SYED MUHAMMAD FAROOQ SHAH, J.---Through the captioned High Court Appeal, the appellant ( KESC) has prayed to Set-aside the impugned order dated 29.08.2013, passed by learned Single Judge of this Court on C.M.A. bearing No, 11594/2012 in Suit No, 485/2012, whereby the prayer to restore the electricity supply of the plaintiff Respondent No,1 was allowed in the following terms:-- "Since KESC did not initiate the exercise of determination within seven days from 05.09.2012, it was bound to restore the electricity connections of the plaintiff after the expiration of the said period of seven days from.05.09.2012 in terms of paragraph 31(e) of the order dated 17.04.2012, as the present plaintiff became entitled forthwith to the enjoym ent and continuance of the supply of power in terms of paragraph 31(a) of the said order dated 17,04.2012. For the foregoing reasons, CMA No, 11954 of 2012 is allowed as prayed".
2. Background arising from different proceedings, if discussed in a precise manner reveals that Plaintiff/Respondent No, I has filed the suit for declaration, mandatory injunction and damages against KESC/ Appellant, pursuant to the order dated 12.04.2012, passed in Suit No, 329/2012. Facts as averred in Suit No, 485/2012 are that the plaintiff/Respondent No, 1 entered into the contracts with KESC/ Appellant to provide specified sanction load for three factories situated in Korangi Industrial Area at Karachi. The grievance of Respondent No,1 is that the appellant/KESC failed in providing steady supply of power to the plaintiff's factories, therefore, he was compelled to set up and run its own backup electricity generators for its own use in order to meet its day to day requirement of electricity and use to pay the electricity bills issued by KESC without fail. On 17.02.2012, the plaintiff received notices from KESC wherein necessary information was ascertained that as to whether any captivity power plants were on site or whether the sanctioned load was in fact being utilized, which was duly replied by the Respondent No, 1 and the letter was also addressed to NEPRA wherein the actual position was explained. On 20.07.2012, the electricity power of two factories of Respondent No, 1 was disconnected by KESC, before the inspection of all the factories will be completed. On 19.04.2014, the Respondent No, I was also served with a show-cause notice in respect of all three factories owned by him and on 20.04.2012, the electricity supply of his third factory was also disconnected. Being aggrieved and dissatisfied with the action of appellant, the Respondent No, 1 has filed Suit along with injunction application. The said application (CMA No, 4605/2012) was dismissed vide detailed order, which was assailed in HCA No, 97/2012. Through a detailed common order dated 17.04.2012, different High Court Appeals were disposed of and all the appeals filed against the order dated 17.04.2012 were dismissed, however, the High Court Appeal No, 97/2012 filed by Respondent No, 1, the impugned order dated 18.06.2012 passed in the suit was modified.
4. Before adverting to the merits of the case in hand it shall be advantageous to reproduce herein below paragraph 31 of the order dated 17.04.2012 passed by the learned Single judge of this Court in leading Suit No, 329/2012:-- "31. In view of what has been stated in the foregoing, I conclude that the plaintiffs have made out a case for interim injunctive relief and the equiiies lie in their favour. At the same time however, such relief ought not to stand in the way of KESC making a proper determination of the facts in accordance with law, and then taking, if so warranted, appropriate action by exercising the powers vested in it under the CSM. Accordingly, I dispose of the applications under consideration in the following terms:-- a. Subject to it 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 days 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 or in part of any directions contained in this para. 21. g. If any exercise in terms of (c) ends in a determination adverse to a plaintiff whether in whole or in part, then the plaintiff will be entitled to 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 of seven days from (but excluding) the date of communication of the determination. h. Nothing herein shall prevent or disentitle any plaintiff from 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".
5. Mr. Abid. S. Zuberi, advocate representing the appellant/KESC submitted that the Respondent No,1 has impugned the verdict dated 05.09.2012 of the Division Bench, pronounced in High Court Appeal No, 97/2012 by filing CPLA No, 199/2012 before the apex Court; the matter of restoration of Respondent No, is electricity is sub judice before the Hon'ble Supreme Court and he cannot be allowed to approbate or reprobate as the judgment in the High Court Appeal No,97/2012 delivered by the Division Bench of this Court has been impugned before the Supreme Court. It is next contended by the learned Counsel for KESC that in paragraph-31, reproduced as supra, the learned Single Bench of this Court gave guidelines for taking action against the consumers, using captive/ self-generation of power as a primary source and KESC supply as a secondary source; that through impugned order, it is stated that learned Single Bench of this Court made deviation, which order is impugned before this Court. It is contended that learned Division Bench in HCA No, 97/2012 observed that para-31 of the judgment in Suit No, 329/2012 could be reached as a part of judgment referred to above. That against the order in appeal, it is reiterated that the Respondent No,1 had already approached the apex Court where the matter is sub judice. It is further submitted that since the exercise of issuance of notice was completed but determination in terms of sub-para (e) of para-31 of the referred judgment cannot be made in view of the injunctive order and learned Single Judge already suspended the determination, which was made pursuant to the directions in Suit No 1714/2012.
7. In order to appreciate the arguments advanced by the learned Counsel, it would be advantageous to reproduce herein below the relevant law/rules available on the issues involved in the matter:-- Section 20 of the Electricity Act 1910.
Power for licensee to enter premises and to remove fittings or other apparatus of licensee. (1) A licensee or any person duly authorized by the licensee may, at any reasonable time and on informing the occupier of his intention, enter the premises to which energy is or has been, or is to be, supplied by him, for the purpose of:- a) examining, inspecting and testing the electric supply-line, meters, maximum demand indicators or other measuring apparatus, electric wires, fitting works and apparatus for the supply or use of energy whether belonging to the licensee or to the consumer: or b) ascertaining the amount of energy supplied or the electric quantity contained in the supply or the apparatus; or The removing, where a supply of energy is no longer required, or where the licensee is authorized to take away and cut off such supply, any electric supply lines, meters, maximum demand indicators or other measuring apparatus, fitting, works oi apparatus belonging to the licensee; ' Provided that, where a Consumer's apparatus is involved, no person shall be deemed to have been so authorized by the licensee unless, at the time of entry into such premises, he is in possession of a written authorization from the secretary, manager or any other officer of the licensee not below the rank of Divisional Officer in the Public Works Department; Provide further that pervious permission of the District Magistrate shall be necessary for making such entry into the premises of a domestic consumer,
(2) Where a consumer refuses to allow a licensee or any person authorized as aforesaid to enter his premises in pursuance of the provisions of subsection (I) or, when such licensee or person has so entered, refuses to allow him to perform any act which he is authorized by that subsection to perform, or fails to give reasonable facilities for such entry or performance, the licensee may, after the expiry of twenty four hours from the service of a notice in writing on the customer, cut off the supply to the consumer for so long as such refusal or failure continues, but far no longer.
Chapters 7 and 8 of CSM Chapter 7.1. Tariff Tariff means the rates, charges. terms and conditions far generation of electric power, transmission, interconnection distribution services and sales of electric power to consumers by a DISCO, DISCOs shall charge only such tariff from consumers as is approved by NEPRA and duly notified by Government of Pakistan from time to time. DISCO shall apply to NEPRA for any charges of tariff to be charged from different categories of consumers.
7.5 MIS-USE OF TARIFF
(a) The consumer shall, in no case use the connection for the purpose other than for which it was originally sanctioned. In case of violation, the consumer is liable for disconnection and/or penal action.
(b) DISCO shall serve seven (7) days clear notice to the consumer who is found misusing the approval/sanctioned tariff However, DISCP shall immediately change of tariff and shall determine the difference of charges of the previous period of mis-use to be recovered from consumer.
However, in the absence of any documentary proof the maximum period of such charges shall not be more than TWO billing cycles.
CHAPTER 8 8.1 A premise is liable to be disconnected if the consumer is a defaulter in making payment of the energy consumption charges bill (s) or if he is using the electric connection for a purpose other than for which it was sanctioned, or if he has extended his load beyond the sanctioned load even after receipt of a notice in this respect from the DISCO. CHAPTER 14 14.1. Access to the Consumer's Premises A duly authorizing employee of the DISCO shall be entitled at all reasonable times, and on informing the occupier of his intention (after giving a notice of clear 3 days), to enter the premises to which energy is or has been, or is to be supplied by the DISCO, for the purpose of: a) examining, inspecting and testing the electric supply lines, meters, maximum demand indicators or other measuring apparatus, electric wires, fittings, works or an apparatus for the supply or use of energy, whether belonging to the DISCO or to the Consumer, or b) ascertaining the amount of energy supplied or the electrical quantity contained in the supply or the apparatus, or c) removing, where a supply of energy is no longer required, or where the DISCO is authorized to take away and cut-off supply, any electric supply lines, meters, maximum demand indicators or other measuring apparatus, fittings, works or apparatus' belonging to the DISCO or d) along all other things necessary or incidental to the proper supply or maintaining such supply to the consumer's premises.
14.10. Disconnection of supply for Non-Compliance. a) DISCO may disconnect supply to a consumers if, b) The consumer has not fulfilled an obligation to comply with this Manual; and c) The DISCO has given the consumer 7 business days' written notice of disconnection (such notice to be in addition to the notice already given) and d) The consumer fails to comply with the notice."
8. By interpreting the aforementioned law and rules, learned counsel submitted that bare reading of the relevant provision, more particularly section 20 of the Electricity Act, 1910 read together with Chapters 8 and 14 of the CSM reveals that if a consumer uses the electricity for a purpose other than for which it was sanctioned, or if the consumer changed the load without authorization, or has no further requirement for the provisions of electricity at the sanctioned load, then the licensee may on notice enter the premises of the consumer to examine and inspect any measuring apparatus or supply lines etc. to determine the actual load being consumed against sanctioned load and when necessary, remove any measuring apparatus and/or supply of electricity.
Consequently, the KESC representative has conducted a site inspection and determined the power consumption/load need and M/s. Soorty Enterprises Pvt. Ltd. (Respondent No, 1) served with final disconnection notice under Chapter 14.10 of the Consumer Service Manual (CSM) for violation of Chapter 8.1 of the CSM.
9. Conversely, Mr. Arshad Tayebaly, Advocate for Respondent No, 1 argued that neither any notice for determination was issued to the Respondent No, 1 by appellant within 7 days from 05.09.2012 as prescribed in paragraph 31(e) of Suit No, 329/2012 nor the exercise of determination initiated by the appellant by the said date, more particularly, the appellant has claimed that they had acted upon the said judgment. Learned Counsel further submitted that despite filing CPLA before the apex Court, the application (CMA No, 11594/2012) was very much maintainable as he has not impugned before the Supreme Court regarding modification of order dated 18.06.2012. He has tiled CPLA due to the reasons that the prayer clause of the High Court Appeal was not allowed, moreso; no restraining order is operating in the said CPLA, restraining ally of the parties to seek relief in the suit.
It is further submitted that the learned Single Judge elaborately discussed all pros and cons of the matter in hand while passing the impugned order as it is evident from the record that seven days stipulated in paragraph 31(e) for implementation of the conditions and the process as contemplated by the order dated 17.04.2012 was to commence from the date of the said order and admittedly the said conditions and/or process were made applicable to the Respondent No,1 on 05.09.2012 by the learned DB in High Court Appeal No, 97/2012 and that the exercise of determination in respect of the Respondent No, 1 was to be commenced by the appellant within seven days and disconnection notice dated 20.04.2012 issued to the Respondent No, 1 prior to 05.09.2012 and that the purported determinations in respect of the Respondent No, 1 were made by the appellant on 07.12.2012 and no fresh notice for such purpose was issued by the appellant to the Respondent No, 1 after 05.09.2012 within seven days from the said date, that exercise of determination within seven days of the order dated 05.09.2012 ended on 12.09.2012 and not from 17.04.2012, therefore, the appellant was required to restore electricity supply of Respondent No, 1 in terms of sub-paragraph (e) of paragraph 31 on or before 12.09.2012, which on the contrary tantamount to refusing to accept the order dated 05.09.2012 passed by this Court in HCA No, 97/2012 by not complying the express written words "I conclude that the Respondent No,1 have made out a case for interim injunctive relief and equities lie in their favour". In CPLA before the Hon'ble Supreme Court the Respondent No, 1 has not impugned the grant of mandatory injunction for restoration of its electricity and has rather impugned selective parts of the order dated 05.09.2012, therefore, mere pendency of appeal filed by Respondent No, I did not bar this Court from directing the appellant to implement the order dated 18.06.2012 as modified by order dated 05.09.2012. More particularly, if the Respondent No, 1 's CPLA is dismissed, the order dated 05.09.2012 will still be in operation as it is at present and the appellant would still be bound to restore the Respondent No,1 's electricity and on the other hand, the said CPLA is granted, even then the mandatory injunction granted to the Respondent No,1 not having been impugned will still be in the field and in this case also, the appellant would be bound to restore the Respondent No, 1 's electricity as the Respondent No, 1 has not impugned the order dated 05.09.2012 in its entirety and has specifically not impugned the grant of mandatory injunction.
10.Arguments heard. Record perused.
11.A perusal of record transpires that the Respondent No, 1 was served with notices under Section 20 of Electricity Act, 1910 read with Consumer Services Manual and in pursuance of said notices two premises were inspected and the third could not be inspected due to refusal of the incumbent of which electricity was disconnected on 20.03.2012. On inspection of connections, Respondent No, 1 was found utilizing its load on standby in violation of clause 8.1 of the Consumer Services Manual hence the said connections were also disconnected. The order dated 17.04.2012, in Suit No,329/2013, was passed prior to filing of the suit in appeal as Respondent No,1 filed HCA No,97/2012 before, this court impugning the mentioned order, the said appeal along with other appeals of common nature were decided vide judgment dated 05.09.2012 with observation that the order dated 18.06.2012 was modified to the extent of paragraph-31 of order dated 17.04.2012; that no restoration of electricity was granted to the Respondent No,1 and only notices were issued, hence the Respondent No, 1 has prayed that the electricity may be restored on the basis of C.M.A. No, 11954/2012. Per learned counsel the Respondent No, 1 has impugned the determination and it is clear that the appellant/KESC had initiated the process contemplated by paragraph-31 of Order within 7 days on the basis of order dated 17.04.2012, however, the action of Appellant KESC to disconnect the electricity under CSM or Rules or even a statute to justify the same is in clear violation of right of trade and business, which cannot be taken away as the Consumer Services Manual (CSM) or Rules can only be invoked for disconnection of electricity supply in case of non- payment and the event of disconnection cannot take place except in case of non-payment of charges. Apart from this, it is agreed That the term "sanctioned" and "supplied" have different connotation as provided under clause 8.1 of CSM, which prima facie appears to be extraneous to Section 21(2)(d)(ii) of the 1997 Act. The disconnection procedure may be applied when consumer uses the electricity connection for the purpose other than for which it was sanctioned as contained in clause 7.5 of Chapter 7 of the CSM and is restricted to misuse of tariff only and does not include less utilization, non-utilization or even use as standby source.
12.We cannot lose sight of the fact that this is an appeal against an interlocutory order and observations made by learned Single Bench are of tentative nature for the purpose of interim relief as there is nothing on the record that exercise of discretion is either capricious, arbitrary. perverse or that the learned Single Judge had ignored the settled principle of law regulating grant or refusal of interlocutory order, therefore, we reached at the irresistible conclusion that the appellate Court may not be justified to interfere with the exercise of discretion, more particularly, it is settled principle that interim orders merge into the final order. Obviously all interim orders cease to exist automatically on announcement of final order, consequently any direction given in the interim order also ceases to exist. Reliance in such context may conveniently be placed on (i) PLD 1969 Karachi 546 (Roshan Din v. S.M. Badaruddin) (ii) AIR 1987 Madras 173 (C. Kamatchi Ammal v.
Kattabomman Transport Corpn. Ltd.) (iii) AIR 1995 Supreme Court (Delhi) 441 (Mrs. Kavita Trehan and another v. Balsara Hygiene Products Ltd.) (iv) Civil Appeals Nos. 1855-1856/2004 AIR 2004 SC 2093 (Shipping Corporation of India Ltd. v. Machado Brothers and others) (Manupatra- MANU/SC/0276/2004) (v) AIR 2009 Supreme Court 2249 (Gauhati) (State of Assam v. Barak Upatyaka D. U. Karmachari Sanstha) (vi) PLD 1983 Karachi 527 (Ali Muhammad Brohi v. Haji Muhammad Hashim) (vii) 1992 SCMR 613 (Abdul Qayyum and another v. Niaz Muhammad and another) (viii) 2006 CLC Karachi 1621 (Kashif Anwar Y. Agha Khan University) (ix) 1992 PTD 932 (Glaxo Laboratories Limited v. Inspecting Assistant Commissioner of Income Tax and others) and
(x) 2009 3 AWC (Supp.) 2578 SC, Supreme Court of India (Prem Chandra Agarwal and another v.
U.P. Financial Corp. and others).
13.While passing the impugned order, the learned single judge has correctly observed and has drawn tentative view that the judgment dated 5.9.2012, delivered by Division Bench wherein different parameters/ . guidelines are provided in para 31 of the order dated 17.4.2012, mentioned supra, were made applicable to the plaintiff which order has not been challenged by the appellant KESC, therefore, the same has already attained finality. Paragraph 31(e) of the said order dated 17.4.2012 provides that KESC is not obliged to restore the electric supply if the exercise of "proper determination in accordance with law" have been initiated by KESC within seven days as stipulated in the said order. Rather it was clarified that such exercise be initiated after more than the said period of seven days, the electricity supply must be restored to the persons, who were enjoying supply of power, whether on account of court order or otherwise. It has further been observed that admittedly, the said conditions were made applicable to the respondent No,1 on 05.9.2012 by the learned Division Bench and per learned counsel for KESC the mentioned order was complied with by making the determination in respect of the respondent No,1; that the inspection notices dated 17.4.2012 for determination of actual load and subsequent show cause disconnection notices dated 20.4.2012 were issued much prior to 05.9.2012 and the purported determinations were made by the KESC on 07.12.2012 and no fresh notice was issued by the KESC to the respondent No,1 after 05.9.2012 and/or within seven days from the said date. In such view of the matter, the learned Single Judge has reached at the conclusion that the purported determination made on 07.12.2012 by KESC in respect of connections, were not made as contemplated by the order dated 17.4.2012 and as ordered by the learned Division Bench on 05 .9 .2012.
14.We are fully cognizant and conscious to any decision of the Hon'ble Supreme Court, which decides a question of law or enunciates a principle of law shall be binding on all courts of this Country and we cannot take departure from this constitutional provision but here point at issue is altogether different in which distinction needs to be drawn to understand the peculiarity of two orders, one is interlocutory and other is final and with all humility and according to our conscience, acumen and wisdom, we are of the considered view that there is no occasion to interfere with the discretionary interim relief granted by the learned Single Bench by deciding the interlocutory application, mentioned as supra.
15.Resultantly, the instant High Court Appeal is dismissed. with no order as to costs. However, it shall be appreciated if learned Single Bench of this Court expedites to decide the Suit No,485 of 2012 on its own merits.