The instant petition is directed against the order dated 08th of September, 2012 passed by the Advisory Board Punjab Lahore, whereby while setting aside the decision dated 21st of June, 2008 of Electric Inspector, Faisalabad Region, Faisalabad, the petitioners were directed to issue revised bill to Respondent No, 1/consumer in the light of Para No, 7 of the said order.
2. Precisely, the facts necessary for the adjudication of instant Petitioner that the Respondent No, 1 is an Industry in the name and style of "AL-MURTAZA COTTON FACTORY, Rodo Sultan, Jhang" and is a consumer, having the electric connection under Reference No, 24-3364-5402000 Tariff B-2b (12)
(Industrial) with 325 KW sanctioned load. The metering equipment was checked at the site by the Deputy Manager .(M&T) Jhang Circle Jhang on 17th of December, 2007 who detected certain discrepancies and found the same as 49.27% slow. In pursuance thereof, the petitioners issued a notice to the Respondent No, 1 charging the detection bill vide Memo No 81 dated 04th of January, 2008 and in order to recover the loss, of Authority the detection bill amounting to Rs, 4,72,870/- was charged against 56991 KW units and 282 KW maximum demand indicator (MDI) for the period, starting from November, 2007 to December, 2007 on the basis of 49.27% slowness as detected by the Deputy Manager (M&T) Jhang, Circle Jhang.
3. The Respondent No, 1 moved an application under Section 24(2) and 26(6) of The Electricity Act, 1910 and Section 38 of the National Electric Power Regulatory Authority Act, 1997 before the Electric Inspector, Govt. Of Punjab, Faisalabad Region, Faisalabad. The petitioners joined the said proceedings and contested the same, however, vide decision dated 21st of June, 2008, the Electric Inspector held as under: "9. Suimming up the foregoing discussion, it is held, I. That the impugned detection bill for 56991 units/282 .KW MDI for the months of 11/2007 and 12/2007 charged on the basis of the impugned 49.27% slowness of the metering equipment is void, without jurisdiction and of no legal effect, therefore, the petitioner is not liable to pay the same. II. That the monthly bills from 01/2008 to 04/2008 charged on the basis, of MF 236.5 instead of MF 120 are void, unjustified and of no legal effect; therefore, the petitioner is not liable to pay the same. However, the respondents are allowed to charge revised Monthly bills; for the said period after adding higher consumption factor of 47.25% in the consumption recorded during the corresponding months of the previous year as per following pattern.
Units Recorded during 2007 Units Chargeable for 2008 Month Units Month Chargeable Units 01/2007 18480 01/2008 27203 02/2007 12000 02/2008 17664 03/2007 3840 03/2008 5652 04/2007 2880 04/2008 4239 Total 37200 Total 54758 III. That the respondents are also allowed to charge Lie MDI for the disputed period from 01/2008 to 04/2008 on the above mentioned pattern after adding higher consumption factor of 47.2%. The respondents a e also directed to over-haul the account of the petitioner accordingly and any excess amount recover be adjusted in future bills.
10. The petition is disposed off in above terms."
4. The petitioners as well as Respondent No, 1 file I two separate appeals before the Advisory Board, Government of P mjab, Lahore Region, Lahore. The Advisory Board, vide its decision" dated 08th of September, 2012, while setting aside the decision of Electric Inspector directed the petitioners to issue revised bill to Respondent No, 1 in the light of Para No, 7 of the said order which is reproduced below:- "7. The perusal of the above tabulated consumption data reveals no set pattern of consumption in the undisputed period from 11/2004 to 04/2007 & 11/2008 to 04/2010 which can be considered as a precedent as in 11/2005 to 04/2006 too less units were recorded which shows that factory was not run in full swing. In view of this state of matter Advisory Board considers it appropriate to charge average of the undisputed consumption recorded during the corresponding months of the preceding/following years (11/2004 to 04/2005, 11/2006 to 04/2007, 11/2008 to 04/2009 & 11/2009 to 04/2010), ignoring the period of 11/2005 to 04/2006 where in the factory was not run in full swing of the' impugned period (i.e 11/2007 to 04/2008) which will exactly cover all crest and dip of the consumption."
5. Learned counsel for the petitioners at the very outset contended that the decision of the Electric Inspector is without lawful authority as the same was passed after expiry of ninety days as prescribed under Section 26(6) of The Electricity Act, 1910. He maintained that when the basic order is without jurisdiction then the superstructure built thereon shall automatically fall. Learned counsel further contended that though the slowness of the meter was established but both the lower forums have acted an illegal and unlawful manner. Reliance is placed on the case of WAPDA through Chairman, and 5 others versus Muhammad Amir Malik and 2 others (2006 YLR 2612).
6. Conversely, learned counsel for the Respondent No, 1 submitted that order of the Electric Inspector was passed in accordance with law. He added that the petitioners have not raised any such plea before the Advisory Board, rendering the decision of Electric Inspector invalid in terms of Section 26(6) of The Electricity Act, 1910. Learned counsel argued that The Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 does not provide any period for taking a decision by the Electric Inspector, so the provisions of The Electricity Act, 1910 have no bearing to this extent. Learned counsel further contended that there are concurrent findings of both the lower forums which cannot be disturbed in writ jurisdiction.
7. I have heard the learned counsel for the parties and perused the record.
8. Without dilating upon the other merits of the case, it would be advantageous to first determine the legal question involved in the matter in terms of Section 26(6) of The Electricity Act, 1910. For ready reference the same is reproduced below:-- Section 26 Meters [(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 in 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, maximum demand indicator or measuring apparatus has not, in the opinion of the Electric Inspector, been correct; and, where the Electric Inspector falls 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 consumer applies to the Electric Inspector under this sub- section, he shall give to the other party not less than seven days, notice of his intention so to do.]"
9. Perusal of above quoted provision of law clearly contemplates that the Electric Inspector is bound to decide the issue before him within ninety days from the date of receipt of such application and if he fails to decide the same within stipulated period, the matter shall be referred to the Provincial Government whose decision shall be final.
10. The stance of learned counsel for the Respondent No, 1 is that Section 38 of The Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 provides an independent mechanism to resolve the disputes referred to the Electric Inspector and in the said provision of law there is no such period provided.
11. In this regard, reference may be made to Section 45 of the Act, ibid which reads as under:-
45. Relationship to other laws.--The provisions of this Act. Rules and regulations made and licences issued there under shall have effect notwithstanding anything to the contrary contained in any other law, rule or regulation, for the time being in force and any such law rule or regulation shall, to the extent of any inconsistency, cease to have any effect from the date this Act comes into force and the Authority shall, subject to the provisions of this Act, be exclusively empowered to determine rates, charges and other terms and conditions for electric power services: Provided that nothing in this Act shall affect the jurisdiction, powers or determinations of the Corporate Law Authority or the Monoply Control Authority."
It is evident from the above provision of law that the provisions of this Act are in addition to the laws already existing and if anything is contrary or inconsistent in any other law, the same shall have no effect and to that extent the provisions of instant Act will prevail. With the promulgation of The Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, neither the provisions of The Electricity Act, 1910 were repealed nor Section 26(6) of the said Act offend any of the provisions of the Act, 1997.
12. In view of above, it is manifestly clear that the provisions contained in Section 26(6) of The Electricity Act, 1910 are still intact and even the Respondent No, 1 himself invoked the said provisions, while moving the application before the Electric inspector, for determining the matter in issue.
Section 26(6) of The Electricity Act, 1910 mandates the Electric Inspector to decide the issue within the period of ninety days and if the same is not, decided so, the matter should be referred to the Provincial Government for its decision. As per mandate of the above provision of law the Electric Inspector, after lapse of statutory period of ninety days, have become functus officio, so the decision taken by him after the prescribed ninety days will be void ab-initio and corum non judice.
Reliance in this regard can be placed on the case of WAPDA through Chairman, and 5 others versus MUMAMMAD AMIR MALIK and 2 others (2006 YLR 2612).
13. The nutshell of above discussion is that the instant petition is allowed and the decisions of the Electric Inspector dated 21st of June, 2008 as well as Advisory Board dated 08th of September, 2012 are set aside, being illegal and corum non judice. As a result of the same, the matter is referred to the Provincial Government for decision in accordance with law.
14. Needless to observe that the Provincial Government shall resolve the matter expeditiously and strictly in accordance with law after affording proper opportunity of hearing to both the sides.
Office is directed to transmit the copy of this order to the Secretary Energy, Government of Punjab for its compliance and necessary action.