MUHAMMAD FAHEEM WALI, J.---Through the instant petition under section 115, C.P.C, the petitioners have called in question the judgment dated 16.3.2021 of learned District Judge, D.I.Khan, whereby the appeal filed by petitioners was dismissed, the judgment/ decree dated 23.4.2019 of learned Civil Judge-VII, D.I.Khan was upheld and maintained.
2. Precisely the facts giving rise to the instant Revision Petition are that respondent/plaintiff instituted a suit for declaration and perpetual mandatory injunction to the effect that he is domestic consumer of PESCO and Meter vide A/C No. 04266320200104-U has been installed at his house. The defendants/petitioners since 2008 started sending series of illegal assessment against the plaintiff in his monthly bills which now has reached to Rs, 2,73,506/- in the bill of December 2016 which is wrong, illegal, against the facts and record and liable to cancellation, detail whereof has been fully described in the headnote of the plaint. The said suit was contested by the petitioners/defendants through filing their written statement. After hearing arguments from both sides, the learned trial court decreed the suit vide judgment dated 23.4.2019. Appeal preferred against the said judgment by the petitioners was also dismissed by the learned District Judge, D.I.Khan vide judgment dated 16.3.2021. The petitioners have impugned the judgment and decree of the subordinate Court i.e. District Judge, D.I.Khan in the instant petition.
3. Arguments of learned counsel for the parties heard and record perused with their valuable assistance but for the sake of brevity without reproducing their arguments, the same will be dealt with adequately at appropriate stages in this judgment.
4. The question that surfaces for determination by this Court is whether plaintiff/respondent has taken direct connection through LT line and thereby using direct supply and by doing so, he has remained involved in the illegal consumption of energy and thereby he has rightly been issued assessm ent by the PESCO / petitioners. On perusal of record, it transpires that as per billing assessm ent data and ERO (Ex.DW-1/1 and Ex.DW-2/1), the electricity of respondent has been permanently disconnected, nevertheless the said disconnection, he has continuously been charged during the whole of the said period. The stance taken by the petitioners that after disconnection of electricity connection, the respondent/ plaintiff has' remained involved in the illegal abstraction of energy, therefore he has been charged for the disputed period. In evidence session, the petitioners/ defendants produced DW-1 and DW-2, who admitted that meter of respondent was removed due to default of Rs. 3,57,102/-, therefore, the impugned assessm ent/charge for the period of July 2012 to October 2018 has been made. They both in cross- examination admitted about unawareness of sending the meter to the laboratory. It is worth mentioning that no FIR regarding the theft of electricity against the respondent is available on record. It is evident from the record (bill assessment and E.R.O. Ex.DW-1/1 and Ex.DW-2/1) that electricity meter of the respondent was permanently disconnected and removed on 08.3.2017 and before disconnection, neither any notice was issued to the plaintiff by defendants/ petitioners nor legal requirement were fulfilled before removal of the meter, rather all the DWs showed their ignorance regarding sending the meter to the laboratory for Report. In such eventuality, it is question mark over the credibility of petitioners that how and as to why the respondent/plaintiff has been charged for the disputed period when admittedly his electricity connection was permanently removed/disconnected and he was no more the consumer of PESCO in the relevant time.
5. The learned counsel for petitioners/PESCO was put a query as to whether in absence of electricity meter, the assessm ent/fines imposed upon the respondent/plaintiff is not violative of Electricity Act, 1910? On this, he took altogether different stance by submitting that it being a legal issue relating to the jurisdiction of the forum/tribunal could be raised at any stage. He objected that in view of section 26(6) of Electricity Act, 1910, civil Court has no jurisdiction, as it relates to the issue of defective meter and in that respect, the respondent/plaintiff ought to have resorted to Electric Inspector but he failed to do so. On this particular aspect of the case, I heard the learned counsel for the petitioners in-depth and examined Sections 26(6) and 26-A of the Electricity Act, 1910, in the light of his assistance. For the sake of facility, the two statutory provisions are reproduced as under:-- "26(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 or 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 an opportunity of being heard, and where the meter, maximum demand indicator or other measuring apparatus has, in the opinion of the 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, or 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: Provided that, before either a licensee or a consumer applied to the Electric Inspector under this subsection he shall give to the other party not less than seven day's notice of this intention so to do."
26-A. Dishonest abstraction or consumption- of energy.-- Notwithstanding anything contained in section 23, the licensee may charge the consumer on the basis of one or more of the following considerations for the amount of energy deemed to have been dishonestly abstracted, consumed or used for the period during which the meter, maximum demand indicator or other measuring apparatus had, in the opinion of the licensee, remained disconnected, injured, altered or prevented from registering the amount of energy supplied or the electrical quantity contained in the supply--
(a) consumer's connected load or maximum demand in kilowatt during any period;
(b) consumer's maximum consumption of energy in kilowatt hours during any period;
(c) consumer's load factor;
(d) the power factor of consumer's load;
(e) the hours and the time for which the energy is deemed to have been abstracted, consumed or used by the consumer; and
(f) the purpose for which the energy is deemed to have been abstracted, consumed or used by the consumer."
Bare perusal of subsection (6) of section 26 of Electricity Act (IX of 1910) transpires that 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 or 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 an opportunity of being heard. (Underline are emphasized).
This clear narration apparently provide that these requirements have to be satisfied in order to invoke the provision of subsection (6) of section 26 of the Act and as per the underlined above requirement of law, there must be dispute between the licensee and a consumer and that dispute must be relating to the meter, maximum demand indicator or other measuring apparatus and the decision thereon shall be made by the Electric Inspector and that too within a period of 90 days, but most importantly it shall be made upon the application of either party. By necessary implication, whenever, department/licensee (PESCO in the present case) and a consumer feel themselves aggrieved by the working of metering equipments then jurisdiction would lie with the Electricity Inspector and that of the civil court would be exclusively barred, but for the aforementioned, the basic requirement would be whenever the licensee consider any dispute to be in relation to the metering equipments and not otherwise because in that case the licensee cannot of its own issue any assessm ent bill to the consumer directly without getting the same adjudicated upon by the Electric Inspector within the stipulated time and if the licensee consider otherwise than approaching the Electricity Inspector for settlement of dispute, and issue an assessment bill to the consumer, then it cannot be construed to have been issued under section 26(6) rather the same would be considered to have been issued under the provision of section 26-A of Electricity Act, 1910 which allow the department to send an assessment bill to a consumer if the same does not pertain to a dispute relating to working or otherwise of the metering equipment. But once an assessment bill on whatever premise has been issued to the consumer without any order from the Electric Inspector, the same, however, would not be immune from being challenged in the competent court of civil jurisdiction. Reliance is made upon the reported judgment titled Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd., Okara and others (PLD 2012 Supreme Court 371). In the context, the following operative part/abstracts from the judgment is reproduced as under:- Electricity Act (IX of 1910)-- ----Ss. 26(6) & 26-A---Detection bill, issuance of---Theft of energy by consumer, charge of Jurisdiction of Electric Inspector and Advisory Board---Scope---Electric Inspector for possessing special expertise in examining the working of metering equipment and other related apparatus had jurisdiction to entertain reference under S.26(6) of Electricity Act, 1910 only in case of dishonest consumption of energy by consumer through deliberate manipulation of or tampering with metering equipment or other similar apparatus--- Electric Inspector would have no jurisdiction in matter of theft by means other than tampering or manipulation of metering Equipment etc., falling exclusively under S. 26-A of Electricity Act, 1910.
6. In the present case, the Electric Inspector had no authority to adjudicate upon the allegation of theft made by PESCO against the respondent/consumer and the only remedy available to the respondent was by way of filing a suit in a Court of Law. Section 26-A of the Electricity Act does not empower the Electric Inspector to take cognizance of any allegation by a licensee of dishonest abstraction or consumption of energy by the consumer, as unlike the preceding statutory provisions, it does not make any reference to Electric Inspector. PESCO had issued billing assessm ent against the respondent, alleging that he had committed Theft, by passing the metering equipment, and illegally connecting the main line with the service line. It was in these circumstances that the Court held that since there was no metering equipment involved in the theft of energy by the respondent, the provision of section 26(6) of the Electricity Act was not attracted. In this regard, the Hon'ble Supreme Court in the "Colony Textile Mills Ltd. Mutton v. Chief Executive, MEPCO (2004 SCMR 1679)- while interpreting section 26(6) and section 26-A of the Electricity Act, laid down the circumstances in which the Electric Inspector could still exercise its authority even when there is allegation of theft of electricity. In the context, the following passage from the judgment is instructive:- The difference of above statutory provisions is obvious as the jurisdiction of the Electric Inspector is confined to the disputes relating to the matters falling under section 26(6) of the Electricity Act, 1910 and the matter relating to the charges on account of dishonest obstruction of energy would not be referable to the Electric Inspector. If the matter relates to the correctness. of meter, maximum demand indicator, or other measuring civil apparatus, the dispute for consumption of electricity is referable to the Electric Inspector and in case for dishonest obstruction and consumption of energy, the licensee under section 26-A of the Electricity Act, 1910, may charge the consumer on the basis of considerations mentioned therein. The distinction is that in case of defect in the metering equipment or any fault caused by the consumer with the intention to prevent the meter from registering the consumption of energy, the assessment made by the licensee of the charges through detection bill can be subject to scrutiny by way of reference made to Electric Inspector by the consumer but if the metering equipment was completely by-passed and through a device energy was being supplied by dishonest obstruction of electricity and the question relating to the correctness of metering equipment or the measuring apparatus was not involved, the charge made under section 26-A is not a dispute referable to the Electric Inspector in terms of section 26(6) or any other provision of the Electric Inspector in terms of section 26(6) or any other provision of the Electricity Act, 1910."
7. Moreover, the witnesses of defendants/petitioners admitted the alleged assessment imposed upon respondent/plaintiff on the pretext of illegal abstraction of energy and that does not fall under purview of section 26(6) of Electricity Act, 1910. The respondent/ consumer had questioned the detection/ assessm ent bills in a civil suit and interestingly the petitioners (licensee) had raised objection to the jurisdiction of the civil court before the High Court on the ground that since the matter related to the correctness or otherwise of the metering equipment, the matter fell within the exclusive jurisdiction of the Electric Inspector. In view of my above discussion, such objection is callous, ill-founded and not sustainable in the eye of law for the obvious reason that in case of theft of electricity or illegal abstraction of energy through by-passing metering equipments, the Electric inspector has no jurisdiction to adjudicate upon a dispute. It is only the court of plenary jurisdiction which could resolve such a controversy. Even otherwise, the petitioners have failed to point out any illegality or legal infirmity in the concurrent findings of learned Courts below, which appear to have been passed in terms of the statutory provisions and evidence brought on record, warranting no interference of this Court in the exercise of its revisional jurisdiction.
8. For the foregoing reasons, I am of the considered view that both the learned Courts below have rightly exercised its jurisdiction and the impugned judgments and decrees are unexceptionable on all scores, so no interference is required in exercise of jurisdiction contemplated under section 115 of The Code of Civil Procedure (V of 1908). Consequently the instant Revision Petition, being without any merits is dismissed with no order as to costs.