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Petitioner: WATER AND POWER DEVELOPMENT AUTHORITY And Other VS Respondent: MIAN
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan, Tanvir Ahmed Khan, Sajjad Ahmad Sipra Title:WATER AND POWER DEVELOPMENT AUTHORITY And Other vs MIAN
JUDGMENT
Reported As: K.L.R. 1995 Civil Cases 74 Result: N/A Judgment JUDGMENT KHALIL UR REHMAN KHAN, J. The question referred-to this Full Bench is "whether or not, the Electric Inspector in contemplation of section 26(6) has the jurisdiction to adjudicate upon the determination of charges made by the WAPDA under section 26-A, for dishonest abstraction of energy." This question was framed in Constitution Petition (W.P. 5454-88, Wapda and others v. Mian Muhammad Riaz and others) and W.P.5453-88 (Wapda etc. v. Mian Muhammad Riaz) and the other six petitions (WJP. 2929-89, 2740-89, 2741-89, 2919-89, 7470-89 and 3839-90) were also put up before the Full Bench, as the same question arose for determination in these petitions. In order to appreciate the pleas advanced by the parties in this petition factual back-ground of the controversy may be noted. 2. The WAPDA raised a demand of Rs.1,70,14,221/- against respondent No.1, an industrial consumer, with the allegation that he committed theft as he by- passed the metering equipment, illegally connected the main line with the service line and by this device supplied energy to his plant and machinery directly. This demand was made under section 26-A of the Electricity Act, 1910, which included an earlier demand of Rs. 85,13,347/-. The WAPDA also made a reference to enforce the recovery, as arrears of land revenue to the Collector who commenced proceedings thereon. 3. The respondent assailed the detection bill of Rs. 85,13,347/- by filing a Constitution Petition (WP 5422 of 1986), which was disposed of by a learned Single Judge of this Court vide order dated 30-
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9-1987 with the observation that the respondent may agitate the matter under the relevant provisions of the Electricity Act before the Electric Inspector. An Intra Court Appeal (ICA 149-87)\ taken against this order was dismissed on 2-11-1987, observing that the Legislature in its wisdom, and rightly so, has not conferred immunity to the detection bills issued under section 26-A from the jurisdictional competence of the Electric Inspector, as contemplated by section 24(2) of the Electricity Act. It was further observed that an equally efficacious alternative remedy of civil suit in ! The circumstances of the case is also available to the respondent. The respondent then moved two applications dated 28-1-1988 and 2-4-1988 before the Electric Inspector, Lahore Region, Lahore, in contemplation of Section 26(6) of the Act questioning the demands raised against him. The Authority raised objection to the jurisdiction of the Electric Inspector on the ground that the scope of section 26(6) is quite limited and the detection bill issued under section 26-A is not amenable to jurisdiction of the Electric Inspector. This gave rise to filing of two Constitution Petitions (W.P. 2276 and 2988 of 1988) which were disposed of on 10-9-1988 and the case was sent back to the Electric Inspector with the direction to record a detailed order giving reasons in case he chose to assume jurisdiction. The ElectricInspector then passed a detailed order embodying reasons in support of assumption of jurisdiction which is under challenge in these petitions before the Electric Inspector the case of the Authority was that as no metering equipment was involved in the consumption of energy by the respondent, for which the bill was issued, section 26(6) was not attracted. According to it this subsection was not applicable to a situation, where determination of charges for dishonest abstraction of energy was made under section 26-A. However, in the opinion of the Electric Inspector the metering equipment became mechanically defective or faulty, if it was tampered with or injured by the consumer with the intention to prevent it from registering the consumption of energy. He was of the view that in such a case the assessment made by the licence under section 26-A could be subjected to scrutiny on a reference made to him by the consumer in pursuance of section 26(6), as such billing fell within the mischief of section 24(2). Support was sought from the judgment recorded the Intra-Court Appeal. Reference was also made to Chairman WAPPA etc, v. Advisory Board etc. (PLJ 1987 Lah. 290). He also referred to clause 25 of the abridged conditions (the agreement) between the parties which allegedly inter alia provides determination of disputes by reference to an Electric Inspector. The case of Pakistan Mineral Development Corporation v. Pakistan Wapda and others (PLJ 1986 Quetta-187) was also referred. It was pointed out that the agreement entered into between the respondent and Wapda (Annex. 'H') does not contain any condition enjoining reference to Electric Inspector. 4. Mr. Muhammad Ilyas Khan, Advocate, learned counsel for Wapda, argued that in view of provisions of section 26(6) of the Electricity Act, 1910, the dispute referable lo an Electric Inspector must relate to the issue, whether the measuring apparatus 'is or is not correct' and that where there is an allegation of dishonest abstraction of energy in a manner pointed out by the Authority by completely by-passing the metering apparatus, the determination of charges under section 26-A of the Act cannot be disputed under section 26(6) before an Electric Inspector. According to him section 24(2) is limited in scope and deals with exercise of power by a licence under section 24(1) and applies only when a dispute has been referred by a consumer under this Act, to an Electric Inspector. He argued that in order to ascertain as to which dispute relating to billing is referable to an Electric Inspector under the Act, reference shall have to be made to section 26(6) of the Act. He maintained that omission to mention section 24(2) and 26(6) in the non-abstante clause with which section 26-A is pre-fixed does not necessarily imply that this section is controlled by the said two provisions. Learned counsel for Wapda submitted that the case has not been placed before the le&raed Judge who decided the cases referred to above from the angle projected by him.
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5. Learned counsel for the consumers, on the other hand, adopted the view expressed in the aforenoted cases and argued that the legislative intent isv manifest from the very reading of section 24(2) and section 26(6) of the Act that action taken under section 26-A should remain subservient to the power of determination vesting in the Electric Inspector. It was added that such an interpretation, as advances the remedy for resolution of differences and disputes, should be accepted otherwise the consumers would have no remedy against the bills for alleged consumption of energy etc. Prepared acting arbitrarily, maliciously and illegally. Mr. Abdul Aziz Akhgar, Advocate, learned counsel for some of the respondents/consumers, pointed out that sub- section (2) of section 24, as originally enacted, did not provide for a reference to an Electric Inspector. This sub-section as amended by Punjab Ordinance XXIX of 1971 (PLD 1972 Punjab Statute 22) provides for reference to Electric Inspector. He also argued that para 25 of the Abridged Conditions of Supply and clause 6(3) of the Schedule to the Electricity Act also provide for reference of the dispute relating to electricity charges etc. Demanded by WAPDA, to the Electric Inspector. He maintained that the forum of Electric Inspector should remain available to the consumers and this Court should not accept an interpretation which denies to the consumers a forum or a remedy to seek redress against the arbitrariness and excessive demands of the Authority. 6. Mr. Farooq Bedar, learned Additional Advocate General, pointed out that section 24 was substituted by Ordinance LXII of 1979 (PLD 1980 Central Statute 7) and as such the Punjab amendment is no longer part of the statute book. He further pointed out that in view of section l2 of Wapda Act, 1956, some sections and clauses of the Schedule to the Act do not apply to Wapda. He supported the pleas advanced by Mr. Muhammad Ilyas Khan, Advocate, learned counsel for Wapda, and argued that section 26(6) of the Act does not apply in cases to which section 26-A is applicable. He argued that the words "under this Act" used in section 24(2) are operative only when a consumer comes to Electric Inspector under section 26(6) of the Act. He added that section 24(2) by itself does not provide for a reference of a dispute as to billing to Electric Inspector. 7. The aforenoted pleas necessitate examination of provisions of section 23, 24, 26 and 26-A of the Act. These sections as they appeared before Punjab amendment (Ordinance XXIX of 1971) and thereafter may be reproduced for ready reference:- Section 23, Charges for energy to be made without undue preference. (1) A licensee shall not, in making any agreement for the supply of energy, show undue preference to any person, but may, save as aforesaid, make such charges for the supply of energy as may be agreed upon, not exceeding the limits imposed by his licence. (2) No consumer shall, except with the consent in writing of the licensee, use energy supplied to him under one method of charging in a manner for which a higher method of charging is in force. (3) In the absence of an agreement to the contrary, a licensee may charge for energy supplied by him to any consumer- (a) by the actual amount of energy to be supplied; or (b) by the electrical quantity contained in the supply; or
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(c) by such other method as may be approved by the Provincial Government. (4) Any charges made by a licensee under clause (b) of sub-section (3) may be based upon, and vary in accordance with any one or more of the following considerations, namely- (a) the consumer's load factor; or (b) the power factor of his load; or (c) his total consumption of energy during any stated period; or (d) the hours at which the supply of energy is required Section 24, as it existed before Punjab Amendment reads:- "24. (1) Where any person neglects to pay any charge for energy or any sum, other than a charge for energy, due from him to licensee in respect of the supply of energy to him, the licensee may, after giving not less than seven clear days' notice in writing to such person and without prejudice to his right to recover such charge or other sum by suit, cut of the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting of and re-connecting the supply, are paid, but no longer. (2) Where any difference or dispute has been referred under this Act to an Electric Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision: Provided that the prohibition contained in this sub-section shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Electric Inspector of the amount of the licensee's charges or other sums in dispute or for the deposit of the licensee's further charges for energy as they accrue, and the consumer has failed to comply with such request." After Punjab Amendment (XXIX of 1971) this section read as under:- "24(1) Where any person neglects to pay any charge for energy or any sum, other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may, after giving not less than ten days' clear notice in writing to such person or his successor-in-interest, as the case may be, and without prejudice to his right to recover such charge or other sum by suit, cut of the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply till such charge or other sum, together with any expenses incurred by him in cutting of and re-connecting the supply, are paid, but no longer. Explanation. For the purposes of this sub-section, 'successor-in-interest' means a person who either by inheritance or transfer by way of sale, gift, exchange, lease or any other mode of transfer, happens to succeed to or acquires any share or interest in the premises for which any charge for energy or any sum, other than such charge, was
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or becomes due; but does not include a person who occupies such premises merely as a tenant. (2) Any person aggrieved of the service of notice under subsection (1) may, within ten days of the receipt of such notice, prefer an appeal to the Electric Inspector who shall, after affording the parties an opportunity of being heard, decide the appeal. (3) When any difference or dispute has been referred to the Electric Inspector before notice under subsection (1) has been given by the licensee or an appeal has been preferred under subsection (2) and the consumer deposits with the Inspector the amount of licensee's charges or other sum to which such difference, dispute or appeal relates and also the licensee's further charges for energy as they accrue, the licensee shall not exercise the powers conferred by subsection (1) until the Inspector has given the decision." By Ordinance LXII of 1979, this section was substituted with the following:- "24. Discontinuance of supply to consumer neglecting to pay charge.- (1) Where any consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premises, the licensee may after giving not less than seven dear days notice in writing to such consumer and without prejudice to his right to recover such charge or other sum by suit or otherwise, cut of the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied to such premises or to any other premises, other than domestic premises, running distinctly in the name of such consumer, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting of and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of such discontianance, are paid, but no longer (2) where any difference or dispute as to any matter connected with any charge or other sum induded in the bill rtf a licensee has been referred by a consumer under this Act to an Electric Inspector before the notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by subsection (1) lyitil the Inspector has given his decision: Provided that the prohibition contained in this subsection shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the licensee of the undisputed charges and other sums and with the Electric Inspector of fifty percent of the disputed charges and other sums and for the deposit with the licensee of further charges for supply of energy, as they accrue, and the consumer has failed to comply with such request within a period of fifteen days from the date of such request or, as the case may be, from the date of receipt of bills in respect of further charges for supply of energy. Section 26 did not undergoing any change by virtue of Punjab Amendment XXIX of 1971. However, it was amended by Ordinance LXII of 1979, and the amended section reads as under:- "26(1) In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, maximum demand indicator and other measuring apparatus and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter, maximum demand indicator and other measuring apparatus:Provided that the licensee may require the
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consumer to give him security for the price of a meter, maximum demand indicator and other measuring apparatus and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter maximum demand indicator and other measuring apparatus. (2) Where the consumer so enters into an agreement for the hire of a meter, maximum demand indicator and other measuring apparatus, the licensee shall keep the meter, maximum demand indicator and other measuring apparatus correct, and in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter, maximum demand indicator and other measuring apparatus. (3) Where the meter, maximum demand indicator and other measuring apparatus is the property of the consumer, he shall keep the meter, maximum demand indicator and other measuring apparatus correct and, in default of his doing so, the licensee may, after giving him seven days' notice, for so long as the default continues, cease to supply energy through the meter, maximum demand indicator and other measuring apparatus. (4) The licensee or any person duly authorised by the licensee shall, at any reasonable time and on informing the consumer of his intention, have access to, and be at liberty to inspect and test, and for that purpose, if he thinks fit, take of and remove, any meter, maximum demand indicator and other measuring apparatus referred to in subsection (1); and, except where the meter, maximum demand indicator and other measuring apparatus is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking of and removing shall, if the meter, maximum demand indicator and other measuring apparatus is found to be otherwise than correct, be recovered from the consumer; and, where any difference or dispute arises as to the amount of such reasonable expenses, the matter shall be referred to an Electric Inspector, and the decision of such Inspector shall be final: Provided that the licensee shall not be at liberty to take of or remove any such meter, maximum demand indicator and other measuring apparatus if any difference or dispute of the nature described in subsection (6) has arisen until the matter has been determined as therein provided. (5) A consumer shall not connect any meter, maximum demand indicator and other measuring apparatus referred to in sub-section (1) with any electric supply-line through which energy is supplied by a licensee, or disconnect the same from any such electric supply-line, without obtaining the consent of the licensee in writing which shall not be unreasonably withheld by the licensee. (5A) A consumer shall not injure any meter maximum demand indicator or other measuring apparatus, or alter their indexes or prevent them from duly retistering the amount of energy supplied or the electrical quantity contained in the supply. (6) 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 afforting the parties an opportunity of being heard, and where the meter, maximum demand indicator or other measuring. Apparatus has, in the opinion of the 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
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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 or 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: 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 his intention so to do. (7) In addition to any meter, maximum demand indicator or other measuring apparatus which may be placed upon the premises of a consumer in pursuance of the provisions of sub-section (1), the licensee may place upon such premises, such other meter, maximum demand indicator or other apparatus as he may think fit for the purpose of ascertaining or regulating either the amount of energy supplied to the consumer, or the number of hours during which the supply is gjven, or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with the supply: Provided that the meter, indicator or apparatus shall not, in the absence of an agreement to the contrary, be placed otherwise than between the distributing mains of the licensee and any meter referred to in sub-section (1): Provided also, that, where the charges for the supply of energy depend wholly or partly upon the reading or indication of any such meter, indicator or apparatus as aforesaid, the licensee shall, in the absence of an agreement to the contrary, keep the meter, indicator or apparatus correct; and the provisions of sub-sections (4), (5), (5A) and (6) shall in that case apply as though the meter, indicator or apparatus were a meter referred to in sub-section (1). Explanation.-A meter shall be deemed to be 'correct' if it registers the amount of energy supplied, or the electrical quantity contained in the supply, within the prescribed limits of error, and a maximum demand indicator or other apparatus shall be deemed to be 'correct' if it complies with such conditions as may be prescribed in the case of any such indicator or other apparatus." Section 26A was added by Ordinance LXII of 1979, which reads as under:- "26A. Dishonest abstraction or consumption of energy. Notwithstanding anything contained in section 23, the licensee may charge the consumer on the basis of one or more of the following considerations for the amount of energy deemed to have been dishonestly abstracted, consumed or used, for the period during which the meter, maximum demand indicator or other measuring apparatus had, in the opinion of the licensee, remained connected, disconnected, injured, altered or prevented from registering the amount of energy supplied or the electrical quantity contained in the supply. (a) consumer's connected load or maximum demand in kilowatt during any period; (b) consumer's maximum consumption of energy in kilowatt hours during any (c) consumer's load factor; (d) the power factor of consumer's load;
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(e) the hours and the time for which the energy is deemed to have been abstracted, consumed or used by the consumer; and (f) the purpose for which the energy is deemed to have been abstracted, consumed or used by the consumer. 8. The ancillary issues raised may first be dealt with. The contention that section 24(2) as enforced by Punjab Ordinance XXIX of 1971 (reproduced above) despite provisions of section 24(2) as enforced by the Central Statute, namely, Ordinance No. XU of 1979, is still operative in the Punjab Province and as such any person aggrieved of notice under subsection (1) of section 24 has the right to prefer an appeal to the Electric Inspector, has no merit. Subsection (2) of section 24 of the Electricity Act, 1910, was substituted by the Punjab Ordinance No. XIX of 1971. This subsection, as applicable then, to Punjab Province provided for an appeal to the Electric Inspector against the bill demanding charges for energy or a sum in respect of supply of energy served under subsection (1) of section 24 of the Act. The Central Ordinance NoXXII of 1979, substituted section 24(2) which provides that licensee shall not exercise power conferred by subsection (1) of section 24 till the decision of . The Electric Inspector where any difference or dispute as to any matter connected with any charge or other sum included in the bill has been referred by a consumer under the Act to the Electric Inspector before giving of the notice by the licensee. Though sub-section (2) of section 24 of the Punjab Ordinance provided for an appeal but sub-section (2) of section 24 of the Central Ordinance, which is later in time, does not confer a right of appeal It merely restrains the licensee from exercising the power of disconnection conferred by subsection (1) in cases where before giving of notice under subsection (1) dispute or difference…
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