1. MUHAMMAD NAEEM ANW AR, J. Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks the following prayers: - To set aside the order passed by NEPRA board on 13-02-2019 on appeal against order/judgment of Electric Inspector dated 20-09-2017, and as well as the order /judgment passed by the Electric Inspector Peshawar dated 20-09-2017 on the petition/ complaint of respondent No.1.
2. 2) Facts leading to the institution of this petition are that the respondent No.1 subm itted an application/complaint to respondent No.2 with the subject of "overbilling by TESCO even during the closure of Factory in FAATA in October 2016" with the contention that despite of the payment of all the due amount till July 2010, when the Factory was closed due to security situation, petitioner 's demand for the period of July 2007 to February 2011and March 2011 to August 2014 is against the fact, thus, he requested to respondent No.2 to resolv e the matter . Respondent No. 2 referred the matter to respondent No.3 (Electric Inspector to the Government of Khyber Pakhtunkhwa, Peshawar) for its decision, where both the parties were heard and the complaint was disposed of on 20-09-2017, in the following terms:- i. The cost of 300640 debited against the complainant on Grid Meter Reading vide XEN letter No. 3258-59, dated 17-09-2010, shall be recovered from complainant in full. ii. According to law and procedure if the authority intends to issue 2nd assessmen t, on one and the same method, the assessment issued earlier on 17-09-2010, was required to be superseded, but in the instant case, the first assessment issued on 17-09-2010 was not superseded by the TESCO, therefore, the 2nd assessment issued vide XEN Tesco letter No.3344-45 dated 27-09-2010 shall be withdrawn being duplication. iii. The fixed charges of Rs. 19,918,228/- debited on the directive of F.I.A shall be expunged as having been quashed from the aforementioned A/C No's. being duplication and already withdrawn by NEPRA in the case of appeal of Tesco Vs Habibullah Ittehad Steel Ghalanai Mohmand Agency . iv. The Billing (i-e MDI charges) so made against the complainant from the date of connection to 2/201 1 shall be revised on sanctioned load of 207 KW average per month as the respondents have failed to issue notices for extension of load by the respondents and LPS (if levied being the processing of the case, shall be waived of f.
3. Further the Tesco, have failed to produce log sheet/other relevant record of feeder from which the connection was extended to the complainant.
4. 3) The matter was decided by respondent No.3 on 20-09-2017, against which the petitioner filed an appeal before Secretary , Irrigation KPK, Peshawar , which was returned to the petitioner for want of jurisdiction and presentation before proper forum, on 12-03-2018, and the petitioner filed/submitted the same before NEPERA on 11- 05-2018 which was dismissed on the ground of Limitation on 13-02-2019, hence, this petition.
5. 4) When this petition was heard on 19-06 -2019, the respondents were put on notice, to decide whether the Electric Inspector/respondent No.3 was vested with the jurisdiction to pass order on the matter , pertaining to the tribal areas, is the question, to be decided after hearing the respondents on preadmission notice?
6. 5) Learned counsel for the petitioner contended that neither the learned Electric Inspector (respondent No.3) nor the NEPRA (respondent No.2) could decide the matter as none of them had the jurisdiction as the issue was pertaining to FATA and the provision of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 was not extended to FATA. He also added that there was in intricate question of fact which could not be decided by the respondents without recording of evidence. Next, he argued that NEPRA could only entertain the matter decided by single member of the authority as provided in section 12 (a) of Act of 1997.
7. 6) As against that learned counsel representing the respondents strenuously opposed the issuance of writ on the ground that both respondents No.2 & 3 have decided the issue in accordance with law and by exercising the powers provided by the statute and that the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 was extended to FATA by Notification dated 14th Ferbruary , 2007. Further , he contended that under the provision of section 12A of the Act, ibid, respondent No.2 has rightly decided the appeal which was barred by time.
8. 7) Having heard learned counsel for the parties at length who have extensively elaborated the relevant provisions of law and gone through from the record as well.
9. 8) The first question requiring determina tion was the application of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, which was extended to Federally Administered Tribal Areas, vide Government of Pakistan Notification, S.R.O. 119(I)/2007, dated 07.02.2007, published in Gazette of Pakistan, extraordinary , part II, on 14th February , 2007 which reads as: - S.R.O 119(1)/2007, dated 07-02-2007-- In exercise of the powers conferred by sub clause (3) of Article 247 of the constitution of Islamic Republic of Pakistan, the President is please to direct that the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997(XL of 1997) as in force in Pakistan immediately before the issue of this Notification shall apply to Federally Administered Tribal Areas with immediate ef fect.
10. Thus, when the application of law has been extended to FATA then there is no question of jurisdiction by the authority and respondent No.3 as well. Admittedly , the respondent No.1 has submitted his application/complaint to respondent No.2, however , the same was entrusted to respondent No.3 under the provision of section 38 of the Act which reads as: -
38. Provincial of fices of inspection. -- (1) Each Provincial Government shall--
(a) establish of fices of inspection that shall be empowered to
(i) enforce compliance with distribution companies' instructions respecting metering, billing, electricity consumption charges and decision of cases of theft of energy; and
(ii) make determination in respect of disputes over metering, billing and collection of tariffs and such powers may be conferred on the Electric Inspectors appointed by the Provincial Government under section 36 of the Electricity Act, 1910 (Act IX of 1910), exercisable, in addition to their duties under the said Act.
(b) Establish procedures whereby distribution companies and consumers may bring violations of the instructions in respect of metering, billing and collection of tarif f and other connected matters before the of fice of inspection; and
(c) Enforce penalties determined, by the Provincial Government for any such violation.
(2) The Provincial Governments may , upon request by the Authority , submit to the Authority--
(a) A copy of any document in the charge of the Provincial Government relating to Provincial offices of inspection; and
(b) Other reports, statements and information as the Authority determines to be necessary or appropriate for the Authority' s periodic assessment of the effectiveness of inspection made by Provi ncial Officers of inspection. [(3)
11. Any person aggrieved by any decision or order of the Provincial Office of Inspection may, within thirty days of the receipt of the order , prefer an appeal to the Authority in the prescribed manner and the Authority shall decide such appeal within sixty days.
12. 9) No doubt, in case of any dispute pertaining to meter , demand or apparatus, the matter shall be decided by Electric Inspector as provided in section 26 (6) of Electricity Act 1937, which is reproduced as ender: -
(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 nor is 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 and opportunity of being heard, and where the meter , maximum demand indicator or other measuring apparatus has, in the opinion of an 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 , indicator or apparatus has not, in the opinion of the Electric Inspector , been correct; and where the Electric Inspector , fails to decide the matter of difference or dispute within the said period or where either the licensee of 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: (added by Ordinance LXII of 1979)
13. Provided that, before either a licensee or a consumer applies to the Electric Inspector under this sub-section, he shall give to the other party not less than seven days' notice of this intention to do so".
14. 10) During the course of arguments, learned counsel for the petitioner also criticized the impugned order by contending that under section 12A of the Act, a decision of the single member of the authority is heard and decided by the Tribunal but in the case in hand there was no decision of single member of the authority , thus, without referring the matter to the single member , no decision could be made, as such, the impugned order is perverse and illegal. This argument too is without force because in this case under section 38 (3) of the Act, appeal was preferred to the authority , however , section 12A of the Act provides the right of appeal to the person aggrieved from the decision or the order of single member of the authority or the tribunal. For convenience, section 12A is reproduced as under: - 12A. Appeal.-- Any person aggrieved by any decision or order of the Single Member of the Authority or, as the case may be, Tribunal established unde r section 11 may, within thirty days of the decision or order , prefer an appeal to the Authority in the prescribed manner and the Authority shall decide such appeal within sixty days.
15. This section was inserted by Regulation of Generation, Transmission and Distribution of Electric Power (amendment) Act 2011, by which a remedy is provided to the person aggrieved from the decision of a Single Member or from the decision of tribunal, no such appeal was preferred before the authority under section 12A of the Act, rather there was an appeal under section 38(3) of the Act.
16. 11) Apart from the above, the appeal of the petitioner before NEPRA was also time barred as the decision dated 20-09-2017 of respondent No.3 was challenged before Secretary , Irrigation KPK Peshawar , which was returned to the petitioner on 12-03-2018, but he filed appeal before NEPRA on 11-05-2018. If the time in obtaining the copies under section 12(2) and filing of appeal before wrong forum under section 14 of Limitation Act 1908, is excluded even then the appeal before the authority was time barred which period remained unexplained even today and the petitioner could not justify the delay in filing of the appeal.
17. 12) For what has been stated above, this petition being without any merit is hereby dismissed.