2006 PLP 1443 (SCMR)

M. JAVED BUTTAR, J.

This petition for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the judgment, dated 21-5-2003 passed by a learned Division Bench of High Court of Sindh, Karachi whereby Constitutional Petition No.D-1974 of 1999 instituted by respondent No.1 challenging Order No.5067 dated 27-12-1990 passed by respondent No.3/Electric Inspector, (Karachi Region) and order dated 6-11-1999 passed by respondent No.2/Secretary, Irrigation and Power Department, Government of Sindh, was allowed, and the above orders impugned before the High Court, were set aside.

2. The relevant facts are that respondent No.1 is running a Manufacturing Unit of Polyester Yarn at Plot No.B-40, SITE, Karachi. They felt aggrieved because of the average bills of electricity showing increased units from October, 1998, issued by the petitioner. They lodged complaints and disputed the petitioner's action under sections 14 and 26 of the Electricity Act, 1910 (hereinafter referred to as the "Act"). On 6-1-1990 respondent No.3 directed the petitioner to install a check-meter at the factory of respondent No.1 under section 26(7) of the Act. The meter was installed on 12-5-1990 for 75 days up to 24-7-1990 to determine actual consumption of electricity. The said meter was under the control and supervision of the petitioner. The check-meter reading showed the average monthly consumption of 2510 units of electricity. The grievance of respondent No.1 in the constitutional petition, before the High Court, was that in spite of above said reading showed by the check-meter, the petitioner continued to send the bill on average basis at much higher side than the actual reading as shown by the check-meter. The respondent No.1, therefore, again made a representation for correction of the bills to the average shown by the check-meter. The respondent No.3 vide his order, dated 27-12-1990 ordered that the bills charged and paid up to September, 1988 were correct and no additional demand would be raised for that period. However, the demand of 1980 KW was ordered to be charged from October, 1988 to November, 1990. The respondent No.1 assailed the above said decision of respondent No.3 through an appeal under sections 2 and 25 of the Act before respondent No.2. The petitioner also filed an appeal challenging the decision of respondent No.3. The respondent No.2 vide his order, dated 6-11-1999 upheld the decision of respondent No.3 to the extent of charging Billing Demand of 1980 KW per month from October, 1988 to November, 1990 and further held that the working days of the meter would be 25 days instead of 26 days as held by respondent No.3. Both the above said orders mentioned above, were assailed by respondent No.1 in the constitutional petition before the High Court of Sindh, resulting in the impugned order. Relevant paragraph whereof reads as under: "We have gone through the impugned order and come to the conclusion that in both these orders the respondent No.3 as well as respondent No.1 failed to give any reason for increasing the average units consumption and further failed to give any reason for not accepting the reading of "check-meter" installed under the direction of respondent No.1 in the premises of the petitioner. It is an admitted position that said "check-meter" remained under the control of the respondent No.2 for all practical purposes. The reading of said meter can prima facie establish average consumption of the electricity by the petitioner. The burden is upon respondent to prove that the reading shown by the `check-meter" is not acceptable for some cogent reasons, which burden respondents failed to discharge. The respondent failed to contravene allegations made in the memo. of petition and also failed to show any plausible reason for not accepting the reading of the check-meter nor learned Advocate pointed out any documents that respondent disputed the correctness of the said reading. We have no other option but to set aside the impugned order."

3. It is submitted by learned counsel for the petitioner that the order was passed in absence of learned counsel for the petitioner who was not present on the day when the case was heard and the mere reliance on the check-meter was not proper as the check-meter was tampered with by respondent No.1.

4. We have heard learned counsel for the petitioner and have also seen the available record. Learned counsel for the petitioner has failed to point out any illegality in the impugned order. There is nothing on record to suggest tampering of check meter by respondent No.1 which was under the exclusive control of the petitioner. The contention that petitioner's counsel was not present at the time of hearing has also been correctly taken care of in the impugned judgment. Mr. Muhammad Nadeem, Advocate who was holding brief for the petitioner's counsel was present and heard. No request was made for adjournment. We are of the view that learned Judges of the High Court have correctly based their decision(reproduced above) on the basis of material available on record.

5. For the above reasons we see no merit in this petition which is accordingly dismissed and leave is declined. S.A.K./K-10/SC????????????????????????????????????????????????????????????????????????????????? Leave refused.