MUNAWAR AHMED MIRZA, J.---These 24 appeals, by leave of the Court are directed against single judgment of Lahore High Court dated 20-9-1993 whereby Constitution petitions, filed by respondents herein, were allowed to the extent that action of appellant herein (WAPDA) about recovering the 'Fixed Chargesfor the period when loadshedding remained operative; were devoid of lawful authority and of no legal effect.
2. Relevant facts briefly mentioned are, that respondent in all the appeals before this Court are running different Industrial Units where electricity is being consumed for commercial entrepreneur. Respondent had filed Constitution Petition before Lahore High Court asserting their respective factories were chargeable for consuming Electricity on the basis of Tariff-B-3, which provides payment of 'Fixed Monthly Chargesper K.W., besides reduced rate calculated Per K.W.H. Of actual energy. It was alleged that 'fixed minimum monthly chargesare worked out on the basis of 'sanctioned loadOR "maximum demandof the consumers irrespective of the quantity of energy utilized, Tariff-B-3 and schedule of said tariff applied to industrial units having sanctioned load ranging from 500 k.w. Up to 5000 k.w. The respondents herein are primarily aggrieved from levy of fixed minimum charges relating to 'preservation of powerfor the period when WAPDA shuts of the supply of electricity in respective industrial units by resorting to loadshedding.
The respondents herein had also challenged correctness of electricity bills containing Surcharge and Additional Surcharge. Appellants herein (Water and Power Development Authority) through Revenue Officer had submitted parawise comments opposing the writ petitions instituted before Lahore High Court. It was specifically pleaded that energy is got reserved for utilization of respective Industrial Units according to their sanctioned load OR expected demand except when interruption or non-supply of energy is caused for reasons beyond their control. Reference is also made to the High Court decision in Writ Petition. No,11197 of 1991 (Haji Muhammad Sharif v. WAPDA) whereby consumers were held liable to pay fixed charges during period of loadshedding. However, after considering arguments learned Judge in Chambers of the High Court allowed said 24 Constitution petitions vide judgment, dated 20th September, 1993 in the following terms:- "Reverting now to the plea of waiver and estoppel raised by the learned counsel for the respondents, it is to be seen that prior to filing of the petitions except Writ Petition No,11145 of 1992, have been paying 'fixed chargeswithout any protest or raising any dispute as to the entitlement of the respondents to receive the same. Consequently, so far as the period earlier to the filing of these petitioners is concerned, it has become a past and closed transaction and the petitioners are not entitled to claim and refund of the amount which they have been willingly and unhesitatingly paid. However, this argument cannot be made basis for denying the petitioners relief from the period thereafter when they raised their protest either by filing these petitions or by taking other judical proceedings. To that extent the petitioners are clearly entitled to succeed.
In view of what has been stated above, these petitions are allowed to the extent that the action of the respondents in recovering the 'fixed chargesfor the period during which the loadshedding remained in operation is declared to be without lawful authority and of no legal effect. However, no order directed the respondents to refund the amounts received in past by them is being passed in view of the fact that these payments had been made without any protest. All these cases are remitted to the Authority concerned with shall work out the period during which the loadshedding has remained in operation and the petitioners shall be allowed relief from the date of filing of all these petitions or from the date when they made protest against the levy of 'fixed chargesby resorting to judicial proceedings. No order as to costs."
3. The above judgment has been presently assailed. Leave to appeal was granted in majority of these matters vide order, dated 20th November, 1995. Operative portion is reproduced below:-- "2. The learned counsel relying on the definition of the terms 'fixed charges, 'billing demandand 'reservation of power', contended that the WAPDA had the right to claim fixed charges. It was further contended that even otherwise under the relevant provisions of Electricity Act and WAPDA Act, 1958 the WAPDA is within its right to claim fixed charges even for the period when electricity is not supplied due to loadshedding. The learned counsel pointed out that recently a learned Judge of the High Court of Lahore has delivered the judgment in Writ Petition No,447 of 1994 taking a completely different view from the one expressed in the impugned judgment and the writ petition was dismissed. As there is a conflict of decision in the judgment of the Lahore High Court, leave is granted to resolve it by an authentic judgment of this Court."
4. It may, however, be mentioned as a fact, that on similar cause several Constitution petitions were filed before Lahore High Court wherein Constitution Petition No,447 of 1994 and sixteen connected matters were decided through common judgment, dated 14th March, 1995 and stance taken by Industrial Units disputing the liability of 'fixed charges" during loadshedding was rejected. Operative portion reads thus:- - "8. Since the petitioners have no case on merit, the technical objections raised by the qua maintainability of the petitions or non-availing of alternate remedies under the Electricity Act and the Rules, though quite weighty, are not being adverted to.
9. For the foregoing reasons it is held that the phrase 'reservation of poweroccurring in the schedule of Tariffs is utilized for assessing the amount of fixed charges to be levied and has no nexus with the supply of energy nor it is correlated with the power supplied or to be supplied and hence the petitioners cannot claim any proportionate reduction in the Fixed Charges levied by WAPDA during the period it has to take resort to loadshedding. The petitions are without any merits and stand dismissed. Parties to bear their own costs."
5. Mr. Muhammad Ilyas Khan, Advocate Supreme Court, for appellants, emphatically raised following contentions:--
(i) Appellant/WAPDA is entitled to claim 'Fixed Minimum Monthly Chargesfrom the consumers, under Tariff-B-3 because same is not dependent upon consumption of energy but is relatable to 'sanctioned loador 'maximum demandof consumers; the supply whereof has to be ensured by the appellant whether same is actually utilised or not.
(ii) Industrial units by availing benefit of 'Fixed Charges', enjoy facility of, concessional rates on the electricity actually consumed under industrial tariff; therefore, they cannot be permitted to have benefit on one hand and challenge the validity of broad based corresponding concession extended by WAPDA.
(iii) Learned Judge in Chambers of Lahore High Court while deciding controversy through impugned judgments had ignored that none of the consumers have suffered any loss due to loadshedding, because timing are adjusted on account of previous information about proposed programme for area- wise loadshedding.
(iv) Provisions of Electricity Act, 1910 and WAPDA Act, 1958 were misconstrued while examining the grievances agitated by the Industrial Units, and defence put up by the appellant, has been completely ignored.
6. Learned counsel for respondents opposing the appeals has contended that:--
(i) Loadshedding is not on account of "viz majore" but on account 'of non-availability or short-fall of energy to meet with demand of respondent/Industrial Units.
(ii) 'Minimum monthly fixed chargesare not connected with consumption but has inextricable link with 'reservation of powerand supply of deemed energy or expected demand notified by respective respondent/Industrial Units.
(iii) Despite the fact that respondents are willing to use the Electricity/power, but on account of disability or failure of WAPDA to supply requisite quantity of Energy to cater for expected 'maximum demand', the appellant/WAPDA has no legal right or entitlement to claim 'fixed chargesfor such period when loadshedding is carried out.
(iv) During period of loadshedding the Industrial Units despite anxiety are deprived of the benefit of consuming energy which ought to have been reserved for them alone keeping in view agreed terms and conditions. But on the contrary the WAPDA avails benefit of selling said energy to other consumers, on account of shortage in the production of energy, thereby tending to gain double advantage. The refusal of appellant to allow proportionate adjustment in respect of Fixed Charges is, therefore, unfair.
7. Before entering upon main controversy with regard to payment of 'fixed chargesduring the period of loadshedding carried out by WAPDA it may be mentioned that liability towards surcharge and additional surcharge has been found intra vires and objection about it invalidity has been repelled by the majority view in case Gadoon Textile Mills v. WAPDA (1997 SCM R 641), which obviously has binding effect and force of law. Any grievance in that behalf accordingly is not entertainable.
8. Now adverting to real moot question directly raised in all these appeals it may be pertinent to mention that there exist diagonally conflicting views which have been expressed in different judgments of Lahore High Court. First set of case comprising of Writ Petition No,2204 of 1991 and 24 connected matters, were allowed by giving benefit of proportionate reduction for the period during which loadshedding remained operative. Whereas other set of cases consisting of Constitution Petition No,447 of 1994 and sixteen connected matters seized of by different Bench of Lahore High Court while dealing with identical question relating to liability of Fixed Charges during loadshedding rejected the claim vide judgment, dated 14-3-1995. Similarly the liability to pay fixed charges during loadshedding was validated by still another judgment passed by Lahore High Court in Writ Petition No,11197 of 1991. Therefore, question concerning payment of 'fixed chargesduring the period of loadshedding requires proper attention and effective adjudication.
9. It will not be out of place to mention here that while granting relief to the consumers of electricity of industrial units learned Judge in Chambers of the High Court in first set of petitions (supra) has placed reliance with emphasis upon judgment of Indian Supreme Court reported as Bihar State Electricity Board and another v. M/s. Dhanawat Rice and Oil Mills (AIR 1989 SC 1030) where almost identical question about recovery of minimum guaranteed charges was dealt with. It was held that consumers were entitled to proportionate reduction in the payment of fixed minimum guaranteed charges for the period during which electricity was not supplied. We feel that conclusions in the afore-quoted judgment primarily pertained to interpretation of terms and conditions of agreement which expressly provided proportionate reduction towards minimum guaranteed charges on the failure of Power Supply to the consumers by Electricity Board. Whereas in the instant case admittedly the terms OR conditions of the agreement drawn between WAPDA and respondents herein do not contain any such covenant.
10. Learned counsel for appellants herein, however, to supplement his submissions and justifying object imposing fixed minimum charges has tried to press into service dictum laid in case PLD 1991 SC 813 (WAPDA v. Makka Ice Factory). In the said report while considering the contentions it was observed that rationale behind the levy of minimum charges during period of temporary disconnection presupposed essential obligation of the authority for keeping itself ready with 'sanctioned loadand therefore, thereby continuously maintaining necessary set up to ensure supply of energy to the consumer when asked for, as such consumer is burdened with all incidental charges including service charges. However, in the above-quoted case consumers were exonerated from liability of minimum charges on account of authority's failure to supply energy in view of defective meters. Therefore, except broad principles showing the rationale the judgment does not any way help the appellants.
11. Now adverting to real controversy involving critical challenge to the validity of levying fixed minimum charges during the period of loadshedding, it may be seen that Industrial Units of respondents have capacity of Consuming Electricity for industrial purposes from 500 KW to 5000, KW, thus, chargeable under Schedule of Tariff B-3, which provide mode of payments and definitions of various Terminology used for calculating liability of consumers.
"TARIFF B-3 FOR INDUSTRIAL SUPPLY AT 11 KV AND 33 KV Particular Fixed Charges Per KW per monthEnergy Charges PLUS per KWH For sanctioned load above 5000 kilowatts and upto and including 5000 kilowatts.(Rupees) 99.00 (Paisa) 45 MINIMUM MONTHLY CHARGE The fixed charges provided above will represent the minimum monthly charges under this Tariff even if no energy is consumed."
DEFINITIONS
1. 'Industrial Supply', for the purpose of this Tariff, means a supply for bona fide industrial purposes in factories and also for water pumps and tubewells operating on three phase 400 Volts, other than those meant for the irrigation or reclamation of agricultural land, and also includes supply for lamps and fans for the factory premises but not for the residential colony attached thereto.
2. 'Billing demand', for the purpose of this Tariff during a month, means the highest of the following:--
(a) The actual maximum demand recorded during the month.
(b) Ninety per cent. Of the highest figure of maximum demand recorded in any month during the preceding eleven consecutive months. If a consumer remains disconnected during the preceding eleven consecutive months or any part thereof, then the period of eleven consecutive months shall be reckoned ignoring the period of such disconnection:
(c) Fifty per cent. Of the total sanctioned load.
(d) 510 KW, where sanctioned load is more than 500 KW, or in the case of consumers having sanctioned load of 500 KW and below, 60 per cent. Of the total capacity of the transformers installed at their premises to be calculated in KW at 85 per cent. Power factor.
3. 'Maximum Demandmeans the demand obtaining in any month measured over successive periods each of 30 minutes duration.
4. 'Supply Charges', for the purpose of this Tariff, include (1) fixed charges for the Authority's reservation of power for the consumer's billing demand in kilowatt as defined above, (2) the charges for the amount of energy actually consumed by the consumer in Kilowatihours, (3) the Fuel Adjustment Surcharge, and (4) the penalty for low power factor.
5. 'Sanctioned Loadmeans the load in Kilowatt as applied for by the consumer and sanctioned by the Authority.
6. 'Fixed Chargesmean the charges for the Authority's reservation of power for the consumer's billing demand in kilowatt as defined above.
7. 'Energy Chargesmean the charges for the units actually consumed by the consumer in kilowatt-hours.
8. 'Reservation of Power', for the purpose of assessment of fixed charges under this Tariff, means the authority's reservation of power for consumer's billing demand:--
(a) In the case of premises already connected to the Authority's Supply System for twelve consecutive months of each financial year (July-June) and
(b) In the case of premises connected to the Authority's Supply System during the course of a financial year, for the remaining part of the financial year.
9. 'Power factormeans the ratio expressed as a percentage of the killowati-hours to the kilovolt-ampere- hours consumed during the month.
10. 'Month', for the purpose of this Tariff, means a billing month of 30 days reckoned from the date of last meter reading. However, if for any reason, the meter reading date of a consumer is altered and the acceleration/retardation in the date is up to 4 days, no notice shall be taken of this acceleration or retardation. But if the date is accelerated or retarded by more than 4 days, the fixed charges shall be assessed on proportionate basis for the actual number of days between the date of the old reading and the new reading."
12. The real controversy mainly hinges upon the proposition whether 'fixed chargescan be recovered by the WAPDA without 'reservation of powerto meet with 'billing demandof the consumers within purview of definitions reproduced (supra). Evidently WAPDA under the provisions of Electricity Act, 1910 read with WAPDA Act, 1958 is entitled to claim from the consumers charges for supplying energy notwithstanding whether electricity has been actually utilized during the period for which minimum charges were payable. The term "billing demand" specifically displays method of computing "fixed charges" whereas "reservation of power" suggests the object for assessing "fixed charges." Therefore, question which revolves around the entire controversy appears to be whether minimum monthly charges are dependent upon mandatory obligation of WAPDA to supply "maximum demands" of energy to the consumers, no matter whether same is utilized or not. Therefore, analysing the provisions regarding "reservation of power" it appears that WAPDA is impliedly obligated to ensure availability of "power/energy" for utilization by industrial units to the extent of "maximum demand" from sanctioned load, so that 'billing demandcan be raised. It may be seen that under normal circumstances except situations contained in clauses (15) and (16) of the "Abridged Conditions" the WAPDA is expected to ensure availability of "maximum demand" during entire month to the consumers of industrial units who are liable for payment of "fixed charges". This finds further support from definition of "supply charges" which clearly includes "fixed charges" for the Authority's reservation of power co-related with consumer's "billing demand" and charges for the energy actually used. Thus, it is quite manifest that WAPDA subject to unforeseen factors and situations enumerated in clauses (15) and (16) of the "abrideged conditions" of the contract for sanctioning and supply of electricity to the consumers is expected to preserve and keep available the electricity for expected "Maximum demand" of the consumers. The object of "reservation of power" subject to afore-referred conditions entitles "WAPDA" for "maximum fixed charges" besides payment of actual consumption of energy. It, therefore, becomes clear that availability of energy or "reservation of power" has no nexus with its consumption.
13. The limited question which requires our attention would be, whether non-supply of electricity during loadshedding completely absolves WAPDA from any corresponding liability OR on account of failure to ensure 'Reservation of Powerduring aforesaid period whether or not proportionate reduction/adjustment should be granted to the consumers. On thorough examination of all aspects we are of the opinion that "minimum fixed charges" payable to the WAPDA by the consumers for obtaining industrial supply apparently pre-supposes 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 requesite 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.
14. 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 continues 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 chargesTariff B-3 provides ratable concession in respect of actual consumption charges.
15. 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 service line and entire set-up to ensure the supply when available and thereafter reserve the power to meet "maximum demand" besides corresponding concessional rates towards actual consumption of Energy Charges per KWH. It would be pertinent to mention here that loadshedding is carried out by WAPDA under forced circumstances erupting due to shortage of water, obviously falling beyond its control thereby causing reduction in the generation of Power. 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 the consumers are required to pay minimum "fixed charges" then under extraordinary situation question about proportionate reduction of said charges need to be determined. 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. Most important aspect preeminently reflected from various circumstances appears to be impossibility of generating adequate quantity of energy/power during the period when acute shortage of water exists.
Besides, 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.
16. In this background to strike the balance (and allow proportionate adjustment to consumers as regards "fixed charges") we feel that because 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 charges" be allowed proportionate adjustment. Accordingly we are inclined to observe that on calculating proportionate amount in regard to "loadshedding" period, half from it (50%) be 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.
17. Thus, for the foregoing discussions we hold that proportionate reduction to the extent of 50% of amount calculated for the period during which loadshedding remains operative be allowed to industrial consumers purely on account of WAPDA's inability to "preserve power" for meeting with "maximum demand".
18. For convenience and clarity it may be mentioned that "fixed charges" cater for 24(hours) x 39 days) = 720 hours per month. Therefore, in the event of "loadshedding" for one hour per day, the consumer shall become entitled to . Proportionate reduction on the above calculation which when worked out would C be "minimum fixed charges" divided by 30 (one hour per day in the month) and further divide by 2 (being fifty per cent. Concerning in failure to preserve power). Thus if "fixed charges" in a "Billing month" are shown to be Rupees 72,000 (Seventy-two thousand) the consumer against loadshedding for one hour shall become entitled to adjustment/reduction of Rs,1,200 (Rs, Twelve hundred) during said month and similar proportionate benefit would be allowed by mathematical calculation concerning increase or decrease of loadsheding period.
19. It may be further clarified that above benefit would be allowable prospectively computing from current financial year on the grounds inter alia mentioned in the impugned judgment. Besides, there are conflicting judgments of the Lahore High Court which in its respective sphere have allowed or rejected the claims filed by the consumers of Industrial Units. Apparently, still other Industrial Consumers are paying 'fixed energy chargeswithout specific protest. It would, therefore, be fair that when certain provisions are interpreted by this Court benefit should be extended without causing discrimination amongst consumers liable for charges under common category of Tariff.
20. For the foregoing reasons appeals are partially allowed, whereby benefit granted to respondents is proportionately reduced to 50% of the amount allowed by the Lahore High Court and impugned judgment, dated 20th September, 1993 is modified in the above terms. parties are, however, left to bear their own costs.