' SHAHID KARIM, J.---This Constitutional petition challenges the orders passed by the Electric Inspector dated 6-3-2003 and the Advisory Board dated 18-10-2003 whereby the appeal filed by the petitioner against the impugned order dated 6-3-2003 was dismissed.
The Relevant Facts:
2. The facts have been given in the petition and the parties are not at loggerheads over them. They are stated thus:-- "On 21-8-2002 a team of Director General Surveillance constituted by the petitioner raided the premises of the respondent No,1 and found the meter installed on the said premises dead at one phase. After checking of meter by M&T Wing of the petitioner a notice was served upon the respondent No,1 on 28-8-2002 informing him that he had been dishonestly using energy as 1- phase of the meter was dead and the meter was recording 1/3rd less energy. The respondent No,1 submitted reply to the notice on 2-9-2002 and the petitioner worked out detection bill for Rs,1496700 for the period from August, 2001 to July, 2002 and also changed the multiplying factor from 8 to 12 on the basis of 33% slowness. The respondent No,1 challenged the detection bill before the Electric Inspector. In order to obtain accuracy of the metering equipment, the Electric Inspector directed the petitioner to install a check meter in series with the disputed meter. The same was done on 21-11-2002 and the reading of both the meters were obtained on 30-11-2002 and on 13-12- 2002. Thereafter, the Electric Inspector declared the detection bill amounting to Rs,1996700 charged by the petitioner for the period from August 2001 to July 2002 included in the bill for the month of October, 2002 on account of slowness of the meter illegal and not payable by the respondent No,1 and directed the petitioner to charge by adding 25.33% slowness in the actual consumed units and MDI w,e,f, August 2002 to onwards till the installation of check meter on 21-11-2002. The petitioner challenged the said decision of the Electric Inspector in appeal before the Advisory Board which was dismissed through the impugned order dated 18-10-2003, hence this petition."
The Challenge:
3. Since a challenge in the Constitutional jurisdiction to the orders passed by the forums below can only be made on the basis of error of law or jurisdictional defect in those orders, the learned counsel for the petitioner was put the query as to what was the error of law which had rendered the said orders ultra vires. The learned counsel for the petitioner confines his submissions to the questions of law as under: -
(i) After the recommendations of the Advisory Board those recommendations ought to be approved by the Secretary Energy under the rules, in order to attain finality.
(ii) It was a split decision and as per notifications issued by the Govt. Of Punjab dated 5-9-1989 and 17-10-1989 the matter had to be referred to the Govt. Of Punjab for consideration under the said notifications.
4. Both these issues are being dealt with in seriatum. Issue No, ii should receive a short shrift in that the Govt. Of Punjab brought about an amendment in the original notification dated 16-11-1985 whereby Advisory Board was reconstituted under section 26(6) of the Electricity Act 1910. The wording of the said notification as far as relevant to this case is reproduced as under:-- "(ii) The proceedings of the Advisory Board will be presided over by the Chairman. The hearing of the appeal will be conducted by him in the presence of at least one Member.
(iii) The decision of the Chairman of the Advisory Board supported by at least one Member shall be final. In case of difference between the Chairman and the Members, the matter will be referred to the Government, whose decision thereon shall be final."
5. This was followed by a Notification No,SO(PP)-5-1/79 dated 9-12-1989. However, on 6-6-1990 another notification No,SO(PP)-5-1/79 was issued and by virtue of this last notification an amendment was made in the earlier notification of 9-12-1989 and in place of clause 4(iii), the following was substituted:- "4(iii) The decision of the Chairman of the Advisory Board supported by at least one member, shall be final. In case of difference between the Chairman and the Members, the matter will be referred to Government, whose decision shall be final."
6. It is clear from a bare reading of this amendment that the decision of the Chairman shall be final if it is supported by at least one member of the Board. It is only in case of difference between the.
Chairman and the Members that the matter has to be referred to the Government whose decision shall be final. In this case it will be seen that the decision of the Chairman is duly supported by another member of the Board and there is only one dissent by 3rd member of the Board. In the circumstances I am of the considered opinion that the decision of the Advisory Board was final and its finality was fully covered by the tenor of clause 4(iii) of the notification dated 6-6-1990.
7. To buttress this argument, another Notification No SO(Power)(I & P)5-1(87) dated 20-8-2002 may be referred to. The clause (iii) under the heading PROCEDURE TO BE FOLLOWED BY THE BOARD FOR THE DISPOSAL OF APPEALS, the following was provided:- "(iii) The decision of the Advisory Board shall be taken by the majority of its members present and in case of tie, the Chairman shall have a casting vote."
' This leaves it in no manner of doubt that the decision of the Advisory Board shall be taken by the majority of the members present.
8. In order to give effect to the provisions of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, the Govt. Of Punjab issued another notification dated 10-6-2004 which, too, conferred on the Electric Inspectors and the Advisory Boards already set up to decide matters arising therefrom.
9. For support, in respect of ground (i) of the petitioner, the learned counsel for the petitioner has relied on a reported judgment of this Court viz Messrs Sheikh Spinning Mills Ltd. Through Office Manager v. Government of Punjab, Irrigation and Power Department through Secretary and 5 others (PLD 2006 Lahore 603). In this judgment the order of the Advisory Board was set aside on the basis of a notification dated 23-9-2002 issued by the Govt. Of Punjab by which a Committee was constituted that heard the parties in that matter and returned a finding. There was an express stipulation in that notification that the Committee shall forward its recommendations to the Secretary Irrigation and Power, Govt. Of Punjab for final decision. Since in that case the Secretary had merely recorded his approval regarding the recommendations of the Committee, it was held that this was not a final decision as the term 'final decision' is understood in legal parlance. It was thus, that the order was set aside as not maintainable.
10. The learned counsel for the petitioner does not rely upon any such notification of 23-9-2002 in support of his arguments. Further, the decision in this case has been made by an Advisory Board set up by the Govt. Of Punjab by a notification dated 16-11-1985 (and later ones as explicated above) in exercise of the powers under section 26(6) of the Electricity Act 1910. There is no requirement in the said notification for the decision of the Advisory Board to be approved and finally decided by the Secretary Energy as claimed by the learned counsel for the petitioner: The case Messrs Sheikh Spinning Mills Ltd. Through Office Manager v. Government of Punjab, Irrigation and Power Department through Secretary and 5 others (PLD 2006 Lahore 603) thus proceeds on its own facts and is not applicable to the facts of the instant case. At best, it is an authority for its own facts.
11. The learned counsel for the petitioner has also sought support from another case reported as Water and Power Development Authority, through its Chairman v. Barkat Ali and 2 others (1995 CLC 654). That case is also distinguishable because the amendment brought about by the notification of 6-6-1990 was not brought to the notice of the Court. Since the judgment proceeded on the basis of the notifications dated 17-10-1989 which required all decisions of the Advisory Board to be unanimous, it is clear that that decision is per incurium to that extent. Reference may be made to the The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman (PLD 2005 SC 270) where it has been observed that, 'in the different dictionaries like Jewatt's Dictionary of English Law---Second Edition, the definition of the judgment in per incuriam is 'the decision given through want of care or a decision which is the result of oversight'. In Bourier's Law Dictionary, judgment in per incuriam has been defined as 'decision given through inadvertence'. Similarly in Bellentine's Law Dictionary----Third Edition, the word judgment in per incuriam is defined 'passed through lack of care'.
12. The learned counsel for the respondent has sought to rely upon the doctrine of laches, a doctrine developed by the superior Courts to regulate their jurisdiction to have the on the threshold. That doctrine is based upon equity and allows the High Court to non-suit a person on its basis if it finds a party guilty of contumacy, indolence, inaction, laxity or gross negligence in the prosecution of a case S. A. Jameel v Secretary to the Government of the Punjab, Cooperative Department and others (2005 SCMR 126). The instant petition was filed two years and two months after the decision of the Advisory Board. No compelling reasons have been put forth to justify laches. I am, therefore, in no doubt that this petition must fail on account of laches.
13. In view of the above, it is held that the decision made by the Advisory Board was valid and is upheld. It does not suffer from any jurisdictional defect or error of law and it does not call for a judicial review of the decisions challenged by the petitioner. As a consequence, the petition is dismissed.