FESCO through Chief Executive Officer and 3 others v. AL-MURTAZA COTTON FACTORY, through Director and 2 others (PLJ 2015 Lahore 470 = 2015 MLD 1307) and FAISALABAD ELECTRIC SUPPLY COMPANY through Director v. MUHAMMAD JAMIL and 6 others (PLJ 2017 Lahore 309), this particular matter was referred to the Hon'ble Chief Justice for constitution of a Larger Bench of this Court for finally setting the controversy at rest, in the light of law laid down by the Supreme Court of Pakistan in case titled as MULTILINE ASSOCIATES v. ARDESHIR COWASJEE and 2 others (1995 SCMR 362). 6. It was in these circumstances that this Full Bench was constituted and the question framed above was posed for determination. 7. We have heard the learned counsels for the parties and perused the available record with their able assistance. 8. For convenience, relevant provisions i.e. section 26(6) of Electricity Act and section 38 of the NEPRA Act are reproduced herein below: Section 26(6) of Electricity Act Where any difference or dispute arises between a licensee and a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct the matter shall be decided, upon the application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties an opportunity of being heard, and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of an Electric Inspector, ceased to be correct, the Electric Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time as the meter, indicator or apparatus has not, in the opinion of the Electric Inspector, been correct; and where the Electric Inspector, fails to decide the matter of difference or dispute within the said period or where either the licensee of the consumer decline to accept the decision of the Electric Inspector, the matter shall be referred to the Provincial Government whose decision shall be final:
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Provided that, before either a licensee or a consumer applies to the Electric Inspector under this sub-section, he shall give to the other party not less than seven days' notice of this intention to do so. [Emphasis Supplied] Section 38 of NEPRA Act 38. Provincial offices of inspection. -- (1) Each Provincial Government shall-- (a) establish offices of inspection that shall be empowered to-- (i) enforce compliance with distribution companies' instructions respecting metering, billing, electricity consumption charges and decision of cases of theft of energy; and (ii) make determination in respect of disputes over metering, billing and collection of tariff and such powers may be conferred on the Electric Inspectors appointed by the Provincial Government under section 36 of the Electricity Act, 1910 (Act IX of 1910), exercisable, in addition to their duties under the said Act. (b) Establish procedures whereby distribution companies and consumers may bring violations of the instructions in respect of metering, billing and collection of tariff and other connected matters before the office of inspection; and (c) Enforce penalties determined, by the Provincial Government for any such violation. (2) .......................................... (3) Any person aggrieved by any decision or order of the Provincial Office of Inspection may, within thirty days of the receipt of the order, prefer an appeal to the Authority in the prescribed manner and the Authority shall decide such appeal within sixty days. [Emphasis Supplied] 9. There is an important aspect in this case, which tend to settle the controversy at naught. The determination of the question posed above requires resolution of an incidental issue i.e. whether the jurisdiction being invoked by Consumer(s) was exercised by the Electric Inspector under section 26(2) of the Electricity Act or by the Provincial Office of Inspection (POI) under section 38(1) (a) of NEPRA Act? To answer this, we considered the legislative domain and competence viz the subject in hand. It is unequivocally settled that prior to the Eighteenth Constitutional Amendment by virtue of Constitution (Eighteenth Amdt.) Act, 2010 (X of 2010) (18th Amendment), the 'Electricity' was placed in the Concurrent Legislative List and this was the precise reason which allowed the final decisions of representation(s) by the Provincial Government, if a party was dissatisfied of the decision of the Electric Inspector. It was due to such legislative competence and domain that the Electric Inspectors were appointed by the Provincial Government under the Electricity Act and the matters were decided by the Provincial Government in exercise of its powers and legislative domain under the Concurrent Legislative List. However, owing to the sea change brought about by 18th Amendment, the Concurrent Legislative List was done away with and consequently the 'Electricity' was placed at Entry 4, Part II of the 4th Schedule of the Constitution of Islamic Republic of Pakistan (Constitution). As is evident, the 'Electricity' is now exclusively a Federal subject, therefore, as a natural corollary, the jurisdiction, which was previously exercised by the Electric Inspector, at least to the extent of disputes of metering, billing and collection of tariffs etc., is now dealt with by 'POI' as mandated by section 38(1)(a) of the NEPRA Act and not under the Electricity Act. This mandate of law was given effect to in Punjab by promulgation of Punjab (Establishment and Powers of Office of Inspection) Order, 2005 by virtue of notification dated 19.04.2005 (the "Notification") issued under section 38(1)(a) of the NEPRA Act. It is also pertinent to note that letter dated 17.03.2005 addressed by the Irrigation and Power Department, Government of the Punjab to the Chairman NEPRA makes it plain that Notification No. SO(Power)(I&P)21-1/92 dated 09.09.1998 was issued pursuant to the powers vested in the Provincial Government under Section 38 of the NEPRA Act "...whereby Regional Electric Inspectors were declared Provincial Offices of Inspection". As
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the said notification erroneously directed for resolution of dispute within a period of 90 days, the Irrigation and Power Department issued another Notification dated 17.03.2005 clarifying the issue that there was no such requirement under Section 38 of the NEPRA Act for determining the dispute over metering, billing and collection of tariffs. This unambiguous position is further reflected from the bare perusal of the order passed by respondent No.2 in this case, which would reflect that the same has been passed by POI under the NEPRA Act and not by the Electric Inspector under the Electricity Act. Classification: 'general' and 'special' Statutes: 9. This brings us to the pivotal question that in case of clear conflict in the provisions of these two enactments, which of the two will prevail as it is a settled law that "special" overrides the "general" and general law is derogated from, by a special law[1]. This principle is of particular application where a general law and a special law are in apparent conflict with each other. To resolve this, we need to determine as to whether both these enactments are special or general or either of the two is a special law or general law. The distinction between general and special statues is often a difficult question to resolve. The classification has to be made by considering the context of the case and subject matter of the statute[2]. It is predominately defined as 'Classification by Subject- Matter & Classification by Object'. There are two classification eras for the statues i.e. 'old classification' & 'modern classification'. The medieval judges seem to have roughly divided the statutes into general and special, and to have decided, as to the first class, that they would notice them judicially in the same way as they noticed the common law or custom of the realm which the statutes declared or altered, and, as to the second class, that they would treat them, like local customs, as exceptions on the general law requiring special proof. This led to the second classification, into public and general as distinguished from private and special, which was thrown into confusion by the practice introduced in the eighteenth century of inserting in special Acts a clause requiring them to be deemed public. The classification of Acts into general Acts and local and personal Acts is a classification of Acts according to the extent of their operation. Bowen L.J., thus described the difference between general Acts and local and personal Acts: "A general Act prima facie is that which applies to the whole community. In the natural meaning of the term it means an Act of Parliament which is unlimited both in its area and as regards the individual in its effect. And as opposed to that you get statutes which may well be public because of the importance of the subjects with which they deal and their general interest to the community, but which are limited in respect of area-a limitation which makes them local - or limited in respect of individuals or persons, - a limitation which makes them personal." "General" he says further, is opposed to "local and personal"; and the division, therefore, lies between public general Acts on the one side, and public, local and personal Acts on the other[3]. It is not well defined but it is recognised by enlarge that a law applicable to a locality or to a class of cases or individuals is a special law as distinguished from a general law which applies to the whole community[4]. Statutes may be classified with reference to; the time when the Acts were passed; their extent; their contents or subject matter; their object; their method; and their duration. Statutes have been classified with different nomenclature. It is sometime assumed that the rules of interpretation differ according to the class under which the statute falls. A law is a general one when it relates to persons, entities or things as a class, or operates equally or alike upon all of a class omitting no person, entity, or thing belonging to a class. On the other hand, the special act relates to a particular class of person or things of a class. Otherwise, it partakes the qualities of a general law being unlimited in time and perpetual till validly repealed[5]. Acts that can be classed as general acts from one point of view may also be treated as special from another. Considering the foregoing the Electricity Act and NEPRA Act, though both have trappings of general law but since the subject being dealt with under these enactments is exclusively that of Electricity, Consumers
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and Generation/Distribution Companies, therefore, the consensus which emerges is that both these laws are special laws but there is clearly a repugnancy element in both the provisions, which requires determination as to which of the two will prevail. Tests of Repugnancy or Inconsistency: 11. The tests applied for determining repugnancy are also well defined. It should be seen; "(i) whether there is direct conflict between the two provisions; (ii) whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law; (iii) whether the two laws occupy the same field. It is too narrow a test to say that two laws cannot be said to be properly repugnant unless there is direct conflict between them, as when one says 'do' and the other says 'don't'. There may well be cases of repugnancy where both laws say 'don't' but in different ways. The true test is that if the dominant law has expressly or impliedly evidences its intention to cover the whole field[6]. Inconsistency of two statutes or provisions: 12. It is one of the cardinal principles of interpretation that a statute should be interpreted in such a manner which may avoid collision with other provisions or statutes. The language of every enactment must be construed so far as possible in accordance with the terms of every other statute which it does not, in express terms, modify or repeal. The law, therefore, will not allow the revocation or alternation of a statute by construction when the words may be capable of proper operation without it[7]. There is an overwhelming consensus in most of the jurisdictions of the world that a later special law may abrogate a prior special law by express repeal or by making provisions, which are inconsistent with it[8]. Since the inconsistency between the relevant provisions of both enactments viz 'the period of 90 days for decision' is evident, therefore, the same requires a determination. Considering the foregoing, it is apparent that Section 38 of the NEPRA Act, being later in time, it lays down an exhaustive code viz the same subject matter of earlier law i.e. Electricity Act and occupies the same field, therefore, it impliedly repealed the relevant requirement of decision within 90 days, as was envisaged under the Electricity Act. On the touchstone of the subject matter test, NEPRA Act though covers most of the subjects to which the Electricity Act applies, however, it is more expansive in nature and there are certain admitted overlapping(s) as well as conflicting provisions in effect, even if not ostensibly so, in both statues e.g. the one in hand. Section 26(6) of the Electricity Act by its terms is limited to the inquiry by the electric inspector for determining the dispute between the licensee and the consumer regarding the correctness or otherwise of the meter, maximum demand indicator or other measuring apparatus. Section 38 of the NEPRA Act in comparison has a much wider scope. The powers given to POI can be placed in two categories. The first is to enforce compliance with distribution companies' instructions in respect of metering, billing electricity, the POI is authorized to make determination in respect of disputes over the metering, billing and collection of tariffs[9]. Section 38 provides the aggrieved person the right to file an appeal before NEPRA against any decision or order of the POI. Similarly, both are federal enactments but NEPRA Act is later in time, however, it has not explicitly repealed the Electricity Act or any of its provisions, nor there are any non-obstante clauses in the provisions relevant for the purpose of this opinion i.e. Section 26(6), Electricity Act and Section 38, NEPRA Act. While making determination of the question involved in this case, section 45 of NEPRA Act is of significance, which stipulates that the Provisions of NEPRA Act, rules or regulations made and licenses issued thereunder shall have effect notwithstanding anything to the contrary contained in any other law rule or regulation, for the time being in force and any such law, rule or regulation shall, to the extent of any inconsistency, ceases to have any effect from the date when NEPRA Act comes into force and the NEPRA shall, subject to the provisions of the NEPRA Act, be exclusively empowered to determine rates, charges and other terms and conditions for electric power
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services. This overriding clause grants precedence to the provisions of NEPRA Act over that of Electricity Act. Irreconcilable statutes or provisions: 13. In a conceivable case, the very existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability, if the later set of provisions is, by itself, a complete code with respect to the same matter. In such a case, the actual detailed comparison of the two sets of provisions may not be necessary[10]. One part is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together[11]. A subsequent statute may expressly repeal the inconsistent provisions of an earlier Act. Where, however, the later Act does not expressly contain words to that effect but the two sets of provisions contained in the two enactments are destructive of each other, the provisions in the later Act shall prevail and the Court would treat the earlier provisions as repealed by implication. The law does not favour repeal by implication and the Courts construe the provisions of the Act strictly in this respect. The cardinal principle is that the enacting saving clauses and the proviso should be construed together so as to find out the real intention of the legislature. However, if the provisions of the two enactments are irreconcilable to each other, the rule is that the last must prevail. According to Antonin Scalia and Bryan A. Garner, "It is a principle of statutory construction that a later enacted statute that contradicts an earlier one effectively repeals it. The legislatures are often-despite the presumption to the contrary-unfamiliar with enactments of their predecessors"[12]. While dispelling the presumption that the legislature is aware of the earlier enactment, they have summed up the issue in the words: "We doubt that. The legislative omniscience assumed by this explanation is fanciful. What is not fanciful is the need for a code of laws whose application-or at least whose very existence is clear. A doctrine of readily implied repealer would repeatedly place earlier enactments in doubt[13]". What if the earlier ambiguous provision has already been construed by the jurisdiction's Apex Court to have a meaning that does not fit as well with a later statute as another meaning? Scalia & Garner are of the view, and we tend to ascribe to that view in this opinion: "that even stare decisis is not an insuperable obstacle to giving effect to the implication of the later statute; it is, after all, a new total law (or a new corpus juris) to which the tools of construction are being applied. At this point, however, the need for stability intervenes. A clear, authoritative judicial holing on the meaning of a particular provision should not be cast in doubt and subjected to challenge whenever a related though not utterly inconsistent provision is adopted in the same statute or even in an affiliated statute"[14]. Repeal, its types and necessity: 14. There are two kinds of repeals: 1) an express repeal and/or 2). an implied repeal. Some of the accepted principles for the avoidance of collusion between the statutes are (i) if the provisions of a later act are so inconsistent with those of an earlier act that both cannot stand together, the earlier stands impliedly repealed by the later. This principle is based on the maxims "leges posteriors priores contrarias abrognt (subsequent laws repeal prior contrary laws)". In other words, it means that the latest expression of the will of legislature must prevail. When the new act contains a repeal clause mentioning the act which it expressly repeals, the presumption against applied repeal of other laws is further strengthened on the principle expressio unius est exclusio alterius (The express mention of one thing excludes all other). Further, the presumption will be comparatively strong in the case of Virtually Contemporaneous Acts. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does no more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of construction and comparison of the two Acts. The Supreme Court of United States long ago
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held that an implied repeal may occur in either of two circumstances; "(1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act." Though rare, implied repeals of each type are hardly unknown. Taking the examples from American Jurisprudence, in constitutional law, Type (1) implied repeal may be noticed in the Seventeenth Amendment, which provides: "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof ......." No express mention is made of Article I, 3: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof ......." But the repeal by contradictory provision is inescapable.[15] 15. On the same question of implied repeal, while considering plethora of case law on the question of power of repeal of laws, be it expressed or implied, Justice GP Singh covered the subject and elaborately discussed the issue in the terms: "A power to make a law with respect to the topics committed to Parliament or State legislatures carries with it a power to repeal a law on those topics. Subject to any…
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