The judgments of the Courts below are at variance. The Civil Judge decreed the suit on 23-9-1989 but his decision was reversed by the learned Additional District Judge vide his judgment and decree, dated 14-2-1994. Therefore, this revision petition. There is also a writ petition between the same parties on same dispute. Both of these are being taken together for disposal through this order.
2. The facts of the case are that the plaintiff had a sanctioned load of 191.013 K.W. Under Tariff B-II.
That on account of an acute slump in the market, the petitioner did not require so much of the sanctioned load. Therefore, the petitioner moved an application asking for its reduction. This application was moved on 31-7-1988. The request was for the reduction of load to 61.454 K.W This was to bring the consumption under Tariff B.I. That the reduction for the consumption was verified by the WAPDA even through spot inspection. Thai despite closure of the factory non-consumption of electricity and the application under reference, WAPDA sent a bill of Rs.19,323 which was due on 28-9-1988. This was against fixed charges. The bill was paid under protest. Likewise the WAPDA again sent the bill against fixed charges on account of Tariff B-II for Rs.21,002. The petitioner then went to the Civil Court challenging the two bills. In the meanwhile, his application for reduction of the load was accepted and his load was reduced to 61.549 LW w.e.f. 1-7-1989. This application was, dated 14-6-1989, which became effective on 1-7-1989. The suit was decreed. The matter was next taken up by WAPDA before the learned Additional District Judge. The learned first appellate Court accepted the appeal and dismissed the suit on 14-2-1994.
3. The learned counsel assails the reasons given by the learned first appellate Court while dismissing his suit.
The grounds taken in the revision petition are as follows:--
(a) According to the learned counsel, after the application for reduction of the load was accepted, the order will come into operation, from the date of the submission of application. In this connection he placed reliance on the case of WAPDA v. Janat Ice Factory 1993 CLC 651. In this case the Electric Inspector had decided that the benefit of reduction is to be given to the consumer from the date of his application and not from the date of sanction. The relevant excerpt explaining the facts in that case is reproduced below in extenso:------ "On Issue No.2, the Electric Inspector held that in cases of reduction in load, benefit of reduction is to be given to the consumer from the date of his application and not from the date of sanction.
Reliance in this connection was placed on two precedents from Gujranwala. In one case, the consumer who had applied for reduction of load on 18-6-1987 was given the benefit of reduction in load from the start of next financial year i.e. From 1-7-1987 although the sanction was granted by the competent Authority on 17-12-1987. Similarly, in the other case, the consumer had applied for reduction in load on 26-6-1986 which was sanctioned on 10-7-1986 yet he got the benefit of reduction from 1st July, 1986. It was accordingly held that respondent No. l having applied for reduction in load in May, 1988, was entitled to the benefit of reduction with effect from 1st July, 1988, irrespective of the fact that the competent Authority had failed to process and sanction the application for which the respondent was not at fault and more so far the reason that the respondent himself had physically reduced the load from 97 K. W. To 56 K. W. With effect from the date of his application."
This was challenged through a Constitutional jurisdiction and following observation was made by this Court:-- "Upshot of the above discussion is that the impugned order of the Electric Inspector and of Advisory are not shown to suffer from any illegality muchless from jurisdiction defect. They, therefore, do not call for any interference by this Court in Constitutional jurisdiction."
4. Relying on the aforementioned judgment, the learned counsel for the petitioner contends that the reduction in the load has to become operative from the date of the application in view of the precedents reflected in the aforementioned case.
5. Writ Petition No.13131 of 1998 was filed by the same petitioner on almost same facts. The prayer was:-- "(i) Comply with the restoration of connection order issued vide Serial No.63, dated 6-6-1991.
(ii) Not to claim fixed, charges after the actual disconnection of the electricity supply; (i.e) Electricity load be reduced from 65.72 K.W. To 27 K.W.
Any other relief to which the petitioner is found entitled may also be granted."
6. According to the learned counsel for the respondent/WAPDA the petitioner wanted the reduction of the load and this was allowed subject to payment of coats which he has challenged. That until the cost was paid reduction in load was not possible and the whole exercise would be meaningless. He referred to the prayer part of the plaint and said that it hardly disclosed the cause of action. But according to him the relief asked for in the writ petition was more sensible. That as the writ petition had been filed subsequently, it will take the place of the revision petition and, therefore, this Court should confine itself only to the writ petition.
7. According to the learned counsel for the petitioner he has deposited the cost of material and WAPDA should have no hesitation in reducing the load.
8. The case WAPDA v. Jannat Ice Factory had somewhat different grounds. In that case, the respondent i.e. Jannat Ice Factory had physically reduced the load itself w.e.f. The date of his application. In this particular case, the petitioner is asking for the reduction in the load which is to be made by WAPDA, According to WAPDA, the reduction was to be made after depositing of the cost for reduction of the load. According to the learned counsel for the petitioner, this cost has been paid not only that a fresh test report has also been submitted and as yet neither the load was being reduced nor the electricity was being reconnected to his premises which had been disconnected by WAPDA in the past.
9. The rationale behind the levy of fixed charges during the period of temporary disconnection have been explained in the case of WAPDA v. Makka Ice Factory PLD 1991 SC 813 wherein it was said:-- "The rationale behind the levy of minimum charges is that during the period of temporary disconnection the Authority has to keep ready with the sanctioned load and continue to maintain the necessary set up in this behalf, to make the energy available to the consumer when asked for.
The consumer, therefore, has to be burdened with all incidental charges including service charges."
10. In the case of Jannat Ice Factory, as the load had been reduced physically by the consumer it made a good case for the respondents in that case to claim for benefit under the reduced load from the date of the reduction. In this particular case, the costs for reduction is paid but no action has been taken by WAPDA for physically reducing the load.
11. Consequently, this Court feels that the day from which the reduced load is to be recorded will be the date on which the payment has been made pursuant to the application made by the plaintiff asking for the reduction. There should have been no excuse with WAPDA in delaying the reduction of the load after the payment of the cost and the new test report being submitted. The delay on the part of WAPDA is, therefore, at its own cost.
12. As the writ petition has been filed subsequently, on the same facts, it will take the place of the revision petition: The revision petition is, therefore, dismissed on this account.
13. Anyway while exercising the Constitutional powers vested in this Court, the Superintending Engineer, Okara whose name was mentioned by the learned counsel for the WAPDA is directed to personally ensure that the following reliefs are provided to the petitioner within a period of one month on the receipt of copy of this judgment:
(a) His application for reduction of load is accepted;
(b) After verification about the payment made against the costs of reduction of load, the minimum fixed charges should be charged from the petitioner on the basis of the reduced load from the date of the payment of these charges.
(c) If the charges were paid, his energy connection be restored without delay.
14. With these observations, the writ petition is disposed of with further direction to the Superintending Engineer, WAPDA, Okara to submit a report of compliance to the Deputy Registrar (Jud1.) of this Court by 1st of August, 1999.