1983 PLP 2397 (CLC)

Date of hearing : 17th November, 1982. This constitutional petition calls in question the validity of letter dated 3rd August 1982 and the electricity charges bill enclosed therewith, raising a demand on account of electricity charges on behalf of respondent No. n1, i.e. WAPDA of Rs. 53,425,84 on account of 55,787 per cent slowness of the meter detected by the special checking party and requiring the petitioner to pay the amount by 15th August, 1982.

2. Briefly stated the facts giving rise to his writ petition are that the petitioner rented bunglalow No. 41-C, Main Gulberg Lahore, belonging to Sardar Abdul Hameed Dasti in January, 1971 for residence and also for running a private hospital. He did not receive any complaint or intimation from the respondents till 14th June, 1982 that he was liable for any non-payment on account of electricity charges or that there was any defect in the meter installed at the said bungalow or in other electrict installations. On 14th June, 1982 some employees of WAPDA came to the premises of petitioner (aforesaid bungalow) without any previous instimation and removed the meter and replaced the same wityh a new one. On 4th August, 1982 the respondents sent a bill (Annex: B ) accompanied by their letter dated 3rd August 1982 (Annex :A ) for a sum of Rs. 53,425/84 requiringf the petitioner to make the payment of this amount by 15th August, 1982 mentiuoning in the letter that these were the detection charges on account of slowness of meter by 55,787 percent.

3. The petitioner impugns the aforesaid demand of the respondents mainly on the following grounds :‑ (1) The petitioner was not associated with the proceedings of checking of meter and calculation of charges. In other words he contends that no previous show‑cause notice was given to him before raising the demand on account of slowness of meter. (2) He was not served with any previous notice or intimation to the effect that the respondents' staff would visit the premises and ,remove the meter. (3) The period during which the meter allegedly remained slow has not been calculated. (4) The premises were used for residential as also for purposes of running a hospital but he was charged for electricity consumption on commercial rates. (5) It is not mentioned in the impugned notice and the bill as to since when charges were being claimed. (6) There was no allegation against the petitioner regarding tampering with the meter.

4. In Mst. Zainab v. Chief Engineer, Electricity WAPDA, and 2 others (1972 Law Notes 415), it has been held that before creating a charge against a consumer on account of electric energy consumed but unaccounted for, service of show‑cause notice on him is necessary. under the provisions of section 24 of the Electricity Act IV of 1910. In Firdaus Oil Mills v. WAPDA and another (N L R 1978 Lah. 142), it was held that before preparing a detection bill on account of unaccounted for consumed electric energy it was necessary on the part of the licensee to afford the consumer an opportunity to meet the charge of theft, etc. In the present case as already observed no notice was served on the petitioner before determining his liability to the tune of Rs. 53,425/84 on account of alleged slowness of the meter, thus the provisions of Sec tion 24, ibid have been contravened. Under section 20 (1), ibid licensee or any person authorised by a licensee may enter the premises to which energy has been supplied for ascertaining amount of energy supplied or the electric quantity contained in the supply or apparatus. etc., but he can do so only on informing occupier of his intention. In the present case previous meter of the petitioner was removed and replaced by a new one without any previous information to him. Sec tion 26‑A ibid authorises the licensee to charge the consumer for the amount of energy deemed to have been dishonestly consumed or used for the period during which the meter bad in the opinion of the licensee remained injured, altered or prevented from registering the amount of energy supplied. This provision thus clearly shows that the charge under this section can be raised only for the period during which the meter re mained defective. In the present case in the impugned bill the period for which the charge has been created is not indicated.

5. Unfortunately no one has appeared on behalf of the respondents during the course of arguments although on an earlier occasion they filed written statement. One of the objections raised in the written statement is to the effect that section 54‑C of the Electricity Act bars the jurisdiction of this Court. It is provided in this section that where a licensee gives a notice referred to in subsection (1) of section 24 or discontinues the supply of energy to a premises under the provisions of this Act no Court shall make as order prohibiting the licensee from discontinuing the supply c of energy to the premises. It is observed in the first instance that the previous notice referred to in section 24 has not been served upon the petitioner in this case. Secondly, bar of Court's jurisdiction has been created by sub‑constitutional legislation and it cannot obviously affect constitutional jurisdiction of the High Court.

6. In Nagina Silk Mills, Lyallpur, v. The Income‑tax officer and another (P L D 1963 S C 322) it was held that notwithstanding section 67, Income Tax Act 1922, which bars the civil suit to set aside or modify an assessment made under this Act, extraordinary writ jurisdiction of the High Court can be invoked in challenging the income tax and assessment on the basis that the Officer concerned lacked jurisdiction to pass the impugned order. It was further held that the writ jurisdiction was conferred on the High Court by a constitutional provision and even if there be a conflict between such a provision and other statute, the constitutional provision must prevail.

7. Another objection raised in the written statement on behalf of the respondents is that the petitioner is not a registered consumer of the respondents and that the bill in question is directed against one Sardar Abdul Hamid Dasti who is .responsible for making payment. It is not disputed that the petitioner at the relevant time occupied the premises in question. He allegedly consumed the electricity for which the impugned charge was created. In case of disconnection of the meter, it is he who was likely to suffer. In the circumstances the petitioner is an aggrieved n person having locus standi to invoke constitutional jurisdiction of this Court. In Mian Fazal Din v. 'Lahore Improvement Trust, Lahore and another (P L D 1969 S C 223) it was found that the right considered sufficient for maintain ing a proceeding in writ jurisdiction was not necessarily to be a right in strict juristic sense but it was enough if the applicant disclosed that he had a personal interest in the performance of a legal duty which if not perfor med in manner not permitted by law would result in the loss of personal benefit or advantage or the curtailment of a privilege and that deprivation of such a right, conferred a right on the person so deprived to maintain a writ petition.

8. In the light of the foregoing conclusions it is found that impugned charge areated against the petitioner is not lawful and the impugned action of the respondents, is therefore, declared to be without lawful. authority and of no legal effect. The writ petition is thus accepted with costs. Petition accepted.