Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: STANDARD CHARTERED BANK VS Respondent: KARACHI ELECTRIC SUPPLY CORPORATION JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Afzal Soomro, Sayed Saeed Ashhad Title:STANDARD CHARTERED BANK vs KARACHI ELECTRIC SUPPLY CORPORATION
JUDGMENT
Reported As: PLD 2001 Karachi 344 Result: Petition accepted Judgment JUDGMENT SAIYED SAEED ASHHAD, C.J.---All the aforesaid Constitutional Petitions were fixed for Katcha Peshi and by consent of the learned counsel for the parties, it was ordered that the same will be disposed of finally, if need be after having been admitted to regular hearing. All the aforesaid Constitutional Petitions have been filed by the petitioners, who are the customers of respondent KESC for supply of electricity against the meters installed at the premises of the petitioners. The grievances of the petitioners, which led them to file the aforesaid Constitutional Petitions are the notices issued by respondent KESC calling upon them to make payments for providing extension of the Sanctioned Load, System Development Charges in pursuance to the extension of the Sanctioned Load and Fresh Security/Cash Deposits. In some of the cases, the petitioners have themselves applied for extension in the Sanctioned Load of electric supply, whereas in other cases respondent KESC on having come to know that the petitioners had installed and were using electric machines, appliances and other electrically operated gadgets, the operation of which required higher load issued notices to such petitioners for extension in the Sanctioned Load together with the costs/payments which they were required to make for the facility in extension in the
---
## Page 2
Sanctioned Load, System Development Charges and Fresh Cash/Security Deposits. This was done in order to safeguard and provide safety to the installations of respondent KESC as use of appliances, machines, apparatus, which were likely to consume load over and above the Sanctioned Load, was likely to cause damage to the system of supply of electricity, feeders, sub- station and pole-mounted transformers. It was submitted by the petitioners that in cases where the petitioners have themselves applied for extension in the Sanctioned Load, respondent KESC did not take any action and completely ignored and overlooked the requests of the petitioners for extension in the sanctioned load but all of a sudden they sent the impugned notices demanding huge amounts for extension in the Sanctioned Load, System Development Charges and Security/Cash Deposits on the false claim that on inspection of the premises, it was found that extra electrically operated appliances, machines and gadgets were being used. The petitioners further submitted that such demands made by respondent KESC towards System Development Charges, Charges for increase in the Sanctioned Load and the Security Deposits were without lawful authority as respondent KESC has been stripped of its power to levy, determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers after promulgation of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (hereinafter referred to as the Act of 1997) and the rules framed thereunder. It is the case of the petitioners that respondents KESC had no authority or power to determine the charges for increase in the Sanctioned Load, Claim System Development Charges and Fresh Cash/Security Deposits and on being informed of that after promulgation of the Act of 1997 that they had ceased to have the power to levy, determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, they started threatening the petitioners to disconnect the electric supply in case the demand notices sent by them were not complied with and the payments referred to therein were not made. Hence the aforesaid Constitutional Petitions. Mr. Kamal Azfar, the learned Advocate, who appeared in Constitutional Petition No,D-04/2001 assisted by Mr. Neel Keshav, Advocate, on behalf of petitioner Standard Chartered Bank advanced detailed arguments on behalf of the petitioners. The learned Advocates appearing on behalf of the petitioners in other petitions adopted the arguments of Mr. Kamal Azfar. Additionally, they also raised some other points. On behalf of the respondents, Mr. Raja Qureshi, the learned Advocate- General, Sindh advanced the leading arguments. His arguments were adopted by M/s. A.R. Akhtar and Sohail H.K. Rana, the learned Advocates for respondent KESC. Mr. Syed Zaki Muhammad, the learned D.A.-G., representing the Federation also adopted the arguments of Mr. Raja Qureshi and also made certain additional arguments. Mr. Raja Qureshi vehemently objected to the maintainability of the aforesaid Constitutional Petition on the ground that the Act of 1997 had provided an alternate, adequate and efficacious remedy to the petitioners for redress of their grievances and it was a settled principle of law that when a statute provides a forum and/or remedy to an aggrieved party for redress of his grievance, then the aggrieved party has to resort to the said legal forum for obtaining the remedy. In this connection, he drew our attention to section 3 of the Act of 1997, which deals with the establishment of authority namely National Electric Power Regulatory Authority (NEPRA) consisting of a Chairman, to be appointed by the Federal Government and four members, one from each Province, to be appointed by the Federal Government after considering the recommendations of the respective Provincial Governments. He then drew our attention to section 46 of the Act of 1997, which has empowered NEPRA with the approval of the Federal Government by Notification in the official Gazette to make rules for the purpose of carrying out this Act especially to determine the rates and charges of electricity consumption, procedure for metering, billing and collection of
---
## Page 3
electric power charges by the licensees as per section 46(2)(e) of the Act of 1997. He also drew our attention to rule 3, which lays down in detail the procedure to be followed by NEPRA in respect of the complaints, applications, grievances brought to its notices by an aggrieved party and the authority of NEPRA to pass appropriate orders thereon. He finally, concluded that in view of the above legal position, the petitioners were precluded from invoking the Constitutional jurisdiction of this Court and ought to have approached NEPRA for redress of their grievances. In support of his above contention, Mr. Raja Qureshi placed reliance on the following cases:-- (1) Messrs H.M. Abdullah v. The Income Tax Officer, Circle V, Karachi and 2 others (1993 SCM R 1195); (2) Income-tax Officer and another v. M/s. Chappal Builders (1993 SCM R 1108): (3) The Commissioner of Income-tax, Karachi and 2 others v. Messrs N.V. Philip's Gloeilampen fabriaken (PLD 1993 SC 434); and (4) Commissioner of Income-tax, Companies-H and another v. HamdardDawakhana (Waqf), Karachi (PLD 1992 SC 847). Mr. Kamal Azfar on the other hand refuted the objections raised by Mr. Raja Qureshi with regard to the availability of an alternate, adequate and efficacious remedy being available to the petitioners for redress of their grievance and submitted that the law on the subject is very clear and well- settled that if a public functionary in exercise of the powers conferred on it by a Statute had acted illegally, in excess of jurisdiction, assumption of jurisdiction illegally, had failed to exercise jurisdiction or had committed any other illegality which had rendered the order as absolutely illegal and void, then the aggrieved party was not under an obligation to have recourse to the alternate, adequate and efficacious remedy provided under the Statute and could straightaway invoke the Constitutional jurisdiction of this Court on the ground that the order was absolutely illegal, without lawful authority and void ab initio. In support of his above contention, Mr. Kamal Azfar placed reliance on the following cases:-- (1) Nagina Silk Mill, Lyallpur v. The Income-tax Officer, A-Ward, Lyallpur and another (PLD 1963 SC 322); (2) Water and Power Development Authority and another v. M.N. Steel Rerolling Mills and 23 others (1999 SCM R 494); (3) The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government o'1 Pakistan, Works Division and 2 others (PLD 1972 SC 279); and (4) Adamjee Insurance Company Ltd. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others (1993 SCM R 1798). We have considered the respective arguments advanced by Mr. Raja Qureshi, the learned Advocate General, Sindh and Mr. Kamal Azfar, the learned Advocate for the petitioner in C.P. No, 4/2001 as well as the case-law relied upon by them in support of their respective contentions. We do not deny the contention of Mr. Raja Qureshi that a rule has been established, by virtue of which a party aggrieved of any order of a public functionary has to seek remedy through the forum provided under the Statute under which the public functionary was exercising powers, if a forum is provided thereunder. It is only after the legal remedy, available to an aggrieved party has been exhausted that he would have the right to invoke the Constitutional jurisdiction of this Court. We are also in respectful agreement with the pronouncements and observations made by the Supreme Court in the cases relied upon by Mr. Raja Qureshi. However, an exception has been made to this general rule of resorting to alternate, adequate and efficacious remedies. This exception relates to an action and/or order of a public functionary, which on the face of it appears to be illegal, unlawful and void as propounded by the Supreme Court in several cases, which will be examined hereunder. The first case is that of Nagina Silk Mill, Lyallpur v. The Income-tax Officer, A-Ward, Lyallpur and another (PLD 1963 SC 322). In this case, the Supreme Court was pleased to pronounce that bar for
---
## Page 4
invoking the writ jurisdiction of this Court would not be applicable where the impugned order was challenged on the basis of lack of jurisdiction. In the case of The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279), the Supreme Court while dealing with the question of entertainment of a writ petition when other appropriate remedy was available made a pronouncement that it was not an absolute rule of law barring jurisdiction but a rule by which Court regulated its jurisdiction and further that if the order of the statutory body was challenged on the ground that it was wholly without authority, partial, unjust and mala fide then the High Court would not refuse to exercise its jurisdiction in spite of the fact that the aggrieved party had appropriate or adequate remedy available to him for correction thereof. A similar observation was made by the Supreme Court in the case of Lt.-Col. Nawabzada Muhammad Amir Khan versus The Controller of Estate Duty and others and other appeals (PLD 1961 SC 119). In the case of Adamjee Insurance Company Ltd. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others (1993 SCM R 1798), the Supreme Court observed that interference by this Court in a Constitutional Petition was possible, if the impugned order sought to be challenged was palpably illegal, mala fide and beyond jurisdiction irrespective of the fact that alternate statutory remedy was available to the aggrieved party. In the case of Gatron Industries Ltd. Versus Government of Pakistan and others (1999 SCM R 1072), the Supreme Court observed that a Constitutional Petition would be maintainable without exhausting all the available remedies if the order was passed by a forum or authority by exceeding its jurisdiction. In the case of Khalid Mehmood versus Collector of Customs, Customs House, Lahore (1999 SCM R 1881), the Supreme Court observed that if the order of action complained of was so patently remedy may only be counter-productive and by invocation of Article 199 the illegal, void or wanting in jurisdiction that any further recourse to alternative mischief could forthwith be nipped in the bud then in such matters existence of alternate remedy would not bar the exercise of Constitutional jurisdiction by this Court. Examining the facts and circumstances of this case in the light of the pronouncements and observations made by the Supreme Court in the aforecited cases relied upon by the learned counsel for the parties, it is apparent that after promulgation of the Act of 1997, the Legislature has conferred the power of determining the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers on authority namely NEPRA established under section 3 of the Act of 1997. It was submitted by Mr. ,Raja Qureshi that the Act of 1997 did not repeal the Electricity Act, 1910 (hereinafter referred to as the Act of 1910), which was in the field before the promulgation of the Act of 1997 and also continues to be in the field and further that the relevant provisions of the Act of 1910 dealing with the conferment of the powers to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers by the Power Generating Industries/Units also continue to remain in force as they were not in conflict with and contrary to any provisions of the Act of 1997 so as to be deemed to be impliedly repealed. This contention of Mr. Raja Qureshi will be dealt with subsequently while dealing with the question as to whether the two provisions, one contained in the Act of 1910 authorising the power generating units to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers and the other contained in the Act of 1997 authorizing NEPRA to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, would continue to exist side by side as they operate in different spheres as contended by Mr. Raja Qureshi or the provisions of the Act of 1910 would give way to the similar provisions contained in the Act of 1910 on account of the fact that the Act of 1997 being the later Act would prevail upon any inconsistent provisions in the earlier Act. A
---
## Page 5
bare reading to the two different provisions, which are contained in provisos three and four of clause VI of the Schedule of the Act of 1910 and sections 7(3)(a) and 31 of the Act of 1997, leads to a probable presumption that after promulgation of the Act of 1997, respondent KESC has been stripped of its power to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers and the said powers have been conferred on NEPRA. In view of the foregoing discussion, we hold that the objection raised by Mr. Raja Qureshi with regard to the maintainability of the aforesaid Constitutional Petitions is not sustainable and is overruled. We will now proceed to discuss in detail the question as to whether respondent KESC had the power to provide extension in the existing Sanctioned Load of the petitioners and to claim the charges for such extension for System Development and to call for additional Security/Cash Deposits. The question which requires determination in all these Constitutional Petitions is whether respondent KESC has the power to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers in exercise of the powers conferred on it by clause VI, provisos three and four of the Schedule to the Act of 1910 or that it has been stripped off of such powers after promulgation of the Act of 1997. Mr. Kamal Azfar submitted that after promulgation of the Act of 1997, whereby the powers to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers were conferred on the authority namely, NEPRA by virtue of sections 7(3)(a) and 31 of the Act of 1997, all the Power Generating Units including respondent KESC have been deprived of their powers to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers and any determination by the Power Generating Units including respondent KESC would be absolutely illegal and void. He further submitted that according to the principles of Interpretation of Statutes when a subsequent Statute is promulgated relating to a particular subject, which was being dealt with by an earlier existing Statute, then the presumption would be that the provisions of the new Statute would prevail and would override the provisions of the old Statute in so far as they are in conflict with or contrary to the provisions of the later Statute. Elaborating his arguments further, he submitted that clause VI provisos three and four of the Schedule to the Act of 1910 conferred authority on the Power-Generating Units to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, whereas the Act of 1997 by virtue of sections 7(3)(a) and 31 conferred this, power on NEPRA, an authority established under the Act of 1997, with the result that there were two inconsistent and conflicting provisions in the two Statutes relating to the exercise of powers for the purpose of determining the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers and both of them could not remain in force and acted upon as such a course would lead to chaos, uncertainty and absurdity and in order to avoid this chaos and uncertainty, it had to be declared that the provisions contained in clause VI provisos three and four of the Schedule to the Act of 1910 stood impliedly repealed and the field was occupied by sections 7(3)(a) and 31 of the Act of 1997. Mr. Kamal Azfar also drew our attention to section 45 of the Act of 1997 and submitted that the language of section 45 of the Act of 1997 was sufficient to conclude that all the provisions of the Act of 1910 or any other law, which were not consistent with or were in conflict with or contrary to any provisions of the Act of 1997 would not be
---
## Page 6
enforceable inasmuch as the provisions of the Act of 1997, rules and the regulations made and the licences issued thereunder have been given overriding effect by use of the word "Notwithstanding". Mr. Raja Qureshi vehemently controverted the arguments advanced by Mr. Kamal Azfar and submitted that the arguments advanced by him would be applicable only in respect of the provisions of the Act of 1910, which were contrary to, in conflict with or inconsistent with any of the provisions of the Act of 1997 and further submitted that the provisions contained in clause VI, provisos 3 and 4 of the Schedule to the Act of 1910 and sections 7(3)(a) and 31 of the Act of 1997 were in no way inconsistent or in conflict with each other as both of them dealt with the question of conferment of authority for the purpose of determining, modifying or revising the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers for electric power services. He further submitted that the provisions of clause VI of the Schedule to the Act of 1910 and sections 7(3)(a) and 31 of the Act of 1997 related to the authority and powers of two different institutions/establishments, one dealing with the power and authority of Power Generating Units and other dealing with the power of NEPRA, an authority established under the Act of 1997 and both of them would continue to operate simultaneously in their different fields. He further submitted that the principles of Interpretation of Statutes referred to by Mr. Kamal Azfar were not applicable to the facts and circumstances of this case inasmuch as there was no inconsistency in respect of any provision of the two Statutes nor the provisions of clause VI of the Schedule to the Act of 1910 were in any manner inconsistent or in conflict with the provisions of sections 7(3)(a) and 31 of the Act of 1997, therefore, the question of implied repeal of the provisions of clause VI of the Schedule to the Act of 1910 did not arise and the same would continue to operate in its field and spheres without in any manner being effected by any provisions of the newly promulgated Act of 1997. Before promulgation of the Act of 1997 the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers vested in the Power Generating Units by virtue of clause VI, provisos three and four of the Schedule to the Act of 1910, and they continued to enjoy this power without any restriction, limitation from any quarter. In 1997, the Legislature promulgated the Act of 1997 in which the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers is regulated by sections 7(3)(a) and 31 of the Act of 1997. By the aforesaid two sections of the Act of 1997, the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers has now been vested in National Electric Power Regulatory Authority (NEPRA), an authority established under the Act of 1997. By promulgating the Act of 1997, the Legislature had made a departure from the past position inasmuch as the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers has been taken away from the Power Generating Units and has been vested in NEPRA, thereby stripping the Power Generating Units of their powers to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers unless they are permitted to do so by NEPRA on a proper application being made to it by the Power Generating Units. In order to appreciate as to whether the two provisions dealing with the power and authority of the Power Generating Units and NEPRA to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers are not inconsistent or not in conflict with or contrary to one and another, it will be advantageous
---
## Page 7
to reproduce clause VI, provisos 3 and 4 of the Schedule to the Act of 1910 as well as sections 7(3) (a) and 31 of the Act of 1997. The relevant provisions are reproduced as under:-- Act of 1910: "VI. Requisition for supply to owners or occupiers in vicinity.--(1) Where after distribution mains have laid down under the provisions of clause IV or clause V and the supply of energy through those mains or any of them has commenced a requisition is made by the owner of occupier of any premises situate within the area of supply requiring the licensee to supply energy for such premises, the licensee shall, within one month from the making of the requisition or within such longer period as the Electric Inspector may allow, supply, and save in so far as he is prevented from doing so by cyclones, floods, storms or other occurrences beyond his ,control, continue to supply, energy in accordance with the requisition: Provided first............................................. Provided secondly........................................ Provided thirdly, that the maximum rate per unit of time at which the owner or occupier shall be entitled to be supplied with energy shall not exceed what is necessary for the maximum consumption on his premises, and, where the owner or occupier has required a licence to supply him at a…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.