' M. SOHAIL IQBAL BHATTI, J.---Through this single order, I intend to decide the instant writ petition and Writ Petition No,1276 of 2014 (Chief Executive MEPCO Multan and others v. Advisory Board Punjab, Lahore and others).
2. The facts of the case are that upon a complaint filed by the petitioner being the consumer of MEPCO under tariff. B-1 having Account No,5812-03468044 U/B-1; the Electric Inspector after conducting an elaborate inquiry passed an order dated 26-10-2009, directing the respondents to restore the electric supply of the petitioner without charging any cost of material, fixed charges and security deposit as the petitioner had been wrongly charged by the respondents. It was further directed that any late payment charges leviable for the period 12/2000 till the decision of the complaint, if levied shall be waived off.
3. The respondents being aggrieved by the order passed by the Electric Inspector filed an appeal before the Advisory Board, which is pending adjudication but till date no injunctive order has been passed by the Advisory Board.
4. Despite this fact, the respondents have not restored the connection of the petitioner and the petitioner being aggrieved by this inaction on part of the respondent department, has filed the instant writ petition.
5. On the other hand, the respondents who have already filed an appeal against the order passed by the Electric Inspector, have also filed Writ Petition No,1276 of 2014 by contending that the order of the Electric Inspector is without jurisdiction, the dispute involved in the case was of theft/illegal abstraction of electricity and therefore Electric Inspector had no jurisdiction to adjudicate upon the dispute as the same did not fall within the ambit of section 26(6) of the Electricity Act, 1910. It was further contended that since the matter had already been finally decided by Wafaqi Mohtasib against the consumer; the appeal filed by the consumer before the President of Pakistan was also dismissed and therefore Electric Inspector did not have any jurisdiction to interfere into this matter.
6. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record.
7. It would be appropriate to refer the section 26(6) and section 26(A) of the Electricity Act, 1910 which is reproduced below:-- ' Section 26 -Meters (1)
(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.
' Section 26-(A) of the Electricity Act, 1910 is reproduced below:-- 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 disconnect, injured, altered or prevented from registering the amount of energy supplied of 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;
(d) 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."
8. The perusal of these two sections, now takes me to the nature of the dispute which has been resolved by the Electric Inspector.
9. In fact, the meter installed at the premises of the petitioner was checked by the respondent authority and in series to that meter, a check meter was installed and on the basis of readings on the check meter, the disputed meter was found 37.25% slow, but the petitioner was charged excessive units; the Electric Inspector after discussing all the aspects of the case observed that if the disputed meter was 37.25% slow, the units can only be charged on the basis of readings on the check meter and not at the whims of the authority.
10. Section 26(6) of the Electricity Act, 1910 in itself provides that if the measuring apparatus is 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 been corrected.
11. In the present case, I have no doubt in my mind that the dispute involved could only be resolved by the Electric Inspector, especially when the authorities have not levelled any charge of theft of electricity by dishonest abstraction.
12. The argument of the learned counsel for the petitioners in Writ Petition No,1276 of 2014 that since the complaint filed by the respondent No,3 in Writ Petition No,1276 of 2014 had been dismissed by Wafaqi Mohtasib and thereafter an appeal had also been dismissed by the President of Pakistan, therefore Electric Inspector could not have interfered into the matter, is of no force without adverting to the provisions of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman)
Order, 1983; it would be suffice to observe that the jurisdiction of Wafaqi Mohtasib is dependent upon mal-administration of an Agency as defined in Article 2 of the Order, 1983. The present case was not a case of mal-administration, but the dispute was one which squarely fell within the jurisdiction of the Electric Inspector appointed under section 36 of the Electricity Act, 1910. Moreover, it must be observed that the decision of the Wafaqi Mohtasib appended with Writ Petition No,1276 of 2014 upon which the respondents have hinged their case is not a decision on merits, but the complaint has been only dismissed being barred by time.
13. The learned counsel for the respondent authority have relied upon PLD 2006 Supreme Court 328 (Multan Electric Power Company Ltd., through Chief Executive and another v. Muhammad Ashiq and others), 2004 SCMR 1679 (Colony Textile Mills Ltd., Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd. (MEPCO), Multan and 2 others) and 2003 MLD 1008 (Lahore) (Colony Textile Mills Ltd. Islamabad, Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd., Multan).
14. I am afraid that these judgments do not strengthen the case of the respondent authority but support the case of the petitioner as in all these cases, it has been observed in an unequivocal terms that in case of a metering dispute in terms of section 26(6) of the Electricity Act, 1910 the only forum for resolution of these disputes is the forum of Electric Inspector. The honourable Supreme Court of Pakistan in a judgment reported in 2004 SCMR 1679 (Colony Textile Mills Ltd., Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd. (MEPCO), Multan and 2 others has observed as under:-- "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 bypassed and through a device energy was being supplied by dishonest abstraction 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 Electricity Act, 1910."
15. It has not been the case of the respondents that the metering equipment was completely by- passed by the petitioner but the same was the case of faulty metering equipment.
16. The respondent authority, in case, when there is no injunctive order by the Advisory Board against the order passed by the statutory forum i,e, Electric Inspector dated 26-10-2009, are under statutory obligation to implement the same.
17. It has been observed by the Division Bench of this Court in a judgment reported in PLD 1993 Lahore 141 (Islamia University, Bahawalpur through Vice-Chancellor v. Dr. Muhammad Khan Malik) that the functionaries of the States, statutory bodies, statutory corporations, statutory universities were required to act strictly within the defined spheres of their authorities under the law. In case of transgression of powers, abuse of powers or colourful exercise of powers by such functionaries, the exercise was open to correction in the constitutional jurisdiction of Superior Judiciary.
18. The present case is the one which shows highhandedness of the authorities and also speaks volumes of their mala fide which cannot be overlooked by this Court.
19. Although it is true that the grant of relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is in discretion of the Court but where it is shown that the impugned action is unconstitutional or is violative of the fundamental constitutional rights; then it becomes the bounden duty of the Court to enforce the rights of Athe citizens with its full might and majesty.
20. In my opinion the holders of public/statutory offices are fiduciaries and trustees for the people of Pakistan and when performing the functions of their offices, they can have no interest other than the interests of people of Pakistan. The basis of fiduciary relation is the exclusive benefit principle, according to which the fiduciary has a duty to act solely in the interest of the beneficiary. The people of Pakistan are not only the beneficiaries but also the principal of trust given to the statutory functionaries. As legal imperative fiduciaries must act in the best interest of the principal and perform their functions with care and complete fidelity.
21. In my opinion, right to have electricity in the present day life is a vested right and is a right to livelihood. Right to livelihood is an inalienable right of a person. Electricity makes the life meaningful, complete and worth living and in present case since the business of the petitioner is dependent upon the supply of electricity by the respondents, the inaction on part of the respondent authorities comes within the mischief of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973.
22. For what has been discussed above, this writ petition is allowed with the direction to the respondents to implement the decision of the Electric Inspector dated 26-10-2009 within three days from the date of receipt of this order, under intimation to the Deputy Registrar (Judicial) of this Court. Resultantly, Writ Petition No,1276 of 2014 is dismissed.