' SYED ZAHID HUSSAIN, J.---A declaratory suit instituted by the petitioner with consequential relief and for damages, that disconnection of electricity supply and removal of meter, was illegal without lawful authority, was contested by the respondents and was dismissed by the trial Court vide its judgment dated 28-10-1996, whereagainst the appeal preferred by the petitioner was dismissed on 2-6-1998 by the appellate Court. This is revision petition there against
2. The learned counsel contends that the Courts below have acted under misconception of the legal position obtaining on the subject inasmuch as that no theft of electricity had been made by the petitioner and no intimation/notice was issued to the petitioner before the inspection/checking of the meter nor the petitioner or other respectables of the locality were associated in the process by the surveillance team. It is contended that the proceedings taken in the absence and behind the back of the petitioner were contrary to law i.e, sections 24, 26 and 26-A of Electricity Act, 1910, but the Courts below have failed to appreciate the correct legal position and misread the evidence on the record. Reference has been made by him to Mian Muhammad Munir v. WAPDA and others (1983 CLC 211), Dr. Muhammad Rafiq Chaudhry v. WAPDA and others (1983 CLC 2397), Tahir Amin v.
Karachi Electric Supply Corporation Ltd. (1984 CLC 2245), Iftikhar Ahmad v. Water and Power Development Authority (1985 MLD 1117), Naeem Oil Mills v. Water and Power Development Authority and others (1986 MLD 680), The Chairman, WAPDA and 2 others v. Advisory Board, Punjab Lahore and 2 others (1987 CLC 1503), Nadir Khan v. Water and Power Development Authority and 2 others (1988 MLD 1374), Messrs Shamas Textile Mills Limited, Chiniot v. WAPDA (1989 CLC 2345), Messrs Tajuddin Silk Mills Ltd. v. Karachi Electric Supply Corporation Ltd. (1990 ALD 488), Pattoki Ice Factory v. Revenue Officer and others (1996 CLC 1636) and Imran Nazeer v. Saifullah Jan and others (PLD 2001 Lahore 31). It is thus, contended by him that despite the concurrent view taken by the Courts below which is erroneous in fact and law, this Court can interfere in revisional jurisdiction. The learned counsel for the respondents, on the other hand, contends that the concurrent judgments rendered by the Courts below do not warrant interference by this Court in revisional jurisdiction. It is contended that a notice was indeed issued to the petitioner though it was after the inspection had been carried out. It is further contended that as per the statement of D.W.2, the petitioner was present at the spot, therefore, no illegality had been committed by the respondents.
3. In the context of the controversy, Issue No,1 i.e, "whether disconnection of electricity and issuance of detection bill of Rs,30,267 are illegal, without lawful authority and mala fide" assumed relevance and primacy in the matter. The petitioner had produced Abdul Hamid, P.W.1 who stated that the meter was removed by the WAPDA official in proper condition which was taken by them to the shop of Muhammad Zaman, welder, where the same was broken open. It was stated by him that the petitioner was not present at that time. The petitioner/plaintiff appeared as P.W.2 and stated that it was his complaint before Wafaqi Ombudsman which prompted the WAPDA officials to take all these actions of disconnecting the electricity supply, removal of meter and registration of criminal case against him. It was stated by him that his complaint before the Wafaqi Mohtasib had been decided in his favour and that he was not present at the time when the meter was removed by the WAPDA officials. Muhammad Saleem, S.D.O., WAPDA, appeared as D.W.1 who statedly accompanied the surveillance team when the meter was checked on 25-1-1993 which was found slow. According to him, the petitioner/plaintiff was present at that time. It was stated by him that the meter was handed over to the police and was not sent to the Electric Inspector. The undisputed position from the record is that the first notice (Exh.P.II) issued to the petitioner/plaintiff under section 24-A of the Electricity Act, 1910 was of 30-1-1993 and in reply thereto (Exh.P.3) the petitioner/plaintiff had categorically stated that he had not stolen electricity and was being victimized. Exh.P.1 shows that in the complaint filed by the petitioner before the Wafaqi Ombudsman, the agency was found to be guilty of maladministration. Insofar as the criminal case against the petitioner is concerned, unrebutted stance of the petitioner is that the case was cancelled as the allegations against him were found false. While recording finding on the essential issue, the learned trial Court observed that the prescribed procedure had been adopted and consumption data had been prepared, therefore, there was no justification to declare the actions of the defendants as null and void nor the plaintiff could be declared entitled to get the decree of declaration. Such an approach has been affirmed by the appellate Court observing that "It was the duty of plaintiff/appellant to have proved this fact that the said bill was issued by the defendants/respondents to him with mala fide intention and the same was without lawful authority and illegal. The plaintiff/ appellant has not said anything in this regard nor proved Issue No,1 effectively. Consequently, I see no reason to differ with the findings of learned lower Court on Issue No,
1. Resultantly findings recorded by learned lower Court on Issue No,1 are maintained." The approach adopted by the two Courts below was neither consistent with the evidence that came or the record nor with the legal position obtaining in the matter. As mentioned above, the petitioner/plaintiff had referring to his complaint before the Wafaqi Mohtasib, endeavoured to prove that he was being victimized because of the findings by the Wafaqi Mohtasib against the WAPDA officials and also that in view of the investigation, that the petitioner was innocent criminal case was cancelled. The plea of the petitioner in the light of testimony of P.W.1 that the meter was in proper condition which was removed and was then taken to a welding shop where it was broken, coupled with the statement of the petitioner as P.W.2, could not be ignored or brushed aside. In Iftikhar Ahmad v. Water and Power Development Authority (1985 MLD 1117) it was observed that "admittedly no show-cause notice was served upon the petitioner for removal of the meter and for determination of amount for allegedly unauthorized use of energy on account of slow functioning of the meter. The requirement of law having been not complied with as held in the afore-cited authorities of this Court, the actions of issuance of demand notice and removal of the meter are hereby declared to be of no legal consequence." In Naeem Oil Mills v. Water and Power Development Authority and others (1986 MLD 680), it was observed that "the respondents were required to inform the occupier of their intention to enter the premises in order to ascertain the amount of energy supplied. It is, now, well-settled that before creating a charge against a consumer on account of electric energy consumed but not accounted for, service of show-cause notice is a condition precedent and that before preparing a 'detection bill' on account of unaccounted for consumed electric energy, it is necessary on the part of the WAPDA to associate the consumer at the time of the checking and calculation of the units and afford him an opportunity to meet the charge of theft/tampering with the meter." In Nadir Khan v. Water and Power Development Authority and 2 others (1988 MLD 1374) it was observed that "The provision of section 24 of the Electricity Act having not been complied with, therefore, the action of the respondents of disconnection of electric energy to the tube-well of the petitioner being contrary to law cannot be sustained". In Messrs Shamas Textile Mills Limited Chiniot v. WAPDA (1989 Law Notes (Lahore) 1133) similar view was taken. In Pattoki Ice Factory v. Revenue Officer and others (1996 CLC 1636) it was observed by a learned Division Bench that in view of the provisions of section 24 it becomes obvious that "in the first instance a demand should be made by the licensee for the payment of a specified sum of money by a specified date. If the consumer neglects to pay the amount demanded then the licensee is required to issue a notice calling upon the consumer to pay the amount within a' period which should not be less than 7 days and also inform the consumer that in the event of non-payment of the amount the electric connection would be disconnected." In Imran Nazeer v. Saifullah Jan and others (PLD 2001 Lahore 31) the removal of the apparatus and the meter, the detection bill was declared as illegal. This being the legal position, the action of disconnection of the electricity supply, the removal of the meter and issuance of bill was contrary to law and unwarranted. The petitioner/plaintiff was entitled to such a declaration from the Court. Since the judgments of the Courts below are not consistent with the legal position mentioned above, these are not sustainable in law. Resultantly, the suit filed by the petitioner deserves to be decreed to the extent of above declaration. The electricity supply statedly has already been restored to the premises of the petitioner. No further order, therefore, is warranted in that respect. Insofar as claim for damages is concerned, since there was no concrete and cogent evidence led by the petitioner. No decree for damages could be awarded to him.
' Thus, in the light of the above, accepting the revision petition, the suit is decreed to the extent mentioned above.
' No order as to costs.