MUHAMMAD IJAZ KHAN, J. Through this appeal filed under section 17(2) of The Khyber Pakhtunkhwa Consumer Protection Act, 1997, the appellant has challenged the order and judgment of learned Judge Consumer Court dated: 09.05.2024, whereby, the complaint filed by the appellant was dismissed on the ground of lack of jurisdiction and the appellant was directed to approach to the civil Court for redressal of his grievance.
2. Facts of the case in brief are that the respondents have filed a complaint against the present appellant alleging therein that as a result of a joint surprise raid which was conducted in the presence of standing joint checking/testing committee dated: 23.02.2024 it was found that the connection with the named of Khaista Mir M/S. Crush Plant bearing Reference No. 30-26415- 0000415 (B-II) was having S/load 302 k. M.SS posted were found tempered intentionally by the consumer and door of ATB found opened. The consumer/appellant was caught Red handed during stealing of electricity by plugging out all three wires of PT's (Red, Yellow and Blue) from AMR meter.
The AMR meter was bypassed and connection found running direct with running load 365 k, therefore, electricity of appellant/consumer was disconnected and an FIR was also lodged against him. Feeling aggrieved of the aforesaid action(s) of respondents/authority, the appellant filed a complaint before the learned Judge Consumer Court, Haripur. The respondents were summoned, who appeared and filed their written statement and then after hearing arguments of learned counsel for parties, the learned Judge Consumer Court, Haripur vide order and judgment dated: 09.05.2024 dismissed the complaint filed by the appellant. The appellant being aggrieved of the findings of learned Judge Consumer Court, Haripur has now approached to this Court by filing instant appeal.
3. Arguments hard and record perused.
4. At the very outset, learned counsel representing the respondents was confronted that what were the allegations against the present appellant, he produced M & T report with respect to appellant, which reads as under: A joint surprise raid was conducted in the presence of standing joint checking/testing committee dated: 23.02.2024. Upon checking of connection named Khaista Mir M/S. Crush Plant bearing Reference No. 30-26415-0000415 (B-II) having S/load 302 k. M.SS posted were found tempered intentionally by the consumer and door of ATB found opened. The consumer was caught Red handed during stealing of electricityby plugging out all three wires of PT's (Red, Yellow and Blue) from AMR meter. The AMR meter was bypassed and connection found running direct with running load 365 k. SDO is directed to lodge proper FIR against the culprit and charge the consumer as per SoP under intimation to all concerned. The connection must not be energized till the fulfilment of all legal formalities.
5. The plain reading of aforesaid allegations of respondents against the present appellant are that he has tempered with his meter intentionally and thus, it is a case where allegations of tempering with electricity apparatus i.e meter has been levelled, therefore, in the given facts and circumstances, it is a case fully covered under section 26 (6) of The Electricity Act, 1910. The said section being relevant is reproduced below: Section 26 (1)...........................................
(2)..........................................
(3)..........................................
(4)..........................................
(5)..........................................
(6) Where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electric Inspector, or by a competent person specially appointed by the Government [in this behalf within a period of ninety days from the date of receipt of such application and after affording the parties an opportunity of being heard]; and, where the meter has, in the opinion of such Inspector or person, ceased to be correct, such Inspector or person shall estimate the amount of the energy supplied to the consumer 17[ or the connected load in the supply], during such time as the 5 meter shall not, in the opinion of such Inspector or person, have been correct; and where the matter has been decided by any person other than the Electric Inspector, an appeal shall lie to the Inspector, whose decision shall in every case be final: but, save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity: 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 his intention so to do.
The plain reading of the aforesaid provision would manifestly show that when there is question of correctness or otherwise of meter is involved, then in such situation, the matter shall be decided by The Electric Inspector on the application of either of the party.
6. Conversely if there is allegation against a consumer that he without tempering with meter, has done any other act by connecting, disconnecting or injuring the electricity apparatus for abstracting consumption and use of energy then section 26-A of The Act of 1910 would come into play and thus then in such eventuality The Electric Inspector would have no jurisdiction, for being not mentioned in section 26(6) of the ibid Act. Section 26-A of the Act of 1910 being relevant, which is also reproduced here-in-below: Section 26-A 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 connected, 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 Consumer's load factor;
(c) The power factor of consumer's load;
(d) The hours and the time for which the energy is deemed to have been abstracted, consumed or used by the consumer; and
(e) The purpose for which the energy is deemed to have been abstracted, consumed or used by the consumer.
The comparative perusal of both these sections of law would show that when there are allegations of tempering with the electricity apparatus like meter etc. then the reference is to be made to The Electric Inspector and where there is allegation of dishonest abstraction, or use of energy through any other means like aerial connection etc. then the same would fall outside the domain of The Electric Inspector.
7. In view of the above, when there is allegation of tempering with meter against the appellant, then the learned Consumer Court has wrongly directed him to approach to the Civil Court rather the proper course was to have been directed him to approach to The Electric Inspector, as the dispute between the parties is with respect to the tempering of meter which falls within the jurisdiction of The Electric Inspector. The controversy qua the jurisdiction of the competent forum in the cases of allegations of aerial connection or in cases where allegations of tempering of electricity apparatus are levelled, came up before the apex Court in two cases. In case[1] it was held 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. Similarly, in an another case[2] it is held that 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 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 assessm ent 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's or the measuring apparatus was not involved, the charge made under section 26-A is, not a dispute referable to the Electric. Inspector to terms of section 26(6) or any other provision of the Electricity Act, 1910. It is clear that section 26 (6) is not attracted in the cases in which the dispute related to the dishonest obstruction or consumption of energy but if the dispute between the licensee and the consumer is on account of any defect in meter, the maximum demand indicator or other measuring apparatus is or is not correct, the matter shall necessarily be decided by the Electric Inspector on an application. moved by either the licensee or the consumer. The scope of the subsection (6) of section 26 is limited to the extent of defect in the meter or the metering apparatus which cannot be enlarged to a case of dishonest obstruction or consumption of energy for the purpose of conferring the jurisdiction to the Electric Inspector to scrutinize the demand made by the licensee under section 26-A of the Act.
8. In view of above exposition of law and as stated above, as there were clear allegations of intentional tempering with meter on behalf of consumer, therefore, the instant matter falls within the domain and jurisdiction of the Electric Inspector, hence, the impugned order and judgment of learned Consumer Court dated: 09.05.2024 is not sustainable, therefore, the instant appeal is allowed and as a result thereof, the impugned order and judgment of learned Consumer Court including its direction to the appellant to approach the civil Court, is set-aside.
9. The Court was informed that during pendency of this appeal the present appellant has already approached to The Electric Inspector by filing a appeal/reference, however, on the objection of respondents, it has adjourned the same sine die, therefore, it is directed that case/appeal of present appellant bearing No. 6477-81 titled: M/s. Khaista Mir Crush Plant-Vs- Peshawar Electric Supply Co: through The SE, PESCO & others, shall be restored and same is to be decided on its own merits.
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