1983 PLP 2941 (CLC)

2. Writ Petition No. 204 of 1978 has been brought by the firm Sh. Abdul Rahim, Allah Ditta Steel Re-rolling Mills, whereas the other three petitions have been instituted by Sh. Anwar-ul-Haq, Proprietor, Orient Technical Works. Both the concerns are industrial consumers of the energy supplied by WAPDA. The billing is done by the Authority, under the Schedule of Tariffs, known as Tariff B-3, revised and enforced with effect from 18th June, 1977. Under this Tariff, every industrial consumer in addition to the payment of charges for the energy actually consumed by him, had to pay certain fixed charges per month. The mode of calculation of fixed charges was that the consumer, governed by this Tariff, when applying for new connection, re-connection and in certain other eventualities, had to declare his "load." This declaration remained in force, for the financial year in which it was made. Similar declaration had to be made by the consumer, at the beginning of each financial year, to remain effective until the end of drat year. In the factory premises of such consumer, a Meter called "Maximum Demand Indicator" (hereinafter referred to as "MDI"), was also installed, which registered the maximum consumption in Kilo watts, in every month. The special feature of this meter is that the maximum load so recorded does not recede back. Out of the two figures, one comprising the "load" declared by the consumer and the other establish. ed by "MDI", during the preceding six months, whichever was, higher, cons tituted the basis for the levy of the. monthly fixed charges.

3. The supply of energy is governed by a standard agreement, prescrib ed by the Authority which embodies certain conditions known as the abridged conditions for supply. Admittedly, this agreement was entered into between the parties to these writ petitions. They are, however, at variance over the scope of its ciause.l4 reproduced below :- " Notice by Consumer to Disconnect Supply.--In the event of a ''- consumer desiring to have his premises disconnected whether permanently or temporarily, or desiring to vacate or lease his premises he shall give the Department 7 days' notice in writing of his intention, together with an opportunity for disconnecting, the said premises and/or reading the meter or meters ; failing such notice he shall be and remain liable for all charges in respect of energy consumed upon the said premises and for all other charges which may become due to the Department in respect of the said premises, until such date as notice in writing of vacation or :easing has been received by the Department."

4. The grievance brought by the petitioner in Writ Petition No. 204/78, is that the firm is the manufacturer of steel and as its fence required extensive repairs by its letter dated 3rd December, 1977 (Annexure `A') the petitioner served the Authority with seven days' notice, under clause !4 ibid requesting that the supply be temporarily disconnected, for about a period of one month, so that it may not be burdened with the fixed charges. This was followed by a letter Annexure 'C', The Department, on their part, insisted, that tinder Tariff B-3, the to. 3 declared by the petitioner was effective for the whole of the financial year and "fixed charges", being the charges for, the Authority's reservation of power, corresponding to the declared load, the firm was liable to pay the fixed charges, even for the period, the supply of that he event of disconnection, it failed to pay the said thus, the supply of energy would not be restored. The correspondence addressed to the petitioner, in this behalf, has been placed on the file as Annexure `B','D', 'B', 'F/1', and 'E/2'.

5. It appears that as the petitioner was not prepared to give an under taking, to pay the fixed charges, for the period of temporary disconnection, the supply of energy was not severed buy the Authority. However, from 10th December, 1977 onward, though the petitioner did not operate the Mill, yet he was served with Bill Annexure E', which included "fixed charges" for the period, the energy was not consumed, and the Mill practically remained closed. To avoid disconnection of the supply of energy, which usually is the aftermath of a consumer's failure to pay the sum due to the Authority, the petitioner paid to the latter, under protest, "fixed charges" at the rate of Rs. 3,213 per day, for a period of 56 days and has invoked the writ jurisdiction of this Court for declaration that the levy of fixed charges for the period of "temporary disconnection" or for that matter the closure of the Mill, and the demand made by the respondents in their letters Annexure 'B', 'D' and `E' are illegal, void and without lawful authority.

6. As regards the other three writ petitions, the concern, Orient Technical Works, is engaged in the manufacture of steel casting and steel forging etc. The case of Sh. Anwarul Haq is that his furnace needed repairs and under his letter dated 4th December, 1977 (Annexure 'B') in terms of clause 14 of the agreement, he gave seven days notice, to the Executive Engineer concerned, for disconnection of the electric supply, for 15 days but the respondents disconnected the factory premises on 17th December, 1977. In his letter dated 21st December, 1977 (Annexure `D'), the petitioner pointed out that the period of seven days notice, expired on 18th December, 1977 and whereas the discoing lion was made on 17th December, 1977. It is to be seen that the bill issued to the petitioner included the fixed charges upto 16th December, 1977: According to him, he was not liable :o pay such charges, after 10th December, 1977 and paid the bill under protest. On the petitioner's request the supply of energy was restored with effect from 11th February, 1978. The Authority thereafter issued to him another bill Annexure 'H' for the month of January, 1978, for Rs. 1,01,456.20, in respect of the fixed charges. This demand has been called in question through Writ Petition No. 872/78. It may be observed that in compliance with the order dated 21st February, 1978, passed in this writ petition, the said amount has been deposited by the petitioner in the Court.

7. The facts which led to the institution of Writ Petition No. 4486 178 are that on a request made by the petitioner, as per his letter dated 21st mane, 1978 Annexure C', in pursuance of clause 14, for the disconnection of the supply, with effect from 30th June, 1978, the Authority disconnected the same. The supply was restored on 18th September, 1978 or so. The ,Authority then vide Bill Annexure `D' placed on the petitioner, a demand of Its. 1,16,029.713 as fixed charges. This demand has been assailed through Writ Petition No. 4486178. Under order dated 213th September, 1978, the petitioner was directed to deposit a cheque for the amount in dispute in the Court. This order has been complied with.

8. As regards Writ Petition No. 5204/73, the Bill mentioned in the preceding paragraph was followed by another Ball dated 11th October 1908, for September, 19'38 (Annexure 'B') whereby the petitioner was required to pay fixed charges, for the period the Mill remained disconnected. By his letter 18th October, 1978 (Annexure 'C') the petitioner requested the Executive Engineer, to revise the Bill, but this request went unheeded. Accordingly the said demand has also been challenged. In this case as well, the petitioner has deposited the amount in question, in the Court, through u cheque.

9. I have heard ;the learned counsel for the parties and examined the available record. On behalf of the petitioners, it was argued that the Tariff H-3 is to be read in conjunction with clause 14 of the abridged conditions for the supply, which cater for temporary disconnection of the energy, on seven days notice and when such notice has been given to the Department by the consumer, after the expiry of period thereof, he ceases to be liable for the fitted charges. It was further submitted that since through the notices, the petitioners had conveyed their intention to the Authority, to have their promises disconnected, the latter had no right to demand and collect the fixed charges, for the period their premises remained disconnected and that, therefore; the impugned bills were utterly illegal and issued without lawful authority.

10. In reply to these arguments, the stand taken by the respondent's learned counsel was chat the declaration made by the petitioners as to their declared "load" was to remain effective for the whole of the financial year and the Authority had to reserve that much energy to meet their demand. He argued that the iced charges are meant for compensating the Authority for reserving the energy and are payable for the whole of the financial year, irrespective of the fact whether or not the consumer actually consumes the energy. It was contended that the Authority being a commercial organi sation, could not have reserved the energy, unless there was a guarantee for payment of compensation therefore. He then made reference to section 2 of the WAPDA Act, 1958, to contend that the reservation of power for whole of the financial year, was one of the elements, taken note of by the Authority, for fixing the rate for the sale of the energy, under the two pa Tariff. Reference was also made by him to Tariff B-2 introduced with effect from 1st Nov-ember, 1981 attic which the fixed charges have been attribute to the Authority's reservation of power for tie consumer's "billing demand" as defined in the said Tariff. According to, the learned counsel after period of notice under clause 14 a courses absolved of payment o charges for the energy consumed at his premises, but his liability to pay the fixed charges could riot be wiped away. He thus, endeavoured to justify demand raised by the Authority against the petitioners,

11. I do not feel persuaded by the submissions of the respondent's learned counsel. It is not denied that clause 14, already quoted in extenso forms part of the conditions governing the supply of energy. This clause clearly makes a provision for temporary disconnection. The only obliga tion cast on the consumer, for having the electric supply to his premises disconnected, is to give 7 days notice, in writing of his intention to the Authority. The consequences of the consumer's failure to give such a notice as clearly mentioned in clause, are that he :- "remains liable for all charges in respect of energy consumed upon the said premises grad all other charges. which may become due to the Department, in respect of the said premises." Conversely. when such a notice is given after the expiry of its period, his aforesaid liability comes to an end. As already stated, Tariff B-3 visualises two-fold liability of an Industrial Consumer, namely (i) to pay for the energy actually consumed (ii) and also to clear the monthly fixed charges. It is to be noticed that when the premises are disconnected, evidently there would not be any consumption of energy and thus, the question of billing the consumer in this behalf would not arise. However, with regard to the payment of fixed charges, the parties have taken up divergent stands. In my estimation, the expression "all other charges" following the words charges In respect of energy consumed", as used in clause 14 includes the fixed charges. A plain reading of this clause irresistably leads to the con clusion that when the requirements of notice, have been complied with by the consumer, he cannot be saddled with the liability for fixed charges.

12. I have carefully gone through the Tariff in question. It does not contain any provision that the fixed charges are levied on account of reserva tion of energy by the Authority. Such a provision undoubtedly exists in the Tariff B-2, referred to by the learned counsel, but it has no application to the demands in dispute :. The reason being that this Schedule of Tariff was enforced with effect from 1st November, 1981 whereas the period disconnection which is the subject-matter of these writ petitions pertains to the years 1977-78. It is correct that under clause 27 of the abridged con ditions, the Authority i$ within its competence to amend the Schedule of Tariff, at any time, and add any condition therein. But such power i founded on delegated authority and, therefore, would not be available to exercise retrospectively. Even otherwise on the face of it, this Tariff is) not intended to be effective retrospectively.

13. So far as Tariff B-3 is concerned, its language is unambiguous and', the meanings of the words employed therein are quite clear and explicit The arguments of the respondent's learned counsel that the fixed charges are relatable to the reservation of energy, do not find any support from this Tariff. If there is any omission, it cannot be supplied by construction. It isl the function of the framers of the Tariff and conceivably such deficiency was removed by them in the amended Tariff, which as already observed, is not extendable to the cases in hand.

14. The abridged conditions and the Tariff B-2 are two co-ordinate instruments: In accordance with the well-established rule of interpretation of statutory documents, these are to be read together. There is no conflict between the two, and thus, it is not a case of one document yielding to the other. In considering both the instruments together, effort should be made to harmonies them and to give effect to every part thereof. Such an inter pretation is possible only when nothing extrinsic is inserted in the Tariff and clause 14 so construed, as to absolve the petitioners of their obligation to pay the fixed charges for the period of temporary disconnection or for that matter after the expiry of the notice period. In this view of the matter I am inclined to uphold the arguments advanced on behalf of the petitioners.1 It is obvious that no power vested in the Authority to levy the fixed charges against the petitioners for the periods in question. The impugned bills and the consequential demands are illegal, of no legal effect and thus liable to be quashed through judicial review.

15. For the foregoing reasons, these writ petitions are accepted and the impugned bills/demands declared to have been issued/made without lawful authority. The amounts deposited in the Court shall be refunded to the petitioner concerned. The parties are left to bear their own costs. M. Y. H. Petition accepted.