NASIR-UL-MULK, J. - By this common judgment, it is proposed to dispose of Civil Appeal Nos. 1511, 1513, 1514, 1515 and 1519 of 2006 as they involve a common question of law, namely, does the Electric Inspector or the Advisory Board, constituted under the Electricity Act, 1910, are vested with any power under the Act to determine a controversy between Licensee and the. Consumer regarding allegation of theft of electricity. The appeals filed by the Water & Power Development Authority (WAPDA) and Gujranwala Electric Power Company (GEPCO) arise under different circumstances.
Leave to appeal was first granted in C.P. No. 2245-L of 2004, out of which, Civil Appeal No. 1511 of 2006 arises. The facts of the case as well as the proposition of law have been stated in the leave granting order dated 4.9.2006. The same is reproduced:- "2. Dispute had arisen between the parties relating to theft of electricity and detection bill was issued in pursuance thereof. The detection bill was challenged by respondent No. 1 before the Electric Inspector where the petitioner raised an objection with regard to the jurisdiction of the Electric Inspector to proceed to determine the legality and correctness of detection bill issued due to theft of electricity as the dispute would have to be adjudicated by a Civil Court, The objection was over-ruled and the case was decided on merits. The finding of the Electric Inspector was challenged by the petitioner before the Advisory Board who also dismissed the appeal of the petitioner upholding the order of Electric Inspector. The said two orders were assailed by the petitioner before the High Court by filing W. P. No. 23088/1997 which was disposed of as stated above.
3. The ground which weighed with the High Court in dismissing the writ petition of the petitioner was that the Advisory Board had nominated a person at the request of the petitioner to inspect the Anti Theft Box installed at the premises of respondent No. 1 who repeatedly asked the nominee of WAPDA to accompany him so that the inspection could be made but the representative of WAPDA did not avail of the opportunity and deliberately avoided participation in the inspection of anti theft box.
4. The contention of the learned counsel for the petitioner is- whether in pursuance of the pronouncement of the learned Full Bench of Lahore High Court in the case of Water and Power Development Authority and others v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56) that Electric Inspector and the Advisory Board would not have jurisdiction to proceed with a case involving theft of electricity legally passed the order dated 16.10.1995 and 12.10.1997 respectively and as to what will the legal status of such Orders, It is pertinent to note that in the memo, of petition, filed before the High Court no specific objection that the Electric Inspector and the Advisory Board assumed jurisdiction illegally to proceed with the matter which related to theft/dishonest consumption of electricity was taken, It was submitted that it being a legal issue relative to the jurisdiction of the forum/Tribunal could be raised at any stage and further that objection to the above effect was raised before the Electrical Inspector.
5. In view of the facts stated and the pronouncement of this Court in the case of Caltex Oil (Pakistan) Limited v. Collector, Central Excise and Sales Tax and others (2006 SCMR 1519) to the effect that legal objection can be raised at any stage, we deem it appropriate to grant leave to appeal to determine, amongst others, the issues/questions mentioned above. Leave granted"
2. On 5.9.2006 leave to appeal was also granted in C.P.No. 2697-L of 2004, out of which Civil Appeal No. 1513 of 2006 arises, by a detailed order by the same Bench, involving the same question of law as reflected in the above order but without reference to the same. This petition was barred by 11 days and the arguments raised on the question of limitation were also ordered to be considered at the hearing of appeal. The appeal is directed against the judgment of the Lahore High Court dated 31.5.2004 dismissing the writ petition filed by the appellant, M/s. Gujranwala Electricity Power Company (GEPCO), challenging the order of the Electric Inspector regarding detection bill issued to the respondent/consumer. The appellants had questioned the assumption of jurisdiction by the Electric Inspector. The petition was dismissed on the ground that the question of jurisdiction could be raised by the petitioners before the Advisory Board Under the provisions of the Electricity Act, 1910.
3. Civil Appeal Nos. 1514 and 1515 of 2006 arise out of single judgment of the Lahore High Court dated 12.06.2006, dismissing the two civil revisions, Nos. 1012 and 1016 of 2006, filed by the appellants, against the judgments and decrees of the Trial as well as the first Appellate Court in favour of the respondent/consumer, Rashid Ahmad, running a business concern by the name of Arain Ice Factory, situated in Tehsil and District Toba Tek Singh. The two civil revisions arose out of two separate suits, filed by the respondents, No. 300-1 of 1997 instituted on 1.11.1997, questioning the inclusion of Rs. 1,68,388/- in the bill dated 11.10.1997, on the ground that the respondent had already informed the petitioner that on account of some technical fault the meter installed at the Factory was running 40% fast than the normal. This suit was decreed as prayed for and the judgment and decree Was upheld by the impugned judgment. The second suit, No. 50-1 of 1998, was filed by the respondent on 19.1.1998, challenging, the detection bill amounting to Rs. 1,03,613/- for the month of January, 1997. This suit was also decreed in favour of the respondent and the judgment and decree of-the Trial Court was upheld by the High Court.
4. Through Civil Appeal No, 1519 of 2006, the Water & Power Development Authority has assailed the judgment of the High Court whereby writ petition filed by the petitioner was disposed of in the terms that the findings of the Advisory Board regarding the criteria adopted for determining the energy consumption by the respondent/consumer for the period from April, 1993 to January 1994, be determined on the basis of average monthly bills during the period, April, 1991 to January, 1992, instead of April, 1993 to January, 1994. According to the impugned judgment, the learned counsel appearing for the present appellants had expressly given up the challenge to the jurisdiction of the Advisory Board.
5. We heard the learned counsel for the parties and examined Sections 26(6) and 26-A of the Electricity Act, 1910, in the light of the case-law cited by them. For the sake of facility, the two statutory provisions are reproduced as under:-- "26(6) Where any difference or dispute arises between a-licensee and a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct the matter shall be decided, upon the application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties an opportunity of being heard, and where the meter; maximum demand indicator or other measuring apparatus has, in the opinion of the Electric Inspector, ceased to be correct, the Electric Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time as the meter indicator or apparatus has not, in the opinion of the Electric Inspector, been correct; and, where the Electric Inspector fails to decide the matter of difference or dispute within, the said period or where either the licensee, or the consumer decline to accept the decision of the Electric Inspector, the matter shall be referred to the Provincial Government whose decision shall be final: Provided that, before either a licensee or a consumer applied to the Electric Inspector under this subsection he shall give to the other party not less than seven days notice of this intention so to do."
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 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 during any period;
(b) consumer's maximum consumption of energy in kilowatt hours during any period;
(c) consumer's load factor; (dj the power factor 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
(f) the purpose for which the energy is deemed to have been abstracted, consumed or used by the consumer."
6. There are three judgments of significance placing construction on the above statutory provisions on the extent to which the Electric Inspector or the Advisory Board constituted in the Electricity Act, can exercise powers regarding allegation by the . Licensee of theft by the consumer. The first inline is the judgment of the full bench of the Lahore High Court in the case of "Water and Power Development Authority and others v.- Mian Muhammad Riaz and another (PLD 1995 Lahore 56))" cited in the leave granting order (ibid). The other two judgments are of this Court in "Colony Textile Mills Ltd., Multan v. Chief Executive, MEPCO (2004 SGMR 1679)" and the other "Multan Electric Power Company Ltd. v. Muhammad Ashiq (PLD 2006 SC 328)":
7. Mr. Aurangzeb Mirza, learned ASC, appearing for Water and Power Development Authority, had mainly relied upon the judgment of the full bench of the Lahore High Court in "Water and Power Development Authority and others v. Mian Muhammad Riaz and another" (ibid), contending that th Electric Inspector had no authority to adjudicate upon the allegation of theft made by WAPDA against the respondent/consumer and that the only remedy available to the respondent was by way of civil suit in a Court of Law. The full bench of the Lahore High Court in the said case, while referring to Sections 23, 24, 26 and 26-A, held that Section 26-A of the Electricity Act as amended by the Punjab Amendment (Ordinance XXIX of 1971) does not empower the Electric Inspector to take cognizance of any allegation by a .Licensee of dishonest abstraction or consumption of energy by the consumer, as unlike the preceding statutory provisions, it does not make any reference to Electric Inspector. The facts of that case were that WAPDA had raised additional demand against the respondent, an industrial consumer, alleging that he had committed theft, by passing the metering equipment, and illegally connecting the main line with the service line and by this device supplied energy to his plant and machinery directly, It was in these circumstances that the Court held that since there was no metering equipment involved in the theft of energy by the respondent, the provision of Section 26(6) of the Electricity Act was not attracted. More recently this Court in the "Colony Textile Mills Ltd, Multan v. Chief Executive, MEPCO (2004 SCMR 1679)" (ibid) while interpreting Section 26(6) and Section 26:A of the Electricity Act, laid down the circumstances in which the Electric Inspector could still exercise its authority even when there is allegation of theft of electricity, In the context, the following passage from the judgment is instructive:- "The difference of above statutory provisions is obvious as the jurisdiction of the Electric Inspector is confined to the disputes relating to the matters falling under Section 26(6) of the Electricity Act, 1910 and the matter relating to the charges on account of dishonest obstruction of energy would not be referable to the Electric Inspector. If the matter relates to the correctness of meter, maximum demand indicator, or other measuring apparatus, the dispute for consumption of electricity is referable to the Electric Inspector and in case for dishonest obstruction and consumption of energy, the licensee under Section 26-A of the Electricity Act, 1910, may charge the consumer on the basis of considerations mentioned therein. The distinction is that in case of defect in the metering equipment or any fault caused by the consumer with the intention to prevent the meter from registering the consumption of energy, the. Assessment made by the licensee of the charges through detection bill can be subject to scrutiny by way of reference made to Electric Inspector by the consumer but if the metering equipment was completely by passed and through a device energy was being supplied by dishonest obstruction of electricity and the question relating to the correctness of metering equipments or the measuring apparatus was not involved, the charge made under Section 26-A is not a dispute referable to the Electric Inspector in terms of Section 26(6) or any other provision of the Electric Inspector in terms of Section 26(6) or any other provision of the Electricity Act, 1910."
8. The above principle laid down in "Colony Textile Mills Ltd., Multan" was cited with approval in the subsequent judgment of this Court in "Multan Electric Power Company Ltd." (ibid), It follows from the above case-law that where the allegation against the consumer of electrical power is of dishonest consumption of energy through manipulation of, or tempering with, the metering equipment or other similar apparatus, the Electric Inspector would still have the authority to entertain reference under Section 26(6). In case the theft alleged is by means other than the tempering or manipulation of the metering equipment etc, the matter would fall exclusively under Section 26-A Of the Act, outside the scope of powers of the Electric Inspector. Since the Electric Inspector possesses special expertise in examining the working of the metering equipment and other related apparatus, it makes sense that any issue regarding their working, functioning or correctness, whether or not deliberately caused, be examined by him. It may be added that Section 26-A is an enabling provision empowering the licensee to charge the consumer for dishonest extraction or consumption of electricity, It does not provide any procedure for resolving any dispute between consumer and the licensee on a charge of theft, It should, therefore, be read in conjunction with the other relevant provisions, including Section 26(6) of the Act.
9. Having held that the Electric Inspector and the Advisory Board constituted under the Act are empowered to resolve allegation of theft of electricity if the same has allegedly been committed by the consumer through deliberate tempering with the metering equipments etc., we now examine the facts of each Appeal before us.
10. In Appeal No. 1511 of 2006, the issue before the Electric Inspector as well as the Advisory Board was the accuracy of the metering equipments installed in the premises of the respondents, which, upon checking by the Electric Inspector, was found to be 12% fast. The Advisory Board held that the appellant/WAPDA had failed to establish the tempering of the Anti Theft Box (ATB) by the respondent/consumer. The appellant did not question the jurisdiction of the Electric Inspector either before the Advisory Board or before the High Court. The Electric Inspector was within his powers to take cognizance of the Reference.
11. In Appeal No. 1513 of 2006, the Electric Inspector had set aside the detection bill issued on the charge of theft of electricity to the consumer/respondent. In this case the allegation against respondent was of theft of electricity by bypassing the metering equipment. The question of jurisdiction was raised by the appellant before the High Court. Since the appellant had not filed any appeal against the decision of the Electric Inspector, the Court held that the question of jurisdiction could be raised in appeal before the Advisory Board. As the theft alleged was on account of bypassing the metering-equipment, the dispute did not fall within Section 26(6) of the Act and, therefore, was not within the ambit of the powers of the Elector Inspector.
12. In Appeal Nos. 1514 and 1515 of 2006 arising out of the same metering equipment at the premises of the respondent, the allegation of theft by the appellant related to the metering equipment. The respondent/consumer had questioned the detection bill in a civil suit and interestingly the appellant (licensee) had raised objection to the jurisdiction of the Civil Court before the High Court on the ground that since the matter related to the correctness or otherwise of the metering equipment, the matter fell within the exclusive jurisdiction of the Electric Inspector, In view of our above discussion, such objection is sustained and we hold that the Civil Court had no jurisdiction in the matter.
13. In Civil Appeal No. 1516 of 2006, the dispute before the Electric Inspector and the Advisory Board was of theft related to the reading of the meters installed at the premises of the respondent. The question of jurisdiction by the appellant was raised before the High Court but the same was not entertained. No interference is called for in the assumption of jurisdiction by the Electric Inspector.
14. In view of the above, Appeal Nos. 1511 and 1513 of 2006 are allowed and the impugned orders of the Electric Inspector are set aside leaving the respondent/consumer to take recourse to any other legal remedy available to him under the law. Appear Nos.1514 and 1515 of 2006 are also allowed and the impugned judgment and decrees are set aside and the suits filed by the respondent/consumer are dismissed. However, subject to law he may approach the Electric Inspector for determination of the dispute under Section 26(6) of the Act. Civil Appeal No. 1519 of 2006 is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.