HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT
W.P. No.3439 of 2009
J U D G M E N T
Date of hearing: 31.01.2017
Petitioners by: Mehr. Irshad Ahmad Arain,
Advocate.
Respondents
No.1 & 2 by:
Mr. Muhammad Aurangzeb Khan, Assistant Advocate General alongwith Muhammad Khurram Zahoor, Asstt. Electric Inspector. Mudassir Khalid Abbasi, J None has entered appearance on behalf of respondent No.3 inspite of the fact that various modes were adopted for his service, therefore, said respondent is proceeded exparte.
2. Through this constitutional petition, petitioners have called in question the legality of decision dated 12.11.2004 passed by respondent No.2/Electric Inspector to Government of the Punjab, MEPCO, etc. Versus Advisory Board, Punjab, Lahore etc. W.P. No.3439 of 2009
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Multan Region, Multan and decision dated 03.01.2009 passed by respondent No.1/ Advisory Board, Punjab, Lahore.
3. Brief facts of the case are that respondent No.3 is a consumer of MEPCO/WAPDA in respect of electric connection under reference No.21-5132- 28351008 Tarrif B-1 (Industrial) with 15-KW connected load.
4. Meter was checked at site by the Regional Surveillance Team of MEPCO/WAPDA in the month of July, 2000 who communicated detected discrepancies vide memo No.44154-57 CE/MEPCO/Multan/DDCS dated 17.08.2000 that the meter is dead stop on running load 7.3 Amp+500
Watts, MSS open and Supply is also being used for commercial purpose. Surveillance Team in the light of the said detected discrepancies recommended to charge the detection bill against 4784 net chargeable
units for three months by applying 15% load factor on the basis of 15-KW connected load but respondent
No.3 with the connivance of the some officials got the figures of 4784 units altered the same as 1498 units with connected load as 5-KW instead of 15-KW and through adjustment Note No.80, 3286 units were less debited towards the account of respondent No.3, and paid the less charged detected bill as Rs.6946/-. Meter of respondent No.3 was not changed and remained dead stop which is not recording the consumption of energy at the site and due to which less consumption W.P. No.3439 of 2009 was recorded as 211 units in August, 408 units in September and 40 units.
5. In the month of October, 2000, local Audit Party M-15, during the scrutiny of the record, vide Audit Note No.58 dated 24.11.2000, observed discrepancies regarding the detection less charged to the tune of Rs.36,017/- against 7555 net chargeable units, therefore, said amount was debited in the account of respondent No.3. A legal notice was also issued to respondent No.3 vide memo No.4095-96 dated 07.04.2004. Respondent No.3 challenged the said bill before respondent No.2/Electric Inspector of Government of the Punjab Multan Region, Multan through an application under Section 38 of NEPRA
Act and Section 26 & 26(2) of the Electricity Act, 1910. Petitioners contested the application by filing written reply. Respondent No.2/Electric Inspector of Government of the Punjab, Multan Region, Multan, vide impugned decision dated 12.11.2004 accepted the application of respondent No.3 while declaring the detection charges as illegal and unjustified with the direction to petitioners to withdraw the detection bill for the cost of 7555 units amounting to Rs.36,017/- and to overhaul the account of respondent No.3. Being aggrieved, petitioners preferred an appeal before respondent No.1 which was rejected vide impugned decision dated 03.01.2009. Consequently, this constitutional petition has been filed. W.P. No.3439 of 2009
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4. Learned counsel for petitioners has argued that impugned decisions are against the law and facts on the record. Further argued that respondents No.1 and 2 have committed material irregularity and illegality, while passing the impugned decisions. Contends that respondent No.3, earlier, has not raised any objection regarding the detection bill as well as status of meter and he paid the same, however, after correction of the same by audit committee, he cannot raise objection by filing application regarding the same. Further contends that respondents No.1 and 2 have no jurisdiction to decide the matter. States that detection charges have been assessed u/s 26-A of the Electricity Act, 1910 which do not call for interference by the Electric Inspector in the light of decision of this Court reported as “Water and Power Development Authority and others v. Mian Muhammad Riaz and another” (PLD 1995 Lahore 56). Further states that no notice as required under the Act ibid has been served upon the petitioners before filing the same. Contends that impugned decisions have been passed without application of mind, therefore, same are liable to be set aside.
5. Conversely, learned Assistant Advocate General contends that both decisions are according to law and the facts on the record and no irregularity and illegality has been committed. Further contends that Section 26 of Electricity Act, 1910 and Section 38 of the Regulation of General, Transmission and Distribution of Electric Power Act, 1997 fully provide W.P. No.3439 of 2009
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jurisdiction to respondents No.1 and 2 to adjudicate such matters. Argued that petitioners never accused
the consumer to be involved in dishonest abstraction rather declared the meter as dead stop and they continued issuing bills on the basis of reading/consumption, therefore, dispute raised did not relate to Section 26-A. Contends that plea of petitioners is an afterthought as no such objections were raised before respondents No.1 & 2. Argued that bill adjustment note for charging detection bill was also
prepared for the same cost of units as mentioned on the detection bill proforma and it was charged/debited to consumer’s account after approval of XEN MEPCO/competent authority. Reliance has been placed on “Authority, etc. v. Umaid Khan” (NLR 1988 Civil 28).
6. I have given my conscious thought to the submissions made by learned counsel for the parties and perused the record.
7. In order to resolve the legal question involved in this case it would be appropriate to comprehend the real controversy between the parties. Respondent No.3 moved a written application before respondent No.2 stating therein that being occupant of premises, in year 2000 a detection bill was served upon him on account of dead meter. Petitioners agitated the matter, however, utility bills were being sent to respondent No.3 as advance reading. These bills were regularly paid by respondent No.3. Suddenly, after the W.P. No.3439 of 2009
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lapse of three years another detection bill amounting to Rs.40,338/- was served upon respondent No.3 on the pretext of an audit objection that previously less amount was deducted.
8. Respondent No.2/Electric Inspector while adjudicating upon the controversy has declared the said deduction bill, raised on the basis of audit objection/note as illegal and directed the appellants/petitioners to withdraw the said deduction bill, vide order dated 12.11.2004. This was assailed by the petitioners before respondent No.1 which was upheld in the impugned decision vide judgment dated 03.01.2009.
9. It has been observed that both the forums below have discussed subsequent detection bill imposed on respondent No.3 on the basis of an audit objection that previously the detection bill was less charged and recommended the impugned amount.
10. Besides the merits of the case stance taken by the petitioners/MEPCO throughout, has been that impugned decisions are without lawful authority because Section 26-A of the Electricity Act, 1910 does not vest with the jurisdiction to Electric Inspector to adjudicate such matters. Therefore, Section 26(6) of the Act does not confer jurisdiction to scrutinize the amount demanded. This seems to be correct, particularly, when the dispute relates to the charging of less amount on account of an audit objection. W.P. No.3439 of 2009
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11. Office of the Electric Inspector has been constituted in terms of Section 36 of the Electricity Act, 1910 whereas the Section 26 envisages the functions and power of Electric Inspector. Section 26(6) reads as under:- “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 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 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 W.P. No.3439 of 2009
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Inspector, the matter shall be referred to the Provincial Government whose decision shall be final.” Plan reading of the said provision reveals that dispute related to the amount of charge is somewhat different from the determination of dispute regarding the measuring apparatus. In other words, Electric
Inspector can only determine the disputes relating to the defective meter or otherwise.
12. So far as Section 26-A of the Act is concerned, it only speaks of charging/imposition of amount by the licensee upon consumer, regarding dishonest abstraction and consumption of electricity. It may not be through the tempering in the metering equipment, however, in any case amount payable on account of audit objection, may be originating from dishonest abstraction, does not, in any manner fall within the purview of electric inspector. Reliance is placed on “Water and Power Development Authority and others v. Mian Muhammad Riaz and another” (PLD 1995 Lahore 56), relevant portion of which is reproduced herein below:- “Determination of electricity charges made by Water and Power Development Authority under S.26, Electricity Act, 1910 for dishonestly extracted electricity—Electric Inspector in contemplation of S.26-A, Electricity Act, 1910, whether vested with jurisdiction to W.P. No.3439 of 2009
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adjudicate upon such matter—Dispute between parties related to amount of charges demanded in a bill sent to consider for payment for dishonest consumption of electricity—Provision of S.26(6), Electricity Act, 1910, provides for seeking determination of dispute as to whether measuring apparatus (meter) was or was not correct—Provision of S.26(6), Electricity Act, 1910, thus, could not be read as conferring jurisdiction or power on Electricity Inspector to scrutinize the amount demanded under S.26-A of the Act for dishonest abstraction or consumption of energy.”
13. More explicitly, in “Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others” (PLD 2012 SC 371), it has been observed in following terms:-
“Electric Inspector for possessing special expertise in examining the working of metering equipment and other related apparatus had jurisdiction to entertain reference under S.26(6) of Electricity Act, 1910 only in case of dishonest consumption of energy by consumer through deliberate manipulation of or tampering with metering equipment or other similar apparatus—Electric Inspector would have W.P. No.3439 of 2009
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no jurisdiction in matter of theft by means other than tampering or manipulation of metering equipment etc. falling exclusively under S. 26-A of Electricity Act, 1910. What has been discussed above, both the impugned orders/decisions passed by respondent No.1 and 2 dated 03.01.2009 and 12.11.2004, respectively are set aside. This petition is allowed. No order as to costs.
(MUDASSIR KHALID ABBASI)
JUDGE APPROVED FOR REPORTING