1. Through this constitution petition petitioner has challenged the order dated 20.1.2014 passed by National Electric Power Regulatory Authority (NEPRA) whereby order of The Provincial Office of Inspection/EI, Lahore (POI) dated 16.7.2013 was set aside.
2. 2.Relevant facts are that petitioner is consumer of Respondent No. 1 (LESCO) with sanctioned load of 13 KW under B-1 tariff. The petitioner was charged with bill of Rs. 104544/- for the month of February, 2013 on account of her connected load of 32 KW beyond the sanctioned load. The petitioner being aggrieved filed application dated 20.3.2013 with Respondent No. 5 which was allowed on 16.7.2013. The Respondent No. 1 being aggrieved filed appeal before Respondent No. 6 which was allowed vide impugned order dated 20.1.2014. The petitioner being aggrieved has filed this constitutional petition to set aside the order passed by. NEPRA (Respondent No. 6) and to restore the order of POI (Respondent No. 5).
3. 3.Learned counsel for the petitioner argued that no notice under clause 7.5 of the Consumer Service Manual (Consumer Manual) was given to the petitioner before determining the amount on the basis of connected load being beyond sanctioned load. Further submits that entire proceedings are based on audit report and no spot inquiry was conducted by the department. To support above submission, reliance is placed on Water and Power Development Authority and others vs. Umaid Khan (1988 CLC 501). Adds that order passed by POI was well reasoned which could not be set aside by NEPRA.
4. 4.Learned counsel for the respondent submits that order passed by respondent POI was without jurisdiction as application was filed on 20.3.2013 whereas decision was made on 16.7.2013 beyond period of 90 days as prescribed under Section 26(6) of the Electricity Act, 1910 (Act). Learned counsel further submits that sanctioned load of the petitioner was 13 KW in B-1 tariff, however, as per spot inspection report, petitioner was using load of 32 KW which falls under tariff B-2, therefore, petitioner was lawfully charged for the load beyond sanctioned load. Further submits that notice under clause 7.5 of Consumer Manual was only required before disconnection of electricity whereas in the instant case, no such action was taken rather only demand was raised from petitioner through bill which itself amounts to due notice.
5. 5.I have heard the learned counsel for the parties and perused the record.
6. 6.It is admitted position on record that sanctioned load of the petitioner was 13 KW in B-I tariff where on 21.12.2012, the site was verified by the local audit party and it was found that connected load was 45 HP (32 KW). It was on the basis of said site report, that fixed charges of 32 KW in 13-2 tariff amounting to Rs. 104545/- for the month of July, 2012 to December, 2012 was charged to the petitioner in the bill for the month of February, 2013. No doubt that illegal extension of load by the petitioner from 13 KW to 32 KW was not regularized by LESCO, however, this does not absolve the petitioner to pay difference of charges between the approved sanctioned tariff and tariff used by petitioner beyond sanctioned load. The plea of the petitioner that no fact finding inquiry was conducted by respondent department is not supported by record. Bare perusal of audit note dated 21.12.2012 shows that site verification was conducted before determining that petitioner connected load was 32 KW while her sanctioned load was only 13 KW.
7. 7.The next argument of learned counsel for the petitioner that before determining the difference of charges, 07 days prior notice under clause 7.5 of consumer manual was mandatory is also misconceived. Clause 7.5 of the consumer manual is reproduced hereunder: -- 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.
8. (b)DISCO shall serve seven (7) days clear notice to the consumer who is found mis-using his approved/sanctioned tariff However, DISCO shall immediately change the 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."
9. Plain reading of clause 7.5 of the Consumer Manual shows that Consumer who used connection for the purpose other than original sanctioned load shall be liable for disconnection and penal action.
10. Sub-clause (b) of clause 7.5 provide that before taking said action, seven days prior notice is required. However, the said sub-clause provide exception that Distribution Company shall immediately change the tariff and determine the difference of charges of the previous period of misuse to be recovered from consumer. In the present case, no disconnection or penal action was taken against the petitioner rather only difference of charges between sanctioned load and load actually used by the petitioner was charged, hence Clause 7.5 of Consumer Service Manual has not been violated. Further I also found, substance in argument of respondent that. issuance of detection bill itself amounts to notice and petitioner had also availed remedy before POI against said determination. Therefore, it cannot be said that petitioner was condemned unheard. The case law relied upon by learned counsel for the petitioner is not applicable to the facts and circumstances of this case.
11. 8.So far as argument of learned counsel for the respondents that order passed by POI was beyond 90 days. I have noted that order was not passed by Respondent No. 5 under Section 26(6) of the Act as B Electric Inspector rather the order was passed by him in the capacity of POI under Section 38(3) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act), therefore, this argument has no substance.
12. 9.In view of above, no illegality or infirmity is found in the impugned order passed by NEPRA.
13. Accordingly, this petition is dismissed with no order as to cost.