The petitioner by way of this Constitutional petition seeks the action of the WAPDA (Water and Power Development Authority) of checking the electricity installations, disconnecting the electricity connections and charging of petitions with detection bill to the tune of Rs.2,97,923 to be illegal, void, without lawful authority, against the statutory provisions and the dictum laid down by the superior Courts based on mala fide and ulterior motive with a further direction to restore the electricity connection and to get the meter and other equipments checked by the Electric Inspector and to withdraw the detection bill and also to act strictly in accordance with law. '
2. The brief facts of the case are that the petitioner was the owner of Hassan Ice Factory and Oil Mills in Chak No.Ll/WB, Vehari. About 3/4 months prior, the father of the petitioner died. In the said factory, Industrial electricity connection No.5321-316300 was installed and the petitioner is consuming the said connection. The petitioner always paid the bills regularly and nothing was due against him in any manner. The metering equipment of the petitioner's factory was regularly checked by the WAPDA in the start of every summer season so the installation was checked by respondents Nos.4 and 6 on 13-5-1997 which were found correct and O.K. After the checking, few functionaries of the respondents approached the petitioner and demanded illegal gratification saying that there are heavy line losses found on the feeder of respondent No.4's Sub-Division and they are planning to charge exorbitant bill to all the customers of that Sub-Division and if the petitioner would have given them the handsome amount, he would not be charged with any such bill but the petitioner not only refused to fulfil their evil designs but also admonished them in hot words. Upon this, they nursed a grudge and on 28-7-1997 without intimating the petitioner, few of the respondents came to the factory and without any reason illegally disconnected the energy and also removed the transformer and the meter. The petitioner by chance went there and witnessed the occurrence. On the same day, respondent No.4 got a criminal case registered under section 39-A of the Electricity Act read with section 379, P.P.C. Vide F.I.R. No.112 of 1997 with Police Station City, Vehari. After few days, the petitioner was served with a notice stating that K.H.W. And M.D.I. Meter was prevented to register the energy by artificial means and the petitioner was asked to explain the matter within 7 days but it is astonishing that before the notice was issued, the electricity connection was disconnected and a detection bill 'to the tune of Rs.2,97,923 was prepared against the petitioner though was not served on the date of preparation. A civil suit was filed by the petitioner but the same was withdrawn. The petitioner then moved the Superintendent of Police, Vehari, requesting for checking by the Electric Inspector and in turn the Electric Inspector informed that he would visit the site and check the metering equipments on 29-10-1997 but the officers of the WAPDA malafidely approached the S.P. Vehari who stopped the Electric Inspector from checking the metering equipments and visit the site.
3. It is submitted by learned counsel for the petitioner that the Electric Inspector was the actual Authority who could adjudicate the matter properly and the action of the respondents in against the provisions of the Electricity Act, 1910 and in violation of sections 20, 24 and 26 and also of the Schedule and that the respondents not only without any information or lawful authority checked the premises but also they did not associate any respectable of the locality and that it was the bounden duty of the respondents that where any difference or dispute arises between the licensee and the customer regarding the meter or maximum demand indicator or any other equipment, the matter shall be referred to the Electric Inspector and that by stopping the checking of metering equipment by the Electric Inspector, the mala fide of the respondents is apparent and that the petitioner has been condemned unheard and that prior to the decision of the criminal case got registered against the petitioner by the respondents the petitioner cannot be charged the detection bill and the energy cannot be disconnected and that in the routine checking which was made on 13-5-1997 all the installations of the factory were declared within B.S.S. Limits, that is, British Standard and Specification limits, and, that the respondents being the statutory functionaries are bound to act in accordance with law.
4. On the other hand, the respondents in their written statement raised a preliminary objection that since the disputed questions of facts have been raised in the writ petition, the writ petition is not maintainable. On facts, it has been submitted that the petitioner is a habitual energy stealer and that earlier on 16-9-1995 discrepancies were found and a detection bill was prepared to the tune of Rs.78,949 and similarly in 1996, the detection bill of Rs.76,830 was paid by the petitioner and similarly, in the year 1997, he was found stealing the energy as such the impugned action was taken and that the Superintendent of Police, Vehari withdrew his order summoning the Electric Inspector on coming to know about the pendency of the matter before a Court of law and that the respondents acted within the parameter of law and that it is not a simple case of difference but is a theft case wherein the matter cannot be referred to the Electric Inspector and the petitioner, if so advised, may approach the Electric Inspector and it is not the duty of the answering respondents and that no law has been violated and that the initiation of criminal action and detection bill are two different matters and that the petitioner was found using the energy dishonestly which is an, offence under section 39 of the Electricity Act, 1910.
5. I have given due consideration to the valuable arguments on both the sides and have respectfully gone through the precedents cited at the Bar.
6. The admitted position is that a checking was conducted by the Checking Team of the respondents on 28-8-1997 and it was found that the petitioner had prevented K.H.W. And M.D.I.
Meter to register the energy by artificial means by using especially made instrument. The body of the transformer was short --circuited with blue phase intentionally and through copper were was connected to one supply point or instrument and the second supply point was connected to blue phase of supply side of consumer. The third supply point of instrument was connected to supply side of blue phase of consumer. The supply of instrument was controlled by electrical make/break switch installed on main panel. By making switch on main L.W.H. And M.D.I. Meter was stopped to register energy accurately. K.W.H. And M.D.I. Was found 89.44 per cent slow. This shows that it was not a case of bypassing the metering equipment.
7. In Firdous Oil Mills v. WAPDA and another 1983 CLC 3315 the case of the licensee was that under clause (vi) of the Schedule to the Electricity Act, the licensee can charge the consumer for unaccounted for electric energy consumed but under clause (vi) it is necessary before discontinuing the supply of energy to give not less than 10 days notice in writing to the consumer and that in fact the detection bill itself having been prepared on the ground that electricity had been stolen, it was necessary on the part of the licensee to afford the consumer an opportunity to meet the charge of theft before billing them for the allegedly stolen electricity the detection bills were declared as without lawful authority and of no legal effect as learned counsel appearing for the WAPDA has candidly conceded that notice was necessary and as admittedly no such notice was served on either petitioner, the position of the licensee was undefendable. It is also observed by the learned Judge that it shall, however, be open to the licensee to proceed against the petitioners afresh in accordance with law and if the electric supply was discontinued in either case only on account of the failure of the petitioner to pay the detection bill it shall be restored forthwith.
8. In the case of Mian Muhammad Munir v. WAPDA and others 1983 CLC 211 where the WAPDA found the meter defective, charging bill on the basis of 50% allowances, the meter was not replaced in spite of being duly informed and had disconnected the energy later on due to non-payment of bill and this Court observed that the respondents ought to have either replaced the meter or charged on the average consumption in the past and the conduct of the relevant officers of the respondents was questionable, they could not ignore or violate the law and become judge in their own cause to deprive the petitioner of his rights under section 24 of the Electricity Act and it was held that the bill sent without getting the meter tested from the Electric Inspector or without basing the bill on the average of past was declared to be without lawful authority and of no legal effect. It was also ordered that the respondents shall send the meter which is admittedly sealed to the Electric Inspector for passing an order under section 24 of the Electricity Act.
9. In Naeem Oil Mills v. Water and Power Development Authority 1986 MLD 680 no show-cause notice was issued before determining the liability of the petitioner and the petitioner was not associated at the time of checking of the meter and the calculation of the disputed units, and the learned Judge of this Court observed that it was creating a charge against the consumer on account of electric energy consumed but not accounted for, the service of a show-cause notice was a condition precedent and that before preparing a detection bill on account of unaccounted for consumed electric energy, it was necessary on the part of the WAPDA to associate the consumer at the time of checking and calculation of the units and afford him an opportunity to meet the charge of theft/tampering with the meter and the impugned detection bill was declared to have-been prepared and issued without lawful authority.
10. In Karachi Electric Supply Corporation v. Naseer Ahmad 1986 PCr. LJ 1684 in revisional jurisdiction the Corporation sought the reversal of the order of Special Magistrate, Karachi Electric Supply Corporation, Karachi, whereby the respondent Naseer Ahmad was acquitted of the charge under section 39 of the Electricity Act, 1910. The revision petition was allowed and the case was remanded with the observation that the accused being guilty of theft of the electricity and conviction in consequences, his conviction vis-a-vis the recovery of electricity charges alongwith penalty from him could not be construed as a case of double jeopardy and the argument that the dispute involved was of a civil nature was also repelled.
11. In Messrs Shama Textile Mills Ltd., Chiniot v. WAPDA through' Chairman WAPDA 1989 CLC 2345 where on the receipt of a report that the electricity was being stolen by the Mills the Chief Engineer had directed the Executive Engineer to check the electric energy and metering of the Mills and the Executive Engineer (M&T), S.D.O. (M&T) and one Abdul Majeed had carried out the checking of the electric installation and they had found that the anti-stealing boxes containing the electric meters had been tampered with, their sides seals were bogus and that the meters had been reversed and the detection bill had been prepared on the basis of decision communicated through Letter No.2436-2642/MDP/GMD, dated the 29th May, 1971, from M.D. (P.) WAPDA addressed to the Chief Engineer, etc. And whose contents being pertinent for decision of the appeal were reproduced:---- "It has been decided that whenever any anti-theft welded steal box, which is provided and installed by the Department at consumer's premises with the sole object of pretceging the Department's meter from being injured or tampered with, is found to have been broken tampered with or damaged, and prima facie evidence exists of any artificial means having been applied for the dishonest obstruction of electric energy by injuring or tampering with the Department's meter or otherwise, preventing the same from registering the correct. Amount of energy supplied or the electrical quantity contained in the supply, then, in addition to any legal proceedings to be taken against him under the Electricity Act, 1910, the consumer should be charged, as follows, for a period of 6 months as per previous decision of the Authority:--
(a) For fixed Monthly Charges 80 % of the connected load, or the declared load, or the actual maximum demand, whichever is greater.
(b) For monthly Energy Consumption Charges Connected load x 80 % laid factor x 30 days in a month x 24 hour's in a day.
It was observed by their Lordships that the respondent was not under obligation to issue any notice to the appellant before examining/inspecting the electric meters installed in the Mills. Nevertheless; the respondents' officers deputed to carry out examination and inspection of the electric meters were definitely required under the law contained in section 20(1) of the Electricity Act to associate with them one or more respectable residents of the area of locality in which the Mills premises were situated before entering the premises for carrying out checking. Those wholesome provisions of law are enacted to ensure fairness of checking carried out by the respondent or its authorised functionaries, because respectable persons, other than the licensee, consumer and their people, act as a sort of independent impartial observers, and demanded its strict compliance. Its breach by the respondent's staff would tend to chip away the legality of the checking proceedings.
12. In the case of WAPDA v. Mian Muhammad Riaz PLD 1995 Lah. 56 the difference between a case falling between section 26(6) and section 26-A of the Electricity Act, 1910, has been very elaborately explained surveying the whole Act and the precedents. In that case the meter was statedly completely bypassed but in the case before me the metering equipment is involved as such section 26(6) is attracted and the licensee could neither evaluate the consumption nor assess the bill under section 26-A of the Electricity Act, 1910.
13. As such the writ petition is allowed and the impugned detection bill is declared to be illegal and without lawful authority and is hereby set aside. It is' further declared that the action of the respondents disconnecting the electricity of the petitioner is also illegal and without lawful authority. The respondent shall restore the electricity of the petitioner forthwith. The parties are directed to appear before the Electric Inspector who shall decide the matter strictly in accordance with law. In case the verdict of the Electric Inspector comes in favour of the petitioner the amount of Rs.71,000 deposited by the petitioner under orders of this Court shall be refunded to the petitioner and in case the decision of the Electric Inspector is adverse to the petitioner the WAPDA shall have the right to adjust that amount to the extent of the adverse findings: Parties shall appear before the Electric Inspector on 9-10-1998. However, the parties shall bear their own costs.