' CH. MUHAMMAD MASOOD JAHANGIR, J.--- Precisely the facts are that respondent was consumer of the appellant, who got installed electricity meter and on 8.2.2013 he was caught red handed while stealing electricity by the staff of the appellant after directly connecting his connection to the main line. Thereupon a criminal case under section 39-A of the Electricity Act, 1910 was got registered against the respondent besides issuance of a detection bill amounting to Rs,47,799/- for consumption of 4495 units. The respondent filed a complaint under section 25 of the Punjab Consumer Protection Act, 2005 seeking direction to the appellant for issuance of disputed bill for the month of March, 2013 as per consumption. The said petition was contested by the appellant by filing written reply, who also took the specific objection regarding jurisdiction of the District Consumer Court into the matter in hand and the civil suit filed by the respondent on the same subject was already pending in the Civil Court at Sargodha. Vide order dated 23.5.2013, the learned Presiding Officer, District Consumer Court, Sargodha passed the following direction:-- "I have gone through the record, connected load of the consumer is 5-KW and according to the formula of the respondents, in cases of theft of electricity 146 units per 1-KW is to be charged to the domestic consumers. Keeping in view the formula consumer could have been charged by the respondents 730 units per month against connected load of 5-KW for 3 months which comes to 2190 units:- ' 5-K'W x 146 = 730x 3 = 2190 ' The bill charged to the consumer is not based on facts and law, which is set aside. The respondents are directed to charge the consumer as mentioned above. The amended bill be sent to the consumer and any amount already paid in this regard by the consumer shall also be adjusted. During the course of arguments learned counsel for the respondent Malik Nadir Ali Advocate pointed out that complainant has also filed a civil suit on the same cause of action which is pending before the court of Mr. Abdul Sattar Kallu, learned Civil Judge at Sargodha.
Counsel for the complainant stated that as and when the instant case is decided either way, he will withdraw the said civil suit forthwith. Complaint is disposed off accordingly. File be consigned to record room after due completion. " ' which has been challenged by the appellant through the instant appeal.
2. Learned counsel for the appellant contends that the impugned order is illegal and against the facts which has caused miscarriage of justice; that the respondent was found to be involved in a criminal offence against whom a criminal case was also got registered under the relevant provisions and the proceedings thereof could not be thwarted by invoking the jurisdiction of the learned District Consumer Court whereas under section 26 of the Electricity Act, 1910 cases involving theft of electricity fall within the jurisdiction of Electric Inspector. Also contends that as regards the dispute of detection bill the civil court has the exclusive jurisdiction whereas the impugned order is an example of .Transgression of jurisdiction by the learned Presiding Officer of the District Consumer Court, which is liable to be set aside by allowing this appeal. Relies upon WAPDA and others v. Kamal Foods (Pvt.) Ltd. (PLD 2012 SC 371) and MEPCO Ltd. v. Muhammad Ashiq (PLD,2006 SC 328). As regards question of limitation, learned counsel for the appellant contends that no limitation run against the orders passed illegally and without jurisdiction. Also pointed out that on the similar facts and law another case bearing FAO No,354 of 2013 is fixed today for hearing before this court and if the delay in filing this appeal is not condoned, there will be possibility of conflicting judgments in both the matter on the similar point, which will not be appreciable by the canon of justice.
3. Conversely, the learned counsel for the respondent has supported the impugned order and refuted the arguments advanced by the learned counsel for the appellant/company on the ground that the respondent fell within the definition of consumer as provided by section 2(c) of the Electricity Act, 1910 according to which consumer means any person who is supplied with energy by a licensee or whose premises are for the time being connected for the purposes of a supply of energy with the works of a licensee. Also contends that this appeal is hopelessly barred by time and there being no sufficient ground tendered by the appellant, this appeal is liable to dismissal on the score as well. Reliance has been placed on Dr. Muhammad Rafiq Chaudhry v. WAPDA and others (1983 CLC 2397), Mst. Zainab v. Chief Engineer, Electricity, WAPDA and 2 others (1983 CLC 3314), and Chief Executive, FESCO, Faisalabad and 2 others v. Nayab Hussain (PLD 2010 Lahore 95).
4. I have heard the learned counsel for the parties and perused the record.
5. As per its website available on the internet, the appellant/ FESCO distributes and supplies electricity to about 3.23 million .Customers within its territory with a population over 21 million under a Distribution License granted by National Electric Power Regulatory Authority (NEPRA) pursuant to the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act) whereas the respondent got installed electricity meter from the appellant and on 8.2.2013 he was allegedly caught red handed while stealing electricity after directly connecting his connection to the main line by the staff of the appellant whereupon a criminal case under section 39-A of the Electricity Act, 1910 was got registered against the respondent besides a detection bill amounting to Rs,47,799/- for consumption of 4495 units was also issued to him. The pivotal question to be firstly resolved by this court is that whether the Consumer Court possessed jurisdiction to take cognizance in the matter in hand. As per its preamble, the Punjab Consumer Protection Act, 2005 has been promulgated to provide for protection and promotion of the rights and A interests of the consumers and the complaint before the learned Consumer Court is filed under section 25 thereof, which reads as follows:- "25. Filing of Claims.-- A claim for damages arising out of contravention of any provisions of this Act shall be filed before a Consumer Court set up under this Act. "
' However, the procedure to be followed by the Consumer Court has been defined in section 30 ibid, which is reproduced hereunder for ready reference:- "30. Procedure on receipt of complaint.- (1) The Consumer Court shall, on receipt of a claim if it relates to any products,-
(a) forward a copy of the claim to the defendant mentioned in the claim directing him to file his written statement within a period of fifteen days or such extended period not exceeding fifteen days;
(b) where the defendant, on receipt of claim referred to him under clause (a), denies or disputes the allegations contained in the claim, or omits or fails to present his case within the time specified, as the case may be, the Consumer Court shall proceed to settle the consumer dispute in the manner specified hereafter.
(c) where the claim alleges that products are defective and do not conform to the accepted industry standards, the Consumer Court may decide the dispute on the basis of the evidence relating to the accepted industry standards and by inviting expert evidence in this regard;
(d) where the dispute cannot be determined without proper analysis or test of products, the Consumer court shall obtain sample of the products from the complainant, seal it and authenticate it in the manner prescribed and refer the sample to a laboratory along with a direction to make analysis or manner prescribed and refer the sample to a laboratory along with a direction to make analysis or test, whichever may be necessary, with a view to finding out if such products suffer from any defect and to report its findings to the Consumer Court within a period of thirty days of the receipt of the reference or within such period as may be extended, not exceeding fifteen days by the Consumer Court; and
(e) the Consumer Court may require the claimant to deposit to the credit of the Consumer Court such fees as may be specified, for payment to the laboratory for carrying out the necessary analysis or test and the fee so deposited by the claimant shall be payable by the defendant if the test or analysis support the version of the claimant.
(2) The Consumer Court shall, if the claim relates to any services,--
(a) forward a copy of such claim to the defendant directing him to file his written statement within a period of fifteen days or such extended period not exceeding fifteen days as may be granted by the Consumer Court; and
(b) on receipt of the written statement of the defendant, if any, under clause (a), proceed to settle the dispute on the basis of evidence produced by both the parties: ' Provided that if the defendant does not deny or dispute the allegations made in the complaint or fails to present his case within the specified period, the dispute shall be settled on the basis of the evidence brought by the claimant.
(3) For the purposes of this section, the Consumer Court shall have the same powers as are vested in civil court under the Code of Civil Procedure, 1908 (Act XX of 1908), while trying a suit, in respect of the following matters, namely:-
(a) the suthmoning and enforcing attendance of any defendant or witness and examining him on oath;
(b) the discovery and production of any document or other material object which may be produced as evidence;
(c) the receiving of evidence on affidavits;
(d) issuing of any commission for the examination of any witness; and
(e) any other matter which may be prescribed.
(4) Every proceeding before the Consumer Court shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal Code 1860 (Act XLV of 1860); and section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (Act V of 1898): ' Provided that the personal presence of the claimant before the Consumer Court shall not be required till the defendant has put up appearance before it.
(5) The Consumer Court shall decide the claim within six months after the service of summons on the respondent.
6. The powers of the District Consumer Court have been described by section 31 ibid and the same is reproduced as under:- "31. Order of Consumer Court.-- If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely:-
(a) to remove defect from the products in question;
(b) to replace the products with new products of similar description which shall be free from any defect;
(c) to return to the claimant the price or, as the case may be, the charges paid by the claimant;
(d) to do such other things as may be necessary for adequate and proper compliance with the requirements of this Act:
(e) to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant;
(f) to award damages where appropriate:
(g) to award actual costs including lawyers' fees incurred on the legal proceedings;
(h) to recall the product from trade or commerce;
(i) to confiscate or destroy the defective product; (i) to remedy the defect in such period as may be deemed fit; or
(k) to cease to provide the defective or faulty service until it achieves the required standard."
A perusal of the above provisions shows that in order to invoke the jurisdiction by the Consumer Court, it must have satisfied that the products complained against suffered from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, then it could issue direction in the above said manner. However, from the bare reading of the complaint filed by the respondent before the learned Consumer Court, one can find that it is not regarding any defective product or a faulty services rather the dispute raised by the respondent related to correction of detection bill, which falls within the exclusive jurisdiction of the Civil Court in view of the dictum laid down by the august Supreme Court of Pakistan in PLD 2006 SC 328, rightly relied upon by learned counsel for the appellant.
7. There is also no denial that a criminal case has also been got registered against the respondent by the appellant under section 39-A of the Electricity Act, 1910 with the alleged allegation that he was caught red handed while stealing electricity by the staff of the appellant after directly connecting his connection to the main line, which is punishable with imprisonment of either description for a term and may extend to three years, or with fine which may extend to five thousand rupees, or with both; and if it is proved that any device, contrivance or artificial means for such abstraction, consumption or use exists or has existed on a premises, it shall be presumed, unless the contrary is proved, that such person has committed an offence under this subsection. It has been held by the august Supreme Court in PLD 2012 SC 371 that in case of issuance of detection bill regarding the charge of theft of energy by the consumer through metering equipment or relating to reading thereof, the Civil Court had no jurisdiction in such matter and only Electric Inspector had powers to take cognizance thereof.
8. After perusal of the provisions of Punjab Consumers Protection Act, 2005, it is found that the District Consumer Court established under section 26 thereof assumes jurisdiction provided by section 27 ibid, which reads as under:- "27. Jurisdiction of Consumer Courts.-- Subject to the provisions of this Act, the Consumer Court shall have jurisdiction to entertain complaints within the local limits of whose jurisdiction--
(a) the defendant or each of the defendants, where there are more than one, at the time of filing of the claim, actually and voluntarily resides or carries on business or personally works for gain; or
(b) any of the defendants where there are more than one, at the time of the filing of the claim, actually and voluntarily resides, or carries on business, or personally works for gain; provided that in such a case the permission is, granted by the Consumer Court or the defendants who do not reside, or carry on business, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action wholly or in part arises." and the jurisdiction of the Consumer Court is distinct from the constitutional jurisdiction of this court, which has to first identify a Consumer availing service and when the said service is found to be defective, only then the Consumer Court can fix damages and award the same. However, the Consumer Court cannot issue a direction for reduction in the detection bill issued by the appellant, which is the exclusive domain of the Civil Court as has been held in the preceding paras. The case law relied upon learned counsel for the respondent is not applicable to the facts and circumstances of the instant case. This court is very much in agreement with the argument of learned counsel for the appellant that the complaint made by the respondent to the Consumer Court was incompetent and the said court has wrongly assumed the jurisdiction in the matter in hand when even otherwise the respondent had already invoked the jurisdiction of the civil court in the same matter.
9. So far as the delay in filing this appeal is concerned, suffice it to say that since the impugned order has been declared without jurisdiction and illegal, it is now well settled principle that no limitation runs against such orders. A safe reliance can be placed on the judgment reported as Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others (2007 SCMR 262). Even otherwise on the similar facts and law, another FAO No,354 of 2013 is also fixed before this court for today. In Mehreen Zaibun Nisa v. Land Commission (PLD 1975 SC 397), out of several appeals some were time barred and as all the appeals were to be decided on merits, the delay was condoned by the august Supreme Court. I am of the view that when the impugned order has been found to be illegal, the same cannot be allowed to perpetuate merely on technicality, which will amount to discrimination as well if conflicting orders are passed in the similar matters. Hence, CM No,3 of 2013 filed by the appellant for condonation of delay in filing this appeal is allowed and the delay is condoned.
10 For the foregoing discussion, this appeal is allowed, the impugned order dated 23.5.2013 passed by the learned Presiding officer, District Consumer Court, Sargodha is set aside and the complaint filed by the respondent is dismissed.