1. BASHARAT AHMAD SHAIKH, J.--A learned Single Judge of the High Court has accepted two writ petitions and has held that Azad Government of the State of Jammu & Kashmir and Officers of the Electricity Department, appellants in Civil Appeal No,38 of 1994 (Azad Government and others v.
2. Nafees Bakers and another) while receiving charges for consumption of electricity in Mirpur City, particularly in case of two petitioners before the High Court, had been acting in discriminate manner, arbitrarily, maliciously and without lawful authority. Consequently a direction has been issued forbidding receiving of charges falling under six heads, namely, (1) Fuel adjustment charges, (2)
3. Electricity duty, (3) Education cess, (4) Tariff surcharge; (5) Minimum charges and (6) Income-tax charges. A further direction has been issued that rate of industrial tariffs be applied while dealing with Nafees Bakers. The High Court has also held that electricity is a subject falling under the jurisdiction of the Azad Jammu and Kashmir Council. It has also been held that Pakistan Water and Power Development Authority (WAPDA) not being under the control of Azad Jammu and Kashmir Council or the Azad Government of the State of Jammu and Kashmir cannot under law prescribe rates for supply of electricity in Azad Jammu and Kashmir.
4. 2.Two appeals have been filed with leave of the Court to challenge the judgment of the High Court.
5. Civil Appeal No,38 of 1994 has been filed by Azad Government of the State of Jammu and Kashmir, Chief Engineer Electricity, Executive Engineer Electricity Department Mirpur and Electricity Department, Mirpur, while Appeal No,49 of 1994 has been filed by the Azad Jammu and Kashmir Council, Commissioner Income Tax Azad Jammu and Kashmir and Income Tax Officer, Mirpur. The Azad Jammu and Kashmir Council and others, appellants in Civil Appeal No,49 of 1994, were not impleaded as a party in the writ petitions and have filed appeal because the direction given by the High Court that income-tax shall not be recovered alongwith the electricity bill has adversely affected the said appellants as income-tax is a subject under the legislative and executive competence of the Azad Jammu and Kashmir Council.
6. 3.We have heard Raja Muhammad Hanif Khan and Mr. Umar Mahmud Kasuri, Advocates, in support of the appeals. Mr. Muhammad Azam Khan and Ch. Muhammad Riaz Alam, Advocates, argued the cases on behalf of the respondents. Mr. S.M. Masud, Advocate, addressed the Court on behalf of the General Manager, WAPDA; who is a pro forma-respondent in Appeal No,38 of 1994. The arguments continued for two days.
7. 4.Before coming to the validity or otherwise of the charges under dispute in the present litigation we deem it proper to advert to the legal status of the Electricity Department of Azad Jammu and Kashmir. As mentioned earlier, the High Court has observed that it is the Azad Jammu and Kashmir Council which enjoys the legislative and executive powers in respect of electricity. As is known the Azad Jammu and Kashmir Council is not dealing with electricity and it is the Electricity Department of Azad Government of the State of Jammu and Kashmir which is handling the generation as well as supply of electricity to consumers. There is no dispute about the Constitutional position that electricity being a subject enumerated in the Council legislative list falls under the exclusive jurisdiction of the said Council in light of subsection (2) of section 31 of the Azad Jammu and Kashmir Interim Constitution Act. Under section 19 of the Constitution Act the Executive Authority of the Government extends only to the matters with respect to which the Assembly has powers to make laws and has to be so exercised that compliance of the laws made by the Council is secured. It is provided in subsection (7) of section 21 of the Constitution Act that Executive Authority of the Council shall extend to matters to which Council has power to make laws. It follows that the subject of electricity has been placed by the Constitution Act within the exclusive domain, legislative and executive, of the Council. This position was not denied by Raja Muhammad Hanif Khan, the learned counsel for Azad Government of the State of Jammu and Kashmir, but he en deavoured to prove that this question did not fall for determination in the present litigation. He submitted that the point was not included in the writ petition and it also does not appear that it was argued before the High Court. It was, therefore, contended by the learned counsel that the High Court should not have given any finding on this point.
8. 5.We find that although the High Court has made an observation that the subject of electricity falls within the purview of the Azad Jammu and Kashmir Council but has not issued a direction or declaration that the Azad Government of the State of Jammu and Kashmir shall stop dealing with the supply and distribution of electricity. In the writ petitions the validity of the charges being received from the consumers was challenged. The record shows that in reply different notifications and tariffs issued by the Government and WAPDA were pressed into service. In order to determine the validity of the charges it became necessary to examine all the legal provisions relating to electricity. Without doing that the High Court could not have decided the validity one way or the other.
9. 5-A. We observe that this question has been raised by Nafees Bakers and Mir Khalid Bashir in their separate concise statements in Appeal No,38 of 1994. It has been contended that under the Constitution Act, Azad Jammu and Kashmir Council alone is competent to deal with matters conjoining electricity and Azad Government of the State of Jammu and Kashmir has no authority to issue any order concerning this subject. Clearly it is a question of law of public importance relating to the interpretation of the Constitution. It is settled practice of this Court to allow such points to be raised for the first time if, while resolving such a point, no investigation of facts is required. In consequence of this practice we would have allowed this point to be argued before us even if the High Court had not dealt with it. No exception can, therefore, be taken to this aspect of the matter.
10. However, we may make it clear that we do not thereby propose to go outside the pleadings of the parties and to give a direction or declaration for which a case was not properly set up in the writ petitions.
11. 6.The subject of electricity is within the legislative and executive competence of the Council. The Azad Government has nothing to do with it in light of the Constitution Act. It was sought to be argued by Raja Muhammad Hanif Khan that the Government is dealing with the electricity in accordance with the authority delegated to it by the Azad Jammu and Kashmir Council. This argument was met by Mr. Muhammad Azam Khan by contending that even if any authority has been delegated to the Azad Government by the Azad Jammu and Kashmir Council it is unconstitutional. Reference has been made to subsection (3) of section 19 of the Interim Constitution Act which lays down that:-- "Notwithstanding anything contained in this Act, the Government may, with the consent of the Council, entrust, either conditionally or unconditionally, to the Council, or to its officers functions in relation to any matter to which the executive authority of the Government extends."
12. It was contended that there is no corresponding provision laying down that the Council may also entrust any of its functions to the Azad Government which leads to the logical result that while the Government is authorised by the Constitution to entrust, with the consent of the Council, any function to which the executive authority of the Azad Government extends to the Council or its officers but the Azad Jammu and Kashmir Council cannot entrust any of its functions to the Government.
13. Confronting with this situation Raja Muhammad Hanif Khan relied on subsection (13) of section 21. It provides thus:-- "The Chairman may regulate the allocation and transaction of the business of the Council and may, for the convenient transaction of that business, delegate any of its functions to officers and authorities subordinate to it."
14. 7.He contended that according to the Constitution Act, the Azad Government of the State of Jammu and Kashmir is an authority subordinate to the Council and thus the Chairman of the Azad Jammu and Kashmir Council was empowered to delegate any of the functions of the Council to the Government in exercise of authority given under subsection (13) reproduced above. In our view this argument has no force. Azad Government of the State of Jammu and Kashmir is not an authority subordinate to the Azad Jammu and Kashmir Council within the meaning of subsection (13). There is no such specific provision in the whole of the Interim Constitution Act and such an inference cannot be drawn from the Constitution Act read as a whole. The reference to officers and authorities subordinate to the Council in subsection (13) has reference to officers and authorities appointed and created by the Azad Jammu and Kashmir Council and this reference does not include the Azad Government. Azad Government of the State of Jammu and Kashmir is a properly constituted Government and executive authority of Azad Jammu and Kashmir, except matters falling under the jurisdiction of the Council, is vested in it. In the matters falling in its domain the Azad Government is fully autonomous and is not subject to any direction from Azad Jammu and Kashmir Council. The only link between the Azad Jammu and Kashmir Council and the Government is provided in subsection (2) of section 19 in which it is provided as follows:-- " The executive authority of the Government shall be so exercised as:--
(a) not to impede or prejudice the responsibilities of the Government of Pakistan in relation to the matters specified in subsection (3) of section 31;
(b) to secure compliance with the Laws made by the Council."
15. 8.This provision does not render the Azad Government as a subordinate authority to the Azad Jammu and Kashmir Council but is aimed at ensuring harmony in the practical implementation of laws. This seems to be necessary because the laws made by the Council need the assistance of the Government for its implementation. Therefore, it is our considered view that to describe the Azad Government as an authority subordinate 'to the Azad Jammu and Kashmir Council is repugnant to the scheme of the Constitution Act.
16. 9.Raja Muhammad Hanif Khan raised an objection that the payments being made by the consumers of energy in Azad Jammu and Kashmir are not controlled by any law and it was, therefore, a contractual liability which was not enforceable through a writ. Strong reliance was placed on a judgment of this Court Azad Jammu and Kashmir Government v. Five Star Steel Molding (Pvt.) Ltd.
17. Civil Appeal No, 48 of 1992 in support of this contention. The facts of the precedent case were that Five Star Steel Molding (Private) Ltd. Was an industrial concern to which energy was being supplied by the Electricity Department of Azad Jammu and Kashmir. A dispute arose between the Department and the Company. It was the contention of the Department that the Company was bound to pay fixed charges even if it consumed no energy during a given period while the Company claimed that in the period under dispute the Company's factory could not operate due to some circumstances created by the said Department and, therefore, charges were not payable. To seek that relief the Company filed a writ petition. The High Court accepted the plea that supply of energy remained suspended not due to any fault of the Company but due to the unfavourable attitude of the Department and therefore the Company was not bound to pay the fixed charges. The Department brought an appeal to this Court and it was urged, as a preliminary objection about the maintainability of the writ petition, that the recovery of charges of energy was a contractual obligation and no relief could be claimed by resorting to a writ petition. This Court found that different tariffs which were being followed by WAPDA in Pakistan were also being applied in Azad Jammu and Kashmir but there was no Government order or any statute adopting the said tariffs in the State. Relying on judgments titled. Muhammad Mushtaq v. Muhammad Fiaz Abbasi 1994 SCR 95, Azad Government v. Neelum Flour Mills 1992 SCMR 43 and Mufti Nazir Hussain v. Azad Government Civil Appeal No,49 of 1979 it was held that no writ petition was maintainable in respect of a dispute relating to the charges being received in Azad Jammu and Kashmir in light of the WAPDA tariffs being followed in Azad Jammu and Kashmir.
18. 10.In the present case detailed submissions were made by the learned counsel for the parties about the legal position of the Electricity Department of Azad Jammu and Kashmir, the Azad Jammu and Kashmir Council and WAPDA in light of the Electricity Act and the Azad Jammu and Kashmir Interim Constitution Act which are more elaborate than the assistance we received in Five Star Steel case mentioned above. We have, therefore, examined this question again. In Pakistan the subject of Electricity falls in the concurrent legislative list meaning thereby that both Federal and Provincial Governments can legislate on this subject and can, therefore, also exercise executive authority in respect thereof. It is provided in Article 157 of the Constitution of Pakistan (1973) that Federal Government may in any province construct or cause to he constructed hydro-electric or thermal power installations or grid stations for the generation of electricity and lay or cause to be laid inter- provincial transmission lines. This provision of the Constitution further illustrates that so far as generation is concerned it is in the exclusive domain of the Federal Government while rest of the functions fall in concurrent list and can be performed by the Federal and Provincial Governments. In case of conflict between the Federal and Provincial enactments the Federal law has to override.
19. Electricity Act of Pakistan is a Federal law which refers to certain powers of the Federal Government while some powers are granted to the Provincial Governments. This Act was adapted in Azad Jammu and Kashmir in 1959 when there was no Azad Jammu & Kashmir Council. When Azad Jammu & Kashmir Council was set up under the Interim Constitution Act, 1974 the subject of electricity was given in the exclusive domain of the said Council. In 1980 Azad Jammu and Kashmir Council passed Electricity (Adaptation) Act, 1980. It was provided in the Act that the amendments made in the Electricity Act in Pakistan shall stand enforceable in Azad Jammu and Kashmir. For future it was laid down in the Act that as soon as an amendment was made in Pakistan it would be deemed to have been enforced in Azad Jammu and Kashmir. It was further laid down that reference to Provincial Government and Federal Government in the Electricity Act, as adapted in Azad Jammu and Kashmir, shall be construed to be a reference to Azad Jammu and Kashmir Council. This has been done for the obvious reason that all the powers in respect of the subject of electricity were exclusively vested in the Council and were, therefore, to be performed by it.
20. 11.After coming into force of the Electricity (Adaptation) Act, 1980, the Azad Jammu and Kashmir Council issued the following notification on 8th of December, 1980 in exercise of powers under section 23 of the Electricity Act: "No,L-10/9/79-AJKC.--In pursuance of section 23 of the Electricity Act, 1910 (IX of 1910), as in force in Azad Jammu and Kashmir by virtue of the Azad Kashmir Adaptation of Laws Act, 1959 (Act I of 1959), the Azad Jammu and Kashmir Council is pleased to authorise the licensee to make such charges for the supply of energy as do not exceed the aggregate of the electricity duty for the time being leviable in the Province of the Punjab and the maximum limits imposed by a licence in force in that Province."
21. 12.Section 23 of the Electricity Act is to the following effect:-- "23. Charges for energy to be made without undue preference.--(1) A licensee shall not in making any agreement for the supply of energy, show undue preference to any person, but may, save as aforesaid, make such charges for the supply of energy as may be agreed upon, not exceeding the limits imposed by his licence.
(2) No consumer shall, except with the consent in writing of the licensee, use energy supplied to him under one method of charging in a manner for which a higher method of charging is in force.
(3) In the absence of an agreement to the contrary, a licensee may charge for energy supplied by him 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.
(4) Any charges made by a licensee under clause (c) of subsection (3) may be based upon, and vary in accordance with, any one or more of the following considerations, namely:--
(a) the consumer's load factor, or
(b) the power factor of his load, or
(c) his total consumption of energy during any stated period, or
(d) the hours at which the supply of energy is required."
22. It is laid down in clause (c) of subsection (3) reproduced above that the Government may approve the method for charging for energy supplied to consumers if there is no agreement to the contrary.
23. In exercise of this power the Azad Jammu and Kashmir Council, which is "Government" for the purpose of the Electricity Act, issued the following amending notification of 27th of November 1994:-- "No, L-I/3/92-AJKC.--In pursuance of section 23 of the Electricity Act, 1990 (Act IX of 1910), as in force in Azad Jammu and Kashmir by virtue of the Azad Kashmir Adaptation of Laws Act, 1959 (Act I of 1959), the Azad Jammu and Kashmir Council is pleased to amend its Notification No, L-10/9/79-AJKC, dated the 8th December, 1980.
24. In the aforesaid Notification, for the words "as do not exceed the aggregate of the electricity duty for the time being leviable in the Province of Punjab" the words "as chargeable in the Province of the Punjab for consumption of electricity" shall be substituted."
25. The effect of the notification is that consumers in Azad Jammu and Kashmir have to be charged the same rates as are applicable in the Punjab.
26. 13.There is another legal provision which is relevant. The Electricity Act contains a schedule which is part of the Act. In clause XI of the Schedule it is provided as follows:- " Maximum charges.--Save as provided by clause IX, sub-clause (3), the prices charged by the licensee for energy supplied by him shall not exceed the maxima fixed by his licence, or, in the case of a method of charge approved by the Provincial Government, such maxima as the Provincial Government shall fix on approving the method: The effect of this provision is that the price of electric energy cannot exceed the limit imposed by the licensee or by the Government. In the present case the latter provision, i,e, the limit fixed by the Government, applies. The rate fixed in notification under section 23 mentioned above forms the maximum limit for the purpose of clause XI.
27. 14.Section 23, the notification issued under it and clause XI of the Schedule are legal provisions and if there is any violation of these provisions undoubtedly writ jurisdiction would be attracted. It may be pointed out that in Five Star Steel case violation of notification under section 23 or clause XI mentioned above were not considered because it was not the case of the Five Star Steel nor relief was claimed on the ground that these statutory provisions were violated. In that case the provision of the relevant tariff was said to have been violated.
28. 15.Let us now advert to the question whether writ petitioners sought a relief which was based on the tariffs held by this Court in Five Star Steel's case as creating a contractual liability or was based on violation of any law or statutory provision.
29. 16.In writ petition entitled "Nafees Bakers v. Azad Government" two prayers were made. Firstly, a declaration was sought that "non-petitioners are not competent to levy and charge extra and higher rates of energy supply consumed by the petitioner than that provided under these tariffs in Pakistan and other parts of Azad Jammu and Kashmir". The other relief prayed for was that respondents in writ petitions were charging higher rates and their acts were discriminatory, without jurisdiction etc. 17.In Mir Khalid Bashir's writ petition the main point urged before the High Court was that "the rates being charged and realised from the residents of Mirpur are substantially excessive as compared to the charges elsewhere in Azad Jammu and Kashmir and especially in Pakistan thus legally vitiating them".
30. 18.In substance the petitions were based on the grievance that higher rates than those being received from consumers in Pakistan were being charged from consumers in Mirpur. Notification under section 23 and clause XI of the Schedule of the Electricity Act are statutory provisions laying down that amount charged in Azad Jammu and Kashmir shall be the same as is charged in Punjab.
31. If the grievance agitated in the writ petitions is found to be correct it will be a clear violation of the aforesaid statutory provisions and not violation of a contract. Thus the writ petitions are found to be maintainable.
32. 19.However, in Nafccs Bakers' case, one of the prayers was for issuance of a direction that Nafecs Bakers may be charged rates in accordance with industrial tariff. This prayer has been accepted by the High Court. The grievance of Nafecs Bakers in effect was that a wrong tariff was being applied.
33. This grievance is not relatable to notification under section 23 of the Electricity Act or clause XI of the Schedule and is therefore hit by the rule laid down in Five Star Steel case. Thus a civil suit and not a writ petition is maintainable in respect of this dispute.
34. 20.The stage is now reached when we may examine one by one the chargcs being received by the appellants which have been quashed by the High Court. These fall under the following heads:--
(i) Fuel adjustment surcharge;
(ii) Electricity duty;
(iii) Education Cess;
(iv) Tariff Surcharge;
(v) Minimum Charges;
(vi) Income Tax Charges.
35. 21.In the Schedule there are various tariffs for different categories of consumers. Broad divisions are tariffs for general, industrial, bulk, agricultural etc. There are also seasonal and temporary supplies but there is no categorisation on regional basis warranting different tariffs for different areas.
36. 22.Fuel Adjustment Surcharge.--In all categories there is a provision for fuel adjustment surcharge which is recovered, as claimed, as fuel cost. Since this surcharge is being paid in Pakistan the allegation about its illegal recovery in Azad Jammu and Kashmir is disproved.
37. 23.Electricity Duty.--The Schedule of tariffs being followed by WAPDA shows that 4 acre is no electricity duty being charged from the consumers in Punjab or Pakistan. It is explained by Raja Muhammad Hanif Khan that electricity duty was imposed by the Azad Government of the State of Jammu and Kashmir on 21st of May 1992 through a notification which forms a part of the record. It reads as follows:-- "No,5656-5756/Works/92.--In pursuance of Azad Jammu and Kashmir Council Secretariat Notification No,1-10/3/79-AJKC dated 8th December, 1980 and in supersession of Chief Engineer Electricity's Letter No,3802-5/ED/89 dated 1-4-1989, the Azad Government of the State of Jammu and Kashmir is pleased to levy Electricity Duty on the electric energy consumers in Azad Jammu and Kashmir territory at the following rates with effect from Ist April, 1989 as in force in the Province of Punjab:--
1. In case of energy supplied by a licensee to consumers of categories specified as;Electricity duty on the amounts of the energy charges worked out according to the Electricity Tariff.
(a) Domestic 7 per cent.
38. (b)Office or commercial. 3 per cent.
(c) Industrial undertakings 3 per cent.
39. (d)Tubewells and irrigation and agricultural machinery. 4 per cent.
(e) Premises where the supply of energy by a licensee is unmetered. 4 per cent.
40. The notification shows that the authority to levy this duty has been derived from Azad Jammu and Kashmir Council Secretariat notification dated 8th of December 1980, reproduced above. This notification is the same which has been amended by the Council on 27th of November 1994 reproduced above. It is stated in the memorandum of appeal in Civil Appeal No 38 of 1994, that this duty is revenue of the Azad Government of the State of Jammu and Kashmir. A perusal of the Schedule of tariffs followed by WAPDA shows that no electricity duty is being charged in Pakistan.
41. Hence it violates Council Notification dated 27th of November 1994 as well as clause XI of the Schedule. So far as notification issued by the Azad Jammu and Kashmir Government is concerned it is in violation of the Constitution Act for two reasons. Firstly electricity is not within the legislative or executive jurisdiction of the Azad Jammu and Kashmir Government and for that reason the question of levying any duty relating to electricity does not arise. The second reason is that under section 31(4) of the Azad Jammu and Kashmir Interim Constitution Act a tax can only be levied through a law enacted by the Azad Jammu and Kashmir Council or the Azad Jammu and Kashmir Assembly. The word "tax" had been defined in section 2 of the Interim Constitution Act to include a duty.
42. Electricity duty has not been imposed by a law made by a competent Legislature. It is held therefore that Electricity duty is being illegally recovered from the consumers in Azad Jammu and Kashmir.
24. Education Cess.--It is explained by the appellants that no such tax is being received. This cess was being received in past under a law but has been discontinued now due to change of law.
43. 25.Tariff Surcharge.--Tariff surcharge is being levied in Pakistan at the rate of 10.4 per cent. With effect from 16th of January 1993. This is proved by Annexure D/5 attached with the Writ Petition No,11 of 1994 "Mir Khalid Bashir v. Azad Government". The same document is also attached as Annexure D/5 in the other Writ Petition No,49 of 1994 "Nafees Bakers v. Azad Government". A perusal of the judgment of the High Court shows that these two documents were not noticed by the High Court when it held in para. 18 of the judgment under appeal that surcharge is only leviable in those cases where the consumer fails' to make payment on due date. The surcharge on late payment is different from tariff surcharge. In the documents mentioned above the distinction has been clearly emphasised. It appears that the learned Judge in the High Court only perused the WAPDA Booklet called "Schedule of Tariff' which does not contain 10.4 per cent. Surcharge under reference because this surcharge was levied on 16th of January 1993 while contents of the booklet are referable to 1st of April 1991.
44. 26.Minimum Charges,--Minimum charges are being received in Pakistan as is clear from WAPDA Tariff. Provision for minimum charges is contained in clause XI of the Schedule forming part of the Electricity Act. The provision may be reproduced:- "Xl-A. Minimum Charges.--A licensee. May charge a consumer a minimum charge for energy of such amount and determined in such manner as may be specified by his licence, and such minimum charge shall he payable notwithstanding that no energy has been used by the consumer during the period for which the minimum charge is made."
45. However, minimum charges can only be received from a person whose total bill is less than the minimum charges. It cannot be received from a person whose electricity bill crosses the minimum.
46. This is the position which emerges from the WAPDA Tariff and is the correct construction of clause XI- A. The record shows that in some bills relating to Nafees Bakers and Mir Khalid Bashir minimum charges were demanded although their bills had exceeded the minimum amount. This is clearly illegal.
47. 27.Income Tax.--This is withholding tax which has been imposed by the Azad Jammu and Kashmir Council in exercise of legislative powers by inserting subsection (7E) in section 50 of the Income-tax Act which reads as follows:-- "(7E). At the time of preparing electricity consumption bills in respect of any commercial or industrial consumer, the person responsible for preparing such bills, shall charge tax on the amount of the electricity bill at the rates specified in the First Schedule, and the credit for tax act so collected in any financial year shall, subject to the provisions of section 53 he given in computing the tax payable by such consumer for the assessm ent year commencing on the first day of July next following the said financial year, or in the case of an assessee to whom section 72 or section 81 applies the assessment year in which the "said date" as referred to therein falls whichever is the later."
48. This tax is also being received in Pakistan. It is collected with the electricity bill of commercial and industrial consumers and adjusted when the income-tax is paid by the consumers.
49. 28.The result of the analysis made above is that the High Court was right in recording the conclusion that electricity duty cannot be recovered from any consumer while minimum charges can be recovered only from those who do not cross the minimum amount thus fixed. The findings of the High Court that fuel adjustment charge, tariff surcharge, and income-tax are illegal are not sustainable. About education cess the position is clear that it is no longer in force and cannot be received from consumers.
29. We may now turn to the important aspect of the judgment of the High Court in which it has been held that different rates are being applied to consumers of Mirpur City as compared to other parts of Azad Jammu and Kashmir and that the consumers of Mirpur City are being discriminated against. It has been held that in the bills given to Kh.Abdul Samad, Muzaffarahad and Sardar Mahroof Akhtar Abbasi Chamiati (Dhirkot) fuel adjustment surcharge, electricity duty, education cess, tariff surcharge etc. Were not charged. The learned counsel for the Azad Government Raja Muhammad Hanif Khan has rightly explained that in fact there is no discrepancy in rates and therefore no discrimination. Simple calculation shows that Kh.Abdul Samad consumed 205 units of electricity in the bill under reference and if the charges mentioned above are not included in the bill then his total bill in light of the tariff A-1 (for general supply) which is applicable to domestic consumers, should have been as follows:- On first 50 units @ 54 ps.= 27.00 On 51 to 150 units @ 68 ps.= 68.00 On 151 to 250 units @ 77 ps.= 42.00 Total: = Rs,137.00 The bill shows that the amount demanded from ch Abdul Samad was Rs,234.00 and not Rs,137. It clearly means that some other charges were also included in the bill. What are these charges? It has been explained by the learned counsel for the appellant in a chart attached as Annexure 'N' that Kh.Abdul Samad was charged apart from the energy charges to the tune of Rs,137, the following other charges fuel adjustment charge, electricity duty, education cess, tariff surcharge, minimum charges and income-tax charges. We have checked up the bill in light of the applicable tariffs with the help of the Annexure 'N' and find that the calculations mentioned above are correct. The bill sent to Mahroof Akhtar Abassi (Annex. PD in Writ Petition No,11 of 1994) is for 33 units of electricity. The tariff for domestic consumers lays down 54 paisa as the price per unit. If the conclusion reached by the High Court had been correct he should have been required to pay Rs,17.82 but he was billed for Rs,23 and in addition Rs,10 as meter charge. The difference between Rs,23 and 17.82 proves that Mahroof Akhtar Abbasi was required to pay other charges and not only basic price of electricity. The charges he was required to pay have been explained in calculation chart, Annexure 'N' and are found correct.
50. 30.It is therefore clear that the High Court fell in error in holding that some charges were only being recovered from the consumers belonging to Mirpur City. We find that this is a result of some non- application of mind of serious nature which led to wrong results. We have discussed the different charges of tariff which are applicable all over Pakistan and Azad Jammu and Kashmir. It is not conceivable that a department of the Government may indulge in such a grave illegality and maladministration as to leave out most of the amounts falling under different heads all over Azad Jammu and Kashmir but to recover them from the residents of Mirpur City alone.
51. 31.We notice that form of bills used in Muzaffarabad and Poonch at the relevant time were different from the bills used in Mirpur. The bills sent to Kh.Abdul Samad and Sardar Mahroof Akhtar Abbasi contain only three heads, i,e, price of fuel meter rent and arrears. These bills do not contain columns separately showing different charges which made up the total bill. On the other hand the bills sent to Mir Khalid Bashir and Nafees Bakers were detailed and contain separate columns showing amounts charged as electricity charges, electricity duty, tariff surcharge, meter rent etc. It has been explained that previously hills did not contain the different heads of charges and were brief in nature. But now bills have been introduced which show all the heads separately. It was explained that when bills were sent to Kh.Abdul Samad and Sardar Mahroof Akhtar Abbasi stock of previous bills had not been exhausted and old hills were being used. On the other hand the old stock had exhausted in Mirpur when bills were sent to Nafees Bakers and Mir.Khalid Bashir with the result that new forms were used.
52. This seems to have caused confusion otherwise the charges are the same throughout Azad Jammu and Kashmir.
53. 32.We must make a mention that it was argued by Raja Muhammad Hanif Khan that Azad Government of the State of Jammu and Kashmir is a licensee. Apparently this contention does not seem to be sound because no licence has been produced before this Court or earlier when the case was being heard by the High Court. However, it is not necessary to go into this question for the reason that this point was not raised in writ petitions. As already noted, the burden of their grievance was that they were being charged at different rates from those charged in Pakistan and other parts of Azad Jammu and Kashmir. At no stage, whether in the High Court or this Court, it was contended on their behalf that Azad Government of the State of Jammu and Kashmir was not a licensee or that Electricity Department was performing the functions without jurisdiction in light of the Azad Jammu and Kashmir Interim Constitution Act. They also did not seek a declaration to the effect that Azad Jammu and Kashmir Government is not allowed under the Constitution to perform any function in connection with the distribution of electricity. Therefore we leave this question open to be decided in a case in which it becomes necessary to do so.
54. As a consequence of foregoing the result which falls is that:-- "(1) Appeal No,49 of 1994 titled "Azad Jammu and Kashmir Council and others v Nafees Bakers and another" is accepted and it is declared that the Income Tax being received from industrial and commercial consumers is valid: (2)(i) Civil Appeal No,38 of 1994 titled "Azad Government and others v. Nafcss P--rs and another" is partly accepted and it is declared that Fuel Adjustment Surcharge, Tariff Surcharge Minimum Charges and Income Tax Charges are being validly recovered from the consumers.
(ii) The part of the judgment of the High Court by which electricity duty was declared unlawful is upheld and appeal relating to it is dismissed.
(iii) The objection that Nafees Bakers is being wrongly charged at commercial rates is left open as it is contractual in nature.
(iv) It is clarified that minimum charges can only be validly received from those consumers who do not consume the minimum quantity of electricity."
55. There would be no order as to the costs.