P L D 2000 Lahore 239 (PLP)

Any other relief which this Hon'ble Court deems fit, fair and just may also kindly be granted to the petitioner."

2. The comments submitted on behalf of respondent No.4 (Executive Engineer) are to the effect that a committee consisting of Superintending Engineer (Fifth Circle), Lahore, Executive Engineer (M&T Division), Lahore and the Executive Engineer, Kotlakhpat, Division Lahore checked the metering equipment on 9‑9‑1997 and observed as under:‑‑ "Petitioner had tempered with the MDI Knob and had drilled a hole in the housing of MDI Knob and with acute prevision made threads on the lower outside portion of MDI Knob and on the inner side of hole, by virtue of which MDI Knob could be screwedout and screwed in by rotating the same in anti‑clockwise and clockwise direction, thereby providing a free passage to the index of the meter and to the Disc of the meter. By adopting the method as explained above, KWH meter was prevented from recording true consumption and electricity was unlawfully abstracted by the petitioners. Electrical Engineer Mr. Mehr Ali Khan of the Mills and Manager Admn. Mr. Muhammad Mushtaq were also associated in the checking of the metering equipment and both the representatives of the mills, remained in the metering room right from the time of unlocking the metering room uptil relocking the metering room after checking the metering equipment, and the tempering was shown to both the officials of the mills but they declined to sign the report." The afore‑referred test check pro forma prepared at site on 9‑9‑1997 has been annexed with the comments as Annexure R/ 1.

3. The petitioner was issued a show‑cause notice for working out 'the detection bill which he received and thereafter the detection bill was worked out and duly served on the petitioner which amounted to Rs.57,80,

075. The petitioner has made pan payment of the afore‑referred amount and Rs.38,92,514 still remains to be paid.

4. Learned counsel for the petitioner in support of this petition has made following submissions:‑‑ (i) That the action taken by the respondents is mala fide as they demanded illegal gratification but on refusal the electricity was disconnected and the meter was removed; (ii) that the allegation of theft could not be substantiated in trial of the case registered vide F.I.R. No.408 dated 22‑9‑1998 Police Station Saddar, Raiwind referred to above, resultantly, the Magistrate 1st Class/Senior Special Magistrate, WAPDA Lahore acquitted the officials of the petitioner‑company vide judgment dated 8‑3‑1999. the said acquittal is indicative of the fact that the petitioner‑company is not guilty of any theft; (iii) that any action under section 26‑A of the Electricity Act is subservient to a finding under section 39‑A of the said Act and having failed, the proceedings initiated against the petitioner and the issuance of detection bill are not tenable in law. In support of his submissions learned counsel for the petitioner has relied on the Chairman, WAPDA and 2 others v. Advisory Board, Punjab Lahore and 2 others 1987 CLC 1503; Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 and Khalid Pervaiz v. Water and Power Development Authority through Chairman, WAPDA and another 1999 CLC 1591.

5. Learned counsel for the WAPDA, on the other hand, defended the impugned action on the grounds that the raid was conducted by a party consisting of senior officials of the WAPDA headed. by a Resident Magistrate; that the tempering of meters was found at the spot and the, officials of the petitioner‑company refused to sign the report, that the actions under sections 39‑A and 26‑A of the Electricity Act are independent and acquittal of the officials of petitioner‑company in criminal proceedings would not absolve of his civil liability under the Electricity Act and that the issues raised by the learned counsel for the petitioner i.e. as to whether the meters were tempered with and electricity was abstracted dishonestly as also the question that the detection bill is excessive of are disputed questions of fact which cannot be adjudicated upon in the Constitutional petition and the remedy open to the petitioner is to move the learned Civil Court.

6. I have heard learned counsel for the parties and have gone through the case‑law referred to above. .

7. It is not denied that a team of WAPDA officials headed by the Magistrate comprising of Superintending Engineer, Executive Engineer and other officials raided petitioners' mills premises, the meters were checked and a case was registered (vide F.I.R. No.408 dated 22‑9‑1997) under section 379, P.P.C. read with section 39‑A of the Electricity Act Police Station Raiwind, District Lahore). It was found by the raiding party that the meters were tempered with whereafter petitioner mills' electricity was disconnected. Petitioner challenged the report and the disconnection before the Electric Inspector, and without waiting for a verdict from him, chose to file this Constitutional petition.

8. The question whether the petitioner has remedy 1to challenge the, action taken by the WAPDA Authorities before the Electric Inspector has been clinched by a Full Bench of this Court in case reported as Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 wherein at page 71 it was observed as under :‑ "After making these elaborate provisions subsection (6) provides that where any differences or disputes raise between a licensee and a consumer as to whether any .meter maximum demand indicator or measuring apparatus is or is not correct, the matter shall he decided upon application of either party by an Electric Inspector. The rest of the provisions contained in the subsections are consequential in nature. So the dispute which is referable is whether the meter or the measuring apparatus 'is or is not correct'. It is further provided that before applying to the Electric Inspector under this subsection the party intending to make a reference shall give to the other party not less than seven days' notice of his intention to make the reference to the Electric Inspector. Subsection (7) thereafter provides that the licensee may place upon the premises of a consumer other meter, maximum demand indicator or measuring apparatus in addition to the measuring apparatus already placed upon the premises pursuant to the provisions of subsection (1) for the purpose of ascertaining or regulating the amount of energy supplied or the number of hours during which supply is given, or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with the supply. The Explanation added to this subsection provides that a meter shall be deemed to be correct if it registers the amount of energy supplied or the electrical quantity contained in the supply, with the prescribed limits or error, and maximum demand indicator or other apparatus shall be deemed to be correct if it complies with such conditions as maybe prescribed in‑case of any such indicator of other apparatus."

9. The petitioner himself chose a forum i.e. Electric Inspector and he should pursue the remedy available to him under the law. No case for interference in the writ jurisdiction of this Court is made out in the facts and circumstances of this case.

10. Coming to the argument that since petitioner was acquitted under action 249‑A, Cr.P.C. by the Senior Special Magistrate. WAPDA (in case F.I.R. No.408 referred to above), therefore, proceedings initiated pursuant to the raid conducted including issuance of detection bill are, redundant is not C tenable as the meters were checked and action was taken for abstraction and consumption of energy under sections 26 and 26‑A of the Electricity Act whereas F.I.R. was lodged under sections 39 and 39‑A of the Act. Section 48 of the Electricity Act mandates that the penal action taken under sections 39 to 47 "shall be in addition to and not in derogation of, any liability in respect of the payment of compensation or, in the case of a licensee, the revocation of his licence, or the payment of penalty in lie thereof, which offender may have incurred".

11. Before recording. material prosecution evidence and relying on documents produced in defence at that preliminary stage the Senior Special Magistrate, WAPDA acquitted the petitioners by resorting to section 249‑A, Cr.P.C. I would not comment any further lest it may prejudice the case of either party as learned counsel for the WAPDA submits that he has moved the concerned authorities for challenging the order of acquittal, suffice it to say, that the judgment passed by the criminal Court does not affect the action p taken by the respondent WAPDA with regard to the disconnection of petitioner electricity or the reference pending, if any, before the Electric Inspector.

12. For afore‑referred reasons this petition having no merit is dismissed. H.B.T./S‑473/L Petition dismissed.