1. ' MRS. QIASER IQBAL, J.---The plaintiff has proceeded to file a suit for declaration and damages against the defendant.
2. ' Precisely the facts leading to the case are that the plaintiffs are running business on the Plots bearing Nos.D-92 and D-93, Shershah Site, Karachi. The defendants had installed two Electric Meters bearing Nos. AL-389644 for single phase and AP-060727 for three phase (hereinafter referred to as disputed meters). It is alleged that the premises remained closed from 1993 uptil 1998, defendant corporation continued to issue bills on average consumption basis and some time on minimum basis for disputed meter. Unfortunately, in the month of May, 1998, three phase meter was burnt, complaint was lodged and consequently, meter was changed on 17-2-1999. It is averred that the last bill issued by the defendants corporation of the disputed three phase meter for the month of December, 1997 was for Rs.52625 showing meter reading as 85213. Later no bill was issued by the defendants corporation, in the month of December, 1999, issued a payment slip of outstanding arrears for Rs..1,51,026 up to December, 1999 and allowed the plaintiff to pay all the existing arrears in instalments. It is alsp averred that at the time when the disputed meter was burnt a sum of Rs.104,741 was outstanding while in the month of January, 2000, bill was issued on minimum basis showing reading as 14975 units recorded from the changed meter. Later, no bill was issued from February, 2000 to September, 2000; in the billing month of August, 2000, the consumed units shown in the bill were 1469 including remaining installments of Rs.45,468; within a period of few months the defendants after taking custody of the disputed meter issued a "middle bill" of 800388 units for Rs.33,55,498.70 while the single phase meter had sown units as 1548. In the month of March, 2002, the plaintiff received a supplementary bill of Rs.84,392; despite the protest of the plaintiff no attention was paid by the defendants corporation nor the bills were rectified, as was required under given circumstances. However, defendants stopped sending the bills since October, 2000. It is averred that the defendants had manoeuvred middle bill though the computerized statement of account was available with the defendant. The plaintiff's premises never remained closed; smooth passage was provided to the meter readers, in violation of the settled norms, the defendants had illegally and unlawfully claimed an excessive bill, resulted in the existing cause of action to file suit against the defendants with the following reliefs:--
(A) To declare that there are no arrears or dues on the plaintiff in respect of the meters bearing No.AP-060727 up to December, 1999 and the alleged arrears of Rs.33,55,498 is illegal, unlawful and liable to be cancelled/set aside.
(B) To declare that there are no arrears or dues on the plaintiff in respect of the Meter bearing No.AL389644, except those which are consumed after October, 2002, as reflected in the Meter bearing No.AL-389644, and the alleged arrears as reflected in Annexures P/43, and P/44 as Rs.84,392 and Rs .1 ,54 ,386 respectively are illegally, unlawfully and liable to be cancelled/set aside.
(C) Permanent injunction restraining the defendant and/or any body else claiming or acting through or under it from disconnecting the electricity of the plaintiff through Meter bearing No.AL- 389644 and also further restrain from claiming any alleged arrears except current bills as per consumption. .(D) Permanent injunction restraining the respondent and/or its recovery sale department and/or any body else claiming or acting through or under them from recovering the alleged arrears of Rs.34,15803 in respect of the Meter No.AP060727, from plaintiff till decision of this case.
(E) Any other relief or reliefs that deem fit under the circumstances of the case.
(F) Damages in the sum of Rs.25,00,000 with interest till realization.
3. ' The defendant in the written statement categorically averred that the plaintiff had created hindrances, obstacles in the way of the meter readers, from August, 1991 to November, 2001 bills were issued on average basis, reading recorded in 'December, 1995 was 85123 units upto January, 1999 the consumption could not be ascertained until the meter was reported to be burnt and changed on 17-2-1999 with meter reading 885601. In fact the bill of December 1997, was issued for Rs.271 (net) and gross Rs.292 with previous arrears of Rs.5,239 making a total of Rs.52,332, bill for December, 1997 was issued on minimum charges likewise bills for January, 1996 to May, 1999 were also issued on minimum charges basis. It is emphatically asserted that reading of meter as 800388 units were recorded, which led to the defendant to issue bill amounting to Rs.33,55,498.86, issued in accordance with law after due confirmation and careful checking; so far as the bill of single phase meter is concerned, it is averred that arrears of Rs.10,507.86 were outstanding against the plaintiff, units were charged in accordance with the consumption and the reading shown in the meter. The plaintiffs were irregular in paying the monthly bills, which resulted in accumulation of the dues and plaintiff was allowed to pay 50% of the Outstanding dues amounting to Rs.84,393.00.
4. The detection/supplementary bill was issued on 1-11-2001 for Rs.23,655. During the course of checking by the team of KESC Engineer it transpired that the plaintiff was using 10. K. W. Lighting load directly with Kunda, a notice was served upon the consumer in accordance with law but of no avail on account of the dishonest abstraction, the plaintiff was caught red handed in a case of theft of energy as per survey conducted by the Engineers, therefore, on the basis of the reading of the meter changed, the defendants had claimed bill for Rs.8,00,388, suit is, liable to be dismissed with cost.
5. ' Upon the pleadings of the parties the following issues were framed:-
(1) Whether plaintiff most of the period of installation of Meter No.AL-389644 a single phase meter and AP-060727 a three phase meter did not provide excess to defendant's meter reading staff resulted in less billing than the energy consumed, if so, its effects?
(2) Whether the meter reading staff of defendant Corporation or plaintiff himself reported burnt out Meter AP-060727, if so, its effects?
6. Whether during the checking on 16-6-2001 team of Engineers of defendant corporation found that plaintiff was using 10 . K.W. Lightning load directly with "Kunda" System, if so, its effects?
(1) Whether defendant under law is entitled to recover the outstanding energy dues of Rs.34,15,803 against Meter No.AP-060727 and Rs. 1,57,386 against meter AL- 389644 and failure to pay discontinue the supply of energy?
(2) What was the reading shown in Meter AL-389644 and AP-060727 at the time of meter was burnt and what was the reading in the meter at the time of Lab test?
(3) Whether plaintiff is entitled to any relief?
(4) What should the decree be?
7. ' I have heard learned counsel appearing for the parties. My findings on the above issues are as follows;- ' Issue No. 1 ' The defendant has set up the case that , the meter reader was not allowed by the plaintiff to record energy supplied to the meters installed in the plots, which resulted in less billing than the energy consumed, bills were issued on ayerage basis, consumption could not be ascertained until one of the meter was reported to be burnt, changed on 15-2-1999. The plaintiff's witnes s Riaz Qureshi admitted installation of Meters bearing No.AL-389644 and AP-060727, disputed Meter was burnt on 27-5-1998, FMR 36145 was lodged, meter was changed on 7-2-1999. Bills pertaining to the months of October, 1997, November, 1997 and December, 1997 were issued by the defendant in respect of disputed meter with the last reading as 85213, for Rs.52,625 whereas in the month of December 1999, defendant issued on payment bill to the plaintiff for a sum of Rs. 1,51,026 with arrears upto December, 1999, which was paid in instalments. While in the month of January 2000, bill was issued on minimum basis on account of the change of the meter, no dues were claimed except the balance instalments and current bill. In para.20 of the affidavit-in-evidence plaintiff witness has categorically stated that the premises was never closed, a smooth passage was provided to reach upto the meters, meter readers did not perform the duty, consumer cannot be penalized, as it was the duty of the defendant corporation to issue notice to the consumers, in case of inconvenience faced by meter readers. It is further averred that plaintiff always requested for site inspection, in order to assess the existing part connected load and equipments being used on premises (open in nature), plaintiff never received monthly bill regularly, faced problem in depositing bills after obtaining duplicate from the billing .Department. In the cross-examination, it is emphatically denied that the premises were found locked whenever the defendant's staff went to record the reading and that some of the staff of KESC could not have access to the meters because huge quantity of scrap/ luggage was found lying in the premises, reading was taken first time in 1995, it is denied by the plaintiff's witness that meter readers did not record the electricity consumed by the consumer. Bills produced by the plaintiff Exh.P.3 dated January, 1993, for Consumer No.AP-060727 while Exhs.P.4 to P.20 are based upon previous reading while Exh.P.21 for the month of June 1994, had shown previous as well as present readings, Exh;P.23 and Exh.P.25 based on previous reading, whereas Exh.P.27 for the same consumer number is dated 27-1-2000.
8. Exh.P.29 is a bill issued by defendant based upon previous and present readings, consumers status dated 30-10-2000, Exh.P.31 also gives detail of the energy consumed while Exhs.P.32 and P.33 pertaining to the arrears for the year 1996 to 1997 have not only mentioned the units billed, so far as the Consumer No.AL-389644 is concerned, it is spelled out from Exhs.P.47 to P.59 that some of these bills bear present and last reading. The documentary evidence specifically reveals that the meter readers were allowed to have access on number of occasions for the purpose of recording the meter readings of both the meters. Issue No.l is answered accordingly.
9. ' Issue No.2 ' The defendant has contended that disputed meter in the premises-was burnt, that the staff of the defendant corporation had reported the above situations. Plaintiffs' witqpss Riaz Qureshi deposed that the meter was burnt matter was reported to the concerned authorities and new meter was installed on 7-2-1999. In the cross-examination, it is emphatically denied that the burnt meter was detected by the meter reading staff of the corporation. D.W. Sajjad Zaheer, Assistant Controller (Billing) of the defendant categorically stated in para.3 of his affidavit-in-evidence, about detection of burning of meter did not produce any F.M.R. Of the meter ultimately changed on 17-2- 1999. In this view of the matter, the reporting of the burnt meter by defendant staff is not supported by cogent evidence, Issue No.2 is answered accordingly.
10. ' Issues Nos.3 to 5 ' These issues are inter-linked can be decided jointly for the purpose of adjudication of the material issue, formulated by this Court: ~
(1) Whether the KESC, in law, has the authority to remove electric meters and or issue supplementary bills without complying with the provisions of subsection (6) of section 26 of the Electricity Act. 1910?
(2) Whether the KESC, in law, has the authority to arrest and or detain a consumer on non-payment of supplementary bill?
(3) Whether the defective meters removed by the KESC could be kept and tested in the laboratory of KESC and whether on the basis of such report supplementary bill can be issued by the KESC?
11. And
(4) Whether the Electric Inspector is the only authority to adjudicate/ decide dispute between the consumer and the licencee?
12. ' Primarily, it is contended that the defendant corporation has no authority to remove the electricity meters and issue supplementary bills without complying with the provision of subsection (6) of section 26 of the Act, 1910. In order to adjudicate whether the meter is correct or not, it is necessary to consider relevant provisions of subsections (1) and (6) of section 26 of the said Act, 1910 produced herein below "26. Meters.-(1) In the absence of any agreement to the contrary, the amount of energy supplied to a consumer or the. Electrical quantity contained in the supply shall be ascertained by means of a correct meter, and the licensee shall, if required by the consumer, cause consumer to be supplied with such a meter. [Maximum demand indicator or other measuring apparatus]: ' Provided that the licensee may require the consumer to give him security for the price of a meter, [maximum demand indicator or other measuring apparatus] and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter maximum demand indicator or other measuring apparatus.
(2) Where the consumer so enters into an agreement for the hire of a meter, [maximum demand indicator or other measuring apparatus] correct and the licensee shall keep the meter maximum demand indictor and . Other measuring apparatus in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter, [maximum demand indicator or other measuring apparatus].
(3) Where the meter [maximum demand indicator or other measuring apparatus] is the property of the consumer, he shall keep the meter, [maximum demand indicator or other measuring apparatus] correct, and, in default, of his doing so, the licensee may, after giving him seven days' notice, for so long as the default continues, cease to supply energy though the meter, [maximum demand indicator or other measuring apparatus].
(4) The licensee or any person duly authorized by the licensee shall, at any reasonable time and on informing the consumer of his intention, have access to, and be at liberty to inspect and test and for that purpose, if he thinks fit, take off and remove, any meter, [maximum demand indicator or other measuring apparatus] referred to in subsection (3); and, except where the meter, [maximum demand indicator or other measuring apparatus] is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the meter, [maximum demand indicator or other measuring apparatus] is found to be otherwise that correct, be recovered from the consumer; and, where any difference or dispute arises as to the amount of such reasonable expenses, the matter shall be referred to an Electric Inspector, and the decision of such Inspector shall be final: ' Provided that the licensee shall not be at liberty to take off or remove any such meter, [maximum demand indicator or other measuring apparatus] if any difference or dispute of the nature described in subsection (6) has arisen until the matter has been determined as therein provided.
(5) A consumer shall hot connect any meter, [maximum demand indicator or other measuring apparatus] referred to in subsection (1) with any electric supply-line through which energy is supplied by licensee, or disconnect the same from any such electric supply-line, without [obtaining the consent of licensee in writing which shall not be withheld unreasonably].
13. (5-A) A consumer shall not inure any meter, maximum demand indicator or other measuring apparatus, or alter their indices or prevent them from duly registering the amount of energy or the electrical quantity contained in the supply.
(6) Where any difference or dispute arises between a licensee and consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct, the meter 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, maximum demand indicator or other measuring 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 consumer applied 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."
14. ' The above question was also dealt in case of Basantibai (Supreme Court of India) 1989 MLD 1107, the dictum laid down is that the dispute as to whether any meter referred to in subsection (1) is correct or not, has to be decided by the Electrical inspector, upon application made by either of the parties. It is for the Inspector to determine whether the meter is correct or not and in case the Inspector is of the opinion that meter is not correct, he shall estimate the amount supplied by the consumer or the electric quantity contained in the supplier during the period not exceeding six months and direct the consumer to pay same, if there is any allegation of fraud committed by the consumer in tampering with the meter or manipulating in supplying the line or breaking body seal of the meter, resulting in not registering amount of energy supplied to the consumer or the electric quantity contained in the supplier, such dispute does not fall within the purview of subsection (6) of section 26 as above dispute pertains to the meter not correct or is inherently defected ' or faulty not according to electricity consumed, which can be decided by Electric Inspector under the provision of the said Act whose decision will be final. It is also evident from the said provision that till the decision is made no supplementary bill can be prepared by the Board estimating the energy supplied to the consumer as the Board is not empowered to do so by the said Act.
15. ' Learned Amicus Curiae Mr. Talmeez Burney, invited my attention to sections 24 and 5-C of the Electricity Act, 1910, contended that it is well settled that when a consumer neglects to pay the charges for energy consumed assessed against him by a licensee in respect of supply of energy to. His premises the licensee may after giving not less than seven clear days notice in writing to such consumer and without prejudice to his right to cover such charges cut off supply or disconnect any supply line to the premises for which a prior notice of disconnection is contemplated. It is next contended that consumption of energy following detection bill as provided under section 26(A) of Electricity Act, 1910, would not be justified as such bill would be in arbitrary formulation as it will be based upon the methodology not followed, prescribed in section 26(i) of Act 1910. It is further contended that the consumer is liable to pay dues which have been correctly and scientifically determined against him. In the present case, the disputed meter was allegedly burnt, the information was conveyed to the defendant corporation, was removed before a detection bill was issued without notice to the plaintiff.
16. ' In support of the above contentions reliance is placed on the following case law:-
(i) Imran Nazeer v. Saifullah Jan and others PLD 2001 Lahore 31;
(ii) Colony Textile Mills Ltd. Ismailabad Multan v. Chief Executive, Multan Electricity Power Company Ltd. Multan 2003 MLD Lahore. 1008;
(iii) Water and Power Development Authority v. Mian Shaukat Hayat 2003 CLC 1574; ' The dictum laid down is that in the event of the allegations of tampering the electricity meter, the defendant corporation would resort to Electric Inspector without availing alternate remedy, the defendant without complying provision of section. 24 of the Electricity Act without issuing notice before charging the detection bill would have to issue a notice to the plaintiff.
17. ' Messrs Shams Textile Mills Ltd. Chiniot v. WAPDA 1989 CLC Lahore 2345, it is observed section 26(1) of Electricity Act, 1910, provides that examination, inspecting hr testing of electric meters at the premises of the consumer, the authorities and functionaries deputed to carry out the examination and inspection of electric meters are required, to associate with them one or more respectable person of the area or locality in which consumer was situated before entering into the premises for carrying out the checking.
18. ' Adverting to the second limb of arguments that an Electric Inspector forum is available under the Electricity Act to resolve the controversy, reliance is placed on the case of Messrs Erum Heights Residents Welfare Association v. Karachi Electric Supply Corporation Ltd. 2001 CLC Karachi 321 and Water and Power Development Authority v. Khalid Pervaiz 2002 MLD Lahore 1118, dilating on the issue it has been laid down that the Electric Inspector must decide the matter on the basis of the evidence adduced by the parties strictly on merits.
19. ' Mr. Ikram Ahmed Ansari, learned Amicus Curiae has raised twofold arguments, primarily related to the role of Electric Inspector in cases referable within the provision of 26(4) relied upon the case of
(i) Water and Power Development Authority v. Advisory Board 2001 YLR Lahore Page 782; WAPDA v.
20. Nazir Cotton Mills Ltd. 2002 YLR Lahore 3395, the rule laid down is, whole thrust of WAPDA case was defectiveness of the metering equipment per principle laid down by Full Bench of this Court, in case of Water and Development Authority and others v. Mian Muhammad Riaz and other PLD 1995 Lahore 56 such a dispute was referable to the Electric Inspector for decision of the defect in the metering equipment of measuring apparatus and to determine the consequences amount chargeable from the consumer.
21. ' Learned counsel appearing for the plaintiff has contended that under section 26(4)(6) of the Act 1910, KESC has power to remove the meter subject to information/notice to the consumer of the licensee's intention and subject to notice to the consumer by the licensee with intention to inspect, test and to remove any electric meter and matter shall be referable to the Electric Inspector by either party before issuance of supplementary bill and the Electric Inspector within 90 days after the receipt of the application from either party after affording full opportunity to the licensee as well as consumer may proceed to pass an order and in case of decline non- acceptance of the decision to any one- of the party, the matter can be referred to provincial government, Secretary Power & Supply Government of Sindh for final decision.
22. ' Learned 'counsel appearing for the defendant has contended that defendant corporation could remove and test a meter in its laboratory on the basis of the laboratory test a supplementary bill is issued as provided under section 26 of the Electricity Act, thus Electric Inspector is the only authority to decide the dispute between the consumer and licensee.
23. ' On behalf of the plaintiff, it is contended that w.e.f. 1993 to May 1998, no electricity was consumed in the disputed premises as the premises was closed, bills were issued on minimum basis in the month of May, 1998, the disputed meter was burnt, a complaint was lodged to F.M.R. 3645 meter was changed on 17-2-1999, the last bill was 'issued by the corporation in respect of disputed meter for the month of December, 1993 on 15th December, 1997, bill was of Rs.52,625 as arrears and the meter reading was shown as 85213 in the month of December, 1999 corporation issued a payment slip for outstanding arrears of Rs. 1,51,026 upto December, and the plaintiff was provided an opportunity to pay the outstanding dues in three instalments. It is further contended that in the month of January, 2000, a bill was issued on minimum basis showing previous and present reading as 14975 recorded from the change of the meter and no arrears were claimed except the balance of the three instalments and current bill, whereas in the billing month of August,2000,1469 units were billed including balance of Rs.45,468. The dispute arose on the basis of the removal of the meter, which had shown unit consumed as 85213 all of sudden a supplementary bill of Rs.33,55,498 for 800388 consumed units was issued similarly for a single phase meter Al-389644,. Bill in a sum of Rs. 12,900 as an arrears was received for the month of Sept. 2000, Exh.P/41 for 933 units, whereas the bills for the months of December/January, 2000 had shown reading of 1548 units annexure P42.
24. In the month of March, 2002, plaintiff received a supplementary bill for 84392 units, against the defendant corporation in the month of June, 2002, issued a bill for Rs. 1,54,386 alleged to be differences of the unit consumed by the plaintiffs meters, whereas the plaintiff had been regularly depositing bills upto September, 2000, and for current consumption since October, 2000. It is further contended that the disputed bill Exh.P.30 had shown assessed unit as 800388 for unknown period while the previous bills were in 5 digit and last reading was noted as 85213, thus the meter reading shown in the bills issued without the intervention of the Electric Inspector are illegal, unwarranted, arbitrary and without jurisdiction. It is further contended that the connected load of disputed Meter was 5 K.W. As is admitted by defendant's witness according to sanction, if the plaintiff had continuously consumed the electricity of 5 K.W. Through the disputed meter, maximum consumption would have been approximately 1700 units and the average consumption from the new meter installed on 7-2-1999, whereas the units reflected on the meter at the relevant time of it removal were 85213 units. The defendant witness had admitted the fault so far as single phase meter was concerned. The grievance of KESC is that the plaintiff did not make any application to the Electric Inspector for resolution of the dispute between the parties. On the same preipises, defendant corporation could move an application to finally adjudicate the issue involved in the suit.
25. ' Reliance is placed on the following case law:-
(i) Messrs Noor Iron and Steel Industries Ltd. v. Karachi Electric Supply Corporation 1988 MLD 2112.
(ii) Khalid Perviz v. Water and Power Development Authority 1992 CLC Lahore 1591.
(iii) Shafiq Ahmad v. Mepco, WAPDA 2003 CLC 598.
(vi) Mian Muhammad Munir v. WAPDA etc. 1983 CLC 211.
(v) Dr. Muhammad Rafiq Chaudhry v. WAPDA 1983 CLC 2397.
(vi) Muhammad Nazir v. Abdul Latif and 4 others PLD 1985 SC (AJ&K) 97.
(vii) Aurangzeb Kamran v. Water and Power Development Authority 1996 MLD 69.
(viii) Firdaus Oil Mills v. WAPDA 1983 CLC 3315.
26. ' The dictums laid down in the above authorities are as uftder:-
(i) Under section 26(1), the licensee can charge from the consumer for energy deemed to have been dishonestly consumed or use for the period during which the meter remained injured, altered, prevented from registering the amount energy supplied.
(ii) In case the electric meter was found to be defective, licensee is required to send the meter to Electric Inspector to find out the defect and in case of electric meter 1865 was found defective, the consumer must be charged an average consumption in past.
(iii) Licensee cannot violate the law become Judge in their own cause to deprive the consumer of his rights under section 26(6), the bills sent without getting the meter tested from Electric Inspector were without lawful authority and of no legal effect. ,
(iv) Detection bill cannot be prepared without service of notice upon the consumer and without association of detection committee.
(v) Detection bill is required to disclose the basis of its preparation and the period related to.
(vi) Detection bills issued without notice to the consumer are against the mandatory provision of law without justification and lawful authority.
(vii) Section 26(1) of Act, 1910, licensee or its authorized representative, on informing the consumer of his calculation have access to and be at liberty to inspect and test/for that purpose, if he thinks to take off and remove any meter.
(viii) Licensee or any person duly authorized by licensee at any reasonable time have access to, inspect test to take off and remove meter. The licensee shall not be at liberty to remove meter, in case of difference dispute in terms of section 26(6) if an apparatus is or is not correct.
(ix) Matter relating to the change on account of dishonest obstruction of energy is not referable to Electric Inspector,
(x) In case of dishonest consumption or use of energy the consumer shall be prosecuted and punished under section 39 of the Act, 1910, for commission of an act of theft during disputed period.
(xi) Powers of Electric Inspector are confined to disputes relating to matter falling under section 26(2) of Electricity Act 1910, matter relating to charges on account of dishonest obstruction is not referable to Electric Inspector.
(xii) Section 24, stands contravened, in case consumer did not receive any notice from licensee about nonpayment of electricity charges, licensee sending bill, on account of detection charges.
(xiii) In terms of section 24 to find out the defect in meter same shall be sent to Electric Inspector, alternatively, licensee could prepare bill on the past average consumption.
27. It is an admitted position that the disputed meter was burnt, the bill was sent to the plaintiff, without getting the meter tested from electrical inspector or without basing the bill on the average of past. In the instant case metering equipment is involved as such section 26(6) is attracted licensee could neither evaluate the consumption nor assess the bill under, section 26(A) of the Electricity Act under clause % XV in the schedule to the Electricity Act, 1910, reads as follows XV. Testing of Work.- On the occasion of the testing of only works of the licensee by an Electric Inspector reasonable notice thereof shall be given to the licensee, and the testing shall be carried out at such suitable hours as, in the opinion of the Electric Inspector, will least interfere with the supply of energy by the license, and in such manner as the Electric Inspector may think fit, but, except under provisions of an order made in each case in that behalf by the Provincial Government, the Electric Inspector shall not be entitled to have access to on interfere with the works of the licensee at any points other than those at which the licensee himself has self access to the same:.
28. ' Provided that the licensee shall not be held responsible , for any interruption or irregularity in the supply of energy which may be occasioned by, or required by the Electric Inspector for the purpose of any such testing as aforesaid: ' Provided, also, that the testing shall not be made in regard to any particular portion of the works oftener than once in any three months, unless in pursuance of an order made in each case in that behalf by the Provincial Government.
29. From the circumstances of the case, it is abundantly clear that no action of testing work can be carried out by licensee, only Electric Inspector is authorized to test the meters.
30. ' The defendant's plea i.e. As special inspection team on 16-6-2002, had surveyed the load of consumption, vide Exh.D/10, photocopy of the report of Zonal Controller Billing. It is spelled out from Exh.D/10, that neither it is readable nor concerned officer was examined to prove its authenticity leads to the inference that the document was manipulated to set up a claim of exorbitant nature against the plaintiff. Supplementary bills on the basis of the claim of the defendants are arbitrary, fanciful without legal justification. In case of removal of faulty meter it not ought to have been tested in the laboratory of the defendant, supplementary bill prepared on its basis cannot be acted upon to come to the conclusion that the amount claimed by the defendant under the disputed meter are in conformity with the law, I am inclined to hold Issues Nos. 3 to 5 in above terms.
31. ' Issues Nos.6 and 7 The plaintiff had claimed damages to the tune of Rs.25,000 against the defendant for the inconvenience caused on account of exorbitant bills received by the consumer against the meters installed in the premises. Onus was upon the plaintiff to prove the claim beyond reasonable doubt to the effect that he had suffered mental torture as well as loss in business on account of the acts and omission of the defendants, on account of non-availability of cogent evidence, I am not inclined to grant relief to this extent.
32. The plaintiff's suit is decreed to the extent of the prayer clauses (A) to (D) as a result whereof, the plaintiff's suit is decreed to the above extent, with no order as to cost, in the peculiar circumstances.
33. ' I would like to extend appreciation and gratitude for the assistance rendered by Messrs Talmeez Burney and Ikram Ahmed Ansari, Amicus Curiae for the valuable assistance.