ABAID ULLAH KHAN, J.--This appeal is directed against the judgment and decree of the learned Civil Judge, Jhang, dated the 27th May, 1986, dismissing the appellant's suit for the recovery of Rs.8,83,023.73 along with interest at the rate of 13 per cent per annum against the respondent. The appellant company Messrs Shams Textile Mills Limited, runs at Chiniot Shams Textile Mills which gets electric supply from the respondent, WAPDA. A grid station which feeds electricity exclusively to the Shams Textile Mills is situate on the Mills' premises. Each of the contesting parties has given its own version of the case. According to the defendant-respondent, WAPDA, on the receipt of a report that electricity was being stolen by the Mills, the Chief Engineer, Electricity, Sargodha directed the Executive Engineer Electricity, Jhang and Executive Engineer. Electricity (M and T), Layallpur (now Faisalabad), to check the electric connection and electricity meters of the Mills. On the 4th July, 1972, Malik Muhammad Nawaz, the then Executive Engineer, Electricity, of Jhang Division, D.W.1, Ghulam Farid, then the Executive Engineer, Electric (M and T) Division, Lyallpur, D.W. 2, accompanied by their Sub-Divisional Officers, Muhammad Ashraf, D.W.3, of M and T Sub-Division, Faisalabad, and Abdul Majid (of Chiniot Sub Division), carried out checking of the electric installations and meters. They found that the anti-stealing boxes containing the electric meters, KVARH and K.W.H, fixed in the Mills to measure the consumption of electricity, had been tampered with, their side seals were bogus and that the meters had been reversed. The Executive Engineer, Malik Muhammad Nawaz, D.W.1, submitted his report D.W.1/B to the Superintending Engineer, Electricity, Sargodha Circle, Sargodha, and Ghulam Farid, D.W.2, sent his report, Exh D.W.2/A, to the Chief Engineer, Electricity, Sargodha Region, Sargodha, in respect of the checking done by them and result thereof. On the directions of the Chief Engineer and Superintending Engineer the revenue staff, WAPDA, Sargodha, issued to the appellant notice on the 28th March, 1973, for payment of the detection bill, Exh P.W.5/B, amounting to Rs. 2,57,294.30, which had been prepared on the basis of the decision communicated through letter No. 2436--2642/MDP/GMD, dated the 29th May, 1971, from M.D. (P), WAPDA, addressed to the Chief Engineer, etc., and whose contents being pertinent for decision of the appeal are reproduced below-- "It has been decided that whenever any anti-theft welded steal box, which is provided and installed by the Department at consumer's premises with the sole object of protecting the Department's muter from being injured or tampered with, is found to have been broken, tampered with or damaged, and prima facie evidence exists of any artificial means having been applied for the dishonest abstraction of electric energy by injuring or tampering with the Department's meter or otherwise preventing the same from registering the correct amount of energy supplied or the electrical quantity contained in the supply, then, in addition to any legal proceedings to be taken against him under the Electricity Act, 1910, the consumer should be charged, as follows, for a period of 6 months as per previous decision of the Authority:--
(a) For Fixed Monthly Charges. 80% of the connected load, or the declared load, or the actual maximum demand, whichever is greater.
(b) For Monthly Energy consumption charges: connected load X 80% load factor x 30 days in a month x 24 hours in a day."
The bill was payable by the 7th April, 1973, and failure to pay by the said date was to result in discontinuance of electric supply to the Mills.
2. The appellant denied that the meters had been tampered with and asserted that their seals were intact and had never been broken. It averred that the respondent's representatives had been carrying on occasional inspection of meters and had been finding it in order. It described the report of the Executive Engineer (M and T), Lyallpur, wherein it had been stated that the appellant had tampered with the meters and its seals and had committed theft of electric energy to be false, frivolous and malicious.
3. The appellant challenged the validity of the detection bill by means of a suit which it instituted on the 5th April, 1973, in the Civil Court of Lahore and secured temporary injunction pendente lite restraining the respondent from disconnecting, the supply of electricity to the Mills. For lack of possession of territorial jurisdiction the learned Court returned the plaint of that suit to the appellant on the 3rd April, 1975, for presenting it to the Court in which the suit should have been instituted. With the return of the plaint the injunction order lapsed. On the 4th April, 1975, at 8.50 a.m., the respondent disconnected the supply of electricity to the Mills. The appellant deposited the amount of detection bill along with surcharge, total Rs.2,83,023.73, that very day and the electric connection was restored at 2-10 p.m.
4. Describing the respondent's action and its demand of the detection bill to be unlawful the appellant filed suit on the 14th December, 1976, for refund of the amount of detection bill and recovery of damages for the loss that it allegedly suffered in consequence of closure of the Mills as a result of disconnection of electric supply and on account of adverse effect upon its reputation. It averred that consequent upon the disconnection of electric supply the Mills had remained closed completely for 24 hours thereby causing loss of production of the value of Rs.1,00,000 without any fault of the Mills management. It maintained that it suffered in reputation very badly because it had been given out that it was dishonest and had dishonestly tampered with the seals of the meter to avoid proper payment for consumption of electric energy and that fact had affected its business and reputation; it claimed damages to the tune of Rs.5,00,000.00 on that account. It mentioned that it paid the detection bill under protest.
5. The appellant denied that the meters or their seals had been tampered with or that the meters were prevented from recording correct consumption of electricity. It complained that the demand of the amount of detection bill had been raised in its absence, without any intimation and without hearing it. It maintained that it had never consumed any energy in excess of what had been paid for. The competency of the respondent to recover the amount of detection bill was disputed on the grounds that there existed no provision in the Electricity Act, 1910, for the imposition of any average or detection bill, that the amount could not be recovered without the decision of the Government Electric Inspector and that as per agreement between the parties the charges were to be made on the basis of the consumption shown by the meter.
6. The respondent contended that the appellant had tampered with the meters and broken their seals thereby causing immense loss. It asserted its competence to issue the detection bill and justified disconnection of electric supply for non-payment of bill. It stated that the appellant had voluntarily paid the amount of bill.
7. The learned Civil Judge, Jhang, held trial of the suit on the following issues,
(1) Whether the plaintiff is entitled to recover the suit amount from the defendant along with interest at the rate of 13% per annum?
(2) Whether the plaintiff deposited the disputed amount under protest as compelled by the circumstances?
(3) Relief.
8. The learned Civil Judge accepted the respondent's version of the case that the checking carried out by its officers on the 4th July, 1972, was in order and that the appellant was responsible for the tampering with the meters. The learned Judge repelled the appellant's contention that 'for charging the average bill the respondent was required in accordance with section 23 (3) (c) of the Electricity Act, 1910, to get the approval of the Provincial Government' by saying that 'the condition of approval by the Provincial Government had been removed by proviso to section 12 of the West Pakistan Water and Power Development Authority Act, 1958 (XXXI of 1958)'. He endorsed the power of the respondent to charge the appellant in the manner it did under Section 26-A of the Electricity Act, 1910, and held the respondent's action to be lawful. He did not consider the appellant entitled to any damages. He was of the view that the appellant had not deposited the amount in dispute under protest. Consequently he dismissed the suit leaving the parties to bear their own costs.
9. The learned counsel for the appellant contended that no actual physical checking of the electric meters installed at the Mills had been carried out by the respondent's officers on the 4th July, 1972, and that the reports of the Executive Engineers, Exhs. D.W.1/B and D.W.1/A, mentioning tampering with of the meters had been fabricated without visiting the Mills and without inspecting and examining the meters. However, the learned trial Court has believed the respondent's evidence touching conducting of checking by the respondent's functionaries on the 4th July, 1972, and there seems no reasons to depart from its finding. The learned counsel then launched two pronged attack on the validity of the checking without conceding its having taken place. He maintained that the respondent had not given any prior notice for holding the checking and that the checking staff had committed violation of the provisions of section 20 (1) of the Electricity Act, 1910, then in force inasmuch as they had not associated with them, before entering the premises of the Mills, one or more respectable residents of the area or locality in which the premises was situated. He drew our attention to section 20 (1), which had been substituted on the 23rd December, 1971, for the earlier section 20 (1) by the Electricity Act (Punjab Amendment) Ordinance, 1971 (XXIX of 1971), and which runs as follows: "20 (1) A licensee or any person duly authorised by him may, at any reasonable time after informing the occupier of the premises of his intention, enter the premises to which energy is, has been, or is to be supplied by him, for the purpose of-
(a) examining, inspecting and testing the electric supply-lines, meters, electric wires, fittings, works and apparatus for the supply or use of energy, whether belonging to the licensee or to the consumer; or
(b) ascertaining the amount of energy supplied or the electrical quantity contained in the supply; or
(c) removing, where a supply of energy is no longer required, or where the licensee is authorised to take away and cut off such supply, any electric supply-lines, meters fittings, works or apparatus belonging to the licensee: Provided that before entering such premises the licensee or any person duly authorised by him in this behalf shall associate with him one or more persons who, in his opinion, may be the respectable residents of the area or locality in which the premises is situated."
What the inspecting officers did, as transpires from the depositions of Malik Muhammad Nawaz, D.W.1, and Ghulam Farid, D.W.2, was that they associated the Administrative Officer of the Mills, Nasir-ud-Din, with the checking though the appellant denied that Nasir-ud-Din was its Administrative Officer or that its Administrative Officer was ever associated with the checking proceedings. Ghulam Farid, D.W.2, said that when he entered the Mills premises he had met the General Manager of the Mills and that the latter had made the Administrative Officer of the Mills accompany him. He added that he had told the General Manager that there had been a complaint of stealing of electricity. The respondent's record, inclusive of the reports of Malik Muhammad Nawaz and Ghulam Farid, is silent on the point of presence of Nasir-ud-Din or of an Administrative Officer at the time of checking of the meters. Anyway having the Administrative Officer of the Mills with them when the respondent's officers checked the meters was not equivalent to fulfillment of requirement of section 20 (1) of the Electricity Act, 1910, demanding association of respectable residents of the area or locality before entering the premises of the Mills.
10. Admittedly before entering the Mills premises the respondent's officers did not associate with them any respectable resident of the area or locality as required by section 20(1) of the Electricity Act, 1910. Malik Muhammad Nawaz, D.W.1, when questioned, expressed his ignorance of the existence of any provision of law requiring association of respectable residents of the area or locality before entering the premises of the consumer for the purpose of carrying out checking.
Ghulam Farid, D.W.2, said that the respectable residents of the area or locality had not been associated because the Mills was situated at an isolated place. Malik Muhammad Nawaz, D.W.1, gave no such explanation for non-association of the respectable residents nor was it mentioned by any of the respondent's officers anywhere in the record or in their reports. It is difficult to imagine that no resident of the area or locality was available. The word "area" connotes stretch of wider space and it would have been possible for the respondent officers to procure attendance of some persons, though living at some distance from the Mills, for joining them in their checking.
11. The learned counsel for the appellant could not point out any provision of law which mandated giving of prior notice to a consumer for checking the meter in case of complaint of theft of electricity against him. The respondent was A not under obligation to issue any notice to the appellant before examining, inspecting or testing of the electric meters installed at the Mills premises. Nevertheless, the respondent's officers deputed to carry out examination and inspection of the electric meters were definitely required under the law contained in section 20(1) of the Electricity Act to associate with them one or more respectable residents of the area of locality in which the Mills premises were situate before entering the premises for carrying out checking. This wholesome provision of law was enacted to ensure fairness of checking carried out by the respondent or its authorised functionaries, because respectable persons, other than the licensee, consumer and their people, act as a sort of independent impartial observers, and demanded its strict compliance. Its breach by the respondent's staff would tend to chip away the legality of the checking l proceedings.
12. The learned counsel took exception to the use of section 26-A of the Electricity Act by the learned trial Court to justify the issuance of the detection average bill in dispute by the respondent to the appellant. He pointed out that section 26-A was inserted in the Electricity Act and came into force years after the bill had been issued and further that it had no retrospective effect so as to validate the bill. It is true that section 26-A was introduced in the Electricity Act, I 1910, on the 9th December, 1979, by virtue of section 7 of the Electricity Act (Amendment) Ordinance 1979 (LXII of 1979), and was to have only prospective I effect. Not being in force when the bill was issued it was not permissible for the I learned trial Court to press its provisions to justify the issuance of the bill.
13. The learned counsel submitted that the observations of the learned Civil Judge regarding application of proviso to section 12 of the Pakistan Water and Power Development Authority Act, 1958 (XXXI of 1958), reflected his thinking that the respondent had been given free hand to charge a consumer in the manner in which it billed the appellant without having the method adopted by it approved by the Provincial Government under section 23(3)(c) of the Electricity Act, 1910. The learned counsel entered caveat to the learned Civil Judge's thinking in this behalf by saying that the above-mentioned proviso to section 12 did not have the effect of nullifying the provisions of section 23(3)(c). The argument of the learned counsel is not without force. The proviso to section 12 simply says that nothing in sections 3 to 11, subsections (2) and (3) of section 21 and sections 22, 23 and 27 of or in clauses I to XIII of the schedule to the Electricity Act, 1910, relating to the duties and obligations of a licensee shall apply to WAPDA, the respondents. It requires no strenuous effort to infer from the reading of section 23(3) of the Electricity Act, which is reproduced below, that the proviso to section 12 of the Pakistan Water and Power Development l Authority Act was not intended to suspend the operation of clause (c) of l subsection (3) of section 23:-- Section 23(3) In the absence of an agreement to the contrary, a licensee may charge for energy supplied by hum to any consumer--
(a) by the actual amount of energy so supplied, or (b) by the electrical quantity contained in the supply, or
(c) By such other method as may be approved by the Provincial Government.
The interpretation of section 12 by the learned Civil Judge vis-a-vis its application to section 23 is obviously not correct.
14.The learned counsel contended that under the contract between the parties the respondent could not charge the appellant anything in excess of the actual consumption of amount of energy consumed by it or otherwise than in accordance with law. He asserted that the directions contained in the letter No.2436-2642/MDP/GMD of M.D. (Power) of WAPDA, whose contents have been reproduced above, and on whose basis the bill was prepared and issued, had no blessing of law and were as a matter of fact ultra vires the respondent's authority.
15. The learned counsel for the respondent could not refer to any provision of law under which such directions could be issued and the consumer could be charged for in the manner indicated in the letter. In the absence of any law then in force allowing charging a consumer according to the directions given in the letter of M.D. (Power), the respondent's action of preparing and issuing the detection bill in dispute and calling upon the appellant to pay the same and subsequent disconnection of the electric supply to the Mills due to its non--payment cannot but be held to be invalid. The appellant is entitled to the refund of the amount of bill, Rs.2,83,023.73.
16. The appellant fought the suit questioning the validity of the bill for two years and it was during the interregnum when the plaint of the suit returned by the Lahore Court was to be presented to the Court where the suit should have been instituted that the respondent disconnected the supply of electricity to the Mills bringing the entire working of the Mills to a stand still. The appellant had been left with no other option except of paying the bill if the Mills were to start working again; he had to pay the bill through the nose for getting the Mills business on the line again. In the circumstances the appellant could not be said to have paid the bill voluntarily as was thought of by the learned Civil Judge. Its contention that the bill was paid under protest is visibly correct.
17. It cannot be denied that the natural consequence of the disconnection of the electric energy to the Mills would be closure of the Mills. The electric supply was disconnected at 8-50 a.m., and was restored after about four and a half hours. The management of the Mills had of course to make efforts in paying the bill and getting the supply of electricity restored. It is conceivable, and it does not appear to be unnatural, that when electric supply remained suspended for quite some time extending over hours the management of the Mills and the staff working therein might have thought of closing the Mills for a day and the work in the Mills thus remained suspended till the next day. The appellant's contention that the Mills remained closed for 24 hours can very well be correct.
The appellant has brought on the record the Directors' and Auditors' report containing statements of accounts, profit and loss, etc., of the appellant for the year ending 1975, duly audited by the Chartered Accountants, Exh P4/A, and the costs analysis for the year 1974-75, Exh P.W./B, and has produced Muhammad Latif, Accountant Incharge P.W.4, to bear out that the Mills suffered loss of Rs.1,271,72.00 for a day's closure. The appellant's evidence, based as it is on proper documentation and stands unrebutted by the respondent, cannot be easily discarded. The appellant has claimed loss to the extent of Rs.1,00,000 which is slightly less than the loss actually suffered by it for a day's closure of the Mills. This loss the l appellant suffered due to the illegal act of the respondent and, therefore, the latter must compensate the former in the amount of Rs.1,00,000.
18. As regards loss of reputation to the extent of Rs.5,00,000 claimed by the appellant there is no cogent evidence to justify award of damages on this account. Therefore, nothing in this behalf is payable to the appellant.
19. In view of what -has been said above the appeal is accepted, the judgment and decree of the learned trial Court are set aside and a decree for the recovery of Rs. 3,83,023.73 is passed in favour of the appellant and against the respondent with proportionate costs through out; the appellant's suit in respect of the realization of the remaining amount of Rs.5,00,000 is dismissed.
AKHTAR HASAN, J.--I am in respectful agreement with the leading judgment recorded by my learned brother. However, I feel that section 12 of the Pakistan Water and Power Development Authority Act, 1958 (W.P. Act XXXI of 1958), had the necessary intendment to wipe out the effectiveness of any "method" as may have been approved by the Provincial Government under section 23 (3) (c) of the Electricity Act, 1910. The fact remains that no such "method" was brought to limelight. Nonetheless it could not possibly be without entailing some "duties and obligations" of a licensee towards the consumer in the context of charging for the energy supplied to him. For instance, such method may quite exiomatically envisage a notice, a prior information, or associating him with the process of working out the charges. Compliance with such requirement will turn out to be a "duty or obligation" on the part of the licensee towards the consumer, and it was this compulsive duty etc. Which was intended to be totally abolished by the Proviso to section 12 ibid. As a consequence, the Authority will not be bound by such duty or obligation.
2. Notwithstanding the view that section 23 of the Electricity Act was overridden as indicated above, there still remained room to proceed against the consumer under section 20 thereof as it was not included among the sections intended to be overridden by Section 12 of the Pakistan Water and Power Development Authority Act, 1958. Section 20 has been reproduced in para. 9 supra. A licensee or any person duly authorised by him could there under enter the premises for purposes of examining, inspecting or testing the meters etc. But only "after informing the occupier of the premises of his intention". This duty or for that matter an obligation has not been abolished or abridged by any device including the proviso to section 12 ibid. This requirement was besides the need to associate one or more respectable residents of the area in which the premises were situate. I subscribe to the view adopted by my learned brother that this provision was breached having had the effect of chipping away legality from the process of checking the premises.
3. It is true that the M.D. (Power)'s letter founding a claim of Rs.2,83,023.73 against the appellant- Mills was unauthorised inasmuch as it was supportable by no provision either of the Electricity Act or the Pakistan Water and Power Development Authority Act. The only method to seek recovery of charges for the electricity used was provided in section 26 of the Electricity Act as amended by the Electricity Act (Punjab Amendment) Ordinance, 1971 (XXIX of 1971). It was a case as per Explanation to section 26 of a meter not correctly registering the amount of energy within the prescribed limits of error and hence the only method to resolve the difference or dispute was to have made a reference to the Electric Inspector under subsection (6) thereof. The record shows that no such effort was made and the M.D. (Power) of the respondent --WAPDA himself calculated it as quoted in para.1 of the leading judgment. It cannot be sustained. Probably the method of reference to the Electric Inspector is even now open to the parties, of course, subject to all just exceptions.
4. I agree to the relief granted to the appellant in the operative portion of the judgment.