Through this Constitutional petition, Water and Power Development Authority has challenged the order dated 1-12-1994 (short order announced on this date and the reasons were recorded latter passed by the Advisory Board, Government of the Punjab, vide which it allowed respondent Ch. Muhammad Hanif's application filed under Section 26(6) of the Electricity Act, 1910 and held that the metering equipment installed at respondent's premises was fast by 30.76% and directed that the excess amount charged through electricity bill ever since the installation of the metering equipment should be refunded (from 8-6-1989 to July, 1993) and for the said period respondent consumer should only be charged on the basis of average consumption recorded during the period from July, 1988 to June, 1989 as there was no dispute between the parties with regard to the said period. The operative part of the order reads as under:-- "(i) The metering equipment installed at the premises of the petitioner by the respondent remained not correct since the date of its installation which is 8-6-1989;
(ii) as regards the electricity energy supplied by the respondent to the petitioner during the period the metering equipment was not correct i,e,from 8-6-1989 to 7/1993 (leaving the period from 8/1993 to 10/1993 in respect of which the matter is stated to be pending in the Court of Civil Judge of Gujranwala) the justifiable basis for assessment of the energy consumed during that disputed period is considered to be the average consumption recorded at the premises of the petitioner as consumed during the period from 7/88 to 6/89 when there was no dispute between the parties about the accuracy of the metering equipment at the premises of the petitioner. The average units consumed per month for the above-undisputed period work out to be 285263 units per month, and similarly the average maximum demand charged for the said period for realizing the fixed charges during the disputed period comes out to be 924.66 per month. The respondent should therefore overhaul the account of the petitioner for the period from 7/89 to 7/93 taking the average consumption of 285263 units per month and the average maximum demand of 924.66 K.W. Per month;
(iii) the metering equipment in dispute should be replaced by a correct and immediately."
2. Learned counsel for the petitioners, in support of this petition,made following submissions:---
(i) That the reference pending before the Advisory Board, Government of the Punjab arose out of the civil suit filed by the respondent, in which he had challenged the electricity bills for the months of September, October and November, 1993 only and there was no occasion for the said Board to pronounce a finding that the metering equipment installed at respondent's premises was defective since, 1989;
(ii) that on a spot inspection carried out in the presence of the Electric Inspector, Senior Official of WAPDA and a representative of respondent, the meter of respondent's premises was found tampered with, and a criminal case of theft was registered . In the afore-referred background it did not lie in the mouth of respondent No,1 to contend that the metering equipment was defective. The Advisory Board has not attended to this aspect and has totally ignored the material and evidence brought on record in proof of the said allegation. The order passed, therefore, is arbitrary and not sustainable;
(iii) that the judgment and decree dated 20-11-1993 passed by the learned Civil Judge, in respondent No,1's suit, on the basis of commission report (consisting of two Electric Inspectors) was set aside by the learned Additional District Judge on 16-5-1994, the said report, therefore, could not be made a valid basis for the Advisory Board to conclude that the metering equipment was defective;
(iv) that the Advisory Board did not grant sufficient opportunity to the petitioner to produce evidence and even its learned counsel to argue the case. Petitioner was asked to submit written argument and on the date when the written arguments were filed, the short order was announced.
This unseemly haste, without considering the written arguments, further fortifies the submission that the Advisory Board passed an order without appreciating petitionerscase and without attending to material issues raised by the petitioner WAPDAbefore the Board;
(v) that the Advisory Board has wrongly decided the question of jurisdiction. The consensual order passed by this Court in terms of which the reference was transferred from Electric Inspector to the Advisory Board carried a rider that it should be decided in accordance with law, including petitionersobjection with regard to jurisdiction.
3. Learned counsel for respondent Chaudhry Muhammad Hanif, while defending the impugned order, contended as under:-
(i) That the order dated 5-12-1994 passed by this Court in W.P. No,11277 of 1994 in terms of which respondent's application, pending before the Electric Inspector, was transferred to the Advisory Board, was a consensual order and, therefore, no objection can be raised with regard to its jurisdiction in passing the impugned order;
(ii) that even otherwise the Electric Inspector had jurisdiction to decide the issue raised in terms of section 26(6) of the Electricity Act, 1910;
(iii) that the impugned order passed by a tribunal of exclusive jurisdiction is being challenged on the ground of appreciation of evidence which is not tenable in law;
(iv) that the learned Tribunal has given its finding with regard to the extent of defect in the metering equipment on the basis of independent evidence. The direction to refund of the amount over-charged since the day the meter was installed at the premises and further direction to assess respondent's consumption on the basis of the average bill for the undisputed period from July, 1988 to July, 1989 reflect equitable consideration and no exception can be taken to it.
4. I have heard learned counsel for the parties and have gone through the impugned order passed by the Advisory Board.
5. Admittedly, the issue raised by the respondent in the civil suit which was pending at the time of filing the instant reference before the Electric Inspector, was relatable to the electricity bills served on the respondent by the WAPDA for the months of September, October and November, 1993. This is evident from the prayer clause of the suit filed by the respondent against the petitioner a copy of which is appended at page 34 of the instant petition. The judgment and decree passed in the said suit, it is not denied, was set-aside by the learned Additional District Judge, the case was remanded and in the meanwhile, the respondent filed reference before the Electric Inspector. The said reference is at page 42 of this petition, in para. 5 of which, it is specifically mentioned that the dispute was relatable to the afore-referred three months. However, in para.6 of the said reference, the respondent made an additional claim, for the first time, to the effect "that the incorrect metering equipment in question stands installed on premises since 8-6-1989. In this view of the matter, the error of 30.76%, thus detected in the circumstances, narrated above is liable to be corrected from the date of the installation of the incorrect metering equipment in question". The error of 30.76%, to which reference has been made in the preceding lines, is the finding of the report given by the Commission consisting of two Electric Inspectors (appointed by the learned Civil Judge who passed the judgment and decree). The judgment and decree based on this report, which was set aside by the learned Additional District Judge. Notwithstanding the serious objection raised by the petitioner WAPDA with regard to the manner in which the Commission carried out the said inspection of the metering equipment and the prayer made that the meter should be referred to the University of Engineering and Technology, Lahore, the Advisory Board not only based its order on the afore-referred report of the Commission but held that the meter was defective since November, 1989 and the reasoning given in para. 7 of the impugned order is as under:-- "... ... The respondent has placed on record consumption data for a period 7/88 to 4/94. Bare perusal of the consumption data reveals that there is very much increase in the consumption of the petitioner's factory with effect from 9/89 and pattern of consumption during the period 7/88 to 6/89 (old meter) is very much less as compared with that of consumption record by new meter during the period from 7/89 to 7/93."
6. The afore-referred finding is against the weight of evidence and is rather conjectural for following reasons:-
(i) The respondent never challenged the accuracy of the metering equipment since its installation i,e, 8-6-1989. This ground was taken in the written arguments but the failed to consider this. It has been specifically urged in para 3 of this petition to which the respondent has made a very evasive reply. The Electric Inspector, who was initially seized of the reference filed by the respondent and from whom the same was transferred by an order of this Court to the Advisory Board, which has passed the impugned order, was himself conscious that the respondent could get relief only for three months (3 bills). In his order dated 1-12-1993, which is at page 58 of this petition, he specifically held as under:- "6. The question placed before me is a question of fact. This has to be decided on the basis of material with equal opportunity to both the parties. Of course. I am bound by the decree of the Civil Court. However, I will give effect to the decree only to the extent of three bills mentioned in but not beyond it. At this stage, I am not prepared to go beyond the decree and extend its benefit to the date of installation of meter as the counsel for the petitioner wants me to do."
(ii) That the consumption recorded during the period from July, 1988 to June, 1989 could not be made a criterion because admittedly, the load installed at respondent's premises prior to July, 1989 was 225 KW and subsequently the respondent got the load extended to 1000 KW in 1991 and, secondly, a theft case was registered against the respondent's premises, he was served a detection bill and he paid the bill without protest to the tune of Rs,75,000. This ground has specifically been taken in ground 8 of the petition to which the reply of the respondent in the writtenstatement is again evasive. The Advisory Board has not attended to this material point;
(iii) that the criterion of average bill relatable to a period seven years back, is otherwise repellent to common sense as the said period was admittedly one of the initial years of the respondent's factory, the consumption load must have been low in those seven years and business must have been expended latter;
(iv) that the Advisory Board failed to appreciate that between July, 1989 to September, 1993 the respondent never made any complaint to the WAPDA with regard to the fastness of meter. How could it be held that the meter was fast during the said period? This was specifically taken by the petitioner in ground 10 of the writ petition and the reply of the respondent is again evasive i,e, "no misreading has been pointed out". Learned counsel for the respondent was specifically asked as to whether respondent ever made any complaint to Electric Inspector or filed a civil suit with regard to the meter from August, 1989 to October, 1993 to which he replied that the SDO was approached but no formal proceedings were initiated by the respondent WAPDA. The fact that the billing meter was functioning correctly is manifest from the comparative chart of readings through check meter given by the petitioner in written arguments submitted before the Advisory Board which was totally ignored. At page 7 of the written arguments, which are part of the Advisory Board's file, relevant chart is given as under: S/No. of Test PanelPERIOD OF CHECKING CONSUMPTION Checking panelRECORDED Billing Panel
(i) 17-4-1989 - 23-5-1989 386400 399820
(ii) 13-9-1989 - 24-9-1989 55080 55660
(iii) (a) 1-4-1990 - 6-9-1991 (Before changing of C.Ts)6412800 6435240
(b) 6-9-1991 - 13-8-1993 (After change of C.Ts)8254500 8223680
(iv) 13-8-1993 - 2-10-1993 567800 564120 In fact, the plaintiff involved WAPDA in litigation by tampering with the Billing Meters so as to create false evidence in support of his contention as raised in his suit".
(v) That the report of the Commission on the basis of which the Advisory Board found meter to be fast by 30.76% was submitted in Civil Court pursuant to the direction given by the said Court and suit was still pending (on having been remanded by the learned Additional District Judge when the Advisory Board delivered the impugned order on the basis of the report which even otherwise was not tenable as petitioner's objections with regard to the said report were a moot point in the said pending suit. Serious objections had been raised with regard to the manner in which the afore- referred Commission carried out the inspection of the meter not only before the Civil Court where the report was submitted but also before the Advisory Board in the written arguments submitted by the petitioner. It was specifically asserted that the Commission based its finding primarily on initial readings immediately after the start, of the respondent's furnace, that to have correct readings it was necessary that the furnace should have remained operative for a reasonable period of time i,e, 20/30 minutes before final readings are recorded. In view of this serious objection, it was necessary for the Advisory Board to adopt amore objective, transparent and credible test with regard to the issue in question. In this backdrop, the suggestion of the petitioner that the matter should be referred to the concerned specialist in the University of Engineering & Technology Lahore was reasonable, just and fair. The Advisory Board instead brushed aside the said suggestion merely on the ground that there was no practice of that kind little realizing that the acceptance of the Commission report (which was being seriously objected to by the petitioner) as the sole basis qua the fastness or slowness of meter, was itself an unprecedented act.
7. The Advisory Board has not appreciated the question of jurisdiction. It may be kept in mind that the issue was initially pending before the Electric Inspector and the petitioner WAPDA had raised serious objections with regard to the jurisdiction of the Electric Inspector as it was contended that the respondent was guilty of theft, of tampering with the metering equipment and reference under section 26(6) of the Electricity Act, 1910 was not maintainable. The Electric Inspector dismissed petitioner's objection through a non-speaking order. This order was challenged in appeal before the Advisory Board by the petitioner WAPDA and subsequently Writ Petition No,11277 of 1994 (WAPDA v. Muhammad Hanif) against the order of the Electric Inspector and the Advisory Board. During the proceedings in the said writ petition. It was respondent on whose application the said Writ Petition of the petitioner WAPDA was allowed and the case was transferred from Electric Inspector to the Advisory Board to be decided in accordance with law within fifteen days. Two writ petitions filed by the respondent WAPDA primarily sought a direction to the Electric Inspector to decide the question of jurisdiction. The precise objection is contained in the written reply filed by the WAPDA before the Electric Inspector in reference which was transferred to the Advisory Board and in which the impugned order was passed. The written reply is at page 55 of this petition and the relevant part is as under:- It is incorrect that a dispute exists between the petitioner and the respondent, which falls within the ambit of section 26(6) of the Electricity Act. It is further submitted that while visiting the premises of the petitioner on 30-10-1993 in the presence of the Electric Inspectors including your goodself, SE 2nd Circle, the Division Manager Cant. WAPDA and the XEN M&T Gujranwala from the billing meter box tampered inasmuch as two security slips pasted on meter box bearing No,K-038750 and K- 038767 were found fictitiously pasted and the signatures of Mr.Siddiq Khalid, the then S.I.
Concerned, Mr. Amanat Ali Bhatti, the then Deputy Director and Mr. Muhammad Ijaz Rubbani, XEN M&T Division Gujranwala were also found bogus, whereas security slips pasted on meter box bearing Nos.K-038749 and K-038770 were found re-pasted. It is thus clear that it is a case of tampering with the metering equipment and the same does not fall within the purview of section 26(6) of the Electricity Act. This tampering was then verified subsequently by the afore-mentioned officers on 8-11-1993, who secured the metering equipment after testing the accuracy in the presence of the consumer's representative on 12-8-1993."
The sanctity of the so-called Commission's report on the basis of which the impugned order has been passed, was completely eroded by the statement of Mr. Safdar Ali EXN, WAPDA Cant. Division, Gujranwala, who got recorded his detailed statement before the Advisory Board, He said:-- The members of the Commission and XEN M & T started to check and note down WAPDA security slips existing on the metering panel. During checking XEN M&T and Mr. Muhammad Yaqoob EI detected two number WAPDA security slips re-pasted and also two No, fictitious and fake having forged signatures and there Nos. Reprinted on the meter box. These re-pasted and fictitious security slips were shown to the consumer in presence of the Commission. The WAPDA staff was asked to stop the installation work of check meter. The members of the committee and the consumer was told that WAPDA metering equipment box has been tampered, therefore, the check meter cannot be installed. SE 2nd Circle Mr. M. S. Naeem (RE-I) was called and the position was also shown to him who agreed with the observation. Even then the Commission alongwith the consumer insisted for installation of check meter but they were clearly told that it could not be installed and WAPDA equipment/box is tampered. The test block earlier opened and the meter box was secured by pasting WAPDA security slips and come back. On 31-10-1993, the signatories of WAPDA security slip were called and went to the consumer premises namely Mr. Siddique Khalid SE, Mr. Imanat Ali Bhatti D.D. Mr. Ijaz Rabbani XEN M&T alongwith Mr. M.S Naeem and myself went to the consumer premises to get verified their signature. No responsible person was available there. Due to which we all come back and a notice was served to the consumer, for his checking on 8-11-1993, on which date we all above five went to the consumer premises where the consumer was also present. The consumer opened his lock and WAPDA lock was opened by me the WAPDA seals put on the lock was missing and only broken lash wire was there. The consumer Ch. Muhammad Hanif stopped the entry of the signatures together. He asked first to enter Mr. Siddique Khalid SE in presence of the consumer in the metering room, checked/inspected in metering room Mr. Imanat Ali Bhatti who also ckecked inspected security slips while Mr.Siddique Khalid remained inside.
Afterwards Mr. Ijaz Rabbani XEN M&T entered the room and checked the WAPDA security slips. They all gave the same observation to the consumer regarding tampering meter box, two No, re-pasted WAPDA security slips and two No, fictitious security slips. Mr. Muhammad Hanif was asked that the signatories would prepare a report to which he has also to sign but he refused. All officers came back to the AEB office where all the three signatories prepared a report and signed which is already placed at R-I. The Civil Court was also informed about the tampering of the box through an application-dated 3-11-1993. Certified copy has already been produced at R-3. Again the Court ordered for installation of check meter the Court was informed to check existing bulk meter and isolate the tampered metering equipment first, on the order of the Court on 10-11-1993 the bulk panel was installed in series with the existing bulk panel in presence of commission and the consumer. The consumer was asked to put load to check so that the meter may be checked. The accuracy of the bulk panel was checked by the XEN M&T checked the accuracy of the newly installed bulk panel when furnace was in operation. When the consumer put in operation his furnace the check bulk panel initially not started work then its connections from the terminal was interchanged afterwards it started functions with the help of wooden stairs XEN M&T climbed up with the existing bulk panel and got noted on to one of the EI Mr. Mushtaq the meter particulars of the existing bulk panel including its index reading then the ladder 'was shifted to the newly installed bulk panel and its meter particulars was noted on to Mr. Mushtaq EL It was told by XEN M&T and myself to the members of the Commission that five to seven minutes consumed in this process and, therefore, to record simultaneous initial reading the furnace has to be shut down. The consumer was asked to shut down his furnace and its readings were noted on when the furnace in shut down position. These readings were initial readings. It was decided at site that the Commission to record final reading after few days. The civil Court ordered on 13-11-1993 to record final reading to the commission in presence of WAPDA officers of both the bulk panels and submit report. The final readings were never recorded by the members of the Commission. Due to the reasons that exbreak down twice occurred on the furnace feeder during night of 12-11-1993. The EI were told about it that some might have intended to manipulate as the fault occurred at consumer premises during that night. The EI afterwards never visited the site to record the second reading as per orders of the civil Court. On 16-11-1993, it was known that the Commission have submitted an accuracy report (although incorrect and bogus report) without visiting the site against which objections were filed to the Court to an application dated 17-11-1994."
The afore-referred statement of the XEN to whom respondent never attributed any enmity is significant for following reasons:-
(i) It proved that respondent was guilty of theft and it was not a case of defect in metering equipment within the meaning of section 26(6) of the Electricity Act, 1910 but was an issue within the ambit of section 26-A of the Act to be decided by a Court of plenary jurisdiction through a civil suit.
(ii) it exposed the conduct of the member of Commission on whose report the impugned order has been passed;
(iii) it, prima-facie, established the credibility of the Technical Committee's report;
(iv) the theft of electricity is relatable to the same period regarding which he was served with bills, which he had challenged beforethe Electric Inspector i,e, September, October and November 1993.
A bare reading of sections 2646) and 26-A of the Electricity Act, 1910 would indicate that both these provisions cater to two different situations. If it is a case of defective meter and incorrect bill issued pursuant thereto, the case would fall within section 26(6) and a remedy is available before the Electric Inspector. However, if it is dishonest abstraction on account of any of the modes enumerated in section 26-A, the remedy would lie before civil Court. For a comparative study both the provisions are being reproduced as under:- 26(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, 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 sub-section he shall give to the other party not less than seven days notice of his intention so to do.26-A.Dishonest abstraction or consumption of energy.-- Not withstanding any thing 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 dis- connected, injured, altered or prevented from registering the amount of energy supplied 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) hours arid 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."
The Advisory Board has not correctly appreciated the point that the jurisdictional facts were non- existent and proceedings under section 26(6) of the Act were not maintainable. The entire material/evidence produced by the petitioner was ignored. Petitioner has taken up this plea in ground (v) and the reply to the said ground and the written reply of the respondent No,1 to the said ground is that "there is no law which makes it mandatory that reports of extraneous Committees such as Technical Committee of WAPDA Employees should be taken into consideration". The respondent did not lead any evidence in disproof of the said technical report and if the said report and other evidence had been considered, the Advisory Board would have come to the conclusion that the reference itself was not maintainable as under section 26(6) of the Electricity Act, 1910 it is only a dispute "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 any Electric Inspector" In the presence of report of the competent authority/technical committee (30-10-1993) holding that the billing meter was found to be tampered with; that two security slips (bearing Nos. K-038750 and K-038767) pasted on meter were found to be fictitiously pasted and further that the signatures of the senior officers WAPDA were found to be bogus and the evidence led before the Advisory Board, it could not have been a simple case of a defect in the metering equipment to attract the provision of section 26(6) of the Electricity Act, 1910. The very assumption of jurisdiction was bad in law. This is in line with the law laid down by a Full Bench of this Court in Water & Power Development Authority and others v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56) wherein, at page 75, it was held as under:- " The amount of the bill for dishonest abstraction and the method adopted, would not be challenge able in contemplation of section 26-A before the Electric Inspector as the consumer who wishes to challenge the same will have to seek his remedy under the general civil law by initiating appropriate proceedings before the Civil Court of plenary jurisdiction. The Electric Inspector by straining the language cannot assume the jurisdiction which the legislature has not conferred on him and in its wisdom has left the parties to avail of the remedy under the General Law from the judicial forum itself which forum having the plenary jurisdiction is best suited to decide the question after holding proper enquiry and on the basis of proper evidence."
8. For what has been discussed above, I am of the considered view that in rendering the impugned decision, the Advisory Board did not appreciate the import of section 26(6) of the Electricity Act, 1910, ignored the material evidence available on record and the order passed was without jurisdiction. This petition is, therefore, allowed and the impugned order is set-aside with no order as to costs.