' The petitioner an electricity consumer of WAPDA (the respondent) is stated to have been regular in payment of bills who was shocked to receive a detection bill dated 23-11-2002 of Rs,14,67,400 which was challenged by him before the Electric Inspector, Lahore under the provisions of Electricity Act, 1910. His application was accepted by the Electric Inspector on 3-7-2003, whereagainst an appeal was filed by the respondents before the Advisory Board Punjab. The order of the Advisory Board (which is undated) has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The learned counsel for the petitioner contends that Engineer Abdul Hafeez who was Chairman of the Advisory Board Punjab, Lahore was transferred w,e,f, 12-1-2004, had seized to hold the office of Chairman Advisory Board, thus, the order passed by the Advisory Board was coram non judice and of legal effect. Reliance in this respect is placed upon Mirza Abdul Hameed and others v.
Member, Board of Revenue II 1986 SCMR 257 and Muhammad Booth and 4 others v. Feroze Din and 5 others PLD 1981 Lah.
237.
' It is contended by the learned counsel for the respondents that since before relinquishing the charge by Engineer Abdul Hafeez the hearing had concluded, no illegality was committed by the Board in passing the impugned order. Reference in this context has been made to Malik Muhammad Samad Ishaq v. Land Acquisition Collector and others PLD 1978 Lah. 1139 and Messrs Cristal Cold Storage, Gujranwala through Irshad Ali v. Water and Power Development Authority, Lahore through Chairman and 5 others PLD 1999 Lah.
347. A controversy of identical nature arises in W.P. No,7511 of 2004 which has also been heard today and will stand disposed of along with this petition.
3. The respective contentions of the learned counsel for the parties have been considered in the light of the material brought on record. Unfortunately there is nothing on the record to disclose the exact date of the decision or the passing of the order, even the respondent has not mentioned the same in the parawise comments. The impugned order of the Advisory Board Punjab, merely discloses the date of hearing i,e, 13-12-2003. Nothing more is discernible from the said order.
Proceedings and noting, (copy whereof has been placed on the record),, however, shows that on 4-10-2003, the case was heard and was reserved for decision to be announced on 13-12-2003. On 13-12-2003, it was noted that "Both the learned counsel have put in appearance and have requested to offer additional argument/documents before announcement of decision. Arguments heard on behalf of both parties. Case is closed for decision to be announced on 31-1-2004".
Thereafter there are no proceedings, except the noting of 25-3-2004 which shows that draft decision was placed on -record. It only indicates that the decision was taken sometimes after 25- 3-2004. The question thus, arise that if the Chairman of the Board had been transferred vide notification dated 12-1-2004 "with immediate effect and posted as Chief Engineer Irrigation, Planning and Review Zone, Lahore" could he take a decision as Chairman of the Advisory Board.
There is no denial of the fact that Mr. Abdul Hafeez had been transferred w,e,f, 12-1-2004, who' was Chairman of the Advisory Board. Section 35 of the Electricity Act, 1910 envisages a Board consisting of a Chairman and not less than two other members: The composition of the Board was thus, not complete when the order impugned was passed in the instant case. It is not the case of the respondents that notwithstanding his transfer, Mr. Abdul Hafeez had continued to be the. Chairman of the Board. It is quite obvious because notification dated 20-8-2002 issued under section 35' of the Electricity Act, 1910, itself mentioned that Chief Engineer (Power) Irrigation and Power Department,. Lahore had to act as Chairman of the Board. The said Notification also lays down the procedure to be followed for disposal of appeal, clause (ii) whereof lays down that 'the proceedings of the Advisory Board will be presided over by the Chairman. The hearing of the appeal will be conducted by him in the presence of at least two members". Mr. Abdul Hafeez who was Chief Engineer (Power) and the Chairman of the Board when seized to hold the office of Chief Engineer (Power) lahore he became functus officio to act as Chairman of the Board as well. It Would have A been his successor who would have then acted as Chairman of the Board. Thus, though some hearing had taken place before the transfer of Mr. Abdul Hafeez, yet as the order had not been passed nor any decision announced, any decision taken after his transfer was of no legal effect. In Barkat Ali v. Additional Commissioner and others 2004 MLD 1633, controversy about the transfer of a Notified Officer and order passed by him cropped up. On the basis of principle culled out from various precedents, it was observed that--- ' "There can be possible no. Cavil that the power and authority of the Court/the Presiding Officer to hear and decide a matter has a direct nexus with his power to act in that capacity it is also oft repeated principle of natural justice that justice should not only be done but should manifestly and undoubtedly seen to be done. The rationale behind is that it is not important as to what actually was done but what might appear to be done and nothing should be done which may create a suspicion or may give a party an opportunity for cause of legitimate apprehension that there had been improper disposition of the matter resulting in interference with the course of justice. It is of utmost importance that stream of justice should continue to flow unpolluted and unsoiled. The hallmark of the adjudicatory process is the trust, confidence and satisfaction of the litigating parties that the Court was acting justly and fairly and kept the scales of justice evenly balanced. In the present case as has been noted above, the Officer who was performing as Notified Officer and had to adjudicate the matter as such was transferred on 12-1-1998, but he still heard the case on 13-1-1998 and decided it on 16-1-1998. In such situation he should not have heard it because of his transfer having been ordered "with immediate effect" on 12-1-1998. It may be observed that according to the tenor of the Notification dated 12-1-1998 its legal efficacy was not dependent upon its publication in the Gazette, as it took effect immediately. The disposition made by him was, thus, nothing but an act without lawful authority."
In such view of the matter, Mr. Abdul Hafeez who had been transferred on 12-1-2004 with immediate effect, could no longer act as Chairman of the Board and the order purported to have been passed by the Advisory Board is declared as of no effect. The result, however, would be that the appeal filed by the respondents/WAPDA and its functionaries will be deemed pending before the Advisory Board, which shall be heard and decided by It in accordance with law. The petition is accepted accordingly to the extent mentioned above. No order as to costs.