' KHALIL-UR-REHMAN KHAN, J.--The question referred to this Full Bench is "whether or not, the Electric Inspector in contemplation of section 26(6) has the jurisdiction to adjudicate upon the determination of charges made by the WAPDA under section 26-A,,for dishonest abstraction of energy". This question was framed in Constitution petition (W.P.5454-88, WAPDA and others v. Mian Muhammad Riaz and others) and (W.P.5453-88, WAPDA etc. v. Mian Muhammad Riaz) and the other six petitions (W.P.2929- 89, 2740-89, 2741-89, 2919-89, 7470-89 and 3839-90) were also put up before the Full Bench, as the same question arose for determination in these petitions. In order to appreciate the pleas advanced by the parties in this petition factual background of the controversy may be noted.
' The WAPDA raised a demand of Rs,1,70,14,221 against respondent No,1, an industrial consumer, with the allegation that he committed theft as he bypassed the metering equipment, illegally connected the main line with the service line and by this device supplied energy to his plant and machinery directly. This demand was made under section 26-A of the Electricity Act, 1910, which included an earlier demand of Rs,85,13,347. The WAPDA also made a reference to enforce the recovery, as arrears of land revenue to the Collector who commenced proceedings thereon.
2. The respondent assailed the detection bill of Rs,85,13,347 by filing a Constitution Petition (W.P.
5422 of 1986), which was disposed of by a learned Single Judge of this Court vide order dated 30- 9-1987 with the observation that the respondent may agitate the matter under the relevant provisions of the Electricity Act before the Electric Inspector. An Intra-Court Appeal (ICA 149-87) taken against this order was dismissed on 2-11-1987, observing that the legislature in its wisdom, and rightly so, has not conferred immunity to the detection bills issued under section 26-A from the jurisdictional competence of the Electric Inspector, as contemplated by section 24(2) of the Electricity Act. It was further observed that an equally efficacious alternative remedy of civil suit in the circumstances of the case is also available to the respondent. The respondent then moved two applications dated 28-1-1988 and 2-4-1988 before the Electric Inspector, Lahore Region, Lahore, in contemplation of section 26(6) of the Act questioning the demands raised against him. The Authority raised objection to the jurisdiction of the Electric Inspector on the ground that the scope of section 26(6) is quite limited and the detection bill issued under section 26-A is not amenable to jurisdiction of the Electric Inspector. This gave rise to filing of two Constitution petitions (W.P.2276 and 2988 of 1988) which were disposed of on 10-9-1988 and the case was sent back to the Electric Inspector with the direction to record a detailed order giving reasons in case he chose to assume jurisdiction. The Electric Inspector then passed a detailed order embodying reasons in support of assumption of jurisdiction which is under challenge in these petitions. Before the Electric Inspector the case of the Authority was that as no metering equipment was involved in the consumption of energy by the respondent, for' which the bill was issued, section 26(6) was not attracted. According to it this subsection was not applicable to a situation, where determination of charges for dishonest abstraction of energy was made under section 26-A. However, in the opinion of the Electric Inspector the metering equipment became mechanically defective or faulty, if it was tampered with or injured by the consumer with the intention to prevent it from registering the consumption of energy. He was of the view that in such a case the assessment made by the licensee under section 26-A could be subjected to scrutiny on a reference made to him by the consumer in pursuance of section 26(6), as such billing fell within the mischief of section 24(2).
Support was sought from the judgment recorded in the Intra-Court Appeal. Reference was also made to Chairman, WAPDA etc. v. Advisory Board etc. 1987 CLC 1503. He also referred to clause 25 of the abridged conditions (the agreement) between the parties which allegedly inter alia provides determination of disputes by reference to an Electric Inspector. The case of Pakistan Mineral Development Corporation v. Pakistan WAPDA and others PLD 1986 Quetta 181 was also referred. It was pointed out that the agreement entered into between the respondent and WAPDA (Annex.H') does not contain any condition enjoining reference to Electric Inspector.
3. Mr. Muhammad Ilyas Khan, Advocate, learned counsel for WAPDA, argued that in view of provisions of section 26(6) of the Electricity Act. 1910, the dispute referable to an Electric Inspector must relate to the issue, whether the measuring apparatus 'is or is not correct' and that where there is an allegation of dishonest abstraction of, energy in a manner pointed out by the Authority by completely by-passing the metering apparatus, the determination of charges under section 26-A of the Act cannot be disputed under section 26(6) before an Electric Inspector. According to him section 24(2) is limited in scope and deals with exercise of power by a licensee under section 24(1) and applies only when a dispute has been referred by a consumer under this Act, to an Electric Inspector. He argued that in order to ascertain as to which dispute relating to billing is referable to an Electric Inspector under the Act, reference shall have to be made to section 26(6) of the Act. He maintained that omission to mention sections 24(2) and 26(6) in the non obstante clause with which section 26-A is pre-fixed does not necessarily imply that this section is controlled by the said two provisions. Learned counsel for WAPDA submitted that the case has not been placed before the learned Judge who decided the cases referred to above from the angle projected by him.
4. Learned counsel for the consumers, on the other hand, adopted the view expressed in the aforenoted cases and argued that the legislative intent is manifest from the very reading of section 24(2) and section 26(6) of the Act, that action taken under section 26-A should remain subservient to the power of determination vesting in the Electric Inspector. It was added that such an interpretation, as advances the remedy for resolution of differences and disputes, should be accepted otherwise the consumers would have no remedy against the bills for alleged consumption of energy etc. Prepared acting arbitrarily, maliciously and illegally. Mr. Abdul Aziz Akhgar, Advocate, learned counsel for some of the respondents/consumers, pointed out that subsection (2) of section 24, as originally enacted, did not provide for a reference to an Electric Inspector. This subsection as amended by Punjab Ordinance XXIX of 1971 (PLD 1972 Punjab Statutes 22) provides for reference to Electric Inspector. He also argued that para. 25 of the Abridged Conditions of Supply and clause 6(3) of the Schedule to the Electricity Act also provide for reference of the dispute relating to electricity charges etc. Demanded by WAPDA, to the Electric Inspector. He maintained that the forum of Electric Inspector should remain available to the consumers and this Court should not accept an interpretation which denies to the consumers a forum or a remedy to seek redress against the arbitrariness and excessive demands of the Authority.
5. Mr. Farooq Bedar, learned Additional Advocate-General, pointed out that section 24 was substituted by Ordinance LXII of 1979 (PLD 1980 Central Statutes 7) and as such the Punjab Amendment is no longer part of the statute book. He Further pointed out that in view of section 12 of WAPDA Act, 1956, some sections and clauses of the Schedule to the Act do not apply to WAPDA. He supported the pleas advanced by Mr. Muhammad Ilyas Khan, Advocate, learned counsel for WAPDA, and argued that section 26(6) of the Act does not apply in cases to which section 26-A is applicable. He argued that the words "under this Act" used in section 24(2) are operative only when a consumer comes to Electric Inspector under section 26(6) of the Act. He added that section 24(2) by itself does not provide for a reference of a dispute as to billing to Electric Inspector.
6. The aforenoted pleas necessitate examination of provisions of sections 23, 24, 26 and 26-A of the Act. These sections as they appeared before Punjab Amendment (Ordinance XXXIX of 1971) and thereafter may be reproduced for ready reference:-- ' Section 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 to be 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 (b) 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. Section 24, as it existed before Punjab Amendment reads:-- "24.--(1) Where any person neglects to pay any charge for energy or any sum, other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may, after giving not less than seven clear days notice in writing to such person and without prejudice to his right to recover such charge or other sum by suit, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and re-connecting the supply, are paid, but no longer.
(2) Where any difference or dispute has been referred under this Act to an Electric Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision: ' Provided that the Prohibition contained in this subsection shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Electric Inspector of the amount of the licensee's charges or other sums in dispute or for the deposit of the licensee's further charges for energy as they accrue, and the consumer has failed to comply with such request."
After Punjab Amendment (XXIX of 1971) this section read as under :-- "24--(1) Where any person neglects to pay any charge for energy or any sum, other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may, after giving not less than. Ten days' clear notice in writing to such person or his successor-in- interest, as the case may be, and without prejudice to his right to recover such charge or other sum by suit, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply till such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer.
' Explanation.---For the purposes of this subsection, 'successor-ininterest' means a person who, either by inheritance or transfer by way of sale, gift, exchange, lease or any other mode of transfer, happens to succeed to or acquires any share or interest in the premises for which any charge for energy or any sum, other than such charge, was or becomes due, but does not include a person who occupies such premises merely as a tenant.
(2) Any person aggrieved of the service of notice under subsection (1) may, within ten days of the receipt of such notice, prefer an appeal to the Electric Inspector who shall, after affording the parties an opportunity of being heard, decide the appeal.
(3) When any difference or dispute has been referred to the Electric Inspector before notice under subsection (1) has been given by the ,licensee or an appeal has been preferred under subsection (2), and the consumer deposits with the Inspector the amount of lecensee's charges or other sum to which such difference, dispute or appeal relates and also the licensee's further charges for energy as they accrue, the licensee shall not exercise the powers conferred by subsection (1) until the Inspector has given the decision."
' By Ordinance LXII of 1979, this section was substituted with the following:-- "24. Discontinuance of supply to consumer neglecting to pay charge.--(1) Where any consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premises, the licensee may after giving not less than seven clear days notice in writing to such consumer and without prejudice to his right to fecover such charge or other sum by suit or otherwise, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied to such premises or to any other premises, other than domestic premises, running distinctly in the name of such consumer, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply and minimum charges on account of continued reservation, of supply during the period of such discontinuance, are paid, but no longer.
(2) Where any difference or dispute as to any matter connected with any charge or other sum included in the bill of a licensee has been referred by a consumer under this Act to an Electric Inspector before the notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by subsection (1) until the Inspector has given his decision: ' Provided that the prohibition contained in this subsection shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the licensee of the undisputed charges and other sums and with the Electric Inspector of fifty per cent. Of the disputed charges and other sums and for the deposit with the licensee of further charges for supply of energy, as they accrue, and the consumer has failed to comply with such request within a period, of fifteen days from the date of such request or, as the case may be, from the date of receipt of bills in respect of further charges for supply of energy."
' Section 26 did not undergo any change by virtue of Punjab Amendment XXIX of 1971. However, it was amended by Ordinance LXII of 1979, and the amended section reads as under: "26.--(1) In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, maximum demand indicator and' other measuring apparatus and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter, maximum demand indicator and other measuring apparatus: ' Provided that the licensee may require the consumer to give him security for the price of a meter, maximum demand indicator and other measuring apparatus and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter, maximum demand indicator and, other measuring apparatus.
(2) Where the consumer so enters into an agreement for the hire of a meter, maximum demand indicator and other measuring apparatus, the licensee shall keep the meter, maximum demand indicator and other measuring apparatus correct, and, in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter, maximum demand indicitor and other measuring apparatus.
(3) Where the meter, maximum demand indicator and other measuring apparatus is the property of the consumer, he shall keep the meter, maximum demand indicator and other measuring apparatus correct, and, in default of his doing so, the licensee may, after giving him seven days' notice, for so long as the default continues, cease to supply energy through the meter, maximum demand indicator and other measuring apparatus.
(4) The licensee or any person duly authorised by the licensee shall, at any reasonable time and on informing the consumer of his intention, have access to, and be at liberty to inspect and test, and for that purpose, if he thinks fit, take off and remove, any meter, maximum demand indicator and other measuring apparatus referred to in subsection (1); and, except where the meter, maximum demand indicator and other measuring apparatus is so hired as aforesaid, all reasonable expenses of, and incidental to, such inspecting, testing, taking off and removing shall, if the meter, maximum demand indicator and other measuring apparatus is found to be otherwise than correct, be recovered from the consumer, and, where any difference or dispute arises as to the amount of such reasonable expenses, the matter shall be referred to an Electric Inspector, and the decision of such Inspector shall be final: ' Provided that the licensee shall not be at liberty to take off or remove any such meter, maximum demand indicator and other measuring apparatus if any difference or dispute of the nature described in subsection (6) has arisen until the matter has been determined as therein provided. -
(5) A consumer shall not connect any meter, maximum demand indicator and other measuring apparatus referred to in subsection (1) with any electric supply-line through which energy is supplied by a licensee, or disconnect the same from any such electric supply-line, without obtaining the consent of the licensee in writing which shall not be unreasonably withheld by the licensee.
(5-A) A consumer shall not injure any meter, maximum demand indicator or other measuring apparatus, or alter their indexes or prevent them from duly registering the amount of energy supplied or the electrical quantity contained in the supply.
(6) 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 the 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 or the consumer dicline 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 subsection, he shall give to the other party not less than seven days' notice of his intention so to do.
(7) In addition to any meter, maximum demand indicator or other measuring apparatus which may be placed upon the premises of a consumer in pursuance of the provisions of subsection (1), the licensee may place upon such premises, such other meter, maximum demand indicator or other apparatus as he may think fit for the purpose of ascertaining or regulating either the amount of energy supplied to the consumer, or the number of hours during which the supply is given, or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with the supply: ' Provided that the meter, indicator or apparatus shall not, in the absence of an agreement to the contrary, be placed otherwise than between the distributing mains of the licensee and any meter referred to in subsection (1): ' Provided also, that, where the charges for the supply of energy depend wholly or partly upon the reading. Or indication of any such meter, indicator or apparatus as aforesaid, the licensee shall, in the absence of an agreement to the contrary, keep the meter, indicator or apparatus correct; and the provisions of subsections (4), (5), (5A) and (6) shall in that case apply as though the meter, indicator or apparatus were a meter referred to in subsection (1).
' Explanation.--A meter shall be deemed to be 'correct' if it registers the amount of energy supplied, or the electrical quantity contained in the supply, within the prescribed limits of error, and a miximum demand indicator or other apparatus shall be deemed to be 'correct' if it complies with such conditions as may be prescribed in the case of any such indicator or other apparatus."
' Section 26A was added by Ordinance LXII of 1979, which reads as under:- "26A. Dishonest abstraction or consumption of energy.--Notwithstanding anything contained in section 23, the licensee may charge the consumer on the basis of one or more of the following considerations for the amount of energy deemed to have been dishonestly abstracted, consumed or used, for the period during which the meter, maximum demand indicator or other measuring apparatus had, in the opinion of the licensee, remained connected, disconnected, injured, altered or prevented from registering the amount of energy supplied or the electrical quantity contained in the supply---
(a) consumer's connected load or maximum demand in kilowatt during any period;
(b) consumer's maximum consumption of energy in kilowatt hours during any period;
(c) consumer's load factor;
(d) the power factor of consumer's load;
(e) the hours and the time for which the energy is deemed to have been abstracted consumed or used by the consumer; and
(f) the purpose for which the energy is deemed to have been abstracted, consumed or used by the consumer."
6. The ancillary issues raised may first be dealt with. The contention that section 24(2) as enforced by Punjab Ordinance XXIX of 1971 (reproduced above) despite provisions of section 24(2) as enforced by the Central Statutes, namely, Ordinance No, LXII of 1979, is still operative in the Punjab Province and as such any person aggrieved of notice under subsection (1) of section 24 has the right to prefer an appeal to the Electric Inspector, has no merit. Subsection (2) of section 24 of the Electricity Act, 1910, was substituted by the Punjab Ordinance No, XXIX of 1971. This subsection, as applicable then, to Punjab Province provided, for an appeal to the Electric Inspector against the bill demanding charges for energy or a sum in respect of supply of energy served under subsection (1) of section 24 of the Act. The Central Ordinance No, LXII of 1979, substituted section 24(2) which provides that licensee shall not exercise power conferred by subsection (1) of section 24 till the decision of the Electric Inspector where any difference or dispute as to any matter connected with any charge or other sum included in the bill has been referred by a consumer under the Act to the Electric Inspector before giving of the notice by the licensee. Though subsection (2) of section 24 of the Punjab Ordinance provided for an appeal but subsection (2) of section 24 of the Central Ordinance, which is later in time, does not confer a right of appeal. It merely restrains the licensee from exercising the power of disconnection conferred by subsection (1) in cases where before giving of notice under subsection (1) dispute or difference as to any matter connected with any charge or other sum included in the bill has been referred .Under this Act to the Electric Inspector.
The words "under this Act" used in the subsection clearly indicate that reference of dispute as to the charges for the sums included in the bill to the Electric Inspector will be possible if it is so provided under any provision of the Electricity Act. Subsection (2) of section 24, as such, does not by itself provide for a reference of any and every dispute about the sums demanded by the WAPDA that a consumer might like to refer. This aspect will be dealt with in more detail in later part of the judgment. At this juncture, the question as to whether section 24(2) as amended by Punjab Ordinance XXIX of 1971 still holds the field and is operative is under discussion. Section 24(2) of the Act as amended by Punjab Ordinance and as amended by Federal Ordinance is in respect of the same matter. Which one of the two is to prevail? Article 143 of the Constitution of Islamic Republic of Pakistan provides the answer. This Article reads: "143. Inconsistency between Federal and Provincial Laws.--If any provision of an act of a Provincial Assembly is repugnant to any provision of an act of Majlis-e-Shoora (Parliament) which Majlis-e- Shoora (Parliament) is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the act of the Provincial Assembly, or, as the case may be, the existing law, shall, prevail and the act of the Provincial Assembly shall to the extent of the repugnancy, be void."
Thus, by virtue of Article 143, Central Law is to prevail where law of the Provincial Legislature in respect of matter enumerated in Concurrent List is repugnant to it. Article 143 is attracted only if the Provincial law is repugnant to the law of Majlis-e-Shoora (Parliament) which means that the two cannot stand together. (See Zaver Bhatti v. State of Bombay AIR 1954 SC. 752). A Provincial law may be repugnant in any of the following ways:--
(i) Where there is direct conflict between the two provisions;
(ii) thou& there may not be any direct conflict between the two statutes, but it is evident that the Parliament intended its legislation to be a complete and exhaustive Code relating to the subject, in such a case it shall be taken that Central law has replaced the Provincial law relating to the said matter. (State of Asam v. Harizon Union AIR 1967 SC 442).
' In some cases it has been held that even where Central Act is not exhaustive, repugnancy may arise if it occupies the same field as the Provincial Act. (See Tika Ramji v. State of Uttar Pradesh)
(AIR 1956 SC 676) and Deep Chand v. State of U.P. (AIR 1959 SC 648).
' The two provisions may conflict with each other where one cannot be obeyed without disobeying the other. Even if obedience to each of them may be possible without disobeying the other, yet two enactments may be inconsistent, e.g. When it takes away a right conferred by the other even though the right be one which might be waived or abandoned without disobeying the statute which conferred the right. See Mangtulal v. Radhashayam (AIR 1953 Pat. 14). So it may also arise where both laws operate in the .Same field and the two cannot stand together. The Supreme Court in the case of Chief Secretary, Government of East Pakistan v. Muslahuddin Sakdar (PLD 1957 SC (Pak.) 1(8) observed that, "a reference to sub-Article (2) of Article 110 of the Constitution of 1956 (now Article 143 of the 1973 Constitution) will show, an Act of the Provincial Legislature in the concurrent field is hit to the extent that the subject in question is already covered by legislation. It is not void merely by reason of being an enactment in the concurrent field, it is only void for lack of assent to the extent of repugnancy. Again the Supreme Court in the case of Malhi Khan v. Member, Board of Revenue (PLD 1991 SC 824) noticed the effect of Article 143 of the Constitution as under:-- "It is clear that MLR is a Federal Law and the Punjab Pre-emption Act, 1913, is a Provincial Law and that under Article 143 of the Pakistan Constitution, 1973, if any provision of an Act of the Provincial Assembly is in conflict with any provision of a Federal Law, then the Federal Law shall prevail and the Provincial Law shall, to the extent of the repugnancy or conflict, be void."
See also Kashif Nadeem alias Pappi v. The State (1992 PCr.LJ 1799). Applying the criteria and test a repugnancy noted above it is apparent that the provisions of subsection (2) of section 24 as contained in the Central Law manifestly supersede the provisions on the same subject contained jn subsection (2) as enforced by the Provincial Law. Both these provisions cannot stand together as the one conferred right of appeal whereas the other took away the said right. Both the provisions as occupy the same field the provision of the Central Law have to prevail by virtue of Article 143 of the Constitution.
7. The next plea that reference of the dispute to the Electric Inspector is competent under para 26 of the Abridged Conditions of Supply as well as under sub-clause (3) of clause VI of the Schedule to the Electricity Act is also without substance, as it was submitted that the said Abridged Conditions of Supply are no longer operative and that the latest agreement applicable to the parties in its Abridged Conditions of Supply do not contain any such provision as is contained in para. 25 of the old agreement. Clause VI of the Schedule to the Act is not relevant as it applies only when a requisition is made by the owner or occupier requiring the licensee to supply energy for such premises where after distributing mains have been laid down under the provisions of clauses IV and V and supply of energy through those mains or any of them has commenced. The dispute which is referable under clause VI (3) to the Electric Inspector pertains to a difference or dispute as to amount of energy to be taken or guaranteed or as to the cost of any service-line or as to the amount of expenses incurred under the third proviso to sub-clause (1). We 'are admittedly not dealing with any such situation. At this stage reference may be made to proviso to section 12 of the WAPDA Act, 1958, as it provides that nothing in sections 3 to 11, subsections (2) and (3) of section 21 and sections 22, 23 and 27 or any clause I to XII of the Schedule to the said Act, relating to the duties and obligations of a licensee shall apply to Water and Power Development Authority. It will, therefore, be seen that clause VI of the Schedule to the Act cannot be invoked in aid to enforce the duties and obligations of WAPDA. The ancillary submissions for the above reasons are repelled.
8. Now we propose to deal with the main question, whether or not the Electric Inspector has the jurisdiction to adjudicate upon the determination of charges made by WAPDA under section 26-A for dishonest abstraction of energy. The Electric Inspector as well as the learned counsel for the consumers are the proponents of the view that dispute relatable to the charges for energy or the sum claimed for the supply of energy even through dishonest abstraction or otherwise is referable to the Electric Inspector. They in support of this proposition rely on the provisions of subsection (2) of section 24 and subsection (6) of section 26. Sections 23, 24, 26 and 26-A have been reproduced above as they formed part of the statute book from time to time. This section as they . Finally stand after amending Ordinance LXII of 1979, have been quoted. Section 24(2) provides that the licensee shall not exercise the power of disconnection conferred by subsection (1) until decision by the Electric Inspector of the reference or dispute, referred to him by the consumer under this Act. The two conditions attached are that the differences or dispute pertains to a matter connected with any charge or other sum included in the bill and the dispute has been referred to before the giving of notice provided for by subsection (1) of section 24. It is manifest from the mere reading of subsection (2) that right to make a reference of the matter has not been provided for by this subsection. The use of the words "under this Act" indicates that answer to the question, whether or not a dispute as to any matter connected with any charge or sum included in the bill is referable to the Electric Inspector, is to be sought from the other provisions of the Act. It is, therefore, necessary to examine other provisions of the Act to find out the disputes or the matters connected with any charge or other sum included in the bill which are referable to the Electric Inspector. A survey of the Electricity Act, 1910, will, therefore, be appropriate. Section 21(4) provides for reference to the Electric Inspector, in case where any difference arises as to whether a licensee has prescribed any appliances or controlled or interfered with the use of energy in contravention of the provisions of subsection (1) of section 21. Such a dispute if patties so desire may be determined by arbitration.
Section 26 in its subsection (4) provides for reference of a dispute as to expenses of inspection, testing together with incidental charges of removal of the appliances etc. If the meter etc. Is found to be otherwise than correct, to the Electric Inspector. Again subsection (6) of section 26 provides for a reference of a dispute as-to whether any meter etc. Is or is not correct. Sub-clause (3) of clause VI of Schedule to the Act also provides for reference to. Electric Inspector of a dispute as to amount for energy to be taken or guaranteed or as to cost of service-line or the amount of expenses incurred under the third proviso to sub-clause (1). These are in all the provisions of the Electricity Act providing for reference of particular differences or disputes to the Electric Inspector.
Sections 28(2) and 30(2) provide for reference of a dispute to the Provincial Government, section 29(4) provides for a revision to the Provincial Government while section 32(2) provides for a reference of a dispute of the difference to the Central Government. Subsection (3) of section 32 provides for reference to Arbitration of a difference as to amount of compensation. Similar provision of Arbitration is also provided for by section 52 of the Act. These provisions thus do not cover the amount of charges determined as payable under section 26-A for dishonest abstraction of electricity. The amount assessed and determined under section 26-A cannot, therefore, be disputed before the Electric Inspector by invoking provisions of subsection (2) of section 24 as no right of reference of the dispute to the Electric Inspector is contemplated by the said subsection.
9. The question now remains to be seen is, whether such a right of reference of the dispute flows from subsection (6) of section 26. The Electric Inspector appears to be of the opinion that the metering equipment become mechanically defective or faulty if it was tampered with or injured by the consumer with the intention to prevent it from registering the consumption of energy and that in such a case the assessm ent made by the licensee under section 26-A could be subjected to scrutiny on a reference made to him by the consumer pursuant to section 26(6) as such billing fell within the mischief of section 24(2) of the Act. In support of this view, it would be recapitulated, the decisions in the cases of Chairman, WAPDA v. Advisory Board (1987 CLC 1503) and Pakistan Mineral Development Corporation v. WAPDA and others (PLD 1986 Quetta 181) were referred. The pleas of learned counsel for WAPDA on the other hand were that the metering equipment was by-passed completely as the main line was illegally connected with the service-line and by this device energy was supplied to the plant and machinery directly.. Such a dishonest abstraction of electricity does not involve the question whether the metering equipment or the measuring apparatus is or is not correct, and the amount so determined in exercise of the power vesting under section 26-A cannot be made subject-matter of dispute referable to the Electric Inspector under subsection (6) of section 26 or any other provision of the Electricity Act. We have demonstrated above that the dispute relating to the amount claimed on account of dishonest abstraction is not covered by any of the provisions of the Electricity Act which contemplated reference to Electric Inspector. As to whether section 26(6) is attracted to the situation, examination of the provisions of sections 23, 24, 26 and 26-A of the Act appears appropriate. Section 23 provides for different methods of charging for energy supplied by the licensee. Section 24 provides power to discontinue supply to consumer who neglects to pay the charge for any sum other than a charge for energy assessed by the licensee in respect of supply, of energy to his premises. The discontinuance of supply can only be done after giving not less than seven days' notice to consumer. This power of discontinuance of supply is not to be exercised by the licensee where the difference or dispute as to any charge or the sum included in the bill has been referred to an Electric Inspector under this Act before giving of the notice to the consumer. Section 26 provides for meters and other measuring apparatus.
Subsection (1) provides that in the absence of any agreement to the contrary amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, maximum demand indicator or other measuring apparatus. This section in its subsections provides that the meter, the maximum demand indicator or other measuring apparatus, whether is property of the consumer or is hired one from WAP.DA, must be kept correct and without any fault and if default occurs or continues, the consumer, in the case of hired measuring apparatus ceases to be liable to pay hire for the same and if the measuring apparatus is property of the consumer, the licensee after giving notice shall cease to supply energy through the said meter etc. ' Subsection (4) confers right to inspect and test the meter etc. And to remove the same for the said purpose and in case it is found to be not correct the expenses of inspection, testing and removal be recovered from the consumer and any dispute as to amount of each reasonable expense can be referred to Electric Inspector for decision. The proviso to this subsection provides that meter etc. Shall not be removed if dispute of the nature described in subsection (6) of this section has arisen until the matter has been determined as provided therein. Subsection (5) then provides that a consumer shall not connect the meter or other measuring apparatus with any electric supply-line through which energy is supplied or disconnect the same from such electric supply-line without obtaining consent of the licensee in writing. Subsection (5-A) provides prohibition to injure any meter, maximum demand indicator or other measuring apparatus or alter their insides or prevent them from duly registering the amount of energy supplied or the electrical quantity contained in the supply. After making these elaborate provisions subsection (6) provides that where any differences or disputes arise between a licensee and a consumer as to whether any meter maximum demand indicator or measuring apparatus is or is not correct the matter shall be decided upon application of either party by an Electric Inspector. The rest of the provisions contained in the subsections are consequential in nature. So the dispute which is referable is whether the meter or the measuring apparatus 'is or is not correct'. It is further provided that before applying to the Electric Inspector under this subsection the party intending to make a reference shall give to the other party not less than seven days' notice of his intention to make the reference to the Electric Inspector. Subsection (7) thereafter provides that the licensee may place upon the premises of a consumer other meter, maximum demand indicator or measuring apparatus in addition to the measuring apparatus already placed upon the premises pursuant to the provisions of subsection (1) for the purpose of ascertaining or regulating the amount of energy supplied or the number of hours during which supply is given, or the rate per unit of time at which energy is supplied to the consumer, or any other quantity or time connected with the supply. The Explanation added to this subsection provides that a meter shall be deemed to be correct if it registers the amount of energy supplied or the electrical quantity contained in the supply, with the prescribed limits or error, and a maximum demand indicator or other apparatus shall be deemed to be correct if it complies with such conditions as may be prescribed in case of any such indicator or other apparatus.
10. A bare perusal of subsection (6) would show that this subsection does not provide for reference to dispute the amount of charges demanded in a bill sent to the consumer for payment; it rather provides for seeking determination of the dispute as to whether the measuring apparatus is or is not correct, though the finding that matter etc. Is not correct, would result in granting the consequential relief in respect of the amount charged for supply of energy to the premises. This is obvious as the very purpose of supplying a meter, maximum demand indicator or other measuring apparatus in the absence of any agreement to the contrary is to ascertain the amount of energy supplied to consumer or the electrical quantity contained in the supply. The correct ascertainment of either of the two is obviously for the purpose of charging correct amount from the consumer.
11. The difference of phraseology used in subsection (2) of section 24 and subsection (6) of section 26, may pertinently be noted at this stage. Section 24(2) says, where any difference or dispute as to any matter connected with any charge or other sum included in the bill of a licensee has been referred by a consumer under this Act to an Electric Inspector, whereas subsection (6) of section 26 uses the words, where any difference or dispute arises as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct. Thus the phraseology used in subsection (2) is wider as it includes amongst other, the controversy of the correctness or otherwise of meter etc. The controversy in subsection (6) of section 26 is thus limited in scope and content. In the case of Chairman, WAPDA v. Advisory Board 1987 PLC 1503) as well as in order passed in the, Intra-Court Appeal, sections 24 and 26 were not examined from the aforesaid angle, though the word 'any' appears before the words 'difference of dispute' in section 24(a) but the limitation placed by use of the words "under this Act" cannot be lost sight of and it, therefore, follows that only those differences or disputes, which have been mentioned and specified in the various provisions of the Act (pointed out above) are referable. The word 'any' cannot in the context of section 24, be interpreted to be conferring a right on a consumer or a licensee to refer any and every dispute to the Electric Inspector. Had the attention of the learned Judges been drawn to these features, we have no doubt . In our mind, that the same conclusion would have been reached as has been arrived at by us. The judgment in the case of Pakistan Mineral Development Corporation v. Pak. WAPDA PLD 1986 Quetta 181 is not relevant in the present controversy. We, therefore, hold that only those disputes which are covered under the provisions noted above, are the disputes or differences which are referable to the Electric Inspector. The other conclusion recorded by the learned Single Judge in the aforenoted precedent to the effect that the assessm ent made by the licensee and the amount billed for dishonest abstraction under section 26-A of the Act, is not immune from the scrutiny of the Electric Inspector, is also not with utmost respect to the learned Single Judge, based on appreciation of sections 24, 26 and 26-A of the Electricity Act. The jurisdiction of the Electric Inspector to scrutinize the demand made on account of dishonest abstraction of energy is based on the following reasoning: "start,s off with non obstente clause, by deploying the expression `notwithstanding anything contained in section 23 which demonstrates beyond any degree of ambiguity, the obvious intendment of the legislatures. The legislature, at the time of the amendment, was not oblivous of the provisions of section 24 (2) and section 26 (6) of the Act and it preferred in its wisdom to exclude only section 23 from the rigours of the operational ambit of the newly-added sections, thus, leaving the afore-referred two sections, immune from its impact. Had it entertained any notion to the contrary, then there was nothing in its way to add in the non obstente clause section 24(2) as well as 26(6) of the Act or it could have still further easily adopted a blanket formula, for instance 'notwithstanding the aforegoing'. To my mind, this device has been adopted as a matter of design and not omission. This interpretation is fortified by having a recovery to rule of interpretation enshrined in the maxim expressio unius est exclusio alterious."
' We have reviewed in the earlier portion of this judgment, sections 23, 24, 26 and have also discussed in detail the distinctive features and different aspects of sections 24(2) and 26(6).
Section 23, as far as obligation of licensee (WAPDA) is concerned is not applicable to WAPDA by virtue of section 12 of the WAPDA Act, 1958. Moreover, section 23 provides only methods applying which the charges for energy are to be made. Section 26-A also provides for the methods applying which the charges for dishonestly abstracted electricity is to be billed and charges. It will be seen that neither section 24(1) nor section 24(2) nor section 26(6) provides for the method for assessing or charging the energy supplied, or consumed stealthily or dishonestly. It will therefore, be seen that reference to section 24(2) or section 26(6) is not apt and non-inclusion of these subsections in the non obstante clause cannot be treated as deliberate or indicative of the intention, to render the charges assessed under section 26-A scrutinizable by the Electric Inspector. No such intention can be inferred on account of non-inclusion of the two subsections as these do not per se confer jurisdiction. Section 24(2) does not itself provide for making of reference to the Electric Inspector. It only refers to other provisions of the Act for finding out whether reference of a particular difference or dispute under the Act has been contemplated or not. Obviously section 26-A does not include a provision conferring a right on a party to refer to the Electric Inspector the amount assessed on account of dishonest abstraction of the electric energy. At best, the dispute referable under section 26(6) is whether the meter or other measuring apparatus is not correct. Before making actual reference of the aforesaid dispute to the Electric Inspector, seven days' notice of his intention to make reference has been given to the other side. On receipt of such notice, the licensee/WAPDA can resort to placing another maximum demand indicator or other measuring apparatus at the premises so as to ensure correct ascertainment of the energy consumed as also to show that the challenge made on account of any alleged fault or incorrectness of the meter is without substance. It is only when after giving seven days' notice, a proper reference contemplated in the Act, has already been made and notice of default contemplated in section 24(1) is given by the licensee that the power to discontinue the supply conferred by the said subsection cannot be exercised. These provisions contained in section 24(2) and section 26(6) of the Act cannot be read as conferring jurisdiction or power on the Electric Inspector to scrutinize the amount demanded under section 26-A for dishonest abstraction or consumption of energy.
12. We may at this stage refer to the case of Gadag Betrigi v. Electric Inspector (AIR 1962 Mysore 209) cited by the learned counsel for WAPDA on the question of meaning of section 26(6) of the Act. In this case the grievance in the matter of reference was that the licensee had fixed 24 Single- phase Meter for street light at sight centres i,e, three meters on one single board at each centre, General, Consumer Section-fuses and the Section-fuses for street lights were installed on one and the same pole. In spite of repeated demands and reminders from the Municipality and several warnings from the authorities concerned, the licensee had not cared to supply the information regarding the different public lamps brought under different meters, together with their wattage etc. The Municipality averred that it had reason to believe and, in fact believes, that the licensee had manipulated and was manipulating the readings of the meters for street light by connecting other loads which were not meant for them. The Municipality refused to recognise the readings recorded by the alleged meters as correct and genuine. The Electric Inspector refused to decide the dispute referred to him on the ground that dispute did not fall within section 26 (5) of the Act.
He was of the view that the allegation made by the petitioner against respondent was in substance an allegation of fraud in regard to which the petitioner was bound to seek the adjudication of a Civil Court in the ordinary way. After examining the provisions of sections 24 and 26, which are in essence para materia with the provisions contained in the sections of the Act, learned Judges, concluded as under:-- "In my opinion, the legislative intent underlying section 26 (6) of the Act is similar. The only question into which the Inspector or .Other authority functioning under that subsection might investigate is, whether the meter is a false meter capable of improper use or whether it registers correctly and accurately the quantity of electrical energy passing through it. If, in that sense, the meter installed by respondent 2 this case was a correct meter as it undoubtedly was and as it has been admitted to be the fact that respondent 2, even if what the petitioner states is true, so manipulated the supply lines that more energy than what was consumed by the petitioner was allowed to pass through the meter, would not render the meter which was otherwise correct, an. Incorrect meter.
' The view that I take derives support from the explanation occurring in subsection (7) of section 26 that a meter shall be deemed to be "correct" if it registers the amount of energy supplied, or the electric quantity contained in the supply, within the prescribed limits of error. This explanation makes it abundantly clear that if the meter registers the amount of electrical energy supplied within the prescribed limits or error, it shall be deemed to be a correct meter. Since there was no allegation in this case that the meter was not registering the amount of energy supplied within the prescribed limits of error, it was impossible for the petitioner to contend before the Inspector that the meter itself was an incorrect one.
' This was, therefore, not a case in which the Inspector could do anything under section 26(6) of the Act, since admittedly the meter registering the electrical energy supplied to the petitioner was in perfect condition, capable of registering accurately within the prescribed limits of error, the electrical energy supplied to the petitioner. The Electric Inspector, therefore, rightly declined to exercise jurisdiction under section 26(6) of the Act."
' In the instant case also the meter was statedly completely by-passed. The Electric Inspector in the impugned order has noted that the precise contention of the respondents in the present case is that consumer has dishonestly abstracted and consumed electricity through illegal devices i,e, direct cable, and metering equipment was completely by-passed, and that so long as no metering equipment is involved the provisions of section 26(6) are not attracted and licensee can evaluate the consumption and assess the bill under section 26-A of the Electricity Act, 1910. After noting the above provision the jurisdiction is assumed by the method adopted for assessing the amount determined. The method as such cannot be subject-matter of challenge, as the method is the one provided by the law itself. The jurisdiction of the Electric Inspector is the provision of section 26(6) with reference to the meter or the maximum demand indicator or the measuring apparatus, supplied for ascertaining the supply of energy consumed at the premises. The amount of the bill for dishonest abstraction and the method adopted, would not be challengeable in contemplation of section 26-A before the Electric Inspector as the consumer who wishes to challenge the same will have to seek his remedy under the general civil law by initiating appropriate proceedings before the Civil Court of plenary jurisdiction. The Electric Inspector by straining the language cannot assume the jurisdiction which the legislature has not conferred on him and in its wisdom has left the parties to avail of the remedy under the General law from the judicial forum itself which forum having the plenary jurisdiction is best suited to decide the question after holding proper enquiry and on the basis of proper evidence.
' For the reasons given above, we have not found ourselves, with due respect to the learned Judge, to agree to the conclusion recorded in the aforenoted precedent. We therefore, answer the question referred to us in negative, The petitions will now be fixed for disposal before Bench to be nominated by the Hon'ble Chief Justice