This judgment shall dispose of Writ Petitions Nos.2033, 2004, 2005, 9814, 9815, 10215, 10216 of 1991--- 692, 1518, 1542, 3666, 4553, 11145, 11359, 11362, 11367 of 1992 and 1217, 1218, 1243, 1595, 1989, 3429 and 6931 of 1993. The common question involved in these petitions is as to whether Water and Power Development Authority, the respondent, No.1 herein, is entitled to recover fixed charges from its consumers even for the period when it could not supply any electricity due to load-shedding undertaken by it.
2. The petitioners in all these petitions are running various industrial Units and are being supplied electricity by the respondents. There is no dispute that the Tariff applicable to the petitioners is Tariff B-3 which provides for payment of minimum monthly charges in addition to the price of actual energy consumed by the petitioners. These minimum charges, which are also known as fixed charges are worked out on the basis. Of sanctioned load or the maximum demand of a consumer while charges for actual consumption are determined on the basis of energy consumed as recorded by the meter.
3. The grievance of the petitioners in these petitions is that although due to the shortage of electricity available with it, the respondent has resorted to load-shedding as a result of which for a certain period of time the premises of the petitioners are not supplied with any electricity yet the respondents have been recovering fixed charges even for that time.
4. I have had the privilege of hearing Kh. Habib Ullah, Advocate who led arguments on behalf of the petitioners. He by referring to the Electricity Act, 1910 and the various provisions in the Schedule of Tariff, contended that fixed charges can only be recovered by the respondent when it is either actually supplying the electricity or is in a position to make the supply even, though it may not be consumed by the petitioners. According to the learned counsel if the respondent itself is unable to make the requisite electricity available for consumption, it cannot demand the fixed charges. In support of this argument reliance was placed by the learned counsel on a decision of the Indian Supreme Court in Bihar State Electricity Board and another v. M/s. Dhanawat Rice and Oil Mills AIR 1989 SC 1030.
The learned counsel explained with great clarity that non-supply of electricity during the period of load-shedding is not on account of some viz majo but is due to the reason that during load- shedding respondent No. l is unable to meet the demand of its consumers and has to ration its supply. It was emphasised that even at that time the available amount of energy is being consumed by other consumers from whom charges are recovered by the respondent and it would be highly unjust to permit the respondent to recover the charges for the same amount of electricity twice from two different consumers. The learned counsel further maintained that the impugned action of the respondent amounts to compulsory exaction of money and deprivation of the right to property and is thus violative of Articles 24 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.
5. On behalf of the petitioners, the case was also argued by Mr. Abdul Aziz Akhgar, Mr. Muhammad Younis Chaudhry, Advocates as also Mr. Fazal-i-Miran Chohan and Mr. Yousaf Asim, Advocate, Mr. Fazal-i-Miran Chohan, Advocate drew the attention of this Court to WAPDA v. Saeed Ice Factory (1989 M LD 4329), while Mr. Yousaf Asim submitted that `electricity' falls within the definition of "goods" within the meaning of Sale of Goods Act, 1934 and its sale is as such regulated by the said Act. He also relied upon Electricity Rules, 1937 to argue that the liability of the petitioner to pay for the energy only arises when the energy reaches the meter and not otherwise.
6. Mr. Muhammad Ilyas Khan, learned counsel appearing on behalf of the respondents has argued with great skill and industry. In the first instance, he maintained that under the contract entered into between the parties, the petitioners were liable to pay fixed charges irrespective of their actual consumption. According to the learned counsel, the levy of fixed charges is not dependent upon consumption of energy but has reference to the sanctioned load as such non-supply of non- consumption of electricity for a period of time cannot relieve the petitioners of their obligation to pay the fixed charges. In support of this contention he heavily relied upon WAPDA through Chairman and 2 others v. Makka Ice Factory through Mian Amanullah PLD 1991 SC 813 and the judgment of this Court in Haji Muhammad Sharif v. WAPDA (W.P.11197/91) decided on 1-12-1991. He elaborated that even during the period of load-shedding, the respondents have to maintain their network and are, therefore, justified in recovering the fixed charges.
7. The learned counsel also objected to the maintainability of these petitions on the ground that contractual rights cannot be enforced through Constitutional jurisdiction .Of this Court and further maintained that the petitioners are estopped from filing the petitions or claiming refund as they have been paying the fixed charges without any protest and demur and the matter is a past. And closed transaction.
8. The. Water & Power Development Authority, respondent herein, is a statutory Corporation established under the Water & Power Development Authority Act, 1958 and has the status of a `licensee' within the meaning of Electricity Act, 1910, by virtue of section 12 of the Water & Power Development Authority Act, 1958. Under section 25 of the Electricity Act, 1910, the respondent 1 is entitled to fixed charges for the sale of power. It is in the exercise of this power that the respondent No.1 with the previous approval of the Federal Government has been issuing Schedule of Tariffs from time to time providing for rates to be charged from different kinds of consumers.
9. As the petitioners are utilizing the energy for industrial purposes, it is common ground between the parties that they are liable to be charged in accordance with Tariff B-3 of the Schedule of Tariff.
This Tariff applies to sanctioned load above 500 Kilowatts and up to 5000 Kilowatts and provides for payment of fixed charges per kilowatt per month in addition to the energy charges for the units of the electricity consumed by the consumers. It stipulates that minimum monthly charges are payable even if no energy is consumed. `Fixed Charges' have been defined in the Schedule as "the charges for the Authority's reservation of power for the consumer's billing demand in kilowatt as defined above". Again `billing demand' is defined in the Schedule as under: "Billing Demand," for the purpose of this Tariff during a month, means the highest of the following:
(a) The actual maximum demand recorded during the month.
(b) Ninety per cent of the highest figure of maximum demand recorded in any month during the preceding eleven consecutive months. If a consumer remains disconnected during the preceding eleven consecutive months or any part thereof, then the period of eleven consecutive months shall be reckoned ignoring the period of such disconnection.
(c) Fifty per cent of the total sanctioned load.
(d) 501 KW, where sanctioned load is more than 500 KW, or in the case of consumers having sanctioned load of 500 KW and below, 60 per cent of the total capacity of the transformers installed at their premises to be calculated in KW at 85 per cent power factor.
10. It emerges from the above that a consumer governed by Tariff B-3 is liable to pay `fixed charges' in addition to the actual energy consumed by him and these `fixed charges' are payable notwithstanding that he may not have consumed any electricity at all. As mentioned in the Schedule itself, the `fixed charges' mean `the charges for the reservation of power by the Authority for the benefit of the consumer.' The rationale for levying the fixed charges, is not Q, difficult to understand. If on an application made by a consumer, the Authority had reserved a certain quantity of energy for his use, he in all fairness must pay the reservation charges worked out either on the basis of the sanctioned load or the load recorded by the maximum demand indicated whichever is greater. In Water & Power Development Authority through Chairman and 2 others v.
Makka Ice Factory through Mian Amanullah PLD 1991 SC 813 the Supreme Court of Pakistan was pleased to observe that: "The rationale behind the levy of minimum charges is that during the period of temporary disconnection the Authority has to keep ready with the `sanctioned load' and continue to maintain the necessary setup in this behalf, to make the energy available to the consumer when asked for.
The consumer, therefore, has to be burdened with all incidental charges including service charges."
11. The situation, however, in the present case is different. The admitted position between the parties is that though the petitioners are ready and willing to consume the electricity reserved for them by WAPDA but the respondent due to its own difficulties is not in a position to supply any energy or electricity for a certain period of time and has to resort to the device of load-shedding with a view to provide electricity at least for some period of time to all its consumers. In such eventuality on no reasonable principle can the respondent claim that even though it is on account of its own inability that it cannot supply any electricity to the consumers yet they should pay the fixed charges. This plea on the part of the respondents is negated by the wording of Schedule of Tariff itself according to which the minimum monthly charges are to be paid even if no energy is consumed. The use of word `consumed' as distinguished from `supplied' in this provision clearly shows that though fixed charges are payable despite non-consumption of any electricity but it certainly does not empower the WAPDA to levy fixed charges even if no electricity is supplied by it.
12. As has been contended by the learned counsel for the petitioners, at the time when the electricity is not being supplied to a consumer on account of load-shedding, electricity is not going waste but, is being consumed by other consumers against payment. The respondents cannot, therefore, claim the price of same amount of electricity twice from two different consumers.
13. The reliance of the learned counsel for the respondent on Makka Ice Factory's case is not apt, for in that case, it was on the request of the consumer that the connection had been disconnected temporarily and it was observed that as WAPDA had to maintain its lines and other infrastructure, notwithstanding that the consumer consumed the electricity, he was liable to pay charges. As will be appreciated, in that case, it was not on account of inability of WAPDA to supply electricity that the connection was disconnected. This view fords support from the judgment of the Indian Supreme Court in Bihar State Electricity Board and another v. M/s. Dhanawat Rice and Oil Mills AIR 1989 SC 1030 wherein the controversy involved was exactly the same as in the present case, namely, if the Electricity Board was unable to supply continuous electricity for a period of time, can it recover minimum guarantee charges? The High Court held that on account of the failure of the respondent to supply electricity, the consumers were not liable to pay annual minimum guarantee charges in entirety. The Indian Supreme Court, however held that the consumers were entitled to the proportionate reduction in payment of minimum guarantee charges for the period during which the electricity had not been supplied.
14. Mr. Muhammad Ilyas Khan has placed on record a copy of agreement incorporating abridged terms and conditions under which supply is being made by WAPDA to its consumers. The learned counsel relied on condition No.19 to submit that notwithstanding non-consumption of electricity by the petitioners they are liable to pay the `fixed charges' and that they cannot claim that they be charged by a different method.
15. This argument of the learned counsel is not well-based. The petitioners do not dispute their liability to pay for the electricity supplied to them in accordance with the provisions of the Schedule of Tariff itself but, as already pointed out, there is nothing in the Schedule which obliges the consumers to make payment of the `fixed charges' even if no electricity is supplied by the respondent-Authority without any fault on the part of the petitioners. .
16. Mr. Muhammad Ilyas Khan heavily relied upon proviso to section 22 of the Electricity Act, 1910 to contend that the petitioners are under an obligation to pay the `fixed charges'. This argument of the learned counsel has no force. The payment of charges under the proviso would arise only when the electricity is being continuously supplied to the consumers by WAPDA and not when it is unable to do so on account of its own difficulties.
17. Furthermore, as has been pointed out by Mr. Muhammad Ilyas himself, by virtue of proviso to section 12 of WAPDA Act, 1958, section 22 has no applicability to the respondents. The learned counsel, however, maintained that the exclusion of section 22 of the Electricity Act by section 12 of the Water and Power Development Authority Act, 1958 is of limited nature inasmuch as only the obligations mentioned in the aforesaid section and not the rights contained therein do not apply to the respondents. In his submission, though the main provisions of section 22 cannot be pressed into service in case of WAPDA yet the proviso to section 22 can be invoked.
18. This argument of the learned counsel has no legs to stand. Proviso is a part of section 22 and cannot stand independently. It cannot be contended with any seriousness that though applicability of the main provision stood excluded E by section 12 of the Water and Power Development Authority Act, 1958 yet proviso remains applicable.
19.Reverting now to the plea of waiver and estoppel raised by the learned counsel for the respondents, it is to be seen that prior to filing of the petitions except W.P. No.11145/92, petitioners have been paying `fixed charges' without any protest or raising any dispute as to the entitlement of the respondents to receive the same. Consequently, so far as the period earlier to the filing of these petitions is concerned, it has become a past and closed transaction and the petitioners are not entitled to claim any refund of the amount which they have willingly and unhesitatingly paid.
However, this argument cannot be made basis for denying the petitioners, relief from the period thereafter when they raised their protest either by filing these petitions or by taking other judicial proceedings. To that extent the petitioners are clearly entitled to succeed.
In view of what has been stated above, these petitions are allowed to the extent that the action of the respondents in recovering the `fixed charges' for the period during which the load-shedding remained in operation is declared to be without lawful authority and of no legal effect. However, no order directing the respondents to refund the amounts received in past by them is being passed in view of the fact that these payment had been made without any protest. All these cases are remitted to the Authority concerned which shall work out the period during which the load- shedding has remained in operation and the petitioners shall be allowed relief from the date of filing of all these petitions or from the date when they made protest against the levy of `fixed charges' by resorting to judicial proceedings. No order as to costs.