SHAHID BILAL HASSAN-J: Tersely , the petitioner is consumer of LESCO, a company incorporated and duly registered with the Sub-Registrar of Com panies with its Head Office at Lahore through its Chief Executive and is dealing in Electricity Line and Connectio n as well as providing services thereto to its consumers at Lahore. The petitioner used a meter under reference No.241 1129003001U vide Meter No.13704, which is in the name of Malik Nadeem Iqbal son of Muhammad Shafi and has been paying the requisite bills regularly and allegedly nothing is outstanding against him till May, 2019. The respondents served the bill for the month of June, 2019 amounting to Rs.26,79,788/-, which was allegedly illegal, unlawful and excessive one, after receiving the said bill the petitioner approached the respondents for correction of bill, but they refused, hence, the petitioner instituted suit for declaration with permanent injunction and mandatory injunction as a consequential relief, in which injunctive order was passed on 30.07.2019 with a direction to the petitioner to deposit an amount of Rs.18,00,000/- and the respondents were directed not to disconnect the electricity connection as well as not to remove the meter in question from the site of the premises of the petitioner . Allegedly , the petitioner deposited an amount of Rs.18,00,000/- with the respondents in compliance of direction of the Civil Court. Again the respondents issued a bill for the month of July, 2019 amount ing to Rs.38,40,469/-, the petitioner again approached the concerned quarters and on refusal, he instituted a fresh suit for declaration, etc. wherein injunctive order was issued on 26.08.2019 with a direction to the petitioner to deposit 1/3rd amount of the disputed bill and respondents were directed not to disconnect the electricity connection as well as not remove the meter in question. The petitioner deposited Rs.15,00,000/- with the respondents in compliance of the said order . The said suits were withdrawn with permission to file afresh. Again the respondents issued a bill for the month of August, 2019 to the tune of Rs.48,20,108/- , which was also challenged by filing a suit for declaration challenging all the aforementioned bills wherein injunctive order was passed on 19.09.2019 with a direction to the petitioner to deposit 1/5th of the disputed amount and the respondents were directed to restore the electricity supply of the premises of petitioner and to re- install the meter in question at site. Allege dly, the petitioner approached the respondents with a request to issue the bill as per order dated 19.09.2019 and restore the electricity supply as well as re-install the meter , but they statedly asked the petitioner that the matter is relating to jurisdiction. The petitioner filed a contempt petition for non- compliance of order dated 19.09.2019. The respondents contested the suit by filing written statement and written reply as well as resisted the contempt petition by filing written reply . They also agitated the order dated 19.09.2019 in appeal. The learned appellate Court vide judgment dated 27.09.2019 disposed of the appeal with observation that as the respondents have filed application for withdrawal of the order dated 19.09.2019 before the learned trial Court it would be appropriate that the same would be decided first with a directio n to the learned trial Court trial Court to decide the said application within one week positively . The said application was withdrawn by the learned counsel for the respondents on 19.10.2019. The learned trial Court vide order dated 01.11.2019 accepted the application for grant of temporary injunction with observation that the petitioner/plaintif f would be bound to pay the current bill of every succeeding month; the respondents were directed to restore the electricity connection of the petitioner subject to payment of RCO and other ancillary charges within ten days from the order . The respondents being aggrieved of the said order preferred an appeal. The learned appellate Court vide impugned judgment dated 26.11.2019 accepted the appeal and modified the order passed by the learned trial Court as follows:- 'Anyhow he is liable to pay the current bill of Rs.21,25,710/- of consumed units in the month of August, 2019.
Hence, respondent/plaintiff is directed to pay the amount of current bill for the month of August 2019 and also pay the current bill of every succeeding month regularly and pay the reconnection charges and other ancillary charges thereafter , the appellant/defendant are bound to restore the electricity connection to the respondent/plaintiff.?
Being aggrieved of the said judgment, the petitioner has filed the instant constitutional petition.
2. Heard.
3. First of all this Court has to expound on the point of jurisdiction of civil Court in the matter in hand, because it does not relate to detection bill or theft of electricity or illegal abstraction of energy , rather the matter in hand is with regards to dishonest consumption of energy through manipulation of, or tampering with, the metering equipment or other similar apparatus as well as relates to the meter or maximum demand indicator and other measuring apparatus supplied for ascertaining the energy consumed at the premises. In Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others (PLD 2012 Supreme Court 371) by following the dicta settled in Colony Textile Mills Ltd., Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd. (MEPCO), Multan and 2 others (2004 SCMR 1679 ), wherein it has invariably been held:- 'It follows from the above case-law that where the allegation against the consumer of electrical power is of dishonest consumption of energy through manipulation of, or tampering with, the metering equipment or other similar apparatus, the Electric Inspector would still have the authority to entertain reference under section 26(6). In case the theft alleged is by means other than the tampering or manipulation of the metering equipment etc, the matter would fall exclusively under section 26-A of the Act, outside the scope of powers of the Electric Inspector .
Since the Electric Inspector possesses special expertise in examining the working of the metering equipment and other related apparatus, it makes sense that any issue regarding their working, functioning or correctness, whether or not deliberately caused, be examined by him. It may be added that section 26-A is an enabling provision empowering the licensee to charge the consumer for dishonest extraction or consumption of electricity . It does not provide any procedure for resolving any dispute between consumer and the licensee on a charge of theft. It should, therefore, be read in conjunction with the other relevant provisions, including section 26(6) of the Act.?
Prior to the above said dicta, the Apex Court in Multan Electric Power Company Ltd. through Chief Executive and another v . Muhammad Ashiq and others (PLD 2006 Supreme Court 328), held that:- 'Thus, as the law declared stands today , in cases of theft of electricity or illegal abstraction of energy , the Electric Inspector has no jurisdiction to adjudicate a dispute and it is only the Court of plenary jurisdiction who could resolve such a controversy .?
Similar view was adopted by this Court in MEPCO and others v. Advisory Board, Punjab, Lahore and others (PLD 2017 Lahore 769), WAPDA through Chairman and 3 others v. Advisory Board, Punjab, through Chairman and 2 others (2015 MLD 299-Lahore) and WAPDA v. Muhammad Azeem (2009 MLD 1434 -Lahore), in the latter judgment it was held:- 'Both the Courts below have failed to take notice of the legal position as to the jurisdiction of the Court and the maintainability of the suit as stated in Water and Power Development Authority and another v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56). In the precedent case, the learned Full Bench of this Court had taken the view that the controversies and disputes concerning the slowness of meter or other faults with the equipment fall within the jurisdiction of the Electric Inspector under section 26 of the Electricity Act, 1910. The matter thus falls within the exclusive jurisdiction of Electric Inspector .?
4. Apart from above, the Higher Courts are consistent on this point that jurisdiction is conferred by law and not by consent of the parties as has been held by this Court in Water and Power Development Authority through Chairman, WAPDA and 4 others v. Abdul Shakoor through Legal Heirs (PLD 2008 Lahore 175) wherein it was held:- '7. Non-raising of objection to the jurisdiction before the Court of first instance will not confer jurisdiction upon the court. Relying on various decisions, the Hon'ble Supreme Court in afore-noted case observed that jurisdiction is conferred by law and not by consent of the parties. It reiterated its observation recorded in Haji Abdullah Khan and others v . Nasir Muhammad Khan and others ( PLD 1965 SC 690 ), I reproduced below:- "It may be noted that it is duty of the Court itself to apply the law. A party is not bound to engage a counsel.
Whatever law becomes applicable on the admitted or proved fact law has to be given effect to whether or not it has been relied upon by a party ."
5. Now, when the facts of present case are considered and assessed on the ratio of the above said judgments, it can safely be held that both the learned Courts below have failed to appreciate the ratio of the said judgments and have wrongly construed as well as appreciated law on the subject germane to question of jurisdiction. As such, it is a fit case to exercise extraordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and this Court in exercise of constitutional jurisdiction has, when finds an order without lawful justification, jurisdiction and authority , ample jurisdiction to make interference in the same as has been held in Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914). In this judgment, it was also held that, "Even otherwise, the Courts of law are not supposed to perpetuate what is unjust and unfair by exploring explanation therefor . They should rather explore ways and means for undoing what is unjust and unfair ." In the backdrop of above said eventuality , there is no need to further ponder upon the matter in hand on facts.
6. For the foregoing reasons, without commenting on merits of the case, the constitutional petition in hand is dismissed. However , the learned trial Court is directed to decide the issue of jurisd iction again keeping in view the ratio of the above said judgments. Office is directed to send the copy of this judgm ent to the learned trial Court. No order as to the costs.