Clog On Discretion

CLOG ON DISCRETION CLOG ON DISCRETION By M. Qasim Khan Khattak, Advocate, Karak, (N.‑W.F.P.) Discretion' makes its own place not necessarily in a given situation, is always obedient to a special statute or in other words a special statutory law can bar or act as clog on the judicial exercise of discretion is to be based on equity good conscience and are inherent to a common man of the society demands as well on the same path. The same is the case with general law but subject to exceptions. Taking example of section 54‑C of Electricity Act, 1910, an Act got much familiarity in the present reign, is in discriminate application. The consumers have been put by it to the wholesale and blind exercise of discretion of sending huge amount, of bills assessed by the concerned WAPDA Authorities on their sweet‑will not in consonance of the Act or Rules framed thereunder. Lawyers and Advocates know cases of double jeopardy or in contravention of section 24 of the Act and it is the point in question between these two instances will be consequently elucidated with the help of another example. Once a consumer is charged for electricity theft or use of method prohibited by the law is debited with assessment units or charges for a particular period, normally six months and called stealing charges. The mode of which assessment has been prescribed in section 26‑A of the Act does not allow to charge the same consumer again within the said period already charged for, otherwise the case becomes of double jeopardy. If such a case comes before our Courts from top to bottom denies the interim relief unless the condition of deposit on protest has been made by the plaintiff in accordance with the order of the Courts have so far showed inability to handle with the so‑called bar‑in‑section 54‑C contains that if a notice under the Act had been served on the consumer or his supply has been disconnected the Court shall not issue interim prohibitory or mandatory injunction unless the impugned amount has been deposited in accordance with the order. According to section 24 requirement of such notice is sine qua non if the consumer has not been assessed for stealing charges. In simple words if a consumer is charged for stealing charges cannot claim protection of section 24 of the Act equalises to the former example. 'Now if a poor person of domestic consumption up to a one kilowatt is sent with a bill of unreasonable amount for instance of Rs.1,00,000 for six months and he is charged again for the same amount in the next month will face the situation of disconnection of supply at least as according to our Courts, the bar contained in section 54‑C does not allow the Courts to issue injunction. Even if this situation with incidence of unreasonable amount or in case of double jeopardy are crystal clear before the Court and away from the exercise of forced discretion albeit the maxim ubi jus ibi remedium‑cum- injuria sin damnum are in thorough judicial application if not resorted to in the set examples would mean let the State to loot and there becomes the state of the law of jungle. Rule of prudence, natural justice or reason demands its application to remove hardships or inconvenience being caused or threatened to be caused by elements of injustice or unlawful bearings. Derogation from the law is never allowed by our Courts are Constitutional can touch vires of legislation. Albeit section 54‑C of the Act prima facie contains a bar has taken the name of clog on discretion, nevertheless, can be removed in a fit case of unreasonableness or of double‑jeopardy with a prayer to amend every law in modern form. If the injunctive situation comes before a subordinate Court can remove the clog by deriving its inherent powers but the best would be for our higher Courts to eliminate the clog on discretion to remedy the blind adherence to section 54‑C of the Act.