' SYED JAMSHED ALI, J.---The petitioner-Company and one of its officers seek leave to appeal against the judgment dated 31-7-2004 of the learned Lahore High Court, Bahawalpur Bench, dismissing the writ petition filed by the petitioners against the order dated 2-6-2001 of the Advisory Board, Punjab. Facts of the case are briefly noted hereunder.
2. On 28-12-1998, M/s. Cholistan Cotton Ginning Factory, Bahawalpur owned by Muhammad Ashiq, Respondent No,1, was raided. The raiding team having detected theft of electricity not only a criminal case was got registered against respondent No,1, but a detection bill inthe sum of Rs,8,52,968 (for the 1995-96 season) was also served on him. He assailed the said detection bill before the Electric Inspector. However, vide order dated 10-5-2000, he declined to take any decision on the ground that the dispute was required to be resolved within 90 days which had already expired. Respondent No,1 filed an appeal before the Advisory Board which was dismissed on 16-9-2000 with the finding that it was not maintainable. However, respondent No,1, was advised to approach the Provincial Government for a direction to the Advisory Board to hear the case in its original jurisdiction or Civil Court may be moved in the matter. Respondent No,1, accordingly, moved the Secretary to the Government of Punjab in the Irrigation and Power Department and obtained a direction to the Advisory Board to hear the petition of respondent No,1 in its original jurisdiction.
3. The direction of the Provincial Government has not been placed on the record. However, we have noted the direction referred to above from the judgment of the Advisory Board. The said Board declared the disputed bill as illegal and unlawful vide order dated 2-6-2001. The petitioners approached the learned High Court, inter alia, with the contention that the Advisory Board had no jurisdiction. The contention was repelled by the learned High Court on the ground that the objection to the jurisdiction of the Advisory Board was not raised before the said Board. However, it was held that the Advisory Board had the jurisdiction in the matter with the observation that it could competently exercise the delegated power as Appellate Authority under the direction of the Punjab Government under section 38(3) of the Electricity Act.
4. Leave is sought against the said judgment of the High Court.
5. The learned counsel for the petitioners submits that the Advisory Board had no jurisdiction to examine the validity of the disputed detection bill and, therefore, the said Board could not have declared the said bill as illegal. His other grievance is that when the appeal was first filed before the Advisory Board by respondent No,1, it was dismissed as not maintainable. However, while passing order dated 2-6-2001, the Advisory Board noted the facts in respect of earlier round of litigation but assumed, without any basis, that by virtue of the direction of the Provincial Government, the said Board had jurisdiction in the matter. His contention is that a question of law, particularly one relating to the jurisdiction of a forum, which goes to the root of a case, could be raised for the first time even before the highest Court of the country and therefore, the learned High Court erred in not permitting the said question to be raised. He maintains that in accordance with the judgment of the Full Bench of the Lahore High Court in Water and Power Development Authority and others v.
Mian Muhammad Riaz and another PLD 1995 Lah. 56; Colony Textile Mills Ltd. Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd. (MEPCO) Multan and 2 others 2004 SCMR 1679, examination of validity of a detection bill, the basis of which is illegal abstraction of energy, was beyond the scope of the Electricity Act, 1910. He also complains of lack of application of mind by the learned Single Judge inasmuch as that assumption of jurisdiction by the Advisory Board has been held to be valid by virtue of the powers vesting in the Provincial Government under section 38(3) of the Electricity Act, 1910, although the said section only enables framing of the rules under section 37 and the latter section provides for framing of the rules by the Federal Electricity Board.
6. On the other hand, the learned counsel, appearing for respondent No,1, has vehemently opposed this petition primarily for the reasons which persuaded the learned High Court to hold that the Advisory Board had the jurisdiction in the matter. He placed reliance on section 38(1) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (Act No,XL) to contend that decision of cases of theft of electricity was within the competence of the Punjab Government. He maintained that under section 38 of Act XL of 1997, the Provincial Government or the Advisory Board as its delegate has the original jurisdiction while it has appellate jurisdiction by virtue of section 36(3) of the Electricity Act.
7. The submissions of the learned counsel have been considered. The learned Lahore High Court, after declining to entertain the question of jurisdiction of the Advisory Board, held that the said Board had jurisdiction in the matter by virtue of the direction given by the Provincial Government under section 38(3) of the Electricity Act. In fact, the said section was wrongly quoted. The learned Single Judge of the Lahore High Court perhaps meant section 36(3) of the Electricity Act. $. Two questions are primarily required to be answered. The first is whether the petitioners, who were respondents before the Advisory Board, could object to the jurisdiction of the said Board before the High Court and second whether the Advisory Board had the jurisdiction. Before we, answer the first question, we deem it appropriate to address ourselves to the second question first.
9. Under section 35 of the Act No,IX of 1910, the Provincial Governments are empowered to constitute an Advisory Board with power, inter alia, to define the duties and regulate the procedure of the Board. Under section 36 of the said Act, Provincial Governments have the authority to appoint Electric Inspectors and subsection (3) thereof provides that "in the absence of express provision to the contrary in this Act or any rules thereunder an appeal shall lie from the decision of an Electric Inspector to the Federal Government or the Provincial Government as the case may be or If the Federal Government or the Provincial Government or the Provincial Government as the case may be by general or special order so drifts to an Advisory Board". On 16th December, 1997, Regulation of Generation, Transmission and Distribution of Electric Power (Act No,XL), 1997 was promulgated. Section 3 thereof authorizes the Federal Government to establish a National Electric Power Regulatory Authority. Powers and functions of the said authority have been given in section
7. However, section 38 of the said Act provides that each Provincial Government shall establish offices of inspection, inter alia, to enforce compliance with distribution companies' instructions respecting metering, billing, electricity consumption charges and decision of the cases of theft of energy. In fact, this is the provision which is being relied upon by the learned counsel for the respondents. In the reading of the said section, the theft cases could be competently decided by the Provincial Government or its delegate, i,e, the Advisory Board.
10. Section 26-A of Act No,IX of 1910 authorizes a licensee to charge for illegal abstraction of energy.
Section 26(6) of the Act IX of 1910 contemplates the disputes which could be adjudicated upon by an Electric Inspector. It will be appropriate to reproduce the said provision.
"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, in 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 subsection he shall give to the other party not less than seven days' notice of his intention so to do.
' The question as to the scope of sections 26-A and 26(6) of Act No,IX of 1910, in a case of theft of energy came under examination of a learned Full Bench of the Lahore High Court in Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lahore 56 and it was held as follows:-- "The jurisdiction of the Electric Inspector is the provision of section 26(6) with reference to the meter or the maximum demand indicator or the measuring apparatus, supplied for ascertaining the supply of energy consumed at the premises. The amount of the bill for dishonest abstraction and the method adopted would not be challengeable 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."
11. Same view was taken in Colony Textile Mills Ltd. Mutlan through Factory Manager v. Chief Executive, Mutlan Electricity Power Company Ltd. (MEPCO), Multan and 2 others 2004 SCMR 1979 by this Court in the following words:- "The difference of above statutory provisions is obvious as the jurisdiction of the Electric Inspector is confined to the disputes relating to the matters falling under section 26(6) of the Electricity Act, 1910 and the matter relating to the charges on account of dishonest obstruction of energy would not be referable to the Electric Inspector. If the matter relates to the correctness of meter, maximum demand indicator, or other measuring apparatus, the dispute for consumption of electricity is referable to the Electric Inspector and in case for dishonest obstruction and consumption of energy, the licensee under section 26-A of the Electricity Act, 1910, may charge the consumer on the basis of considerations mentioned therein. The distinction is that in case of defect in the metering equipment or any fault caused by the consumer with the intention to prevent the meter from registering the consumption of energy, the assessment made by the licensee of the charges through detection bill can be subject to scrutiny by way of reference made to Electric Inspector by the consumer but if the metering equipment was completely by passed and through a device energy was being supplied by dishonest obstruction of electricity and the question relating to the correctness of metering equipment's or the measuring apparatus was not involved, the charge made under section 26-A is not a dispute referable to the Electric Inspector in terms of section 26(6) or any other provision of the Electricity Act, 1910."
' It was further held: "The examination of section 38 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, would show that the inspection office is empowered to enforce compliance with distribution companies regarding instructions in respect of metering, billing, electricity consumption charges and also determination of disputes of metering, billing and collection of tariff under section 26 of the Electricity Act, 1910. There is no mention of the charges of energy consumed or used through dishonest obstruction by altering or preventing from registering the amount of energy supplied and thus the respondent in such a case can competently assess the consumption of electricity. Section 26 of Electricity Act, 1910, being not controlled by section 38 of the above Act, shall operate independently and the licensee in the cases falling under said section can assess the charge for consumption of electricity without the intervention of Electric Inspector or Inspection Office established under section 38 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997."
Thus, as the law declared stands today, in cases of theft of electricity or illegal abstraction of energy, the Electric Inspector has no jurisdiction to adjudicate a dispute and it is only the Court of plenary jurisdiction who could resolve such a controversy.
12.The question which attracted our attention is whether in case the original forum cannot grant the relief claimed by an applicant before it, could the appellate forum grant it. Our answer to the question is plainly in the negative. An appeal is continuation of original proceeding and the Appellate Court is vested with the same powers which the Trial Court or the original forum has. And, in case the original forum cannot grant the relief claimed then no appeal could be successfully maintained to get the same relief. Jurisdiction to hear an appeal, in case of a detection bill due to theft of electricity, neither vests in the ProvincialGovernment nor a direction could confer appellate jurisdiction on the said Board in such-like cases for the simple reason that right of appeal is creation of a statute and unless .Specifically conferred it is not available.
13. We will, however, also like to clarify, that as observed in the case of Pir Sabir Shah supra, appeal against an illegal order lies in the same manner as it lies against a legal order. Therefore, in case Electric Inspector assumes jurisdiction, which he does not have under section 26(6), and passes an order, an appeal of the licensee before the Advisory Board shall be competent. In that case, the relief would be claimed against excess of jurisdiction of the electric Inspector.
14. We may, observe that the Advisory Board, in the judgment noted that direction of the Provincial Government empowered the Board to decide the matter in original jurisdiction. We have carefully gone through the provisions not only of Act No,IX of 1910 but also of Act XL of 1997 but could not find any provision whereby the provincial Government is empowered to decide validity of a detection bill on account of theft of energy in original jurisdiction.
15. Section 38(1)(a)(i) relied upon by the learned counsel for the respondents in support of the submission that the Provincial Government has original jurisdiction to decide such a dispute is wholly out of place. It will be appropriate to reproduce the relevant provisions of section 38:-- "Provincial Offices of Inspection.--(1) Each Provincial Government shall---
(a) establish offices of inspection that shall be empowered to--
(b) enforce compliance with distribution companies' instructions respecting metering, billing, electricity consumption charges and decision of cases of theft of energy; and" [Underling is ours to supply emphasis] The offices established under section 38 could be empowered to enforce decision of the theft cases and not to decide the theft cases. Therefore, we have no doubt in our mind that neither the Provincial Government nor the Advisory Board had the original or appellate jurisdiction to examine the validity of the disputed detection bill and the remedy of respondent No,1 was to challenge the same before the Civil Court.
16. It is primarily the duty of the Courts and other adjudicating forums to decide lis before them in accordance with law. The Courts and other forums are not relieved of this duty on account of an act or omission of a litigant or a lawyer. Also that jurisdiction on a Tribunal or Court is conferred by law and not by consent of the parties, express orimplied. With this note, we proceed to examine the judgments relied K upon by the learned High Court in declining to entertain the question of jurisdiction.
17. In Chief Engineer, Hydel (North) and Project Director, WAPDA, Warsak v. Zafarullah Shah and another 2003 SCMR 686 this Court declined to entertain the question of jurisdiction with the following observations:-- "Though from the general principles of civil law, we are not in a position to derive any help yet section 21, C.P.C. Lays down a principle that squarely runs counter to the conduct of the appellant- WAPDA. The principle is that if no objection to the jurisdiction of a Court or Tribunal is taken in the forum of first instance it cannot be raised either in appeal or in revision and that too, if a failure of justice has occurred in the decision of case. We have gone through the reply of WAPDA before the Tribunal (pages 16, 17 and 18) where no objection to the jurisdiction of Tribunal had at all been raised. All the objections were almost related to the facts of the case and the estoppel by conduct of respondent through his resignation. We hold, in the circumstances, that objection to jurisdiction if not taken before the Tribunal, cannot be taken before this Court now."
' The basis of the above observation was section 21 of the Code of Civil Procedure which provides that objection to territorial jurisdiction must be raised before the Court concerned, at the earlier opportunity. In Ahmad Khan and another v. Zahur Ahmad Khan Tareen and 7 others PLD 1986 Lah.
184 the petitioners before the Lahore High Court had themselves invoked the jurisdiction of the Additional Chief Land Commissioner. The situation is different when a person objecting to the jurisdiction is defendant/respondent before a forum. In Naik Muhammad and others v. A.D.C.(C) and others PLD 1988 Lah. 299, the petitioner was held not entitled to discretionary relief in constitutional jurisdiction against usurpation of jurisdiction by a public functionary which he did not have.
18. As against the views expressed in the cases noted in the impugned judgment, the views of this Court, on the question, may also be noted.
19. The first to be noted is Raleigh Investment Co. Ltd. v. The Governor General in Council AIR 1947 Privy Council 78. The question of jurisdiction arising under section 67 of the Income Tax Act, 1922 was not raised before the Federal Court which was allowed to be raised before Privy Council and it was observed as follows:--- "In the proceedings before the Federal Court the point as tojurisdiction arising under S.67 of the Act of 1922 was not taken. But jurisdiction cannot be given by consent. It is pars judicis to take jurisdiction into consideration and the section has to be considered."
20. In Haji Abdullah Khan and others v. Nasir Muhammad Khan and others PLD 1965 SC 690, this Court observed that a pure question of law could be raised at any stage of the proceedings. It may be noted that in the above said case, the question which was sought to be raised for the first time before this Court was the effect of minority of vendees on the agreement to sell executed on their behalf and the following observations were made:-- "It may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts law has to be given effect to whether or not it has been relied upon by a party."
21. In Muhammad Afzal v. Board of Revenue, West Pakistan and another PLD 1967 SC 314, the question of jurisdiction of the learned Member, Board of Revenue to interfere in .The matter was not allowed to be raised before the High Court for the first time in constitutional jurisdiction. This Court interfered in the matter with the following observation:-- "By mere submission, in the capacity of a respondent, to the authority of the Member, the appellant could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner."
' Similar observation was made in Maulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622 and Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another PLD 1995 SC 66.
22. Perusal of the aforesaid judgments of this Court shows that preponderance of opinion has been that consent cannot confer or take away jurisdiction. We will however, like to add a word of caution.
In this case, we are dealing with the "subject-matter jurisdiction" and not pecuniary, territorial or personal jurisdiction because objection to such jurisdictions is regulated respectively by the Suits Valuation Act and the Code of Civil Procedure.
23. As far as the Lahore High Court is concerned, in a number of cases noted hereunder, the same view was taken i,e, that jurisdiction is conferred by law and not by consent of the parties. In Chief Administrator of Auqaf, Punjab v. Allah Ditta and another 1990 CLC 821 despite the bar contemplated by the Auqaf (Federal Control) Act, 1976, a civil suit was entertained by the Civil Court and decided. While interfering, the learned High Court observed as under:- "Term 'jurisdiction' which refers to the legal authority and competence of the Court to administer justice is conferred by law only. It can neither be conferred nor taken away by consent of parties.
Even submission shall not confer jurisdiction where it does not exist."
24. In Muhammad Hayat v. Additional District Judge 1st, Okara and 2 others PLD 1990 Lahore 350 while interfering in the concurrent orders of the Courts below the learned High Court observed as under:- "The admitted position is that Fazal Zada Khan was not a senior Civil Judge, therefore, he had no jurisdiction in this matter. Since it is a case of total lack of jurisdiction and proceedings are coram non judice, therefore, objection can be raised at any stage."
' Similar view was taken by the learned Lahore High Court in Ghulam Aliv. The District Judge, Lahore and others 1994 MLD 720, Chaudhry Haq Nawaz Chohan v. Chaudhry Tariq Azam and 43 others 1994 CLC 1530 and by the Karachi High Court in the Committee of Receivers of Assets of Mr. Abdul Wahab Galadari v. Abdul Wahab Ebrahim Galadari and another 1991 CLC 694.
25. There could not possibly be two opinions that exercise of constitutional jurisdiction is discretionary and the Court, while exercising such jurisdiction, can refuse relief against an order passed by a functionary without jurisdiction if interference in, constitutional jurisdiction will perpetuate ill-gotton gains or bring about an unjust consequence or equities are against the person invoking constitutional jurisdiction. See Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Muhammad Baran and others v.
Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691. It may, however, be remembered that if non-interference in an order without jurisdiction will perpetuate an illegality or bring about an unjust result, imperatives of justice will require exercise rather than excise of jurisdiction.
26. On careful examination of the facts of the case, we do not find that equities were against the petitioner to withhold relief against an order of the Advisory Board which had no jurisdiction in the matter. The two petitioners had invoked constitutional jurisdiction in their official capacity and no personal benefit was involved. Nor it could be said that interference of the High Court would have brought about an unjust consequence.
27. For the above said reasons, we convert this petition into appeal, allow the same and set aside the order dated 2-6-2001 of the Advisory Board and the judgment dated 31-7-2004 of the learned High Court. Respondent No,1' shall be free to have recourse to the remedy available on him under law.
…and 19 more citing cases