P L D 2001 Lahore 31 (PLP)

"(1) ... ... ... ... .. ... ... .: ... .. ... ... ... ... (2) Where the consumer so enters into an agreement for the hire of a meter, the licensee shall keep the meter correct, and, in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter (3) Where the meter is the property of the consumer, he shall keep the meter correct and, Fn default of his doing so the licensee may, after giving him seven days' notice, for so long as the default continues, cease to supply energy through the meter. (4) The licensee or any person duly authorized by the licensee shall, at any reasonable time and on informing the consumer of his intention have access to, and be at liberty to inspect and test, and for that purpose, if he thinks fit, take off and remove, any meter referred to in subsection (1): and, except where the meter is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the meter, is found to be otherwise than correct, be recovered from the consumer; and, where any difference or dispute arises as to the amount of such reasonable expenses, the meter shall be referred to an Electric Inspector and the decision of such Inspector shall be final: Provided that the licensee shall not be at liberty to take off or remove any such meter if any difference or dispute of the nature described in subsection (6) has arisen until the matter has been determined as therein provided. (5) .................................. (5-A) A consumer shall not injure any meter, maximum demand indicator or other measuring apparatus, or alter their indexes or prevent them from duly registering the amount of energy supplied or the electrical quantity contained in the supply. (6) Where any difference or dispute arises between a licensee and a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct the matter shall be decided, upon the application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties an opportunity of being heard, and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of the Electric Inspector, ceased to be correct, the Electric Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time as the meter, indicator or apparatus has not, in the opinion of the Electric Inspector, been correct; and, where the Electric Inspector fails to decide the matter of difference or dispute within the said period or where either the licensee or the consumer decline to accept the decision of the Electric Inspector, the matter shall be referred to the Provincial Government whose decision shall be final: Provided that, before either a licensee or a consumer applies to the Electric Inspector under this subsection he shall give to the other party not less than seven days' notice of his intention so to do. (7) ........................... ..."

15. Section 26-A deals with dishonest abstraction of energy and it reads as follows:-- "Notwithstanding anything contained in section 23, the licensee may charge the consumer on the basis of one or more of the following considerations for the amount of energy deemed to have been dishonestly abstracted, consumed or used, for the period during which the meter, maximum demand indicator or other measuring apparatus had, in the opinion of the licensee, remained disconnected, injured, altered or prevented from registering the amount of energy supply or the electrical quantity contained in the supply-- (a) consumer's connected load or maximum demand in kilowatt during any period; (b) consumer's maximum consumption of energy in kilowatt hours during any period; (c) consumer's load factor; (d) the power factor of consumer's load; (e) the hours and the time for which the energy is deemed to have been abstracted, consumed or used by the consumer; and (f) the purpose for which the energy is deemed to have been abstracted, consumed or used by the Consumer. "

16. The West Pakistan Water and Power Development Authority Act (XXXI of 1958) was promulgated on 24th of April, 1958. The purpose was to provide for the unified and coordinated development of the water and power resources of Pakistan. It was through this act that an authority was established called WAPDA for carrying out the purpose of this Act and was to be a body corporate consisting of a Chairman and Members appointed by the Government. It vested control of the authority over water, power houses and grids.

17. The authority was designated as a licensee under the Electricity Act of 1910. However, some of the sections of the Electricity Act were not to apply to the authority and these included sections 21, 22, 23 and 27, as well as certain clauses i.e. I to XII of the Schedule of the Electricity Act. The Authority was to maintain its own funds and establishment, and the service under the Authority was declared to be a service of Pakistan. The Authority was further obliged to submit yearly report to the Government. Public Accounts Committee was to scrutinize the reports while exercising the same powers as Public Accounts Committee exercises in respect of appropriation accounts of the Federal Government and the reports of the Auditor-General of Pakistan. The accounts of the Authority were to be audited every year by the Auditor-General of Pakistan and copies of the audit reports were to be available for public inspection.

18. Looking at section 8 of the WAPDA Act, it appears from section 8(ii) that in respect of energy, the authority was supposed to go for generation, transmission and distribution of powers and the constructions and the maintenance of power houses and grids. But has now become a retailer of electricity and perhaps this has been the main reason for unending public complaints against it. The exact number of public complaints which are received against WAPDA by the Federal Ombudsman, is a very high-figure. Besides, people also resort to civil suits, and writ against WAPDA and there is no end to that.

19. While on the other hand, it appears that WAPDA is always short of funds and recurrently rates of energy are on the increase. A public perception of WAPDA, therefore, is that it is an institution which has not been able to come up to the national expectations. But, anyway, in Courts, one observes that its local formations while dealing with the public, have scant regard to the rule of law and they act in a manner which is not business-like and they scare people on account of their nusiance value. It is obvious that the electricity is an essential need for every body.

20. It is common knowledge that when the private companies were functioning as licensees in different cities of Pakistan, there was efficiency and satisfaction. WAPDA has, therefore, to do something not only for changing its image and its efficiency but also the attitude of its local formations while enforcing proper discipline and enjoining upon them to act in accordance with law.

21. It may, however, be mentioned that an amendment was brought about in section 54 of the Electricity Act whereby sections 54-A, 54-B and 54-C were brought on the statute book and the amount for any charges regarding supply of energy is recoverable as arrears of land revenue. Section 54-C bars jurisdiction of the Civil Court in the following words:-- "(1) Where a licensee gives a notice referred to in subsection (1) of section 24 or discontinues supply of energy to a premises under the provisions of this Act, no Court shall make an order prohibiting the licensee from discontinuing supply of energy to the premises, or requiring him to restore supply of energy to such premises, and any such order made before the commencement of the Electricity (Amendment) Ordinance, 1979, shall cease to have effect: Provided that nothing contained herein shall apply to a case in which the plaintiff, applicant or appellant, within a period of thirty days of the aforesaid date or at the time of filing the suit, application or appeal, as the case may be deposits with the Court the amount assessed against him by the licensee and all further charges of the licensee as and when they become due; and in the event of his failing to do so, any order prohibiting the licensee from discontinuing the supply of energy to the premises or requiring him to restore the supply of energy to the premises, if already made, shall cease to have effect. "

22. The Electricity Act, 1910 was not envisaging at the relevant time, the complete take-over of the generation and supply of energy by a giant monopoly like WAPDA who also took over the private licensees after nationalization.

23. But, anyhow, the Electricity Act, 1910, is the basic law, and but for certain provisions made inapplicable to WAPDA, it has to follow the provisions of sections 20, 24, 26 and 26-A while dealing with its consumers.

24. What has happened in this case is that an electric meter which was located outside the premises of the consumer and this is an admitted position, was found to have been tampered and on this allegation, the electricity of the petitioner was disconnected and his appliances were removed. Later he was served with a detection bill.

25. Nothing has been stated by WAPDA whether it followed the provisions of section 26-A aforementioned for preparing the detection bill B and justifying the amount. Prima facie, it appears to be an arbitrary formulation and shall be taken with skepticism until the methodology prescribed by section 26-A for this purpose is established to have been followed.

26. It is after a bill is so determined under section 26-A of the Electricity Act and served upon the petitioner that an action for neglect to pay the charge for energy or any other sum, a licensee can serve him with a seven days' clear notice. And upon his failure, can disconnect his premises thereafter. Likewise, in respect of meters, whereas, the licensee has access and liberty to inspect but it cannot, in view of the proviso to section 4, take off or remove such meters if a dispute regarding the correctness or otherwise of the meter has been determined as provided in section 26 of the Electricity Act afore-mentioned. The purpose of giving notice as required under section 24 of the Electricity Act is, therefore, meant to enable a consumer to raise a dispute with the Electric Inspector.

27. The provisions of section 54-C as was thought by the learned District Judge, were only to become operative and jurisdiction of the Civil Court until the consumer deposited the amount of detection bill could only be barred if the licensee itself hid followed the law not otherwise. Supposing a bill with an astronomical amount is sent to a consumer as a detection bill based on mala fides and contrary to the provisions of section 26-A of the Electricity Act, will this condition as envisaged in section 54-A, apply? The answer is no, because a consumer is only liable to pay what has been correctly and scientifically determined against him under the provisions of section 26-A and not based on mere sweet will of a local formation.

28. Nobody has pointed out what action has been taken against the Meter Readers or their Supervisors who were supposed to take the readings and detect illegal abstraction and who may have neglected or joined hands for ulterior motives with the consumers. Unfortunately, the tendency is of throwing the blame on the consumer while WAPDA's corrupt officials remain protected.

29. As litigation on such issues is rampant, it will be proper in asking the authority to advise its local formations that while taking action against anyone, they follow the law instead of defeating the very purpose of their action and involving WAPDA in unending litigations. Needless to point out that because of the circumvention of law, even good cases of WAPDA may not be achieving the desired results. Thus public money and time became the victims.

30. In the case of Naeem Oil Mills v. WAPDA 1986 MLD 680, two principles were laid down. Firstly, that while acting under section 20 of the Electricity Act, a show-cause notice had to be given to the consumer as a condition precedent and a detection bill for consumed but unaccounted for electric energy will only be legal if a show-cause notice had been given and if at the time of checking and calculation of units, the consumers were associated in the exercise, otherwise the bill ' was to be taken arbitrary.

31. In the case of Mian Muhammad Munir. v. WAPDA 1983 CLC 211, Mr. Gul Muhammad Khan, J, had held that in case WAPDA had found that the electricity meter of a consumer was defective, they ought to have either replaced it or charged the consumer on average consumption of the past. And that the bills which are prepared without getting meter tested from the Electric Inspector, made the demand illegal.

32. In the case of Pattoki Ice Factory v. Revenue Officer etc., 1996 CLC 1636, this Court held that a strict compliance of the provisions of section 24 was necessary. That in the first instance, a demand should be made by a licensee for payment of a specified sum of money by a specified date and only if a consumer neglects to pay this amount within a period. of seven days and after information to him that the premises shall be disconnected, can these be disconnected.

33. In the case of Haji Sher Muhammad v. WAPDA PLD 1988 Lah. 511, Munir A. Sheikh, J., of this Court, as his Lordship was then, had held that non-observance of sections 24 and 26 of the Electricity Act by WAPDA before resorting to disconnection of electricity made a prima facie. case against the plaintiffs entitling them to the grant of temporary mandatory injunction. Direction was made to WAPDA for restoring electric supply of plaintiffs during pendency of their suits and it was further observed that disconnection of supply of energy without giving a notice as required under section 24(1) did not bring .a case within the ambit of section 54-C of the Electricity Act. In this case as well as a detection bill had been issued and was challenged.

34. In the case of WAPDA and others, 1987, CLC 1503, the. Hon'ble Mr. Justice Falak Sher, J., of this Court had made the following observations:-- "I am of the firm opinion, upon a conjunctive reading of section 24(2) and section 26-A of the Act, that the Legislature clearly intended that action taken by petitioner under section 26-A should remain subservient to powers/duties of respondent No.2 as contemplated by section 24(2) of the Act. Such an interpretation appeals to reason because there should be an independent forum, in the nature of respondents Nos. 1 and 2, for resolution of differences and disputes on account of billing by petitioner, otherwise, the society would be exposed to its arbitrariness, leaving consumer with the only choice of like it or lump it which would inevitably further encourage corruption in the petitioner's department, the magnitude of which is not beyond reasonable comprehension to -comprehend."

35. In the case of Dr. Muhammad Rafique Chaudhry v. WAPDA 1983 CLC 2397 it was held that the provisions of section 54-C were not to apply where a previous notice referred to in section 24 of the Electricity Act had not been served.

36. After hearing the learned counsel from both the sides, this Court is of the view that in the matter of jurisdiction, the findings of the learned trial Court were correct. The modifications suggested by the orders of the learned District Judge requiring the petitioner to deposit the disputed amount with the trial Court as a precondition for restoration, was against the spirit of section 54-C and is not sustainable in law.

37. Admittedly, the apparatus of the petitioner had been removed before a detection bill was served. He has not been served with a notice under section 24 of the Electricity Act nor anything has been said with respect to the preparation of the detection bill in accordance with the provisions pr section 26-A of the Electricity Act. Therefore, the disconnection action or WAPDA and the removal of meter, under such circumstances, was an illegal act and this is established. The detection bill in question, therefore, is illegal. WAPDA is directed to withdraw it forthwith. It may, however, serve a fresh' detection bill to the petitioner after fulfilling the requirements of law and while keeping in view the observations afore-mentioned. As` the bill has been declared to be illegal, the suit of the plaintiff has borne fruit. The matter is, anyhow, referred to the learned trial Court for appropriate orders in the presence of the parties. Parties are directed to appear before the learned trial Court on the 13th of November, 2000. the revision petition, under the circumstances, is accepted. Q.M.H./M.A.K./I-28/L Revision allowed.