MUNAWAR AHMED MIRZA, J.---This appeal, by leave of the Court is directed against judgment dated 23-5-1997 passed by the Peshawar High Court whereby Writ Petition No,118 of 1997 challenging demand of the Fixed Charges claimed in Electricity Bills was rejected mainly on the ground that question raised constituted disputed facts which could not be properly resolved by invoking jurisdiction under Article 199 of the Constitution.
2. Facts briefly mentioned are, that appellant, a private limited company, is engaged in manufacturing Extensive Sack Kraft Papers having Industrial Unit, at Charsadda. Appellant had obtained electricity connection from WAPDA for industrial purposes. It is the main. Grievance that WAPDA besides charges pertaining to electricity actually consumed by the appellant's factory, was also recovering Fixed Charges despite frequent interruptions or breakdown resulting from power fluctuation and load shedding. Appellant represented before concerned authorities of WAPDA about unjustified demand of Fixed Charges in every Billing Month, but to no avail. Eventually Constitution Petition No,118 of 1997 was filed before Peshawar High Court on 21-1-1997 seeking following relief:-- "It is, therefore, most respectfully prayed that:--
(i) The respondents action of recovering fixed charges during the period of break-downs, loadshedding and power-fluctuations and/or illegal disconnections, may kindly be declared to be without lawful authority and of no legal effect;
(ii) The respondents may be restrained from recovering arrears/additional surcharge etc. If any, from the petitioner until final determination of the issues involved.
Any other relief appropriate in the circumstance but not specifically asked for may also be granted to the petitioner, with costs."
3. Above petition was, however, dismissed by means of judgment dated 23-5-1997, Appellant then assailed said judgment of Peshawar High Court before this Court through Civil Petition for Leave to Appeal No,531 of 1997, which was, however, granted on 8-7-1997. Operative portion is reproduced below:-- "The learned counsel has placed before us a copy of the leave granting order of this Court dated 20-11-1995, passed in a large number of petitions arising from the order of High Court of Lahore, declaring the recovery of fixed charges for electric energy as without lawful authority, to consider whether WAPDA is entitled to recover fixed charges for the period when electricity is not supplied due to load shedding. As leave has been granted by this Court as stated above, we are inclined to grant leave in this petition also on the same terms.
Petitioner has applied for stay of the recovery of Rs,4,36,35,402 against WAPDA pending decision of the appeal. The learned counsel for the WAPDA vehemently opposes the grant of stay and contends that the above amounts are the arrears of additional surcharge and surcharge and not the fixed charges. This position is, however, not admitted by the learned counsel for the petitioner who contends that this amount is also inclusive of the fixed charges demanded by the petitioner. It is an admitted position in the case that the petitioner has been paying the fixed charges all along till today in respect of the bills received by him from the WAPDA. It is also not disputed before us that in the case reported as Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCM R 641), this Court, by a majority held that the recovery of additional surcharge and surcharge by The WAPDA was valid. In these circumstances the question of grant of stay in respect of recovery of surcharge and additional surcharge by WAPDA does not arise. However, as it is claimed by the petitioner, that the disputed amount of Rs,4,36,35,402 consists of fixed charges, surcharge and additional surcharge, the respondent WAPDA is directed to undertake an exercise to ascertain the amount payable under each head, namely, fixed charges, surcharge and additional surcharge separately. The amount of fixed charges paid by the petitioner will be deducted from the above amount and only balance could be recovered from the petitioner. Till the disposal of appeal, the fixed charges for energy shown in the periodical bills of electricity to be issued to petitioner will not be recovered from them; if the furnish bank guarantee for the said amount to the satisfaction of Registrar of Peshawar High Court. This appeal will be heard alongwith the appeals arising from C.P.
76-L of 1994 and other connected matters."
4. During pendency of this appeal a Civil Miscellaneous Application No,598 of 1997 under `Order XXXIII, Rule 6 of the Supreme Court Rules, 1980, was submitted by appellant, wherein it was urged that disputed amount of Rs,4,36,35,402 had been unilaterally worked out by WAPDA. It was alleged that 'supply chargesclaimed through 'Monthly Billing Demandwas glaringly whimsical and arbitrary which thus did not contain requisite details. This Court vide Order, dated 14-10-1997 had modified earlier order passed in Chamber on 1-8-1997 and respondent (WAPDA) was directed to work out details pertaining to electricity bills. The order is reproduced below:-- "We have heard the learned counsel for the parties in C.M.A. 598 of 1997. In order to decide the controversy it is necessary that the compliance of our order, dated 8-7-1997 be first made. The respondents are accordingly directed to work out the actual amount of surcharge, additional surcharge and fixed charges of Rs,4,36,35,402 (Four crore, thirty six lacs. Thirty five thousand, four hundred and two). This statement should be filed within one week and as soon as the statement is filed the application be relisted for further orders. In the meantime the electricity connection shall not be disconnected. The interim order made in Chamber on 1-8-1997 stands modified to the extent stated above."
5. It may be seen that pursuant upon above order the respondent on 18-10-1997 alongwith application furnished necessary break-up showing different heads of amount payable by the appellant, supporting the assertions with an affidavit. It may be clarified that respondent itself has allowed benefit of Rs,56,375 (Rupees fifty six thousand, three hundred and seventy five) out of 'fixed chargesby calculating period of loadshedding from years 1993 to 1996 and proportionately adjusting the amount which may fall due to appellant. For convenience detailed break-up is also given hereunder:-- DETAILS OF DEMAND OF ARREARS AGAINST FLYING KRAFT PAPER MILL, (RS.43-52479) CHARSADA A/C Surcharge NO: Fixed Charges 24-6141-000100B-4 Month Amount of Additional Surcharge Surcharge Fixed Charges Total 1 2 3 4 5 6/95. 1166758.00 Nil Nil 1166758.00 7/95. 1123621.00 - - 1123621.00 8/95. 3363246.00 - - 3363246.00 9/95. 2522995.00 - - 2522995.00 10/95. 3483638.00 - - 3483638.00 11/95. 4172476.00 - - 4172467.00 12/95. 4130069.00 - - 4130069.00 1/96. 2144314.00 - - 2144314.00 2/96. 2946388.00 - - 2946388.00 3/96. 3858835.00 - - 3858835.00 4/96. 1947422.00 - - 1947422.00 5/96. 1379980.00 - - 1379980.00 6/96. 3113669.00 - - 3113669.00 7/96. 1948003 .00 - - 1948003.00 8/96. 1986595.00 - - 1986595.00 9/96. 2037319.00 - - 2037319.00 10/96. 133953.00 - - 133953.00 11/96. 1593198.00 - - 1593198.00 Total: 43052479.00 - - 43052479.00 Fixed Charges paid by the consumer . During loadshedding period 1993- 1996 (2D, 16H, 25M).56375.00 Balance: 42996104.00 Payment made as per Supreme Court Order dated 1-8-1997. 15000000.00 Net Payable amount: 27996104.00
6. The matter came up for hearing on 25-11-1998 when during arguments attention of appellant's counsel was drawn to the above details. However, neither counter-affidavit was filed nor details were disputed on any tangible basis.
7. Mr. Bashir Ahmad Ansari, Advocate Supreme Court, for appellant and Mr. Gul Zarin Kiani, Advocate Supreme Court, for respondents, addressed arguments at considerable length.
8. Mr. Bashir Ahmad Ansari, learned counsel for appellant, raised following contentions:-
(i) That the appellant is liable only to pay charges towards electricity actually consumed, for the industrial purposes, therefore, demand of Fixed Charges was not lawful. Alternatively, WAPDA being defaulter by discontinuing supply of electricity despite preparedness of appellant to utilise and consume the same, stands disentitled to recover or claim 'Fixed Minimum Charges'.
(ii) Demand raised by the respondents in Monthly Electricity Bills is excessive, whimsical and unfair, therefore, appellant cannot be deemed liable to pay the amount, thus, claimed.
(iii) Sections 12, 13 and 25 of WAPDA Act does not empower the respondent to claim any amount other than actual consumption of electricity. Abridged conditions regulate the relations between the parties for raising demand and failure to regularly supply required quantity of electricity, clearly disentitles WAPDA to demand or recover Fixed Charges from appellant.
9. Whereas Mr. Gul Zarin Kiani, Advocate Supreme Court, for respondents, vehemently opposing the appeal argued that:--
(i) Para. 19 of the Abridged Condition contains method of charging Electricity Bills and consumer is obliged to pay the Electricity Bills on the Schedule of Electricity Tariffs, which is further controlled by the provisions of Electricity Act, 1910 and WAPDA. Act, 1958.
(ii) Abridged Conditions agreement to supply electricity coupled with provisions of Electricity Act, 1910 and WAPDA Act, 1958, create express responsibility upon the consumer to pay 'Fixed Chargesin accordance with specified rates of Tariff. Therefore, claim of the appellant to the contrary is not warranted.
(iii) The appellant is liable to pay Minimum Fixed Charges on the basis of rates specified in Tarrif B- 4 which alone caters for chargeability keeping in view the Sanctioned Load'. Contrary stance taken by appellant does not have any legal sanction.
(iv) Appellant had expressed grievances through Constitution petition, during January, 1997 and none of the subsequent Electricity Bills contain demand, when interruption might have been caused due to Loadshadding. Therefore, failure of appellant to pay the arrears of recurring bills is highly unfair and unjustified.
(v) Correctness of details furnished by the WAPDA in 18th October, 1997 referred (supra) regarding arrears have not been challenged or disputed. Thus, appellant has no legal justification to delay or deny payment of said amount to WAPDA.
10. We have carefully perused the record in the light of above submissions. Firstly, it may be seen that leave was granted in view of leave granting order of this Court passed in Civil Appeal No,1532 of 1995 wherein judgment of High Court, dated 20-9-1993 was assailed. Besides, order of the Court, dated 8th July, 1997 manifestly indicate that leave has been granted merely to examine whether WAPDA could recover Fixed Charges for a period during which electricity is not supplied due to loadshadding. Therefore, appellant cannot be permitted to raise other questions at this stage.
Without prejudice it may be seen that learned counsel for the appellant attempted to argue that Minimum Fixed Charges could not be demanded at all. Factually stand taken by appellant before Peshawar High Court in Writ Petition No,118 of 1997 was directly conflicting with above contentions.
Para. 4 from the memo. Of petition filed by appellant before Peshawar High Court reflecting above situation is reproduced below:-- "That apart from the charges pertaining to actual amount of electricity consumed, the petitioner has to pay fixed charges to the respondents. These fixed charges under the law can only be recovered by WAPDA when it either actually supplies the electricity or is in a position to supply the same. Unfortunately, however, due to break-downs, loadshedding and power-fluctuations and/or illegal disconnections, WAPDA has failed to supply the requisite amount of electricity for the period from October, 1993, when the petitioner-company went into production till-date as a result of which, petitioner has suffered/continued to suffer losses to the tune of Rs,88,075,035. Their detail is contained in the documents enclosed herewith and marked as Annexures 'Ato 'A/1'.
11. Therefore, it may be seen that during proceedings culminating in present appeal, primarily applicability of Tariff B-4, which includes requirement for payment of 'Fixed Chargeswas never challenged. Objection merely related to non-supply or inability of WAPDA to 'supply requisite quantity of energy during temporary breakdown and loadshedding. In the same context it may be observed that under the settled principle of law new points cannot be allowed to be raised at appeal stage during course of arguments. For authority reference may be made to observations contained in PLD 1991 SC 640 (Mst. Neelam Nawaz v. The State). It would be appropriate at this stage to observe that question relating to liability to pay Surcharge and Additional Surcharge etc. Has been atuhoritatively considered and decided by majority view in case of Gadoon Textile Mills v.
WAPDA (1997 SCM R 641) which obviously has binding effect and force of law.
12. For the above reasons only pivotal question requiring consideration in this appeal would be whether appellant is entitled to proportionate reduction of Fixed Charges during the period of loadshedding carried out by WAPDA; when appellant is prepared and willing to utilize the Energy. It may be seen that on the written request of appellant on 14-5-1992 'Sanctioned Loadof the Industrial Unit of appellant was enhanced to 9000 KW vide Director-General Commercial, WAPDA, Lahore's Letter No,1696-98/Cum/D-2282-A dated 31-5-1992. The OfficeOrder was conveyed to appellant by Chairman, Area Electricity Board, Peshawar, through Office Order No,1644045-ID/PE/PB-1, dated 3- 6-1992, intimating that Tariff B-4 would be applicable. Obviously under Tariff B-4 appellant was liable to pay Fixed Charges calculated on the basis of "Maximum Demand" besides Energy Charges per KWH with regard to actual consumption of electricity. The Tariff B-4 for convenience is reproduced below:-- "TARIFF B-4 FOR INDUSTRIAL SUPPLY AT 66 KV AND 132 V Particulars Fixed Charges Per KW Per monthEnergy Charges PLUS per KWH For sanctioned load above (Rupees) 96.00 (Paisa) 41 MINIMUM MONTHLY CHARGE.
The fixed charge provided above will represent the minimum monthly charge under this Tariff even if no energy is consumed."
13. Supply of Power/Energy by WAPDA was obviously subject to terms* enumerated in clauses 15 and 16 of the 'Abridged Conditions" contained in the contract for supplying electricity to appellant, which, however, are reproduced below:-- "15. Disconnection of supply at consumer's request.--In the event of a consumer making request for discontinuance of supply to his premises, whether permanently or temporarily, the Authority may require the consumer to intimate to the Authority the specific reasons for making such a request, and the Authority shall not be bound to comply with any such request until the Authority is satisfied that the request has been made by the consumer on legitimate grounds and not merely to evade payment to the Authority of any fixed/minimum monthly charge in respect of reservation of supply or any other sum due to the Authority for the period of such discontinuance of supply. And in the event of consumer's request being accepted by the Authority, the consumer shall be, and remain, responsible for all charges in respect of the energy consumed upon the said premises and for all other in charges which may become due to the Authority in respect of the said premises in accordance with the Authority's Schedule of Electricity Tariffs and the Authority's Schedule of Service and General Charges in force from time to time, till the date of expiry of the period of reservation of supply, irrespective of the fact that the actual date of dicscontinuatoin of supply falls before that date.
16. Failure of supply.--The Authority shall not be liable for any claims for loss, damage or compensation, whatsoever, arising out of failure when such failure is due, either directly or indirectly, to war, mutiny, civil commotion, riots, strike, lock-out, fire, flood, tempest, lightning earthquake or other force, accident or cause beyond the control of the Authority."
14. In the above background it has be seen whether non-supply of electricity during loadshedding completely absolved WAPDA from any corresponding liability or on account of failure to ensure 'Reservation of Power during aforesaid period a proportionate reduction/adjustment in the Fixed Charges should be granted to consumer. On examination of all aspects we are of the opinion that Minimum Fixed Charges payable to the WAPDA by consumers for obtaining industrial supply apparently presuppose two important factors, Firstly that during the period of loadshedding WAPDA continues to maintain entire network, to immediately restore electricity when its supply is switched back and thereafter, constantly provide requisite energy for which appellants continue incurring expenses. Secondly, appellant is bound to earmark and reserve electricity for entire remaining period to comply with implied responsibility of answering "Maximum demand" of the Consumers.
15. It is, therefore, obvious that "Minimum Fixed Charges" are based upon two equally important factors namely (i) Service Charges and (ii) Preservation of Power. This approach is further supplemented from the fact, that when industrial units have a "sanctioned load" then, irrespective of actual consumption of energy consumer continue to be liable for payment of charges, which thus caters for service line and related network, to meet expected demand, apart from "Reservation of Power". Additionally, on account of "Fixed Charges" Tariff B-4 provides ratabel concession in respect of actual consumption charges.
16. Thus, on comprehensive analysis we are persuaded to observe that real object and true rationale behind "Fixed Charges" appears, to be that during disconnection of supply pursuant upon loadshedding WAPDA continues to maintain a service line and entire set up to ensure the supply of energy when available and "Reserve the Power" to meet "Maximum Demand" besides allowing corresponding concessional rates towards actual consumption of energy. It would be pertinent to mention here that loadshedding is carried out by WAPDA under forced circumstances arising due to shortage of water, which obviously falling beyond its control. However, keeping in view requirement of general public and in the National interest, supply of electricity is regulated under calculated and systematic programme to cover maximum localities by disconnecting power supply on area-wise basis for short intervals or duration. Apparently, during the period that supply of electricity is disconnected in certain areas, where consumers are required to pay minimum "Fixed Charges", then under extraordinary situation question about proportionate reduction becomes significant. There is no gainsaying the fact, that under normal circumstances, WAPDA has been provided reasonable protection against losses on account of interruptions or casual disconnection in regard to supply of energy/power. However, loadshedding entails different consequential effects. Apparently, on account of peculiar circumstance, when there exists acute shortage of water it becomes impossible for WAPDA to generate adequate quantity of power/energy However, through rotation entire available quantity of "power/energy" is sold away, under the distribution programme prepared for effective loadshedding. Since, prima facie, entire energy produced and generated by WAPDA during period of loadshedding is distributed and sold, therefore, under said extreme situation, it is not possible to "reserve the power" required by respective industrial consumers.
17. Evidently WAPDA during the period of loadshedding continues to ensure maintenance of service line for smooth transmission of energy, whereas placed in such situation it becomes impracticable to "preserve power" for catering "maximum demand" and is compelled to distribute the available quantity of energy to different consumers, therefore, to strike the balance the consumers who are paying "Fixed Chargesbe allowed proportionate adjustment. Accordingly we are inclined to deserve that on calculating proportionate amount in regard to "loadshedding" period, half from it (50%) he left to WAPDA towards Line Service Charges and remaining half (50%) of such amount be reduced from minimum "fixed charges" and adjusted to the benefit of consumers.
18. Lastly, plea of waivers and estoppel was raised with regard to maintainability of writ petition filed by the appellant. It may be seen that the petitioner at the first instance had effectively challenged liability of Fixed Charges and raised objection to certain payments towards 21-1-1997 through Writ Petition No,118 of 1997 filed before Peshawar High Court. The grievance with regard to interruptions caused due to unforeseen circumstance are obviously covered by clauses (15) and
(16) of the 'Abridged Conditionsduly accepted by appellant, therefore, objections being raised during the course of present proceedings are misconceived. Liability for payment of Energy Charges according to Tariff B-4 was conceded by the appellant while seeking enhancement of 'sanctioned loadduring May, 1992. However, grievance about different periods when interruptions of Electric Supply was allegedly disconnected constitutes questions of disputed facts needing detailed inquiry which cannot be gone into by invoking Constitutional jurisdiction. However, main controversy for which leave has been granted pertains to entitlement for claiming proportionate reduction/adjustment of the Fixed Charges on account of loadshedding which has been decided through present judgment. Therefore, it is clarified that the benefit discussed in paras. 15 and 16 above shall be allowable to appellant proportionately by computing from current financial year, so that there is future uniform treatment to the consumers of same category/classification.
Accordingly appeal is partially allowed in the above terms. Parties are, however, left to bear their own costs.