P L D 1999 Lahore 347 (PLP)

In the month of August, 1995, petitioner was issued a detection bill in the sum of Rs.80,474 on the ground that on checking the meter was found defective. The petitioner approached the Wafaqi Mohtasib who, vide order dated 10-11-1995, passed an agreed order whereby it was directed that the Executive Engineer, WAPDA. will issue first bill of Rs.25,000 which will be paid by the complainant within ten days from the date of issuance and the second bill of Rs.25,000 within one month of its issuance. It also directed that the reading of check meter already installed of complainant's premises will be compared with existing meter in the presence of Electric Inspector or his representative and the result will be acceptable to both the parties. It is the case of the respondent in its comments that the agreed instalments were not paid in spite of issue of the bills. However, the matter was taken up by the Electric Inspector in pursuance to the . order/observation of the learned Mohtasib. Vide order dated 25-:3-1996, he concluded that the meter was running fast by 118.75%. His order also records that soon after the initial inspection, the Sub-Divisional Officer made an application on 7-2-1996 stating that although he signed the original inspection memo, he was dissatisfied with the checking. Apparently, another application on 11-2-1996 was also made to the same effect and this time it was pointed out that the formula of measuring the correctness of the meter employed by Electric Inspector was unknown to the science of electricity. Apparently, the Electric Inspector did not accept the protestation of the Sub-Divisional Officer and proceeded to hold that the meter was fast by 118.75 % . This order was appealed against by WAPDA and the Advisory Board (hereinafter referred as the Board), on 1-7-1996, held that the finding of Electric Inspector was "an impossibility", It set aside the said finding. It also concluded that the demand of WAPDA for. payment of Rs.80,474 on the basis of slowness of the meter by 59,18% was also illegal. The same was also set aside. It permitted WAPDA "to charge the respondent for the energy consumed during the disputed period, i.e., from the month of claiming slowness charges till the replacement of the metering equipment In dispute on the basis of the energy consumed during the corresponding period of the previous year when there was no dispute of accuracy regarding the metering equipment at the premises of the respondent between the. parties". The order of the Board was signed by Chairman and one Member. WAPDA prepared bill in the light of the decision of the Board and wanted to recover it by resorting to the coercive provisions of section 81 of the Land Revenue Act, 1967, which has compelled the petitioner to file this petition seeking a declaration that the demand by WAPDA, even in terms of the decision of the Board dated 1-7-1996 is without lawful authority, It has also been prayed that sum of Rs.50,000 coercively recovered be directed to be refunded.

2. The case has been contested by respondents Nos. l, 2, 3 and 6 by filing a written statement. It is stated that according to calculation on the basis of the decision of the Board, total amount payable by petitioner comes to Rs.2,67,641 out of which Rs.50,000 have since been paid and the balance total is Rs.2,17,

641. It is also urged that as agreed before the learned Mohtasib, the petitioner did not pay the instalments and his conduct, therefore, disentitles him to seek an equitable relief from this Court.

3. The basic argument raised by learned counsel for the petitioner is that the constitution of the Board was illegal and the decision given by it consequently has no validity. Reliance is placed on section 35 of the Electricity Act, 1910 and the Notifications dated 5-9-1989 and 17-10-1989 issued thereunder. It is argued that in all circumstances the Board has to consist of a Chairman and two Members and decision of one Chairman and a Member is illegal Reliance for this purpose is placed on WAPDA v. Barkat Ali 1995 CLC

654. This argument has been refuted by learned counsel for WAPDA by relying on notification dated 6-6-1990 issued by Government of Punjab which amends clause (4)(iii) of notification relied upon by the petitioner, It is claimed that by virtue of amendment, the decision of the Chairman supported by, at least. one Member is valid and is final.

4. The argument that the Board was not properly constituted has to be repelled. The unamended clause, as relied in the judgment in the case of Barket Ali (supra) as well as amended clause as a result of notification dated 6-6-1990, both made/issued under section 35(3)(b) of the Electricity Act, 1910 are reproduced:- UNAMENDED?????????????????????????????????????????????? AMENDED 4Tiii). The decision of the Advisory?????????????????? 4(iii). The decision of the Chairman Board shall be unanimous. In case of???????????????? of the Advisory Board supported by, difference between the Chairman?????????????????????? at least, one member, shall be final. and the Members the matter will be?????????????????? In case of difference between the referred to the Government whose??????????????????? Chairman and the Members, the decision thereon shall be final.?????????????????????????? matter will be referred to ??????????????????????????????????????????????????????????????????????? Government, whose decision shall ??????????????????????????????????????????????????????????????????????? be final. It will be seen that in terms of the amended clause, decision by Chairman, if supported by one Member is not only valid but it is final. Unfortunately, the amendment does not seem to have been brought to the notice of the Court when it delivered the above judgment.

5. Not much was urged on merits of the controversy. Learned counsel, however, adopted and supported the view taken by the Electric Inspector, However, the view taken by the Electric Inspector has not been accepted by the Board which consists of technical persons. The reason for wrong calculation by the Electric Inspector has been given -in para. 5 of the written statement and it is this reason which has found favour with the learned Board. No cogent reason has been advanced as to why the view taken by the Board should be held to be incorrect.

6. Be that as it may, the petitioner is otherwise disentitled to the relief under Constitutional jurisdiction as undisputedly he reached an agreement before the learned Mohtasib but did not adhere to the same. He failed to pay the instalments as agreed but was compelled to do so when the criminal case was registered on 27-1-1997 and when coercive measures were used/threatened to be used. Such a person can hardly expect to claim the discretionary relief under Article 199 of the Constitution. 7.For all that has been stated above, there is no merit in this petition, which is hereby dismissed, leaving the parties to bear their own costs. Q.M.H./M.A.K./C-22/L ???????? ???????????????????????????????????????????????????????????????Petition dismissed.