' SYED HASAN AZHAR RIZVI, J.--- By this order I intend to dispose of the above mentioned three applications listed at serial Nos.1 to 3. C.M.A. No,3649 of 2012 filed by the plaintiff under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Is for grant of injunction with the prayer to restrain the defendant No,1 from interfering with the plaintiff's use of its generators situated on its own property as well as from carrying on with its illegal failure to supply electricity to the plaintiff and C.M.As.
Nos.3666 and 3667 of 2012, moved on behalf of the defendant No,1, seeking discharge/suspension of orders dated 12-4-2012 and 17-4-2012 passed by this Court.
2. In nutshell the facts of the case is that plaintiff-company is one of the largest manufacturers of textiles and fabric in Pakistan. The factory premises is situated at Plot No,A-39 Sindh Industrial Trading Estate and also possesses a neighbouring Plot No,A-34, SITE, which is approximately 135 meters from Plot No,A-39. The said factory requires a steady supply of power and if power is not consistently provided the factory cannot function. It is further averred that due to national electricity crises, KESC has failed to provide a steady supply of power to plaintiff's company. It is also averred that in order to meet the situation. The plaintiff and other factory owners decided to set up and run its own electricity generators so that it could continue its day to day business and for this purpose the plaintiff obtained a licence from the electric Inspector. Since there was limited space at Plot No,A-39 the plaintiff set up the said generators at No,434, which is in the possession and ownership of the plaintiff. The plaintiff also obtained permission from SITE for installing an underground cable to provide electricity to Plot No,A-39 from its generators located at Plot No,A-34.
He urged that the electricity so generated is not being sold or provided to any other party and only use for the plaintiff-company. It is also mentioned that once plaintiff's generators became operative, the plaintiff applied to KESC through letter dated 10-4-2006 for a reduction in its connected load, but no reply to the said request received. On 10-4-2012 defendant No, 1 's representatives visited the plaintiffs factory situated at Plot No,A-39 and issued a Notice bearing No,GM/IBC/SITE/2012/153 under sections 41, 43 and 44 of the Electricity Act, which reads as under:- "You are receiving electricity at your Plot No,A-39, SITE from another distant premises A-34 B, SITE which is the violation of Electricity Act as KESC is the licensee to transmit & distribute electricity in licensed area."
' To impugn the said notice the plaintiff has filed this suit for declaration. Permanent injunction and damages against the defendants with the following prayers:--- "(i) to declare that the plaintiff's use of a generator in its own private capacity, for its own use and on its own neighbouring land is not in violation of the provisions of the Electricity Act;
(ii) to declare that Al Abid's undertaking to KESC issued on 10 April, 2012, and under duress and coercion, is illegal, void ab initio and without any legal force;
(iii) to permanently restrain the KESC from interfering with the plaintiff's use of its generators situated on its own property (as described hereinabove) and from carrying on with its illegal failure to supply electricity to the plaintiff despite the fact that the plaintiff has regularly paid all its electricity bills;
(iv) in addition to and without prejudice to the prayers made hereinabove, grant damages of Rs,100 million, with the right to revise such amount upwards as discussed hereinabove.
(v) grant the cost of this suit; and
(vi) any other relief which this Hon'ble Court may deem to be appropriate in the circumstances."
3. I have heard Mr. Rashid Anwer, learned counsel for the plaintiff and Mr. Muhammad Ali Lakhani, learned counsel for the defendant No,1 .
4. Learned counsel for the plaintiff has firstly contended that plaintiff-company has called in question the notice of disconnection dated 10-4-2012 issued by defendant No,1 (hereinafter referred to as KESC) against the plaintiff for illegal 'transmission' of electricity as alleged in the said notice. He submitted that KESC has maliciously misinterpreted the law and that no acts of illegal 'transmission' have been committed by the plaintiff to supply electricity to its second factory which is situated on the other side of the road through its gas generators. In this regard, he made reference to the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (hereinafter referred to as the NEPRA Act), which provides that a licence from NEPRA is necessary if someone is engaged in 'generation', 'transmission' or 'distribution within the meaning of the NEPRA Act. He submitted that plaintiffs activities clearly fall within the exemption for self-use in the case of 'generation' and distribution'. He also contended that the definition of "transmission" within the meaning of the NEPRA Act can only take place if "transmission facilities" are used. Furthermore "transmission facilities" are defined as those facilities which operate at or above the "minimum transmission voltage" of sixty-six kilovolts. Since the plaintiff's generators transfer power at eleven kilovolts, therefore they clearly do not fall within the definition of "transmission facilities" and hence no "transmission" within the meaning of the NEPRA Act is taking place and thus there is no violation of KESC's licence. He contended that the plaintiff had not violated the provisions of section 30 of the Electricity Act, 1910 and thus was not liable to be punished under the provisions of sections 43 and 44 as the second Proviso to section 30(1) grants a clear exemption to those persons who have obtained the permission of the Provincial Government. In the present case, the plaintiff has already obtained permission from the Provincial Government, thus section 43 is not applicable as there has been no violation of section 30. It is submitted that section 44 is, in any case, not applicable as it only deals with a situation where someone tampers with a KESC meter or a KESC line, which has admittedly not been done in the present case. He urged that both sections 43 and 44 only provide for the imposition of a fine and not for disconnection. He also urged that, without prejudice to the above argument, even if there is a violation of KESC's transmission licence then action in this regard can only be taken by NEPRA and not by KESC. He submitted that KESC tried to disconnect the plaintiff's gas generator cables and only refrained from doing so when the plaintiff was coerced into giving the undertaking attached as Annexure 'F' to the plaint: He. Therefore, submitted that the use of the plaintiff's gas generators to provide power to both of its plots is lawful and KESC should be restrained from interfering therewith.
5. Learned counsel for the plaintiff next contended that whether or not KESC can disconnect the plaintiff's power supply on the ground that it is using the connection for standby purposes only. He submitted that the plaintiff's case is different from that of other industrial consumers who use captive power plants to meet their entire load and who use KESC only when their captive power plant is non-functional. He submitted that the plaintiff's gas generators do not have a sufficient capacity to meet the plaintiff's entire load requirements and the plaintiff uses its gas generators to meet a significant portion of the load and the rest is supplied by KESC. He vehemently urged that the plaintiff uses KESC's electricity on a continuous basis and not only on a standby basis. He, therefore, submitted that the effect of the judgment of the learned Single Judge in Suit No,329 of 2012 has no applicability in the present case. Learned counsel, to distinguish plaintiffs case from that of the plaintiffs in Suit No,329 of 2012, has submitted that as far back as 2006, the plaintiff requested KESC for a 50% reduction in its sanctioned loa . Which request was ignored by KESC in 2006 and now plaintiff has sent another similar request last week. He submitted that the fact of the matter is that KESC ignored the 2006 request because if the same had been granted the plaintiff would have had to pay a lower monthly fixed fee: It is submitted that KESC having benefited by charging a higher fixed fee all these years is now estopped from changing its stance. He also urged that the plaintiff's case is however on an even stronger footing because not only does the contract not prohibit using the KESC connection for standby purposes but the KESC bill itself has two components: a fixed part and a variable part. The fixed part is payable irrespective whether or not the plaintiff uses any electricity. It is submitted that therefore KESC is being adequately compensated irrespective of whether or no the plaintiff uses any electricity.
6. Learned counsel in order to clarify the instance of KESC that it has "blocked" certain capacity for the plaintiff on the basis of its sanctioned load and it is being prevented from selling this "blocked" capacity to anyone else and hence it is suffering a loss. It is submitted that this is completely incorrect. If KESC were ,to disclose the total amount of capacity it has sanctioned and its total generation capacity it would 'be seen that the sanctioned capacity is far greater than its generation capacity. He strongly urged that it is certainly not the case that KESC has surplus electricity which goes unutilized because industrial consumers are not using their full sanctioned load. He submitted that KESC cannot meet the existing demand as a result of which it has to resort to load-shedding every single day. He, therefore, submitted that KESC should be grateful to the plaintiff for not utilizing its full sanctioned load. To negate the contention of KESC, he submitted that undertaking which KESC wanted to execute and in terms of which. The plaintiff was supposed to agree' to use at least 50% of its sanctioned load, which shows that it is acceptable to KESC if the plaintiff agreed to use even 50% of its sanctioned load. This would have meant that the remaining 50% which KESC has supposedly "blocked" for the plaintiff's use would go to waste as neither the plaintiff was using the same and nor could KESC sell it to any third party. He submitted that if KESC's contentions were really true, it would never have made such an offer.
7. Learned counsel further argued that since KESC has no contractual basis on which it can justify its illegal demands it seeks to rely upon the provisions of section 20 of the Electricity Act and the provisions of the NEPRA Act. He submitted that even the judgment in Suit 329 of 2012 which was strongly relied upon by KESC concludes that the only provision under which KESC could rely upon is clause 8.1 of the Consumer Service Manual. Learned counsel respectfully submitted that the plaintiff's case is even stronger than this as the provisions of section 22 of the Electricity Act, 1910 actually prohibit KESC from disconnecting the connection as long as the plaintiff is paying its bills on time. He submitted that the above referred section is clearly applicable and as long as the plaintiff is paying a fixed charge every month, KESC is being compensated and hence it cannot disconnect the electricity supply. He also made reference to the order dated 17-4-2012 passed in Suit No,329 of 2012 and stated that learned Single Judge was pleased to hold that the use of KESC's connection as a backup source rather than as a primary source constituted a use "for a purpose other than for which it was sanctioned" in terms of Clause 8.1 of the Consumer Service Manual and hence it was liable to be disconnected. It is submitted that Clause 8.1 needs to be read in its entirety and along with Clauses 7.1 and 7.5 in order to be properly interpreted. It is respectfully submitted that had the learned Single Judge been properly assisted by counsel, he might perhaps, have reached a different conclusion. He also submitted that the Consumer Service Manual has been framed pursuant to Rule 9 of the National Electric Power Regulatory Authority Licensing (Distribution) Rules, 1999 which reads as under:--- "9. Obligation to connect and supply. ---
(2) The consumer service manual shall contain instructions and guidance in respect of the following matters namely:--
(k) procedure for disconnection and the charges and penalties for theft of electric power or for use of electric power for purposes other than those specified in the application for connection and service."
8. He urged that the above-referred Rule only confers the power to frame a provision in the Consumer Service Manual to deal with a situation where electric power is used for purposes other than those specified in the application for connection and service. However, this has not been followed by NEPRA as the relevant Clauses of Clause 7 and 8. Learned counsel while referring the above noted clauses, has submitted that Clause 7.1 defines the Tariff as including the terms and conditions on the basis of which the electricity has been provided and it was incumbent upon KESC to establish either in the Terms and Conditions of the Tariff set by NEPRA or in the contract between the plaintiff and KESC that there was a provision which stipulated that the plaintiff could not use the connection for standby purposes. As has already been noted no such condition has been stipulated in the contract. It is therefore submitted that KESC cannot unilaterally seek to change the bargain between the parties by now imposing such a term. He further submitted that Clause 8.1 is not a complete code and has to he read in conjunction with Clause 7.5. He also submitted that a change of use within the meaning of Clause 8.1 would be if, for instance a 'residential' connection is used in a commercial establishment. He submitted that the first part of Clause 8.1 has three limbs.
The second part of Clause 8.1 however only deals with disconnection procedures in relation to the first and third limbs (i,e, non-payment and excess consumption). It does not deal with the second limb (i,e, use for a purpose other than for which it was sanctioned). It is respectfully submitted that the reason for this is that the disconnection procedure for the second limb is covered in Clause 7.5.
He, therefore, submitted with utmost respect to the learned Single Judge, that his conclusion that use of KESC's connection as a backup source rather than a primary source constitutes a use "for a purpose other than for which it was sanctioned" is not sustainable.
9. Learned counsel lastly argued that there are several cases wherein the Court has ordered restoration of the electricity supply, which include decisions given by three separate Division Benches of this Court including a decision in which one of the plaintiffs in one of the connected cases of Suit 329 of 2012 was given interim relief in that the Division Bench ordered the immediate restoration of his electricity. He placed reliance upon the cases of MUHAMMAD ASLAM v. KESC (2006 MLD 1540), ERUM HEIGHTS RESIDENTS WELFARE ASSOCIATION v. KESC (2001 CLC 321), MUHAMMAD JAWAID v. KESC (HCA 54 of 2012) HAJI SHER MUHAMMAD v. WAPDA (PLD 1988 Lahore 511) WAPDA v.
AMIN ICE FACTORY (2001 MLD 1287). He respectfully submitted that the Division Bench judgments suggest that right to electricity may be tantamount to being a fundamental right covered by Article 9 of the Constitution (Right to Life).
10. Learned counsel submitted that the plaintiff has made out it a prima facie case, the balance of convenience is in its favour (as KESC will not suffer any harm by providing electricity as it will be paid for the same) and the plaintiff will suffer irreparable harm (as it will have to shut down its factory on those days of the week when there is gas load-shedding and/or when its gas generators need maintenance and this will cause it to default on its export commitments and thereby lose its customers to its competitors). He therefore respectfully prayed that this Court may be pleased to allow the plaintiff's Injunction Application and to dismiss the defendant No,1' s two applications.
11. On the other hand, Mr. Muhammad Amin Lakhani learned counsel for the defendant No,1 has challenged the maintainability of the application for temporary injunction. He argued that the prayer sought through the instant application when read in conjunction with the main , prayer to the suit has a cumulative effect of the final prayers in the suit. He argued that the prayers contained in the application co-relate direction with the prayers contained in the main suit. He submitted that whilst entering upon an adjudication of the listed application, this Court will look into the merits of the case and whilst determining a prima face case for the plaintiff, appreciate the validity or otherwise of KESC action. He submitted that the plaintiffs primary motive through the instant suit is to seek a restraint against KESC from disconnection its power supply and if the temporary injunction as prayed for is granted by this Court the plaintiff would then be granted the final relief as contained in prayer clauses (i). (ii) and (iii) as the temporary injunction sought by the plaintiff is mandatory in form. He has drawn my attention to the case report in PLD 1993 Karachi 190 and the principle settled therein for grant of mandatory injunction against Corporation. He submitted that as per the principle reported in the said citation, the plaintiff is not entitled to grant of a mandatory injunction inter alia on the grounds that at such time when the plaintiff had approached this Court, the supply of electricity had already been disconnected. He also submitted that on the day when the instant suit was filed the plaintiff was without KESC's power supply. He, therefore, submitted that in view of the above cited case, this court may not grant a 'status quo Ante' to restore a situation that did not exist at the time when the instant suit was filed.
12. Learned counsel contended that the facts on ground are different from the facts as pleaded and argued before this Court by the plaintiff.; ' He contended that the plaintiff has, maliciously and with designs to derive unlawful benefits suppressed facts and has not made necessary disclosures before this Court. He also contended that proof of such fact lies in the conduct of the plaintiff, who has notwithstanding its right to a rejoinder/rebuttal, failed to deny and or derogate against the factual pleas put forth by KESC and the only point in issue raised by the plaintiff is the interpretation of the law relevant, i,e, The Electricity Act, 1910. The Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 and the Consumer Services Manual. He further contended that the plaintiff has sought to mislead this Court by pressing the issue of notice dated 10-4-2012 and wrongly contended that the disconnection cased upon its power supply from KESC is as a result of the issuance of the said notice. He contended that admitted fact of the matter is that the disconnection of the plaintiffs power supply from KESC and the notice dated 10-4-2012 are two distinct issues and have no relevance or nexus with each other and this fact is confirmed from a bare reading of the application wherein the plaintiff itself identifies the two issues and distinct and separate. He submitted that the plaintiff has merely sought to wrongly conjoin the two issues and convolute the same to further its malicious designs and motives. He submitted that it is clarified that the disconnection caused upon the plaintiff's power supply is for reasons that are independent of the notice dated 10-4-2012 and do not concern themselves with the act of illegal "Transmission" of electricity being committed by it. He, therefore, submitted that a parallel needs to be drawn in between the two issues and the same must be necessarily distinguished and separated for a fair and reasonable adjudication.
13. Mr. Muhammad Ali Lakhani, Advocate, in response to 'the arguments of Mr. Rashid Anwer learned counsel for the plaintiff with regard to the transmission of electricity from one property to another, has contended that it is an admitted fact that plaintiff is currently engaged in 'transmitting' illegally electricity from the second property to the first property. He contended that the first property and the second property are situated in the same vicinity, but they are at a fair distance from one another, which can be verified from the "Site Inspection Report" attached with the KESC's counter affidavit to the Application. He also contended that it is an admitted fact that the plaintiff maintains Four (4) 900 KW "Gas Generators" at the second property and through a steady supply of gas is generating and transmitting electricity to the first property for the purposes of its manufacturing processes being carried out thereon. He further contended that the plaintiff is currently acting as an independent power generator and is, therefore, infringing upon KESC's exclusive rights to conduct sale of electricity in Karachi. He urged that any action that derails and/or denies benefits to a party exercising exclusivity with regards to a particular matter shall constitute infringement of its rights in law and the law binds all persons not duly licensed to not engage in "Transmission" of electricity. In this regard, he submitted that KESC relies upon the provisions of section 2(26) of the NEPRA Act. Which defines the term "Transmission". The term "Transmission", for the present purposes means and includes the ownership, management or control of transmission facilities. He submitted that as necessary corollary, it would be advantageous to appreciate section 2(27) as well, wherein the term "Transmission Facility" has been defined to mean and include electrical transmission facilities operating at or above the minimum transmission voltage. He submitted that the term "Minimum Transmission Voltage" has been defined in section 2(19) to mean sixty-six kilovolts or such other voltage that the Authority may determine to be the minimum voltage at which electrical facilities are operated when used to deliver electric power in bulk. He urged that at this juncture that the plaintiff is using (Four) 04 900 KW "Gas Generators" and is transmitting over 2800 KW from the second property to the first property. He, therefore, submitted that the violation of law, insofar as the NEPRA Act is concerned by the plaintiff is apparent on the face of it.
14. Learned counsel further made reference to section 16 details the need of a "Transmission Licence" and restricts all persons from transmitting electricity without the necessary grants from the competent authority. He urged that it is not the plaintiff's case that it possesses a valid and lawful "Transmission Licence". He submitted that the plaintiff relies upon two Letters dated 25-6- 2004 and 10-2-2012 wherein the Electricity Inspector Karachi has allowed it to install "Gas Generators"- at the second property, but the plaintiff hits wrongly and maliciously represented the foregoing Letters as necessary grants in terms of the NEPRA Act. He submitted that insofar as the NEPRA Act is concerned, the "Authority" is the National Electric Power Regulatory Authority in terms of section 2 (i) thereof. He also submitted that even otherwise, the above letters merely entitle the plaintiff, if at all, to install "Gas Generators" on the second property and do not under any circumstances entitle the plaintiff to "Transmit electricity". He also made reference to section 30 of the Act of 1910, which enforces that no person, other than a licensee duly authorized under the terms of his license, shall transmit or use energy at a rate exceeding two hundred and fifty watts.
He submitted that the imposition is on "Transmitting"- and various conditions have been provided for in section 30 under which a person cannot "Transmit" electricity. He emphasized that the foremost prerequisite is the issuance of a valid license granted by the Authority. He also relied upon sections 43 and 44 (a) and (b).
15. Learned counsel, developing the above point, submitted that the term "Transmit" does not find a definition in either the NEPRA Act and/or the Act of 1910. He, however, submitted that the legislature constantly uses the said term to define illegal "Transmission" and the right approach would in the facts of the instant case, be to interpret the term "Transmit". He submitted that since the relevant law, i,e, the NEPRA Act and the .Act of 1910, do not define the term "Transmit"; the ordinary dictionary meaning of the same must be appreciated and incorporated in terms of the law laid down in PLD 2011 Lahore 349 and 2006 SCMR 989. Learned counsel also submitted that the meaning of the word "Transmit", which means to send or transfer from one person or place to another, the plaintiff has been unlawfully transmitting electricity from the second property to the first property. He for the purposes of the legal definition of the term "Transmit" reference is placed on Blacks Law Dictionary (Eighth Edition) and submitted that illegal "Transmission" relates to transferring over and above a certain voltage, as stated earlier, and hence, any action to the contrary is in violation of the law. He also submitted that the law does not draw a distinction as against "Transmission" for the purposes of self-benefits and/or "Transmission" for the purposes of third party benefits.
16. Mr. Lakhani on the point of disconnection has argued that KESC in order to streamline its operations specifically in terms of the industrial sector, KESC set out to devise a consumer friendly policy whereby industrial consumers using KESC as a secondary means of power supply were called upon to rectify such anomaly and to ensure that the irregular consumption of load being carried out by them consistently is optimized. He argued that in this regards various notices were issued to industrial consumers including the plaintiff, but the plaintiff malafidely has failed to disclose upon this Court the said fact. He argued that through a notice dated 5-4-2012 (attached with the counter-affidavit of KESC to the application), the plaintiff was asked to allow KESC officials to carry out an inspection at the first property so as to determine the facts on ground vis-a-vis the plaintiff's use of the load sanctioned to it, which is not disputed by the plaintiff He argued that during the inspection conducted it was determined that the plaintiff is; (i) using a load much below the load sanctioned to it by KESC; and (ii) that the plaintiff is illegally transmitting electricity from the second property to the first property. He submitted that the plaintiff is in possession of and claims entitlement to two properties in the same vicinity, i,e, Plot No,A-34, SITE, Karachi and Plot No,A-39, SITE, Karachi. He urged that the plaintiff contends that its manufacturing unit(s) is situated on the A-39 whereas through Four (04) 900 KW "Gas Generators" situated on the A-34, electricity is being transmitted from the A-34 to A-39 for the purposes of running its manufacturing unit(s). He submitted that it is an admitted fact that the plaintiff's manufacturing unit(s) relies solely on the "Captive Power" being produced by it and does not necessarily and/or primarily rely upon the power supply from KESC. He submitted that proof of such fact is the letter dated 10-4-2006 filed by the plaintiff with the memo of plaint. He submitted that through the said letter, the plaintiff contends and confirms that its usage of KESC supplied power is minimalistic and hence, as per the plaintiff, a reduction in the sanctioned load was sought by it, which has never been served on KESC.
He, however, submit that KESC to rely on the same to affirm its contentions that the plaintiff is a "Captive Power Producer" and does not require KESC sanctioned load to sustain its manufacturing unit(s). He also submitted that if the plaintiff has indeed filed the letter dated 10-4-2006 with KESC, it has shown great negligence by failing to follow up on the matter and seek a load reduction for the last six (06) years and such negligence cannot be sought to be used grounds for a beneficial interpretation in its favour.
17. Learned counsel also submitted that it is an admitted fact that the plaintiff is a "Captive Power Producer". He submitted that a "Captive Power Producer" generates its own electricity with the use of "Gas Generators" through gas supplied to it by the Sui Southern Gas Company: and most industrial consumers in Pakistan are "Captive Power Producers". SSGC supplies its consumers with a template application wherein it is undertaken by the industrial consumer that shall generate and sustain electricity through "Gas Generators" for secondary use only. He urged that SSGC further insists upon its consumers that KESC shall continue to remain and be the primary source of electricity used by an industrial consumer in light of the fact that there is a great deficit in the gas reserves currently being maintained in Pakistan. He urged that "Captive Power Producers" are also the reason that. KESC is denied its allocated quota of 276 MNFCD by the SSGC and due to the connections accorded to various industrial consumers, only a supply of 150 MMFCD is received by KESC from SSGC. He submitted that KESC has already challenged the short supply of allocated gas quota by SSGC and the matter has been heard and reserved by a Division Bench of this Court in Constitutional Petition No,D-2887 of 2011. He also submitted that earlier also a Constitutional Petition No,D-1088 of 2011 filed, which has already been disposed off with observations that KESC's gas quota he restored in order to facilitate supply of electricity to the metropolis of Karachi.
18. Learned counsel also drew my attention to the policy addressed supra that KESC presented to the plaintiff an "Undertaking". He submitted that the "Undertaking" in question is different from the "Undertaking" the plaintiff has impugned through the instant suit. He submitted that KESC had merely called upon the plaintiff, as also other industrial consumers, to utilize a minimum of 50% of its sanctioned load and to commence normal utilization of power supply to the satisfaction of KESC and subject to regular payments of monthly power consumption bills as generated. The plaintiff, however, has refused to execute the "Undertaking" with regards to the irregular usage of sanctioned load. However, the plaintiff has neither challenged the notice and/or KESC's actions as per section 20 of the Act of 1910 read with the provisions of Chapters 8 and 14 or the Manual. He further submitted that the plaintiff has by conduct, conceded to the interpretation accorded to the foregoing provisions of law by KESC and hence, is now estopped from challenging/disputing the same. He submitted that it was in terms of the foregoing facts that KESC was constrained to disconnect the plaintiffs power supply. He vehemently urged that at such time when the plaintiff approached this Court, i,e, on 12-4-2012., the plaintiffs electricity supply had already been disconnected. He, however, submitted that KESC's actions of demanding from its industrial consumer's regular and proper utilization of load consumption have been challenged by various other industrial consumers before this Court and vide order dated 17-4-2012 passed in Suit No,329 of 2012 and others, this Court has recognized KESC's power to cause disconnection upon a consumer using its power supply for standby purposes and interpreted the provisions of Chapters 8 and 14 of the Manual. He submitted that this Court has, however, streamlined the mechanism in the manner which is desires KESC to exercise its powers to come forth and reconcile the issue pertaining to irregular load consumption. He further submitted that such "Show Cause Notices" have also been served upon all other industrial consumers using KESC supplied power for standby purposes. The show cause has been served upon the plaintiff with a desire to amicably resolve all issues affecting the supply of power to the industrial sector and due to the reservation of load for various industrial consumers on the KESC "Feeder", various prospective applicants were being denied a connection, which in turn was causing loss to the exchequer as also KESC since a large quantum of sanctioned load would go to waste every month. Without prejudice to the foregoing, he submitted that the plaintiffs load has now been reallocated to a fresh applicant and hence, energizing its connection is not practically possible. He also submitted that to substantiate KESC's arguments vis-a-vis the disconnection caused upon the plaintiff in terms of the foregoing narrative, reliance is placed on order dated 17-4-2012 passed in Suit No,329 of 2012 since the same now constitutes law binding on KESC in terms of PLD 1969 SC 14, wherein the term "Law" has been defined to mean and include judicial pronouncements as well.
19. Learned counsel for the KESC apart from above submission has argued that the plaintiff has quantified monetary damages and has thus, through Prayer Clause (iv) to the main Suit sought grant of such damages. He submitted that it is now a settled principle of law that once damages are quantified and appear to be sufficient relief as against refusal of an injunction, no injunction can be granted to a plaintiff. In support of his plea, he placed reliance upon 1998 CLC 44, PLD 2008 Karachi 458 and 2010 MLD 518. He submitted that the plaintiff as per its own pleadings, can be sufficiently compensated for in terms of money and hence. The mischief rule contained in section 21 (a) of the Specific Relief Act, 1877 would apply. Mr. Lakhani urged that the relationship inter se the parties hereto is contractual in nature, inasmuch as a consumer proposes to use KESC supplied electricity and. KESC, upon applying the law, accepts to supply electricity. He urged that consideration forming part, of such contractual relations are the monthly bills generated against a consumer. In essence, the plaintiff and KESC enjoy a relationship based on a contractual performance of a service and in terms of section 21(g) and section 56(f) of the Specific Relief Act.
1877 no injunction can be granted against such a contract since the same cannot be specifically put to terms of performance.
20. Learned counsel while concluding his arguments, reiterate his submission that prayers contained in the application are separable and are two distinct and independent prayers made before this Court. It goes without say that in terms of Order II, Rule 3 of the Code, a plaintiff may join several causes of action in suit. He submitted that the foregoing rule does not derogate upon rule 74 of the Sindh Chief Court Rules, wherein it has been made binding on a party agitating an interlocutory application to put forth one prayer or one series of alternating prayers of the same kind. He submitted that the prayers contained in the application do not form a series of alternation prayers of the same kind and unless the foregoing prerequisite is met, the application must fail for suffering from incurable legal defects. He, therefore, prayed for dismissal of C.M.A. No,3469 of 2012 and requests for grant of C.M.As. Nos.3666 and 3667 of 2012.
21. In rebuttal, Mr. Rashid Anwer, learned counsel for the plaintiff has reiterated his earlier submissions with more vigor and contended that the learned counsel for KESC objected to the fact that both issues are dealt with in one plaint. However, the provisions of Order II, Rule 3, C.P.C.
Expressly permit this. He also objected that grant of interim relief would be tantamount to final relief. However it can be seen from the prayer clause in the plaint that this is clearly not the case as the first two prayers seek a declaration, which is obviously not being sought at the present time and the third prayer seeks a permanent injunction whereas the present application only seeks a temporary injunction for the duration of the suit. Learned counsel, in reply to the arguments advanced by learned counsel for KESC with regard to claiming damages, has submitted that this is a common practice, as there is no certainty at the time of filing the plaint as to whether or not a temporary injunction will be granted. Thus there are numerous decisions of this Court where injunctive relief has been granted even though damages have been claimed in the alternative. He further submitted that grant of injunctive relief would not penalise KESC as it would be paid for the electricity consumed by the plaintiff whereas denial of injunctive relief would cause irreparable loss to the plaintiff as it will have to shut down its factory whenever there is gas load-shedding or when its gas generators need maintenance.
22. I have heard the arguments advanced by the learned counsel to the parties, minutely examined the material available on record and the case-law cited at 'the bar. I have also perused the order passed on 17-4-2012 in Suit No,329 of 2012.
23. Before proceeding further, it may be noted that various customers of defendant No,1 had approached this Court by filing suits when they have been served with the notices issued by defendant No,1 under section 20 of the Electricity Act, 1910 read with Chapters 8 and 14 of the Consumer Service Manual (CSM) issued by NEPRA -- Irregular Load Consumption and Under Utilization of Sanctioned Load. In those suits, my learned brother Munib Akhter, J. While disposing off the similar type of applications (on somewhat different facts) thoroughly examined and discussed all the issues very diligently. The manners in which the applications were disposed off by order dated 17-4-2012 are reproduced below:--- "(a) Subject to what is stated below, the electricity connections of those plaintiffs who are enjoying supply of power, whether on account of Court orders or otherwise shall not be discontinued or disconnected.
(b) Subject to what is stated below, the electricity supply of those plaintiffs who are not being supplied power shall be restored within seven days from (but excluding) today.
(c) Nothing in (a) or (b) above shall prevent KESC from making a proper determination in accordance with the law as explained herein above as to whether any plaintiff is utilizing its sanctioned load for standby purposes.
(d) If in the case of any plaintiff it is determined in terms of (c) that it is utilizing the sanctioned load for standby purposes then its electricity supply may be discontinued in accordance with law and subject to- what is stated below, or KESC may decrease or reduce its sanctioned load by such reasonable amount as may be appropriate.
(e) If any exercise in terms of (c) is initiated within seven das from (but excluding) today in relation to a plaintiff to whom (b) applies, then its electricity supply need not be restored in terms as therein stated until the exercise is concluded but it is clarified that if such exercise is initiated after more than seven days from (but excluding) today, the electricity supply must be restored, and such plaintiff shall be deemed to be a plaintiff to which (a) applies.
(f) If any exercise in terms of (c) is initiated, and any party, whether KESC or a plaintiff, is of the view that such exercise is being unnecessarily or unreasonably delayed, obstructed prolonged or prevented, it may apply for such directions as the Court deems appropriate, which may include a modification, in whole oil in or in part, of any directions contained in this para 31.
(g) If any exercise in terms of (c) ends in a determination adverse to a plaintiff whether in whole or in part, then that; plaintiff will be entitled its remedies in accordance with law, and if it is a plaintiff who is being supplied power, no action in terms of (d) shall be taken against it for a period of seven days from (but excluding) the date of communication of the determination.
(h) Nothing herein shall prevent or disentitle any plaintiff for executing the Undertaking at any time and if it does so, then the Undertaking shall apply in its own terms to both the plaintiff and KESC."
24. It may be noted that I also agree with the observations made by my learned brother Munib Akhter, J. On the point of section 20 of the Act. 1910, which was impugned by various customers of KESC. However, in the case in hand, the plaintiff approached this Court to impugn the notice dated 10.4.2012 issued by KESC under sections 41, 43 and 44 of the Act. 1910 and Chapter 12 of the NEPRA'S Consumer Service Manual Disconnection for transmitting electricity from one premises to another, which is the violation of Electricity Act as KESC is the licensee to transmit and distribute electricity in licensed area. The plaintiff replied the said, notice, Annexure 'F' of the memo of plaint, whereby request for extension of 7 days to legalize their distribution by separating both premises that is A- 34 and A-39 SITE and given undertaking not to dispute this issue within the extended time and ensure compliance within the stipulated time given to them. For ready reference, the relevant portion of the said letter is reproduced below:--- "We acknowledged your notice and request for extension of 7 days to legalize our distribution by separating both premises that is A-34 and A-39 SITE. In the meantime we also undertake not to dispute this issue within the extended/requested time and ensure compliance within the stipulated time given to us that is 7 days."
25. It may be noted and rightly pointed out by the learned counsel for KESC that notice under section 20 of the Act, 1910 read with Chapters 8 and 14 of the Consumer Service Manual issued by NEPRA was also issued to the plaintiff like other industrial consumer using KESC as a secondary means of power, but the plaintiff neither disclosed such fact for issuance of said notice to them nor challenged the same, which has been filed by KESC along with its counter-affidavit to application as Annexure A/1'. As already observed that I agree with the conclusion recorded in the Suit No,329 of 2012 vide order dated 17-4-2012, therefore, there is no need to comment further upon that.
26. As noted above, that plaintiff approached this Court seeking declaration that the plaintiff use of captive power for its own use and on its neighboring land is not in violation of the provisions of Act, 1910 and that undertaking to KESC on 10th April, 2012 is illegal, void ab initio and without any legal force as the same has been obtained under duress and coercion. The basic thing for issuance of undertaking is the notice dated 10-4-2012 for disconnection of cable whereby the plaintiff transmitting power supplies from one premises to another. It may also he noted that prior to issuance of notice dated 10-4-2012 inspections of the properties were also made by the officials of KESC. During the. Inspection it was determined that plaintiff is using a load much below the load sanction to it by KESC and that the plaintiff is illegal transmitting electricity from one property to another, which is a violation of the exclusive licence granted to KESC by NEPRA. The plaintiff counsel refuted the contentions raised on behalf of KESC and submitted that "transmission facilities" are defined as those facilities which operate at or above the "minimum transmission voltage" of sixty- six kilovolts and the plaintiff's generators transfer power at eleven kilovolts and as such not fall within the definition of "transmission facilities". He further elaborate his submission that plaintiff's gas generators do not have a sufficient capacity to meet its entire load requirements and the plaintiff uses its gas generators to meet a significant portion of the load and rest is supplied by KESC. Therefore, use of the plaintiff's gas generators to provide power to both of its plots is lawful and do not fall within the meaning of transmission facilities, as the plaintiff generate power exclusive to its own use. To understand the actual meaning of transmission, I may reproduce the relevant clauses of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, which read thus:--
2. Definitions.--- In this Act, unless there is anything repugnant in the subject or context, (i)..
(ii) "bulk power consumer" means a consumer who purchases or 'receives electric power, at one premises, in an amount of one megawatt or more or in such other amount and voltage level and with such other characteristics as the authority may determine and the authority may determine different amounts and voltage level and with such other characteristics for different areas; (iii)
(iv) "Consumer" means a person or his 'successor-in-interest who purchases or receives Electric power for Consumption and not for delivery or re-sale to others, including a person who owns or occupies a premises where electric power is supplied;
(v) "distribution" means the ownership, operation, management or control of distribution facilities for the movement or delivery or sale to consumers of electric power but shah not include the ownership, operation, management and control of distribution facilities located on private property and used solely to move or deliver electric power to the person owning, operating managing and controlling those facilities or to tenants thereof: (vi).
(vi)..
(vii).
(viii).
(ix).
(x).
(xi) "generation" means the ownership, operation. Management. Or control of generation facilities for delivery or sale of electric power arid not solely for consumption by the person owning, operating, managing, and controlling those facilities:
(xii) ...............................................................................
(xii) ..
(xiii) ..
(xiv)
(xv)
(xvi) "licence" means a licence issued for generation, transmission or distribution under this Act.
(xvii) ..
(xviii) .............................................................................................
(xix) "minimum transmission voltage" means sixty-six kilovolts or such other voltage .That the Authority may determine to be the minimum voltage at which electrical facilities are operated when used to deliver electric power in bulk;
(xx) ..
(xxi) ..
(xiii) ...........................................................................................................................
(xxiii) ........................................................................................................................
(xiv) ..................................
(xxv)
(xxvi) "transmission" means the ownership, operation,, management or control of transmission facilities; (xxvii) "transmission facilities" means electrical transmission facilities including electrical circuits, transformer, an substations operating at or above the minimum, transmission voltage but shall not include---
(a) electrical circuits forming the immediate connection between generation facilities and the transmission grid to the extent that those circuits are owned by a generation company and are directly associated with that company's generation facilities;
(b) specified facilities operating at or above the minimum transmission voltage which the- Authority. Upon an application by licensee under section 20, determines that such facilities shall he owned and operated by a distribution licensee; and (xxviii) ...................................................................................................................
27. Bare reading, of above quoted Act, 1997 clearly shows that the term "Transmission", for the present purposes, means and includes the ownership, management or control of transmission facilities. The term "minimum transmission voltage" has been defined in section 2(xix) to mean sixty-six kilovolts or such other voltage that the Authority may determine to be the minimum voltage at which electrical facilities are operated when used to deliver electric power in bulk. The word 'Transmit' means to send or transfer from one person or place to another, or to communicate.
According to the Black's Law Dictionary the word 'Transmission' means that in the civil law the right which heirs or legatees may have of passing to their successors the inheritance or legacy to which they were entitled, if they happen to die without having exercised their rights. It is the case of the plaintiff that its generators transfer power of eleven kilovolts whereas minimum transmission voltage is sixty-six kilovolts. On the contrary the KESC instance is that plaintiff is using 04 900 KW Gas Generators and is transmitting over 2800 KW without any licence from the competent authority. Admittedly, the plaintiff had obtained permission from the provincial government for electrical installation and equipment, but has not obtained permission/ licence from NEPRA for transmitting power from one property to another. Nothing available on record to assess that how much power is transferring the plaintiff from one property to another, but irrespective of the actual transmission it is established that plaintiff is transmitting power without having any licence from competent authority. It may be noted that the plaintiff is transferring power and running its business since long without any objection therefore, it is not in the fitness of things to order for immediate disconnection of plaintiffs cable. It may also be noted that during arguments, the learned counsel for KESC conceded that even if there is a violation of KESC is transmission licence then action in this regard can only be taken by NEPRA and not by KESC.
28. Now coming to the merits of the case whether or not the plaintiff is entitled to grant interim relief, it may be noted that KESC and plaintiff have contractual relationship in terms of which the plaintiff applied for a connection and KESC granted the same subject to certain conditions set out in the connection application. Plaintiff case is that not only the contact prohibit using the KESC connection or standby purposes, but KESC bill itself has two components fixed part and variable part. The fixed part is payable irrespective of whether or not the plaintiff uses any electricity and KESC is being adequately compensated. The KESC's stance is that it has blocked certain capacity for the plaintiff on the basis of its sanctioned load and it is being prevented from selling this blocked capacity to anyone else and therefore, it is suffering huge loss. It was further the case of KESC that the serious under utilization by the plaintiff of the sanctioned load was based on their billing history over several months and was not something that could be denied. The plaintiff has also placed on record copy of letter dated 10-4-2006 ,addressed to the General Manager SITE, KESC. Karachi for reduction of load and submitted that to date no response has been received. The receiving of said letter has been denied by KESC. However. It is submitted that it has shown great negligence by failing to follow up on the matter and seek a load reduction for the last six years.
29. In my view it is a case of lacking/negligence on both the sides. The plaintiff who applied for reduction of its sanctioned load in the year 2006 has not taken any serious efforts to follow up the matter with the competent authority. Similarly, the KESC has failed to take any action against plaintiff for non-utilizing their sanctioned load and now suddenly started action against those industrial customers who have generate their own energy by other means. It may be noted that plaintiff has not executed any undertaking to use 50% of its sanctioned load and in case the plaintiff agreed to use 50% of its sanctioned load the KESC would have meant the remaining 50% has supposedly blocked for the plaintiff's use would go to waste as neither the plaintiff was using the same nor could KESC sell it to any third party. Additionally, it is not the; case that KESC has surplus electricity which goes unutilized because industrial consumers are not using their full sanctioned load. The fact of the matter is that KESC cannot-meet the existing demand as a result of which it has to resort to load-shedding and every single day.
30. As regards the case-law cited by the learned counsel for the parties in support of their submissions was well-settled principle of law and therefore it need not necessary to examine. The only question is whether these principles are applicable in the case in hand or not. The simple answer is not. The reason is that supply of electricity appears to be essential to the life of people and its denial might amount to infringement of right, to the life guaranteed by Article 9 of the Constitution of Pakistan. Therefore, in my view, if the injunction is declined to plaintiff no purpose would be served except enhancing the unemployment which is already very high in our country.
31. From the tentative assessm ent of material available on the record. I am of the considered view that the plaintiff has made out a prima facie case at this stage. The balance of convenience is also in its favour as great inconvenience will be caused to the plaintiff in case of refusal. The KESC will not suffer any harm by providing electricity as it will be paid every month fixed charges irrespective of whether or not the plaintiff uses any electricity. However, I dispose of all the listed applications in the following terms:---
(i) The electricity connection of the plaintiff shall not be discontinued or disconnected for a period of three (3) months i,e, upto 10th August, 2012.
(ii) After expiry of above period of three months, if it is determined that the plaintiff is not utilizing the 50% electricity of the sanctioned load (as settled with the other Industrial Customers) and using the same for standby purposes then the KESC is at liberty to take action in accordance with law.
(iii) In the meantime, the plaintiff, if deemed appropriate to reduce its sanctioned load, may approach the KESC with Written request for reduction of its sanctioned load and the KESC is directed to consider the same and decide the application within a period of one month, but prior to expiry of above period.
(iv) Nothing in (ii) or (iii) above shall prevent KESC from taking action in accordance with law as explained hereinabove as to whether plaintiff is utilizing its sanctioned load for standby purposes or KESC may decrease or reduce its sanctioned load by such reasonable amount as may be appropriate.
(v) The plaintiff is directed to obtain permission/licence for transmission of its supply from one premises to another from competent authority. In case of failure, make alternate arrangements.
This exercise should be completed within a period of six months from today.