MUHAMMAD ROSHAN ESSANI, J.--- By our short order dated 21.5.2003 petition was allowed and these are the reasons for the same. Petitioner filed petition challenging Order No. 5067 dated 27.12.1990 passed by the respondent No. 3 namely Electricity Inspector (Karachi Region) and Order No. SO.P)P.01/13-89, dated -- ---.---, passed by Secretary, Irrigation Department, Govt. Of Sindh.
2. Brief facts of the case are that the petitioners who are Manufacturers of Polyester Yarn having its factory at Plot No. B-40, SITE, Karachi and is consumer of respondent No. 2 since 1973. Petitioners were normally billed for the electricity till October, 1988 and there was no dispute of any kind in billing charges but suddenly in October, 1988 the respondents' department started sending average bills on their own conclusion and presumption whereby increased units were shown in the previous bill. The petitioners repeatedly made complaints to Electric Inspector, Government of Sindh respondent No. 3 on receipt of bill of each month after paying 50% of the bills to determine the dispute under Sections 14 and 26 of Electricity Act. The petitioners in the complaints were also requesting Electric Inspector to direct the respondent for fixing of "Check Meter" for determination of actual and correct consumption of electricity. On 6.1.1990 respondent No. 3 directed the respondent No. 2 to install one check meter minimum demand indicator at the premises of the petitioners under Section 26(7) of the Electricity Act, 1910. The meter was installed on 12.5.1990 for 75 days upto 24.7.1990. According to the petitioners the purpose of the "check meter" was to determine actual consumption of electricity and to resolve the matter finally as the said meter was strictly under the control and supervision of respondent No. 2. It is stated the according to meter reading average monthly consumption of electricity was 2510 units. The petitioner in the petition stated that in spite of consumption of units through check meter, the respondent No. 2 continued to send bills on average basis at much higher side than actual reading which were transpired from the check meter. The petitioner, therefore, again submitted representation to correct the bills to the average of 26250 units.
3. The Electric Inspector decided the matter on 27.12.1990 and ordered that the bills charged and paid upto September, 1988 were correct and no additional demand would be raised for that period of the billing, however, the demand of 1980 KW should be charged from October, 1988 to November, 1990 and the present meter be removed as defaulter by both the parties to avoid further dispute. The petitioner stated that the order was passed by Electric Inspector respondent No. 3 without considering the reading of "check meter".
4. Against the decision of the respondent No. 3, the petitioner filed an appeal under Sections 24 and 25 of Electricity Act before the respondent No. 1 challenging the numbers of units illegally determined by the respondent No. 3. The respondent No. 2 also filed an appeal challenging minimum demand indicator fixed in the sub station here in after referred as (MD-I). The respondent No. 1 after a year decided the matter upholding the order of respondent No. 3 to the extent of charging Billing Demand of 1980 KW per month for October, 1988 to November, 1990, further holding that working days of the meter as 25 days instead of 26 days as held by respondent No. 3. The petitioner through this petition impugned both the orders.
5. Heard Mr. Abdul Ghafoor Mangi, learned Advocate for the petitioner, Mr. M. Sarwar Khan, A.A.G. For respondent No. 1 and Mr. Muhammad Nadeem holding brief for Mr. M. Sohail for respondents Nos. 2 and 3.
6. The learned Additional Advocate General frankly conceded to the prayer of the petitioner. Mr. Muhammad Nadeem argued on behalf of respondents Nos. 2 and 3 but was not able to contravene averments made in the petition.
7. 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 impugned order.
8. However, we would like to make it clear that the observations made herein above are tentative in nature and will not effect in any manner suit filed by . The petitioner for recovery of alleged outstanding dues and the Court while deciding the said suit would give its own independent findings and without influencing with any observation made hereinabove. .