' The petitioner seeks declaration of detection bill amounting to Rs,33,37,397 to be illegal and without lawful authority on the basis that the case got registered by the WAPDA against the petitioner vide F.I.R. No,436 of 1998 dated 17-6-1998 under section 39-A of the Electricity Act, 1910 has been proved to be false and baseless.
2. The grievance of the petitioner is that the petitioner was given the connection of the electric supply by the respondents under Reference No,915200155004 in the year 1992 and since then the petitioner is paying the electricity bill regularly and there has never been any complaint against the petitioner. According to policy of WAPDA, the customers who have good reputation and pay regularly their bills, they give them special meters called as P.O.D. Meters and the petitioner accordingly submitted an application to the concerned authorities for obtaining the P.O.D. Meter.
The respondents 3 to 9 sanctioned the P.O.D. Meter and proceeded to instal the meter and for that purpose the Superintending Engineer 1st Circle, the Executive Engineer (Maintenance) and the Executive Engineer (Operation). Visited the site of the petitioner for inspection and the Inspecting Members visited the site and opened the Electric Room and they found the equipment and the panel etc. Was made ready for affixation of P.O.D. Meter and the entire staff of respondents 3 to 9 as required for the purpose remained at the site till 7 p.m. On 16-6-1998. At about 9.30 p.m. The Director Maintenance, namely, Jameel Ahmad came at the site and he felt offended upon the petitioner's person probably for his own benefit and he gave instructions of the Executive Engineer, Ch. Sarfraz for false registration of a case, and consequently served the detection bill for Rs,33,37,397 to the petitioner and received Rs,8,34,349 as fine by force. According to the petitioner, the incident took place on 16-6-1998 and after two days, the respondents 3 to 9 lodged a criminal case for theft of electricity against the petitioner at Police Station Factory Ara, district Sheikhupura fide F.I.R. No,436 of 1998 dated 18-6-1998 under section 39-A of the Electricity Act. The petitioner then submitted an application to the S.H.O. Police Station Factory Area submitting that he can give oath on Holy Qur'an that he did not steal the electricity and he may investigate the case thoroughly on which the case was investigated by the S.H.O. And the D.S.P. Thoroughly by joining 33 persons and the Investigating Officers came to the conclusion that there has never been any misuse or theft of the Electric supply and that as alleged by the respondents 1 to 7 in the F.I.R., all the allegations are fabricated and false due to grudge of respondents 3 to 9. It is the case of the petitioner that the F.I.R. Has been found to be bogus, baseless due to the personal grudge of the respondents and as such the detection bill to the tune of Rs,33,37,397 is illegal, false and based on mala fide and that after investigation by the Police the petitioner has been acquitted of the charge levelled against him and as such the amount of Rs,8,34,349 received from the petitioner by force was illegal and without lawful authority.
3. In response to the notice issued by this Court, respondents 3 to 9 have filed the written statement taking the preliminary objections that it is settled law that no suit or proceedings can be initiated in any Court of law without impleading necessary party and that the petitioner is a consumer and the WAPDA is licensee and that the WAPDA licensee has not been impleaded as a party and that the licensee is absolutely necessary party because the dispute if any is always between the licensee and the consumer, it is the authority who can sue and be sued as laid down in section 3(2) of the WAPDA Act, 1958 and that the provisions of the Code of Civil Procedure are applicable to the writ petition and it is mandatory provision of law that granting injunction Court is to direct a notice to the opposite party and since the injunction order has been against the statutory authority without notice, therefore, the injunction order dated 24-7-1998 passed by this Court is liable to be recalled and that the petitioner is running steel industry whose sanctioned load is 3500 K.W. Under Tariff B- HI and that the supply to the petitioner's mill is being made through an independent feed of 11 K.V.
Line and that there is no other connection on the line from the Grid Station to the premises of the consumer and that one metering panel has been installed in the premises of the consumer and other at the Grid Station to measure the energy supplied to the petitioner and that the meter of the consumer was checked by a committee consisting of high ranking officer of the WAPDA, namely, Superintending Engineer 1st Circle, the Regional Manager (M&T)-I and the Executive, Engineer Shandara Division who visited the premises of the consumer and on checking the meter the following discrepancies were found:- '"On opening the front panel of P.T. Chamber the Plate existing at the P.T. Chamber had postal order No,BJ-946684, BJ-946184 also repasted. On removal of this Chamber plate postal order BJ-946180, BJ-946181, BJ-946182 appearing on the P.V.C. Pipe covering the P.T. Secondary connection were also found torn. This indicated possible access to the P.T. Wires Postal Order BJ-946175, BJ-946176 and Security Slips D.904410, D.904406 found also torn possibility due to blast at some stage. The meter readings were observed as:-- KWH196015 X 120 KVARH MDI26.2. x 120 Re-set41 Sum 282 ' It is also mentioned that the meter at the Grid Station for this connection alongwith otherwise were secured by the Committee jointly with XEN P&T on 15-6-1998. The reading recorded by XEN Shandara Division on 15-6-1998 and 16-6-1998 at the Grid Meter were: 15-6-1998 KWH 419315 x 160 MDR Reset to Zero0 16-6-1998 KWH 419612 x 160 MDI 15 x 160 ' The units recorded on the above basis carried over a month's period as well as the recording at the premises after 1st June, 1998 uptill 16th June, 1998 carried over a month's averaged out to be around 12 lac units with maximum demand of 2400 K.W. At the Grid meter and 3144 K.W. At the premises showing an appreciable increase after securing the Grid meters. The consumer furnished an undertaking to the effect of above observations showing willingness to pay for the loss of WAPDA."
' It is next submitted that the petitioner gave an undertaking admitted the contents of the above said report and agreed to pay the detection bill and accordingly bill was prepared and it is on the application of the petitioner that he was allowed four instalments to pay the amount of the detection bill and that the petitioner once having deposited the one instalment he cannot resile from his undertaking as laid down in Article 114 of the Qanun-e-Shahadat Order, 1984 and that the action of the Checking Committee is supported from the consumption data and that the XEN Shandara was also involved in the theft and that the Police without taking documentary and oral evidence of the WAPDA has exonerated the petitioner and that the S.S.P. Is being contacted for reinvestigation and that even if the accused is absolved of the criminal liability the civil liability stands against him. On merits, the grounds taken by the petitioner were denied and reiterated that the criminal case was rightly got registered as the energy was being stolen as was found by the Checking Committee and that the S.S.P. Is being contacted for re-investigation and that once the petitioner has got instalments of the detection bill, he is bound to pay the full detection bill and cannot resile from his undertaking.
4. I have given due consideration to the valuable arguments on both the sides and have gone through the record with the able assistance of learned counsel for the parties and even got the valuable assistance from the Chief Executive, L.E.S,C.O. To come to a just conclusion.
5. The basis of charging the detection bill is stated to be the actual consumption recorded by the consumption meter from 1-6-1998 to 16-6-1998 after scrutiny on 1-6-1998 and the consumption recorded by meter from 15-6-1998 to 16-6-1998 installed at the Grid after its proper scrutiny on 15- 6-1998 as 36,000,00 units out of which 27,31,500 units have already been debited and the amount paid. The disputed units are alleged to be 8,68440 as per respondents while according to the petitioners there is not a single unit consumed by him nor he has committed any forgery or theft.
The documents placed on record from both the sides show that on criminal side, the action was initiated but at the investigation stage, that could not be established. The said investigation was verified by the S.D.P.O. It is on the record that the respondents initiated action against the XEN departmentally and even against the Investigating Agency by moving the competent Authorities.
6. On the-other hand, the petitioner has protested the action at every stage and has also filed this petition.
7. I was inclined to refer the matter to the Electric Inspector under section 26(6) of the Electricity Act, 1910 but the petitioner alleged that seven days notice by either party of his intention to refer the matter to the Electric Inspector has not been given and, thus, an illegality has been committed and that now when a right has been vested in him by the illegality committed by the respondents, it would be unjust and that the writ petition merits to be allowed when the respondents have failed on legal plane. It has further been submitted that the factors like Sundays and Gazetted holidays, load-shedding and other hazards and impossibility of running the mill round the clock have not been taken into consideration at the time of assessment of the actual consumption. The assessm ent has been made against the petitioner on mere presumption.
8. On the other hand, learned counsel for the respondents has submitted that whatever has been done, it has been done according to law and that there is no malice or mala fide on the part of the respondents.
9. The petitioner was ready to get the matter decided on the oath of Mr. Sarfraz, the Executive Engineer while the department was ready to get it decided on the oath of Mr. Javed Aziz, the Superintending Engineer. It has also been admitted by the respondents that the petitioner has never committed theft in the past and has been paying the electricity bills in time.
10. Both the parties admit that there were two furnaces, there is no dispute about one furance running continuously and there is also no dispute that there were gazetted hollidays as under:-- March, 1998 Sundays 5 Gazetted holidays2 April, 1998 Sundays 4 Gazetted holidays4 May, 1998 Sundays 5 Gazetted holidays23 days)
Working days: (69)
' There is no denial about the load-shedding. There is also no denial that due to disconnection with effect from 16-6-1998 to 10-7-1998 the petitioner has suffered loss of production and the respondents of energy sale.
11. Taking into consideration all the above admitted factors and circumstances it seems just and equitable that the petitioner and the Department should bear the responsibility equally being vicariously liable. Accordingly, the petitioner is held responsible for the consumption of 434220 units for running the furance during the admitted working period and is held liable to pay Rs,16,68,698 as detection bill out of which the petitioner has already deposited Rs,8,34,349 as per receipt mark 'A' which deposit is also admitted by the respondents. Regarding the remaining amount of Rs,8,34,349 the petitioner requests for six equal instalments while the respondents insists on two equal instalments. It is ordered that the petitioner shall deposit the amount of Rs,8,34,349 in four equal instalments at the rate of Rs,2,08,562.25 per month alongwith the current bill and all the actions and proceedings against each other by both the parties including the XEN shall stand withdrawn.
12. The writ petition stands disposed of accordingly.