1. JUDGMENT MRS. SYEDA TAHIRA SAFDAR, J.---Instant petition has been filed by the petitioner being aggrieved of judgment dated 17-2-2003 of Civil Judge, Chaman, whereby his suit was dismissed, he preferred appeal, which was also dismissed through judgment dated 1-7-2003 by Additional District Judge, Pishin. It is his contention that both the courts failed to appreciate the evidence produced by him. The pleadings are not properly understood, while judgments were made on misreading of evidence, thus comes to the wrong conclusion. Furthermore, the case was twice remanded to the trial Court by the appellate court, but the WAPDA Authorities failed to produce the record pertaining to the electricity bills on occasion that the record has been destroyed. The orders were not complied, while both the courts failed to take into consideration this aspect of the case.
2. He has prayed for setting aside of impugned judgments and his suit be decreed in his favour.
3. As per record a suit was filed by the petitioner seeking declaration to the effect that he is responsible to make payment of electricity consumer bill as per relevant record of WAPDA pertaining to six shops, one hotel and in while his previous tenants be declared as responsible to make payment of consumer electricity bills. Further, declared that the respondent cannot demand for the outstanding amount in respect of bills issued in name of the tenants and he has been wrongly compelled to make payment of the amount on basis of self-calculated meter reading without examination of meter physically. He prayed for injunction to the effect that the respondents/defendants be directed to maintain the record in his and his son's name, whereafter, correct electricity consumer bills be issued in their names for each shop; hotel and inn.
4. Further, respondents/defendants be restrained from making demand for payment of disputed dues till rectification, while the electricity connection be restored and consumer meter reading card be issued in his favour.
5. The respondents/defendants in their joint reply strongly contested the suit while raised several legal objections on maintainability of the suit. It is objected that deficit court-fee has been paid, further as per relevant Rules no suit can be filed against WAPDA until and unless outstanding amount is paid. Furthermore, as per Rules landlord is responsible for payment of outstanding amount. On merits they admitted ownership of the petitioner in respect of property in question.
6. According to them the petitioner/ plaintiff applied for connection of electricity in respect of only one shop bearing Account No.00165007, while rest of the electricity connections were sanctioned in names of Farooq, Account No. 00162115 , Rehmatullah Account No.00162507, Rehmatullah Account No . 00162605 , Rehmatullah Account No.00162703, Rehmatullah and his tenant Ghulam Farooq account No.00162801 and Rehmatullah and his tenant Mazhar Jamil Account No.00162909. As such till present an amount of Rs.138084 is outstanding against mentioned consumers. Further, as per Electricity Rules the landlord is responsible for payment of electricity dues instead of tenant. No changes are made in ledger/ record by the WAPDA authorities with collusion of tenants. While the account numbers are the same.
7. Furthermore, as per section 24(2) of West Pakistan Land Revenue Act a defaulter has no right to file suit against WAPDA. The electricity was disconnected due to non-payment of arrears. They prayed for dismissal of the suit.
8. The perusal of record reveals that initially the suit was decided through judgment made on 26-8- 2000 whereby the suit was rejected, while accepting appeal the appellate court through order dated 29-3-2001 remanded the case for deciding it afresh after framing of issues. On the same issues were framed on 17-9-2001. After completion of evidence from both the sides the case was decided through judgment made on 31-12-2001, whereby the suit was dismissed. The appeal preferred by the petitioner/plaintiff was accepted with observation that sufficient evidence is not available on record to draw a right conclusion, thus case was remanded for rewriting of judgment after recording of additional evidence. The case was again decided through judgment dated 17-2- 2003, whereby the suit was dismissed for noncompliance of section 54-C of Electricity Act, 1910. The appellate court while upholding the judgment of the trial Court dismissed the appeal through judgment made on 1-7-2003. Now the instant petition has been filed assailing both judgments of trial and appellate courts.
9. During course of arguments the learned counsel for the petitioner contended that he is recorded owner of premises in question. Further, as per direction of appellate court, while remanding the case, the respondent failed to produce the relevant record. This fact has not been considered that the disputed bills are neither in his name, nor in name of his tenants. While in rebuttal counsel for the respondent strongly contested the points raised by the counsel for the petitioner. According to him there are concurrent findings of the courts below. Thus no interference is required to be made as no illegality is pointed out. Further, no agreement between the parties is available. Further contended that use of electricity by the petitioner is not denied by the petitioner/plaintiff in his plaint. The petitioner being the owner cannot deny for his responsibilities. Further contended that as meter is not fixed on the premises, therefore, bill is to be calculated on basis of Policy made in same respect.
10. The perusal of impugned judgments of both trial and appellate court reveals that though the merits have been considered, discussed and findings are given, but the suit at last was dismissed in view of proviso of section 54-C of Electricity Act 1910. Section 54-C states as under:-- "54-C. Bar of jurisdiction---(1) Where a licensee gives a notice referred to in subsection (1) of Section 24 or discontinues supply of energy to a premises under the provisions of this Act, no Court shall make an order prohibiting the licensee from discounting supply of energy to the premises, or requiring him to restore supply of energy to such premises, and any such order made before the commencement of the Electricity (Amendment) Ordinance, 1979, shall cease to have effect: Provided that nothing contained herein shall apply to a case in which the plaintiff applicant or appellant, within a period of thirty days of the aforesaid date or at the time of filing the suit, application or appeal, as the case may be, deposits with the Court the amount assessed against him by the licensee and all further charges of the licensee as and when they become due; and in the event of this failing to do so, any order prohibiting the licensee from discontinuing the supply of energy to the premises or requiring him to restore the supply of energy to the premises, if already made, shall cease to have effect.
(2) Where an amount has been deposited under subsection (1), the Court shall direct it to be deposited in a Scheduled bank in the name of the licensee to the effect that in the case, the suit or appeal is decided against him, he shall repay the said amount to the plaintiff or appellant, as the case may be, with such reasonable return as the Court may determine."
11. This section is required to be read with section 24 subsection (1) of Electricity Act, 1910, as notice is required to be given under said section, which states as under:-- "24. Discontinuance of supply to consumer neglecting to pay charge.---(1) Where consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premise, the licensee may after giving not less than seven clear day's notice in writing to such consumer and without prejudice to his right to recover such charge or other sum by suit or otherwise, cut-of the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied to such premises or to any other premises, other than domestic premises, running distinctly in the name or other sum, together with any expenses incurred by him in cutting of and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of such discontinuance, are paid, but no longer."
12. In present case the position is some how different, as notice in question i.e. Notice dated 30-6- 2000, which is present on record as Exh.P/2 and also as Exh.D/8, it is only to the extent of payment of outstanding dues. There is no notice for disconnection. As this fact has already come on record that the electricity connections in respect of which dues are demanded have already been disconnected several years back. As per plea taken in the plaint the electricity connections of questioned shops were disconnected six years back, while of Musafir Khana it was disconnected 17 years back. Thus in view of the same there is no notice pertaining to disconnection of electricity connection supplied to the questioned premises rather it is only for payment of arrears of electricity charges. Further, as per section 54-C there is bar of jurisdiction on the courts only to the extent of prohibiting the licensee from discontinuing supply of energy to the premises or requiring the licensee to restore the supply of energy to such premises, when the consumer neglects to pay any charge for energy or any sum other than charge for energy, assessed by the licensee in respect of supply of energy to the premises. As such there is no bar for filing of the suit by an aggrieved person against any act of the QESCO/WAPDA being the licensee. But the relief to the extent, as mentioned above, is conditional with payment of amount so demanded. In present case the trial Court though discussed all the issues while giving findings on all of them, but dismissed the suit on basis of provisions contained in section 54-C of the Electricity Act, 1910. The appellate court also hold same view. Both the courts below failed to observe that the petitioner in his plaint has not only prayed for restoration of electricity connection rather in addition he has prayed for several other reliefs i.e.:-
(a) to declare that the plaintiff is responsible to make payment of electricity consumer bill as per ledger/Qalam Zoo record of WAPDA pertaining to six shops, one hotel and inn/Musaferkhana;
(b) to declare that previous tenants of plaintiff who were in occupation of plaintiff's shops and with the collusion of whom the material changes in respect of ledger and electricity consumer bill have been brought by the WAPDA officials are responsible to make payment of bills which amounts as per consumer electricity bills;
(c) to declare that the defendants have no authority to make demand for making of outstanding amount from plaintiff in respect of electricity consumer bills which had been issued in the name of respective tenants;
(d) to declare that the plaintiff has wrongly been compelled to make payment of outstanding amount on the basis of self calculated meter reading by concerned meter reader without physically examination of meter;
(e) to direct the defendants jointly and severally to maintain ledger and Qalam Zoo record as it was previously in the name of plaintiff and his son namely Rehmatullah and after maintenance of such record correct and exact electricity consumer bills may be issued in their respective names in respect of each shop, hotel and inn;
(f) to direct the defendants jointly and severally by means of permanent injunction to compel the plaintiff to make demand for making payment of disputed due amounts till rectification, clearance and disposal of instant suit;
(g) to direct the defendants jointly and severally to issue consumer meter reading card in favour of plaintiff in respect of shops, hotel and inn separately and respectively.
13. These reliefs are not related to payment of amount assessed by the licensee. Both the courts have made an error while holding that without payment of arrears the suit is not maintainable. The trial Court may have refused the relief to the extent of restoration, but may have considered and granted or otherwise the remaining reliefs as prayed by the petitioner.
14. In present case the matter in, dispute is the notice issued by the respondent/licensee ' to the petitioner/ consumer on 30-6-2000 whereby he was directed to make payment in respect of six electricity connections existed in names of his son and shopkeepers amounting to Rs.138084, being arrears. Being aggrieved of the same the petitioner approached the court, contesting the notice.
15. He claimed himself to be owner of six shops, hotel and an inn ({{URDU TEXT}} ,;(;)L., ) wherein electricity connections were provided on his request, which were on name of him and his son, while he let out these shops to different tenants with condition that bills of electricity be paid by them.
16. But contrary to the same the tenants with collusion of WAPDA officials succeeded to change the record pertaining to account number and name of subscriber taking, advantage of the same the tenants, in occupation of said shop, used to receive bills, but failed to make the payment, he was unaware of the situation. Furthermore, the electricity connections of four shops were disconnected six (6) years back and of inn seventeen (17) years back despite the same electricity consumer bills were issued. On getting knowledge about the material change managed to be made in record by the tenants, he brought the facts in knowledge of respondents despite his efforts made since April, 1993 to 26th June, 2000 nothing positive happened and his grievance was not redressed. The main plea of the petitioner/plaintiff is that he is not bound to pay the questioned amount, which is required to be paid by the previous tenants. The respondents denied effecting of any sort of change in relevant record though they admitted the petitioner being owner of the shops, but it is contended by them that the petitioner applied for only one connection of a shop, while rest of the connections were on names of other consumers, named in written statement. They denied any sort of collusion between the tenants and the employees thereby making change in the record. Further, despite having knowledge the petitioner failed to deposit the outstanding bills in time. He being landlord thus as per Rules responsible for payment of electricity dues instead of tenant.
17. In addition to his above mentioned plea the petitioner/plaintiff showed his willingness for making payment of outstanding dues pertaining to electricity consumer bills in respect of shops in questions as per ledger and Qalam Zoo record subject to the condition that if the amount be adjusted in fixed bill, payment of which be made in shape of current bill. Further, if consumer meter reading card of each unit be issued, will also redress his grievance. It is further contended that the respondents would have no authority to demand payment of outstanding amount which is payable by previous tenants. Keeping in view his on pleadings it is an admitted fact that electricity connections were installed in the premises owned by the petitioner in year 1981-82, while the dues in respect of electricity consumption are outstanding in respect of the premises allegedly owned by the petitioner, which are asserted to be in occupation of the tenants. Though the petitioner has asserted that the tenants used to receive bills but avoid to make the payments. Despite having knowledge of the same nothing has been placed on record that what legal steps had been taken or efforts had been made by him for recovery of said amount from his previous tenants and for resolving the issue with the concerned Authorities. According to him he on coming to knew about the collusion of his tenants with officials of WAPDA he is pursuing the matter since April 1993 to 26- 7-2000. He though have placed copy of certain applications submitted by him to QESCO Authorities for clearance of proceedings. Though these applications bear date of year, 2000, but these applications are neither exhibited nor brought on record, thus of no legal value. Further, it has not been clarified that why the petitioner remained silent during intervening period i.e.f. 1993 to 2000, as he himself deposed that he got knowledge about the mishappening in year, 1993. Apart from the same though the premises, against which electricity bills are claimed to be outstanding, are in occupation of the tenants despite the same the petitioner being owner/ landlord comes within purview of term consumer, as defined in section 2 clause (c) of Electricity Act 1910:-- "2.(c) "Consumer" means any person who is supplied with energy by a licensee, or whose premises are for the time being connected for the purpose of a supply of energy with the works of a licensee."
18. Furthermore, in case the default was made by previous tenants, who are no more in occupation of the premises/shops then in such case the petitioner may have invoke condition No.16 of Abridged Conditions of Supply annexed to Electricity Rules, 1937, which states as under:-- "16. Change of Consumer.---When any person occupies any premises previously occupied by a consumer and desires to be supplied with energy he shall as if he were an original applicant, enter into an agreement with the department and shall, if so required, furnish security to the department as prescribed in these conditions of supply, and his installation shall be re-rated by the department so that the said person may not be held responsible for any alteration in the connected load which may have been effected by the previous consumer without the authority of the department."
19. But he has failed to do so, thus he being the owner/landlord has to bear the liabilities being consumer, thus liable to pay the charges of supply of energy.
20. The petitioner while appearing before the Court and recording his statement on oath has deposed that the disputed bills are not in his name, the defendants/respondents have raised illegal demand for payment of Rs.138084, while in his six shops no meters are installed, nor there is any service were, there is no electricity connections in his shops and inn ( During course of cross- examination though he denied that the electricity connections were disconnected in year, 1993 due to non payment of dues. But he has admitted that in his plaint he has mentioned about temporary supply of electricity to the shops. He further deposed that he supplied electricity to inn . {{URDU TEXT}}) through his hotel, while he had taken sanction for the same orally from SDO Syed Abdul Hadi and Captain Hamid, no written permission is obtained. As per petitioner's on showings that the electricity connections installed in said shops and inn in 1981 while disconnected 6 and 17 years back, what was the reason for this disconnection nothing has been disclosed. Further, according to his on deposition since 1981 up till two years back there was no change in tenants, now from last two years new tenants have occupied the shops. He did not disclose the names of previous or present tenants. From his on statement it has come on record that the electricity connection is supplied from his hotel to remaining six shops and inn admittedly owned by him. In the circumstances it is clear violation of condition No.6 of Abridged Conditions of Supply annexed to Electricity Rules 1937, which states as under: - "6. Extension to consumer's Installation.---The consumer's installation shall consist of the energy- consuming apparatus (i.e. Motors, lamps, fans, etc), as stated in the application and/or connected to the Department's mains. The Department must be notified of any extension being made to the installation and/or of any charges being made in the writing, and a new application must be made to the Department for the supply to the additional installation. In the event of any extension unauthorized by the Department, having been made to the installation or of any increase in the maximum demand, the Department shall be entitled to disconnect the consumer's premises from the Departments mains, and in the event of any damage to the Department's system resulting from such unauthorized extensions, the consumer shall pay the Department all expenses on account of and connected with such damage."
21. Thus in above mentioned circumstances section 26-A of Electricity Act 1910 becomes operational, which states as under:-- "26-A. Dishonest abstraction or consumption of energy.---Notwithstanding anything 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 connected, disconnected, 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 hours during any period;
(b) consumer's maximum consumption of energy in kilowatt hours during any period;
(c) consumer's load factor;
(d) the power of consumer's load;
(e) the hours and the time for which the energy is deemed to have been abstracted, consumed or used by the consumer; and (0 the purpose for which the energy is deemed to have been abstracted, consumed or used by the consumer."
22. In view of admission made by the petitioner he is bound to pay the amount assessed by the respondents being the licensee. Though the electricity connections were already disconnected years ago yet the notice for payment of outstanding dues as assessed by the respondents being the competent authority was issued in year 2000, which he was required to pay in view of his on admission. In case of any difference in the calculated amount and in mode of payment the petitioner was required to approach the concerned Authorities as provided in Condition No.25 of the Abridged Conditions of Supply attached to Electricity Rules 1937, which states as under: - "25. Disputes.-In the event of any difference or dispute arising between the Department and the consumer in respect of any matter connected with the supply which cannot be determined by these conditions, or by the terms of any agreement between the Department and the consumer, and in the event of any difference or dispute arising as to the interpretation of these conditions or of any terms of any agreement between the Department and the Consumer, the matter shall be determined in accordance with the provisions of the Act or by reference to the Electric Inspector.
23. And in the event of any difference or dispute arising that cannot be determined as aforesaid; the decision of the West Pakistan Government shall be final and binding on all parties . To the difference of dispute."
24. The petitioner though asserted that he approached the Authorities, but his grievance was not redressed, but he has not placed on record anything relevant to prove this assertion. Further, the petitioner in his plaint showed his willingness for payment of outstanding dues on such terms and conditions mentioned therein. Such relief cannot be granted in favour of the petitioner as up till present he has neither approached the Authorities for determining the dispute, nor he has paid any amount in respect of dues to establish his bona fide, apart from the fact that the electricity connections have already been disconnected. Further, as discussed above he has also violated the condition No.6 as mentioned hereinabove, thus due to his act of dishonest abstraction and consumption of energy until and unless he paid the outstanding amount as assessed by the licensee the relief of restoration of electricity supply cannot be granted in his favour.
25. In view of above discussion though the trial Court and the appellate court arrived to similar decision thereby dismissed the suit in view of section 54-C of Electricity Act, 1910, which was surely an erroneous finding. Further, the trial Court while deciding Issue No.3 arrived to the conclusion that the defendant has authority to make demand for outstanding amount from the plaintiff in respect of consumer bills which had been issued on names of the tenants. But while deciding Issue No.4, which is in respect of wrongly compelling the plaintiff for making payment of outstanding amount on basis of self calculated meters, readings without physically examining the meters, comes to the conclusion that as meters have already been removed, therefore, the meter reader has self- calculated the readings. The issue is decided in favour of the petitioner. The trial Court has not properly appreciated the material present on record and the relevant provisions of law. As per admissions made by the petitioner, as mentioned in preceding paragraphs, there was no occasion of obtaining meter readings as admittedly no meters were present at the site at the date of issuance of the Notice. Thus in the circumstances the provisions of section 26-A of Electricity Act, 1910 shall come into field and are to be observed. The burden was upon the petitioner to establish that charges are not assessed as per relevant provisions of law and rules. But he through evidence only tried to establish that there was no electricity connections in the premises in question, as such wrong bills have been issued in names of tenants which he is not bound to pay. There is no evidence, which was required to be produced by the petitioner that the charges are wrongly calculated. Both the courts below failed to appreciate the pleadings of the parties and the admissions made by the petitioner, thus arrives to an erroneous conclusion, which is required to be set aside.
26. In view of above discussion the findings of the trial as well as appellate courts made in judgments dated 17-2-2003 and 1-7-2003 to the extent of merits of the case and in respect of section 54-C of Electricity Act, 1970 being erroneous are hereby set aside.
27. As the petitioner has failed to make out any case on merits, therefore, the suit filed by him is dismissed being without merits.
28. The petition is disposed of in above terms, with no orders as to costs.