P L D 1976 Supreme Court 254 (PLP)

27. Right of Department to Revise Schedules of Tariffs and Charge and Conditions of Supply.‑Subject to Clause 26 above the Department reserves the right at any time to amend, cancel or add to any of these Schedules and Conditions." It may be mentioned here that the original agreement appears to have been lost, but the pro forma of such agreement has been annexed to the paper‑book and these Conditions are quoted from the pro forma agreement. Section 25 of the Act clearly empowers WAPDA to change the rates of , the power in keeping with the directions given in subsection (2) of the section. As a matter of fact in the case of M. Daud Khan the learned Judges of the Lahore High Court have taken pains to indicate the reasons that led WAPDA to introduce the new Schedule of Tariffs under section 25(2) of the Act. One of the reasons indicated in the concise statement lodged on behalf appellants is that there was a large scale pilferage of energy supplied to private tube‑wells and under the new method of levying fixed charge on connected load basis a stable minimum return was ensured to WAPDA. In the present case the agreement between the parties is consistent wit ,the provisions of section 25 of the Act, and, therefore, section 23 of the Contract Act is not attracted. Conditions Nos. 26 and 27 of the agreement kept in view the requirements of law under section 25 of the Act. Before us, however, the chief contention has been that Paragraph 4 of the new Schedule of Tariffs itself contemplated a notice to the old consumer to enable him to exercise the option either to continue to be governed by the Special Condition of supply in respect of Minimum Consumption Guarantee or to come under Special Condition No. 3 of Tariff‑D to the new Schedule .of Tariffs. Conditions Nos. 3 and 4 are as follows :‑ "

3. The supply under this Tariff shall not be subject to any Special Condition of Supply in respect of Minimum Consumption Guarantee. Instead, the consumers falling under this Tariff shall be governed by the following conditions :‑ .(i) In cases where the capital No line rental of installation charges expenditure on supply of shall be recovered. power does not exceed Rs. 7,500. (ii) In cases where the The amount in excess of Rs. 7,500 capital expenditure on along with interest at the prevalent supply of power exceeds market rate, shall be recovered in Rs. 7,500 but does not 5 equal annual instalments and the first exceed Rs. 10,000. instalment shall be recovered before the connection is given. (iii) In cases where the amount in excess of Rs. 10,000 capital expenditure on shall be recovered in lump sum before supply of power exceeds the connection is given, and the amount Rs. 10,000. of Rs. 2,500 being the difference between Rs. 7,500 and Rs. 10,000, shall be recovered in the manner prescribed in item (ii) above.

4. The Consumers who were connected with the Authority's Supply System before the introduction of this Schedule of Tariffs shall have the option either to continue to be governed by the Special Condition of Supply in respect of Minimum Consumption Guarantee .or to come under Special Condition No. 3 above of this Tariff. The consumers opting for Special Condition No. 3 of this Tariff shall not, however, be entitled to any claim whatever in respect of the payments made by them in the past on account of Minimum Consumption Guarantee." On a reading of the two conditions together, as it should be, it appears ,clear that they relate only to the exercise of a choice between the special condition of supply in respect of Minimum Consumption Guarantee under the old Tariffs and the special Condition No. 3 of the new Schedule of Tariffs. They do not, in any way, concern or affect the revised rates as prescribed in the new Schedule of Tariffs. It is here that the learned Single Judge appears to have fallen in error. So far as the option contemplated under Condition No. 4 of the Schedule of Tariffs is concerned the respondent was aware of the change d ,position as soon as the Schedule of Tariffs was notified. Besides Conditions Nos. 26 and 27 of the agreement put him on notice of a possible change in the rates in the future, and he should have exercised his option at the appropriate time. In any event, when the bill for September 1969 was served on him he became aware of the change and could and should have exercised the option, if he so desired. He did not do so. In these circum stances there is no substance in the contention advanced on behalf of the respondent that without the service of a notice upon the respondent, the new Tariffs could not be legally enforced against him. Condition No. 4 does not envisage such a notice. The respondent cannot be said to have suffered any prejudice by the omission to serve the notice. WAPDA says that such a notice was not necessary, and they had the sole right under the Schedule of Tariffs to say so. Paragraph 8 of WAPDA (Electricity Operations Branch) Notification No. 27840‑A/Com/T‑86, dated Lahore the 15th of July 1969, runs thus :‑ "

8. The Authority further reserves the sole right to interpret any of these Tariffs and the Definitions and Special Conditions of Supply." The view I have taken receives support from the decision in M. Daud ' Khan. The decision is correct on the points decided by me. It was a Division Bench decision dated the 12th of May 1970, and should have been followed by the learned Single Judge allowing the revision on the 26th of November 1974. I would, therefore, allow the appeal but without any order as to costs. ANWARUL HAQ, J.‑I agree. MUHAMMAD GUL, J. ‑I agree. MUHAMMAD AFZAL CHEEMA, J.‑I AGREE. S. A. H. Appeal allowed.