P L D 2005 Lahore 281 (PLP)

This respondent company's electricity connection, installed under Tariff B‑2, was disconnected by WAPDA i.e. the petitioner on 9‑3‑1988 for non‑payment. Under the equipment removal order dated 21‑5‑1988, the equipment was removed by the petitioner on 12‑6‑1988 from the respondent premises. On respondent's request for re‑connection of the disconnected energy, in August, 1989 the petitioner demanded various charges including a sum of Rs.191,040 as "fixed charges" for the period from March, 1988 to August, 1989. The respondent claimed that the demand of Rs.109,040 was illegal but the same had to be paid under compulsion to obtain reconnection wherefor it applied for instalments. The request was granted and the respondent started payment of instalments with effect from 10‑9‑1989. The connection was restored by the petitioner upon receipt of all other charges and the first instalment of the fixed charges. The remaining instalments for "fixed charges" were made recoverable with each bill for the consumption of electricity.

2. The respondent filed a suit to obtain declaration and injunction against the above said demand of fixed charges. Upon contesting written statement of the petitioner, the learned trial Judge framed five issues. Evidence was recorded. Through judgment and decree dated 1‑3‑1992 the learned Civil Judge, Jhang decreed the suit. Petitioner's appeal thereagainst was rejected and the above said decree was upheld by the learned Additional District Judge, through his judgment and decree dated 19‑12‑1993. Hence, the present civil revision.

3. The learned counsel for the petitioner placed reliance upon the cases of Water and Power Development Authority and another v. M.N. Steel Re‑Rolling Mills (1999 SCMR 494) and Water and Power Development Authority through Chairman and 2 others v. Makka Ice Factory through Mian Amanullah (PLD 1991 SC 813) to contend that the Honourable Supreme Court of Pakistan upheld the liability pf the consumer to pay fixed charges even during the period of non‑supply of the electricity and also on the disconnection of the meter. And that WAPDA had maintained sanctioned load along with necessary infrastructure to make the energy available to the consumer as and when demanded wherefor the respondent could not be absolved of the liability to pay the "fixed charges" even when the electricity connection remained severed to its premises.

4. Contrarily the, learned counsel for the respondent‑company supported the impugned judgments and decrees by placing reliance upon the cases of WAPDA v. Saeed Ice Factory (1989 MLD 4329) and Sh. Abdur Rahim Allah Ditta (Regd.) Re‑Rolling Mills v. Water and Power Development Authority, Lahore and 4 others. (1983 CLC 2941).

5. Heard.

6. The facts in the present case are not disputed. The electricity connection to the respondent premises was disconnected on 9‑3‑1988. The equipment was removed on 12‑6‑1988. Pursuant to the respondent's request of August, 1989 the energy to the respondent's premises was restored. The petitioner claimed Rs.191,040 as "fixed charges" for the period of March, 1988 to August, 1989. It is also admitted by both the parties that the object for the levy of the "fixed charges" is to "reserve power" by WAPDA for the consumers "billing demand". In the present case WAPDA, the petitioner claims entitlement to recover "fixed charges" on the ground that power remained reserved for the respondent to ensure restoration of the electric supply. The respondent contrarily contends that upon disconnection of supply and removal of equipment, WAPDA could not have kept the power in reserve only in expectation of restoring connection and claim "fixed charges" as and when re connection was sought. Evaluating the respective views in the context of the contract and cited cases, the legal position that emerges in my opinion is hereinafter recorded in the following paras.

7. In the case of WAPDA v. M.N. Steel Re‑Rolling Mills (supra) the "fixed charges" imposed by the Authority for the load-shedding period were challenged. The Honourable Supreme Court of Pakistan held that: "on thorough examination of all aspects we are of the opinion that "minimum fixed charges" payable to the WAPDA by the consumers for obtaining industrial supply apparently pre supposes two important factors. Firstly, that during the period of load-shedding WAPDA continues to maintain entire network to immediately restore electricity when its supply is switched back and, thereafter, constantly provide requisite energy for which appellants continue incurring expenses. Secondly, appellant is bound to earmark and reserve electricity for entire remaining period to comply with implied responsibility of answering "maximum demand" of the consumers .... " And the "real object and true rationale behind "fixed charges" appears to be that during disconnection of supply pursuant upon load-shedding, WAPDA continues to maintain service line and entire set‑up to ensure the supply when available, and, thereafter reserve the power to meet the "maximum demand .... " Further holding that "since, prima facie, the entire energy produced and generated by WAPDA during the period of load-shedding is distributed and. sold, therefore, under such extreme situation, it is not possible to "reserve the power" required by the respective industrial consumers;" the Honourable Supreme Court of Pakistan struck the balance by reducing the "Fixed charges" payable by the consumer to 50% to allow proportionate adjustment."

8. The law thus interpreted and settled by the Honourable Supreme Court of Pakistan is that the "reservation of power" to meet the reserve demand of the consumer for billing purposes attracts "fixed charges". This essentially entails continued supply of the energy to be consumed at the option, need and requirement of the consumer. Where it is not possible to "reserve the power" or that where power is not reserved during a certain period, fixed charges need to be adjusted or reduced to the benefit of the consumers.

9. WAPDA's right to recover `fixed charges" is inextricably attached to its duty to "reserve power" for the consumer. Correspondingly consumer has the right to obtain "reservation of power" upon payment of "fixed charges" to WAPDA. However, where "reservation of Power" ceased to be WAPDA' duty on severance of contact or by termination of the contractual arrangement, "fixed charges" could not be demanded from or imposed upon the customer.

10. In the present case because of the respondent's non‑payment of the dues, WAPDA invoked the rescission clause of the contract between WAPDA and the consumer. The equipment was also removed. The supply to the respondent's premises was disconnected on 9‑3‑1988. The equipment was removed on 12‑6‑1988 under the equipments removal order dated 21‑5‑1988. Such disconnection of supply to and removal of equipments from the premises rendered the respondent consumer unable to utilize the energy upon its option and need unless re‑connection of the supply was obtained. And WAPDA was absolved under the contract and the law of its obligation to "reserve power" to meet any demand of the defaulting consumer. Correspondingly WAPDA also lost the right to claim and recover "fixed charges" from such customer upon revocation of the contract.

11. The case Water and Power Development Authority through Chairman and 2 others v. Makka Ice Factory through Mian Amanullah (supra) is inapplicable to the present case. In this case the electricity meter of the consumer was disconnected temporarily on his application for the reasons that meter over‑shot the supply of energy. The supply was suspended temporarily wherefor WAPDA was under an obligation to maintain and reserve power to restart supply on consumer's demand. The consumer was thus under a contractual duty to pay the "fixed charges". In the present case disconnection of energy supply and electricity line to the respondent premises was permanent till grant of re‑connection or restoration of connection by WAPDA. There was thus no obligation to "reserve power".

12. In view of the above I am of the considered opinion that the suit of the respondent was validly decreed by the learned trial Court and appeal of the petitioner was also properly rejected by the learned first Appellate Court. This civil revision has no merit and is dismissed with costs throughout. M.H/W‑29/L Revision dismissed.