KHALID ISHAQ, J. This judgment shall decide the following question, which requires determination for decision in this and all connected petitions listed before this Bench today, mentioned in 'Schedule-A' attached herewith.
Whether the statutory limitation of 90 days under section 26(6) of the Electricity Act, 1910 (Electricity Act), for decision of an application, continues to remain in force despite promulgation of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (NEPRA Act) ?
For the purpose of determination of the above question, the facts of case in hand shall suffice.
2. Respondent No.1 is a Consumer of Lahore Electric Supply Company Limited (LESCO) having B- 2a(10) (Industrial) Tariff with 241KW sanctioned load. The electricity meter installed at the premises of the Consumer was checked at site on 12.06.2012 by the Standing Committee of LESCO. Certain discrepancies were detected, leading to issuance of a demand notice No. 4926 dated 27.07.2012 to the Consumer on account of 33% slowness of the metering equipment. This formed the basis for issuance of detection bill amounting to Rs.35,58,470/- against 406613 net-chargeable KWH Units for the period from March, 2011 to May, 2012 (15 months). On 30.05.2013, the Consumer challenged the issuance of detection bill by filing an application under section 26(6) & 24(2) of the Electricity Act, read with section 38 of NEPRA Act before respondent No.2 (Provincial Office of Inspection/Electric Inspector). Petitioner/LESCO joined the proceedings by filing its contesting reply.
During the proceedings before respondent No.2, the metering equipment was rechecked on 17.06.2013 by the representative of respondent No.2 in presence of both the parties and the same was found 33.39% slower instead of 33% detected earlier. Respondent No.2 handed down its decision dated 22.10.2013, which decision was assailed by the Consumer by way of filing an appeal under section 38 of the NEPRA Act before the National Electric Power Regulatory Authority (NEPRA).
The appeal filed by the consumer was decided by NEPRA on 13.10.2014 (Impugned Order) whereby the decision of respondent No.2 was modified in the terms that the slowness of the meter was charged for six (06) months instead of fifteen (15) months. The Impugned Order has been assailed before this Court by filing the Constitutional Petition in hand.
3. This petition as well as connected petitions, raise multiple grounds of attack but the common ground in all such petitions necessitates determination of the above question, which is premised on the submission that since the Impugned Order has been passed beyond the statutory period of 90 days, as mandated by section 26(6) of Electricity Act, therefore, the same is inconsequential as respondent No.3/NEPRA had become functus officio, thus any/all order(s) passed by NEPRA beyond 90 days' statutory period are thus statute barred.
4. Conversely, the Consumer(s) as well as NEPRA have taken the stance that the requirement to decide the matter within 90 days under section 26(6) of the Electricity Act is no more applicable as the Impugned Order(s) has been passed by NEPRA while assuming and exercising jurisdiction under section 38 of the NEPRA Act, which provision does not carry any such statutory limitation of 90 days.
5. This and connected petitions were taken up for hearing on 30.11.2017 by the learned Single Judge in Chambers and while considering the conflicting views by learned Single Benches of this Court in the cases reported as FESCO through Chief Executive Officer and 3 others v. AL-MURTAZA COTTON FACTORY, through Director and 2 others (PLJ 2015 Lahore 470 = 2015 MLD 1307) and FAISALABAD ELECTRIC SUPPLY COMPANY through Director v. MUHAMMAD JAMIL and 6 others (PLJ 2017 Lahore 309), this particular matter was referred to the Hon'ble Chief Justice for constitution of a Larger Bench of this Court for finally setting the controversy at rest, in the light of law laid down by the Supreme Court of Pakistan in case titled as MULTILINE ASSOCIATES v. ARDESHIR COWASJEE and 2 others (1995 SCMR 362).
6. It was in these circumstances that this Full Bench was constituted and the question framed above was posed for determination.
7. We have heard the learned counsels for the parties and perused the available record with their able assistance.
8. For convenience, relevant provisions i.e. section 26(6) of Electricity Act and section 38 of the NEPRA Act are reproduced herein below: Section 26(6) of Electricity Act 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 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: 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.
[Emphasis Supplied] Section 38 of NEPRA Act
38. Provincial offices of inspection. -- (1) Each Provincial Government shall--
(a) establish offices 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 tariff 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 tariff and other connected matters before the office of inspection; and
(c) Enforce penalties determined, by the Provincial Government for any such violation.
(2) ..........................................
(3) 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.
[Emphasis Supplied]
9. There is an important aspect in this case, which tend to settle the controversy at naught. The determination of the question posed above requires resolution of an incidental issue i.e. whether the jurisdiction being invoked by Consumer(s) was exercised by the Electric Inspector under section 26(2) of the Electricity Act or by the Provincial Office of Inspection (POI) under section 38(1)
(a) of NEPRA Act? To answer this, we considered the legislative domain and competence viz the subject in hand. It is unequivocally settled that prior to the Eighteenth Constitutional Amendment by virtue of Constitution (Eighteenth Amdt.) Act, 2010 (X of 2010) (18th Amendment), the 'Electricity' was placed in the Concurrent Legislative List and this was the precise reason which allowed the final decisions of representation(s) by the Provincial Government, if a party was dissatisfied of the decision of the Electric Inspector. It was due to such legislative competence and domain that the Electric Inspectors were appointed by the Provincial Government under the Electricity Act and the matters were decided by the Provincial Government in exercise of its powers and legislative domain under the Concurrent Legislative List. However, owing to the sea change brought about by 18th Amendment, the Concurrent Legislative List was done away with and consequently the 'Electricity' was placed at Entry 4, Part II of the 4th Schedule of the Constitution of Islamic Republic of Pakistan (Constitution). As is evident, the 'Electricity' is now exclusively a Federal subject, therefore, as a natural corollary, the jurisdiction, which was previously exercised by the Electric Inspector, at least to the extent of disputes of metering, billing and collection of tariffs etc., is now dealt with by 'POI' as mandated by section 38(1)(a) of the NEPRA Act and not under the Electricity Act. This mandate of law was given effect to in Punjab by promulgation of Punjab (Establishment and Powers of Office of Inspection) Order, 2005 by virtue of notification dated 19.04.2005 (the "Notification") issued under section 38(1)(a) of the NEPRA Act. It is also pertinent to note that letter dated 17.03.2005 addressed by the Irrigation and Power Department, Government of the Punjab to the Chairman NEPRA makes it plain that Notification No. SO(Power)(I&P)21-1/92 dated 09.09.1998 was issued pursuant to the powers vested in the Provincial Government under Section 38 of the NEPRA Act "...whereby Regional Electric Inspectors were declared Provincial Offices of Inspection". As the said notification erroneously directed for resolution of dispute within a period of 90 days, the Irrigation and Power Department issued another Notification dated 17.03.2005 clarifying the issue that there was no such requirement under Section 38 of the NEPRA Act for determining the dispute over metering, billing and collection of tariffs. This unambiguous position is further reflected from the bare perusal of the order passed by respondent No.2 in this case, which would reflect that the same has been passed by POI under the NEPRA Act and not by the Electric Inspector under the Electricity Act.
Classification: 'general' and 'special' Statutes:
9. This brings us to the pivotal question that in case of clear conflict in the provisions of these two enactments, which of the two will prevail as it is a settled law that "special" overrides the "general" and general law is derogated from, by a special law[1]. This principle is of particular application where a general law and a special law are in apparent conflict with each other. To resolve this, we need to determine as to whether both these enactments are special or general or either of the two is a special law or general law. The distinction between general and special statues is often a difficult question to resolve. The classification has to be made by considering the context of the case and subject matter of the statute[2]. It is predominately defined as 'Classification by Subject- Matter & Classification by Object'. There are two classification eras for the statues i.e. 'old classification' & 'modern classification'. The medieval judges seem to have roughly divided the statutes into general and special, and to have decided, as to the first class, that they would notice them judicially in the same way as they noticed the common law or custom of the realm which the statutes declared or altered, and, as to the second class, that they would treat them, like local customs, as exceptions on the general law requiring special proof. This led to the second classification, into public and general as distinguished from private and special, which was thrown into confusion by the practice introduced in the eighteenth century of inserting in special Acts a clause requiring them to be deemed public. The classification of Acts into general Acts and local and personal Acts is a classification of Acts according to the extent of their operation. Bowen L.J., thus described the difference between general Acts and local and personal Acts: "A general Act prima facie is that which applies to the whole community. In the natural meaning of the term it means an Act of Parliament which is unlimited both in its area and as regards the individual in its effect. And as opposed to that you get statutes which may well be public because of the importance of the subjects with which they deal and their general interest to the community, but which are limited in respect of area-a limitation which makes them local - or limited in respect of individuals or persons, - a limitation which makes them personal." "General" he says further, is opposed to "local and personal"; and the division, therefore, lies between public general Acts on the one side, and public, local and personal Acts on the other[3]. It is not well defined but it is recognised by enlarge that a law applicable to a locality or to a class of cases or individuals is a special law as distinguished from a general law which applies to the whole community[4].
Statutes may be classified with reference to; the time when the Acts were passed; their extent; their contents or subject matter; their object; their method; and their duration. Statutes have been classified with different nomenclature. It is sometime assumed that the rules of interpretation differ according to the class under which the statute falls. A law is a general one when it relates to persons, entities or things as a class, or operates equally or alike upon all of a class omitting no person, entity, or thing belonging to a class. On the other hand, the special act relates to a particular class of person or things of a class. Otherwise, it partakes the qualities of a general law being unlimited in time and perpetual till validly repealed[5]. Acts that can be classed as general acts from one point of view may also be treated as special from another. Considering the foregoing the Electricity Act and NEPRA Act, though both have trappings of general law but since the subject being dealt with under these enactments is exclusively that of Electricity, Consumers and Generation/Distribution Companies, therefore, the consensus which emerges is that both these laws are special laws but there is clearly a repugnancy element in both the provisions, which requires determination as to which of the two will prevail.
Tests of Repugnancy or Inconsistency:
11. The tests applied for determining repugnancy are also well defined. It should be seen; "(i) whether there is direct conflict between the two provisions; (ii) whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law; (iii) whether the two laws occupy the same field. It is too narrow a test to say that two laws cannot be said to be properly repugnant unless there is direct conflict between them, as when one says 'do' and the other says 'don't'. There may well be cases of repugnancy where both laws say 'don't' but in different ways. The true test is that if the dominant law has expressly or impliedly evidences its intention to cover the whole field[6].
Inconsistency of two statutes or provisions:
12. It is one of the cardinal principles of interpretation that a statute should be interpreted in such a manner which may avoid collision with other provisions or statutes. The language of every enactment must be construed so far as possible in accordance with the terms of every other statute which it does not, in express terms, modify or repeal. The law, therefore, will not allow the revocation or alternation of a statute by construction when the words may be capable of proper operation without it[7]. There is an overwhelming consensus in most of the jurisdictions of the world that a later special law may abrogate a prior special law by express repeal or by making provisions, which are inconsistent with it[8]. Since the inconsistency between the relevant provisions of both enactments viz 'the period of 90 days for decision' is evident, therefore, the same requires a determination. Considering the foregoing, it is apparent that Section 38 of the NEPRA Act, being later in time, it lays down an exhaustive code viz the same subject matter of earlier law i.e. Electricity Act and occupies the same field, therefore, it impliedly repealed the relevant requirement of decision within 90 days, as was envisaged under the Electricity Act. On the touchstone of the subject matter test, NEPRA Act though covers most of the subjects to which the Electricity Act applies, however, it is more expansive in nature and there are certain admitted overlapping(s) as well as conflicting provisions in effect, even if not ostensibly so, in both statues e.g. the one in hand.
Section 26(6) of the Electricity Act by its terms is limited to the inquiry by the electric inspector for determining the dispute between the licensee and the consumer regarding the correctness or otherwise of the meter, maximum demand indicator or other measuring apparatus. Section 38 of the NEPRA Act in comparison has a much wider scope. The powers given to POI can be placed in two categories. The first is to enforce compliance with distribution companies' instructions in respect of metering, billing electricity, the POI is authorized to make determination in respect of disputes over the metering, billing and collection of tariffs[9]. Section 38 provides the aggrieved person the right to file an appeal before NEPRA against any decision or order of the POI. Similarly, both are federal enactments but NEPRA Act is later in time, however, it has not explicitly repealed the Electricity Act or any of its provisions, nor there are any non-obstante clauses in the provisions relevant for the purpose of this opinion i.e. Section 26(6), Electricity Act and Section 38, NEPRA Act.
While making determination of the question involved in this case, section 45 of NEPRA Act is of significance, which stipulates that the Provisions of NEPRA Act, rules or regulations made and licenses issued thereunder shall have effect notwithstanding anything to the contrary contained in any other law rule or regulation, for the time being in force and any such law, rule or regulation shall, to the extent of any inconsistency, ceases to have any effect from the date when NEPRA Act comes into force and the NEPRA shall, subject to the provisions of the NEPRA Act, be exclusively empowered to determine rates, charges and other terms and conditions for electric power services. This overriding clause grants precedence to the provisions of NEPRA Act over that of Electricity Act.
Irreconcilable statutes or provisions:
13. In a conceivable case, the very existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilability, if the later set of provisions is, by itself, a complete code with respect to the same matter. In such a case, the actual detailed comparison of the two sets of provisions may not be necessary[10]. One part is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together[11]. A subsequent statute may expressly repeal the inconsistent provisions of an earlier Act. Where, however, the later Act does not expressly contain words to that effect but the two sets of provisions contained in the two enactments are destructive of each other, the provisions in the later Act shall prevail and the Court would treat the earlier provisions as repealed by implication. The law does not favour repeal by implication and the Courts construe the provisions of the Act strictly in this respect. The cardinal principle is that the enacting saving clauses and the proviso should be construed together so as to find out the real intention of the legislature. However, if the provisions of the two enactments are irreconcilable to each other, the rule is that the last must prevail. According to Antonin Scalia and Bryan A. Garner, "It is a principle of statutory construction that a later enacted statute that contradicts an earlier one effectively repeals it. The legislatures are often-despite the presumption to the contrary-unfamiliar with enactments of their predecessors"[12]. While dispelling the presumption that the legislature is aware of the earlier enactment, they have summed up the issue in the words: "We doubt that. The legislative omniscience assumed by this explanation is fanciful. What is not fanciful is the need for a code of laws whose application-or at least whose very existence is clear. A doctrine of readily implied repealer would repeatedly place earlier enactments in doubt[13]". What if the earlier ambiguous provision has already been construed by the jurisdiction's Apex Court to have a meaning that does not fit as well with a later statute as another meaning? Scalia & Garner are of the view, and we tend to ascribe to that view in this opinion: "that even stare decisis is not an insuperable obstacle to giving effect to the implication of the later statute; it is, after all, a new total law (or a new corpus juris) to which the tools of construction are being applied. At this point, however, the need for stability intervenes. A clear, authoritative judicial holing on the meaning of a particular provision should not be cast in doubt and subjected to challenge whenever a related though not utterly inconsistent provision is adopted in the same statute or even in an affiliated statute"[14].
Repeal, its types and necessity:
14. There are two kinds of repeals: 1) an express repeal and/or 2). an implied repeal. Some of the accepted principles for the avoidance of collusion between the statutes are (i) if the provisions of a later act are so inconsistent with those of an earlier act that both cannot stand together, the earlier stands impliedly repealed by the later. This principle is based on the maxims "leges posteriors priores contrarias abrognt (subsequent laws repeal prior contrary laws)". In other words, it means that the latest expression of the will of legislature must prevail. When the new act contains a repeal clause mentioning the act which it expressly repeals, the presumption against applied repeal of other laws is further strengthened on the principle expressio unius est exclusio alterius (The express mention of one thing excludes all other). Further, the presumption will be comparatively strong in the case of Virtually Contemporaneous Acts. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does no more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of construction and comparison of the two Acts. The Supreme Court of United States long ago held that an implied repeal may occur in either of two circumstances; "(1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act." Though rare, implied repeals of each type are hardly unknown. Taking the examples from American Jurisprudence, in constitutional law, Type (1) implied repeal may be noticed in the Seventeenth Amendment, which provides: "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof ......." No express mention is made of Article I, 3: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof ......." But the repeal by contradictory provision is inescapable.[15]
15. On the same question of implied repeal, while considering plethora of case law on the question of power of repeal of laws, be it expressed or implied, Justice GP Singh covered the subject and elaborately discussed the issue in the terms: "A power to make a law with respect to the topics committed to Parliament or State legislatures carries with it a power to repeal a law on those topics. Subject to any constitutional restriction, the general rule is that "the power of a legislative body to repeal a law is co-extensive with its power to enact such a law,: and a Legislature which has no power to enact a law on a particular subject-matter has also no power to repeal the same. A Legislature, however, has no power to bind itself or its successor as to the course of future legislation for to acknowledge such a power will mean that a legislature can curtail its own or its successor's powers which are conferred by the Constitution and which cannot be restricted or taken away except by an amendment of the Constitution"[16].
16. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later act are so inconsistent with or repugnant to the provisions of the earlier act "that the two cannot stand together". But, if the two may be read together and some application may be made of the words in the earlier Act, a repeal will not be inferred[17]." To quote the words of Lord Philmore: "It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language, applicable to and covering a number of cases, of which the particular law is but one. This, as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country. Where general words in a later act are capable of a reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so[18]". The general principle that there is a strong presumption against implied repeal came up for consideration before the High Court of Australia in a joint judgment of the said Court quoted with approval, the following observations of Gaudron J., "It is basic rule of construction that in the absence of express words an earlier statutory provision is not repealed altered or derogated from by a later provision unless an intention to that effect is necessarily to be employed. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.[19]". However, it is equally well settled by now that if the later statute is so worded that repeal flows from it as a necessary consequence, it is the duty of the Court to give effect to it. Thus, when the legislature has given its attention to separate subject and made provisions for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly.
17. An identical proposition was placed for determination before the Supreme Court of Pakistan in Syed Mushahid Shah case[20] where the question was as to which of the two special laws, i.e. Financial Institutions (Recovery of Finances) Ordinance, 20001 (FIO) & The Offences in Respect of Banks (Special Courts) Ordinance, 1984 (the Ordinance, 1984) will prevail. While holding that both are special laws, the Supreme Court observed: that respective scope and sphere of application needs to be examined in order to determine the relationship between the two laws. In other words, 'which law is the more special?' The following paragraphs of the Supreme Court judgment, approving case laws from Pakistani and Indian Jurisdiction on the same moot point, are particularly instructive for the case in hand and are reproduced below with great advantage: Case law from the Indian jurisdiction on this subject is quite extensive. In the case of Shri Ramah Narain v. The Simla Banking and Industrial Co. Ltd. (1956 SCR 603), the Indian Supreme Court, while considering the effect of the overriding effect of two special laws, held as follows:- "On the other hand, if the rule as to the later Act overriding an earlier Act is to be applied to the present case, it is the Banking Companies (Amendment) Act,1953, that must be treated as the later Act and held to override the provisions of the earlier Displaced Persons (Debts Adjustment)
Act, 1951. It has been pointed out, however, that section 13 of the Displaced Persons (Debts Adjustment) Act, uses the phrase "notwithstanding anything inconsistent therewith in any other law for the time being in force" and it was suggested that this phrase is wide enough to relate even to a future Act if in operation when the overriding effect has to be determined. But it is to be noticed that section 45-A of the Banking Companies Act has also exactly the same phrase. What the connotation of the phrase "for the time being" is and which is to prevail when there are two provisions like the above each containing the same phrase, are questions which are not free from difficulty. It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein."
In Kumaon Motor Owners' Union Ltd. and another v. The State of Uttar Pradesh (AIR 1966 SC 785 = [1966] 2 SCR 122) the Indian Supreme Court compared the provisions of the Motor Vehicles Act, 1939 and the Defence of India Act, 1962, particularly Sections 68-B and 43 thereof respectively, and held that the latter would prevail over the former. In the judgment of Sarwan Singh v. Kasturi Lal (AIR 1977 SC 265), the Indian Supreme Court relied upon Shri Ram Narain's case (supra) and observed asunder:- "When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration."
[Emphasis supplied] In Ashok Marketing Ltd. and another v. Punjab National Bank and others [(1990) 4SCC 406], the Supreme Court of India referred to the cases of Shri Ram Narain, Kumaon Motor Owners' Union and Sarwan Singh (supra) and held as under: - "The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. We propose to consider this matter in the light of this principle."
In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and others [(2001) 3 SCC 71], it was observed: - "It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail. The decisions cited in the above context are as follows: Maharashtra Tubes Ltd. v. State Industrial and Investment Corpn. of Maharashtra Ltd; [1993] 2 SCC 144]; Sarwan Singh v. Kasturi Lal [1977] 2 SCR 421]: Allahabad Bank v. Canara Bank [(2000) 4 SCC 406] and Ram Narain v. Simla Banking and Industrial Co., Ltd. [1956] 1 SCR 603]."
The Court went on to quote, with approval, the ratio of the decision in Bhoruka Steel Ltd v.
Fairgrowth Financial Services Ltd. [5 (1997) 89 Comp Cas 547 (Special Court)], the relevant extract of which reads as under: - "It is a settled rule of interpretation that if one construction leads to a conflict, whereas on another construction, two Acts can be harmoniously constructed then the latter must be adopted."
In Messrs Maruti Udyog Ltd. v. Ram Lal and others [(2005) 2 SCC 638] the Indian Supreme Court relied on Solidaire India's case (supra) and held that: - "The said Act contains a non obstante clause. It is well-settled that when both statutes containing non obstante clauses are special statutes, an endeavor should be made to give effect to both of them. In case of conflict, the latter shall prevail."
The Indian Supreme Court in State of Bihar and others v. Bihar M.S.E.S.K.K.Mahasangh and others (AIR 2005 SC 1605) reiterated the principles in Swaran Singh's case (supra) and the Principles of Statutory Interpretation by Justice G. P. Singh (9th Ed.). In Morgan Securities and Credit Pvt. Ltd. v.
Modi Rubber Ltd. (AIR 2007 SC 683), it was held that:- "Both the Acts contain non obstante clauses. Ordinary rule of construction is that where there are two non obstante clauses, the latter shall prevail. But it is equally well-settled that ultimate conclusion would depend upon the limited context of the statute."
In the judgment reported as Employees Provident Fund Commissioner v. O. L. of Esskay Pharmaceuticals Limited (AIR 2012 SC 11) the Court reiterated the principles enunciated in the cases of Shri Ram Narain, Kumaon Motor Owners' Union and Ashok Marketing (supra) and held that:- "Another rule of interpretation of Statutes is that if two special enactments contain provisions which give overriding effect to the provisions contained therein, then the Court is required to consider the purpose and the policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions."
13. As regards the case law from the Pakistani jurisdiction, in the judgment reported as State v.
Syed Mir Ahmed Shah and another (PLD 1970 Quetta 49) Justice Muhammad Afzal Zullah comprehensively dealt with the issue of implied repeal. He discussed and compared the various features of the Pakistan Criminal Law Amendment Act (XL of 1958) and the Criminal Law (Special Provisions) Ordinance (II of 1968) and concluded that for an accused person the mode of trial under the Act is far more beneficial than that under the Ordinance, that both the statutes are inconsistent with each other and clearly exclude the application of the other. He enunciated the accepted general principles for the avoidance of conflict between different statutes.
The list of the principles on the subject is, by no means, exhaustive. Departures from the above principles have been made in individual cases on the basis of the language used in, and the intention found in respect of, particular statute. The approach in Pakistan on various questions of interpretation of statutes, as compared to India, has usually been pragmatic rather than technical. It was observed in the case of Badrul Haque (PLD 1963 SC 704), that "the fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the intent of them that made it". Therefore, it has to be laid down as a governing rule that whenever there are two possible interpretations, the one destroying the intention of the Legislature in passing the Act should not be adopted. But once the intention having been discovered and words having been given correct meaning and interpretation, the Courts will not refuse to give effect to the Legislation merely because it appears to be harsh, unreasonable or even vindictive; because these attributes of a statute fall within the field of policy of the Legislature and go beyond the ambit of the jurisdiction of the Courts. This, of course, is subject to the question of mala fides of the Legislature in enacting a law and the further question whether or not on that basis the Courts can go into validity of a particular law. That subject is not relevant to the discussion of the present case. Therefore, no comments are made thereon.
The principles laid down in Mir Ahmed Shah's case (supra) were cited with approval in the judgment of this Court reported as I. G. HQ Frontier Corps and others v. Ghulam Hussain and others (2004 SCMR 1397). Thus, when there are two special laws both of which contain overriding clauses, in the case of conflict between the two laws generally the statute later in time will prevail over the statute prior in time. However, we are of the opinion that this presumption is not automatic: instead a host of other factors including the object, purpose and policy of both statutes and the legislature's intention, as expressed by the language employed therein, need to be considered in order to determine which of the two special laws is to prevail."
18. Juxtaposing the above principles, the ineluctable conclusion emerges that the elision of 90 days upper-cap for decision of the representation is a conscious omission by the legislature. It is well settled that the omission of words from a statute must be considered intentional on the part of the legislature. Words may not be supplied in a statute where the statute is intelligible without the addition of the alleged omission. Words may not be inserted in a statutory provision under the guise of interpretation. When the general assertion of no change is contradicted by an unquestionable change in a specific provision, the specific will control over the general. The rarity with which the Court has discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the two federal statutes at issue[21]. When a statute specifically permits what an earlier statute prohibited, or prohibits what it permitted, the earlier statute is (no doubt it) implicitly repealed. This principle is well established enough to have been recited in The Federalist by Alexandar Hamilton, who contrasted contradiction of an earlier statute with contradiction of the Constitution; the rule which has obtained in the courts for determining [conflicting statutes] relative validity is that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reasons of the thing. It is a rule not enjoined upon the courts by legislative provisions but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable that between the interfering acts of an equal authority, that which was the last indication of its will should have the preference[22].
19. It is also of note that the same issue has also been decided in the case of "GEPCO and others v.
Pakistan Television Corporation and others" (PLD 2018 Lahore 399), by a learned Single Judge in Chambers of this Court, which opinion as well as the opinion rendered in the case of Muhammad Jamil[23] supra is the correct enunciation of law on the subject.
20. The upshot of the above discussion is that the provisions contained in the NEPRA Act will subside the conflicting provisions of Electricity Act, whenever there is a conflict in the two and both cannot be harmoniously construed, as is the case in hand; the elision of 90 days statutory timeline to decide a representation is a conscious and deliberate omission by the legislature, therefore, the same is not relevant any more.
21. The office is directed to fix this and connected cases, mentioned in 'Schedule-A' attached herewith, for decision(s) before the relevant learned Benches, as per the case management plan, after seeking appropriate orders from the Hon'ble Chief Justice.
1. Interpretation of Statutes, by P.M. Bakshi; (Second Ed., pp. 412-14;), published by Thomson Reuters
2. N S Bindra's Interpretation of Statutes, (Eleventh Ed., pp. 605-07), published by LexisNexis
3. Craies on Statute Law (7th Ed., pp. 55-58), published by Sweet & Maxwell, London
4. Justiniano Augusto De Piedada Barreto vs Antonio Vicente De Fonseca And Ors (AIR 1979 SC 984), pp. 988, 989, Kaushalya Rani v. Gopal Singh (AIR 1964 SC 260, pp.262, 263)
5. Craies on Statute Law (7th Ed., p.54); Understanding Statutes, Canons of Construction by S.M. Zafar (4th Ed., pp.135-38), published by Manzoor Law Book House.
6. Interpretation of Statutes, by P.M. Bakshi; (Second Ed., pp. 865-66;), published by Thomson Reuters
7. Maxwell's Interpretation of Statute, Craies on Statute Law (7th Ed.); Principles of Statutory Interpretation by Justice GP Singh (13th Ed., 2012) published by LexisNexis; Law of Statutory Interpretation by Justice P.S. Narayana (1st Ed.,) published by Asia Law House; N S Bindra's Interpretation of Statutes, (Eleventh Ed.), published by LexisNexis; Reading Law, The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner (1st Ed.), published by Thomson/West; Interpretation of Statutes, by P.M. Bakshi; (Second Ed.,), published by Thomson Reuters
8. Ajay Kumar Bennerjee v. Union of India (AIR 1984 SC 1130), S. Prakash v. K.M. Kurian (AIR 1999 SC 2094)
9. See section 38(a)(ii) of the NEPRA Act.
10. Principles of Statutory Interpretation by Justice GP Singh (13th Ed. Pp. 690-91) published by Lexis Nexis, Law of Statutory Interpretation by Justice P.S. Narayana (1st Ed., pp. 693,94) published by Asia Law House (pp.693, 694)
11. Thomas M. Colley, A treaties on the Constitutional Limitations
12. Reading Law, The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner (published by Thomson/West) (1st Edition)
13. Reading Law, The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner (1st Ed., p.328), published by Thomson/West
14. Reading Law, The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner (1st Ed., p.331), published by Thomson/West
15. Reading Law, The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner (1st Ed., p.328-330), published by Thomson/West
16. Principles of Statutory Interpretation by Justice GP Singh (13th Ed., p. 681, 690, 691), published by LexisNexis; Law of Statutory Interpretation by Justice P.S. Narayana (1st Ed. p. 693, 694) published by Asia Law House
17. Municipal Council, Palai v. T.J. Joseph (AIR 1963 SC 161, p.1564), Trust Mai Lachhmi Sialkoti Bradari v. Amritsar Improvement Trust (AIR 1963 SC 87), Dharan Gdhara Chemical Works v.
Dharan Gdhara Municipality (AIR 1985 SC 1729), A.K. Sabhabathy (Dr.) v. State of Kerala (AIR 1992 SC 1310 , pp.1313, 1314), Cantonment Board, Mhow v. M.P. State Road Transport Corporation (AIR 1997 SC 2013, p.2019)
18. Nicolle v. Nicolle [(1992) 1 AC 284, p.290]
19. Sarswati v. The Queen (1991) 172 CLR 1, p.17)
20. Syed Mushahid Shah and others v. v. Federal Investment Agency and others (2017 SCMR 1218)
21. J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124 142 [2001] (per Thomas J.)
22. The Federalist, No.78, at 468 (Clinton Rossiter ed., 19611).
23. PLJ 2017 Lahore 309.