' SALEEM AKHTAR, J.-This judgment will dispose of this petition and seven other connected petitions which have been filed on identical facts and in which same questions of law are involved. The facts in Petition No, 699/80 are that since 8-12-1953 the respondent No, 1 had been supplying electric energy for power and lightening at the premises of the Petitioners mill. Under an agreement dated 2-9-1957 the respondents No, 1 agreed to continue to supply for a period of 10 years expiring on 30th April, 1967 on terms and conditions mentioned therein. Thereafter this agreement continued from year to year. On 13th September, 1973 the agreement was amended whereby clause 10 was added required the petitioners to deposit in cash with the respondents a sum of Rs, 1,46,688 as security. The petitioners have alleged that they have complied with the terms of the agreement and are paying the bills regularly and there is no default on their part but on 18-7-1979 a notice was received from the respondents No, 1 stating that on account of difference in the old and new rates of electricity charges, the amount of security deposit of the petitioners held by the respondents No, I had become 'insufficient' and as such additional amount of Rs, 4,85,280 was required to be paid as security by the petitioners within thirty days from the date of issuance of notice. This amount was, however, reduced to Rs, 3,76,902 which the respondents No, 1 by their notice dated 5-3-1980 called upon the petitioners to pay within seven days otherwise the supply of electricity to the petitioners mills was liable to be disconnected. In all the connected seven petitions the facts are identical except that the amount of security deposited under clause 13 of the agreement and the amount of additional security demanded are different. The petitioners and All Pakistan Textile Mills Association Sind and Baluchistan Zone made representation to the respondents but of no avail.
The petitioners offered to furnish bank guarantee but it was not accepted. The petitioners have alleged that the respondents No, 1 are not entitled to demand such a collossal amount in cash as security deposit because in any case the bank guarantee by the petitioners to the respondents No, 1 for the amount would adequately safeguard the alleged fears of the respondents No, 1 that the already held security deposit is not sufficient. According to the petitioners the only purpose of the security deposit is to secure the respondents No, 1 in case of failure or default on the part of the petitioners in payment of the bills which will be adequately achieved if bank guarantee is furnished.
It has been alleged that the security deposit shall be utilised by the respondents No, 1 for their various development projects which they are not entitled to do.
2. Mr. Khalid Ishaque the learned counsel for the petitioners has contended as follows :-
(i) That the power to disconnect the supply of energy is available to the respondents No, 1 where there is failure to pay the bills for supply of energy or security has become invalid ;
(ii) The power to demand security is limited to securing the payment of bills for supply of energy and not for securing funds for expansion of their programmes.
(iii) Under the Statute the respondents No, 1 are required to treat all persons alike and cannot make any discrimination.
3. In fact it is contention No, 1 which has mainly been argued by the learned counsel for the parties and it determines the entire controversy. To substantiate his contention No, 1 the learned counsel for the petitioners has made reference to the provisions of the Electricity Act, 1910, hereafter referred as tie Act. Under the Act the Government has to grant a licence to a company or authority for distribution of the energy who is called licensee. The terms of the licence are regulated by section 3 of the Act. Section 3(2) enumerates the provisions which shall have effect in respect of every such licence. Section 3 (2) (f) (i) is the relevant provision for the present controversy and is reproduced hereunder :- ' Section 3 :
(1) ..
(a) .
(b)
(2) In respect of every such licence and the grant thereof following provisions shall have effect, namely :- (a)
(b)
(c)
(d)
(e)
(f) the provisions contained in the Schedule shall be deemed to be incorporated with, and to form part of, every licence granted under this part, save in so far as they are expressly added to, varied or excepted by the licence, and shall, subject to any such additions, variation or exceptions which the Provincial Government is hereby empowered to make, apply to the undertaking authorised by the licence : ' Provided that where a licence is granted in accordance with the provisions of clause IX of the Schedule for the supply of energy to other licensees for distribution by them, then in so far such licence relates to such supply, the provisions of clauses IV, V, VI, VII and XII of the Schedule shall not be deemed to be incorporated with the licence.
' It, therefore, follows that the schedule to the Act shall form part of the licence granted to the respondents No,
1. The learned counsel for the petitioners has referred to the second proviso to clause VI (I) of the schedule which is reproduced hereunder : ' VI. Requisition for supply to owner or occupiers in vicinity.-(1) Where (after distribution mains have laid down under the provisions of clause IV or clause V and the supply of energy through those mains or any of them has commenced) a requisition is made by the owner or occupier of any premises situate within (the area of supply) requiring the licensee to supply energy for such premises, the licensee shall, within one month from the making of the requisition (or within such longer period as the Electric Inspector may allow) supply, and save in so far as he is prevented from doing so by cyclones, floods, storms or other occurrences beyond his control, continue to supply, energy in accordance with the requisition : ' provided first, (a)
(b) ..
"Provided, secondly, that the licensee shall be entitled to discontinue such supply-
(a) If the owner or occupier of the premises to which the supply is made by the licensee has not already given security, or if any security already given by him has become invalid, or there is charge of owner or occupier and such owner or occupier fails to furnish security according to the prevalent rate, as the case may be, within seven days after the service upon him of notice from the licensee requiring him so to do, or
(b) . . , . . . ...........
(c)
(d)
(e)
' The learned counsel for the petitioners while referring to these provisions has contended that as Schedule is a part of the licence granted to the respondents No, 1 and since it provides that the respondents No, 1 will be entitled to discontinue the electricity only in cases where the security given by the owner or occupier of the premises to which the energy is supplied has become 'invalid' the respondents No, 1 cannot discontinue energy on the ground that the security has become 'insufficient'. Before the amendment made in the Act in 1979 second proviso to clause VI (f) of the schedule provided that the respondents No, 1 were entitled to discontinue the supply of energy if the security has become 'insufficient' but after the amendment the word `insufficient' has been deleted.
4. Under the Act the Provincial Government can grant licence to any person for supply of energy in any specified area. In the present case the respondents No, 1 are the licensee to whom the licence has been granted by the Government for the specified purpose. The grant of licence is regulated by the provisions of the Act and its schedule. Under section 3(2) of the Act the provisions contained in the schedule shall form part of the licence granted to the licensee save in so far they are expressly added or varied or excepted by the licence or amended by the Government. The second proviso to clause VI (i) of the Schedule contemplates three situations. Firstly, where the security has not been given by the owner or occupier the licence after serving 7 days' notice can discontinue the supply. Secondly, where security has been furnished the licensee is entitled to discontinue provided the security has become invalid. Thirdly if there is a change of owner or occupier and such owner or occupier fails to furnish security according to the prevalent rate, the licensee is entitled to discontinue such supply.
5. While exercising a right to discontinue the supply of energy under the licence which incorporates the schedule the licensee can discontinue provided the security has become invalid as distinguished from insufficient. Prior to the amendment of 1979 under the licence the licensee was entitled to discontinue the supply if the security had become insufficient. As the Legislature has excluded the word 'insufficient' from the amended second proviso (a) of Clause VI sub-para. I of the schedule it seems clear that the D intention is that if the security becomes insufficient the licensee while invoking its power under the licensee is not entitled to discontinue the supply of energy. However it has to be considered whether apart from the licence the respondents No, 1 are authorised in the present circumstances of the case to discontinue the supply of electricity. Mr. Noorul Hassan the learned counsel for the respondents No, 1 has invited our attention to section 24 of the Act as amended in 1979 which reads as follows :- "Discontinuance of supply to consumer neglecting to pay charge.-(1) Where any consumer neglects to pay any charge for energy or any sum other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premises, the licensee may after giving not less than seven clear days notice in writing to such consumer and without prejudice to his right recover such charge or other sum by suit or otherwise out of the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied to such premises or to any other premises, other than domestic premises, running distinctly in the name of such consumer, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of such discontinuance are paid, but not longer.
(2) Where any difference or dispute as to any matter connected with any charge or other sum included in the bill of a licensee has been referred by a consumer under this Act to an Electric Inspector before the notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by subsection (1) until the Inspector has given his decision : ' Provided that the prohibition contained in this subsection shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the licensee of the undisputed charges and other sums and with the Electric Inspector of fifty per cent of the disputed charges and other sums and for the deposit with the licensee of further charges for supply of energy, as they accrue, and the consumer has failed to comply with such request within a period of fifteen days from date of receipt of bills in respect of further charges for supply of energy."
6. This section in clear terms provides that the licensee can disconnect the supply of energy to a consumer who has failed and neglected to pay an charge for the energy supplied to him or any other charge in respect of supply of energy to his premises provided it has been assessed against him. Such power can be exercised by the licensee after serving not less than 7 clear days' notice on the consumer. The licensee is entitled to discontinue supply of energy for non-payment of any other charge which is not a charge for supply of energy. Besides the charges for the energy, situation may arise when the licensee may require the consumer to pay any other sum in respect of supply of energy to his premises. If such sum which should relate to the supply of energy to his premises is not paid the licensee is entitled to discontinue supply to the consumer. The words 'any sum' used in section 2 is very wide in its connotation and meaning. These words cannot be read to mean 'charges for supply of energy' because these two terms have distinctly been used in the section. To avoid ambiguity that may have arisen in interpreting these terms the Legislature has used the word 'any sum' other than a charge for energy.' This means that the word 'any sum' is distinct and in addition to the charge for energy but such sums should be in respect of supply of energy to the consumer premises. Therefore, the licensees does not have unrestricted powers to demand any sum from the consumer and on his failure to pay such sum to disconnect the supply of energy to the consumer. Such demand should be either charges for the supply of energy of any other sum relating to the supply of energy. Another condition that seems to be implied, restricting the righ of the licensee to disconnect is that if the 'charge for energy' or any other sum demanded by the licensee is in respect of any domestic premises then the licensee cannot disconnect the supply of energy to such premises. This interpretation finds support, from the wordings of section 24 itself and the legislative history of the Act. The present section 24 was substituted in 1979. Prior to this amendment on failure to pay energy charges the licensee could disconnect the supply of energy in respect of domestic premises. But in 1979 when Electricity Act, 1910 was amended such general power to disconnect the supply of energy as provided in the previous section 24 was restricted only to premises other than domestic premises. While taking away the power of the licensee to disconnect supply of energy to domestic premises summary procedure for recovery of charges for supply of energy has been provided by virtue of newly added section 54.A. It provides that notwithstanding any Act or the agreement the charges for supply of energy or any other sum outstanding against the consumer under the Act shall be recoverable as an arrear of land revenue.
This summary procedure which may entail in the attachment and auction of consumer's property and even his arrest has provided the licensee a speedy remedy for recovery of energy charges or any other sum payable by the consumer. This procedure is equally applicable to all consumers irrespective of the fact whether they are using the energy for domestic purpose or any other purpose.
7. Mr. Khalid Ishaque's contention that section 24 can be invoked only in cases where the consumer neglects to pay any charge for energy and not where the security has become insufficient does not seem to find support from the section itself. Mr. Noorul Hassan has contended that the word `any sum' has been qualified by the words 'other than a charge for energy' and, therefore, it will include all other charges. The words 'any sum' are very wide in their connotation and it has to be understood in the context of the language used in the statute itself. Such sum should not be a charge for energy but any other sum which should relate to the supply of energy to the consumer's premises. The power vested in the licensee by virtue of section 24 is not restricted in any manner by the terms of the licence. It is independent of the licence and can be exercised by the licensee within the four corners of section 24.
8. Mr. Noorul Hassan then referred to the agreements between the petitioners and respondents No, 1 under which energy is being supplied to them. Clause 10 of the agreement dated 13-9-1973 is as follows :- ' The consumer shall deposit in cash with the licensee the sum of Rs, 1,46,868 (Rupees one lac forty six thousand five hundred eighty-eight only) as security for the purpose next hereinafter mentioned and shall on the like requisition from time to time renew or replenish such security in the event of the same becoming exhausted or insufficient. The licensee shall be at liberty at any time from time to time to appropriate and apply any security so deposited as aforesaid in or towards payment or satisfaction of all or any moneys which shall become due or owing by the consumer to the licensee in respect of the supply of energy or otherwise under this agreement but the provisions in this clause contained shall not prejudice any other remedy to which the licensee may be entitled for the recovery of such moneys. The licensee shall pay to the consumer at the rate of three centum per annum on the said sum of security deposit."
' By this clause the petitioners were required to deposit Rs, 1,46,588 as security and were to maintain it in case it is exhausted or becomes insufficient. Under the agreement, therefore, the petitioners are liable to renew the security in case it becomes exhausted and to replenish it. If it becomes insufficient. Mr. Khalid Ishaque the learned counsel for the petitioners has contended that as the amended schedule does not empower the respondents No, 1 to discontinue the electricity where the security has become insufficient and as the schedule and the agreement have to be read together with respondents No, 1 are not entitled under the agreement to ask for security in case it has become insufficient.
9. Insufficiency of security and invalidity of security contemplate the different situations. A security will be insufficient if it is not able to satisfy./ I the demand for which it was furnished. Situation may arise where to begin with other security when furnished is sufficient but if with the passage of time the liability secured increases beyond the security, the security becomes insufficient as it does not cover the entire liability. It can satisfy only part of the liability, on the other hand an invalid security is that which is null and void, one which is illegal and cannot be enforced. An insufficient security protects the claim partially but an invalid security cannot give any protection. With this distinction in view, under the Schedule insufficient security and invalid security have not been treated at par.
10. The schedule presupposes the existence of a security or furnishing of security by the consumers.
It does not restrict the licensee right t K demand additional security. In order to keep the security effective and achieve the object underlying it the respondents No, 1 are entitled to demand additional security to make up the deficit. This right does not derogate from the provisions of the schedule. Under the schedule the licensee is not permitted to discontinue of energy where the security has become insufficient. No such power has been given to the respondents No, 1 under the agreements between the parties. Clause 10 of the agreement the respondents No, 1 to demand additional security which without prejudice to other remedies which are available to the respondents No,
1. It, therefore, seems clear that under the agreement no independent power to discontinue the energy charges has been conferred on the respondents No, 1 except which they are other wise entitled to exercise. A schedule is a part of the statute. It is a rule of construction that inconsistency between the provisions of statute should be avoided. How- L ever, if there is a conflict between the provisions of Act and the schedule the former will prevail. Maxwell on Interpretation of Statutes 10th Edn. Observed that 'where a passage in a schedule to a statute was repugnant to one in the body of the statute, the latter was held to prevail'. In the present case there seems to be no inconsistency between the section 24 and second proviso (a) sub-clause (i) of para. VI of the Schedule. This schedule deals with the provisions of licence which confers a restricted power on the licensee. The general power is however conferred by section 24 which is much wider in its applicability and effect.
' As discussed above, section 24 empowers a licensee to discontinue the supply of energy for non- payment of any sum assessed by the licensee against the consumer relating to the supply of energy in respect of premises other than domestic. The licensee's demand requiring any consumer to deposit security or additional amount of security will be a demand for payment of the amount relating to the supply of energy. But such demand should not M be arbitrary or in contravention of the provisions of law and the agreement between the parties. There is no dispute that the respondents No, 1 were not entitled initially to ask for a security from consumer. The only dispute seems to be that the respondents No, 1 cannot enhance the security and ask the petitioners to deposit in cash the difference between the security deposit and the enhanced security. The petitioners seems to object to the respondents' demand for cash deposit as they are agreeable to furnish bank guarantee for the demanded sum. In view of this the petitioners in fact do not dispute that the demand for additional security is incorrect. Their only grievance is that as consequence of the demand to deposit the additional security in cash and on failure to comply with such demand, respondents No, 1 are not entitled to discontinue the supply of energy to the petitioners. The agreement clearly provides that in case security is exhausted or becomes insufficient, the petitioners on demand being made from time to time will be liable to renew or replenish it to the extent of its exhaustion or insufficiency. The object of furnishing such security is to secure the payment of the energy charges or such amount which the petitioners may be liable to pay in respect of the supply of energy. The initial deposit of security was taken from the petitioners on the basis of the supply of energy assessed in the year 1957. Under clause (g) of the licence, the respondents No, 1 are entitled to charge security deposit not exceeding the amount of average bill for a period of two months and a half, since 1957 charges for supply of energy have been enhanced and, therefore, on the basis of the enhanced charges the respondents No, 1 have demanded additional deposit, to make up the deficiency.
12. Mr. Khalid Ishaque the learned counsel for the petitioners has contended that so long the petitioners are prepared to give security, the respondents No, 1 cannot discontinue the supply of electricity. The contention is that petitioners are prepared to furnish bank guarantee but as the respondents No, 1 are demanding cash, they cannot discontinue the electricity. Mr. Noorul Hassan, the learned counsel for the respondents, has invited our attention to the proviso of agreement particularly clause 10 which has been reproduced above and clause (g) of the licence which has also been referred earlier in this judgment. From the agreement it is clear that the petitioners are liable to deposit the security amount in cash. If additional amount is required to cover up the difference in the amount of original security and the enhanced security then the petitioners have to furnish it in cash. Under the terms of agreement the licensee has to pay 3 per cent per annum as interest on the sum of the security deposit. This supports the contention that the security has to be deposited in cash. In these premises the contention of the learned counsel for the petitioners has no force.
13. The petitioners have further contended that the demand made by the respondents No, 1 is not in terms of the agreement or the provision of law and, therefore, they are not entitled to disconnect the electricity. It is an admitted position that after the agreement was entered into between the parties there has been a rise in the energy charges. The respondents No, 1 have alleged in the counter-affidavit that on account of difference in old and new rates of the energy charges security furnisned by the petitioners has become insufficient and, therefore, additional security was demanded. It has not been denied by the petitioner. Taking into account these facts the amount asked for by the respondents No, 1 as additional security cannot be termed as arbitrary or in contravention of any provision of law.
14. The learned counsel for the petitioners then contended that the object of obtaining security is only to secure the payment of the bills for the energy. He has further contended that if the additional security is being demanded merely to meet the expenses for some other project of the respondents No, 1 then the action of the respondents No, 1 is illegal and in consequence thereof they cannot disconnect the supply of energy. The respondents No, 1 have catagorically stated that they will not use the amount of security for any other purpose. This closes this argument.
15. Mr. Khalid Ishaque the learned counsel for the petitioners referred to sections 22 and 23 of the Electricity Act and contended that the petitioners should treat all consumers alike and there should be no discrimination. Under section 22, every person within the area of supply shall be entitled to the supply on the same terms on which other persons are entitled in that area. Section 23 provides that the licensee shall not show any undue preference to any person in making any agreement for the supply of energy and the charges for the energy shall be limited to the extent of the limits imposed by the licensee. The licensee is, therefore, bound to supply energy to the consumers on the same terms and conditions on which another consumer in the same area is entitled under similar circumstances and no undue preference or discrimination can be shown either in granting the connection or in charging for the supply of energy. Nothing has been pointed out to show that by demanding additional security from the petitioners the respondents No, 1 have in any manner violated the provisions of these sections or have in any manner discriminated amongst the consumers of similar nature, in the same area. The fact that about eight textile mills have filed petitions against similar demand of respondents No, 1 demonstrates that all of them have been treated alike and no discrimination has been made by the respondents No,
1. The petitions are, therefore, dismissed with no order as to costs.