1. SAIYED SAEED ASHHAD, C.J. All the aforesaid Constitutional Petitions were fixed for Katcha Pashi and by consent of the learned counsel for the parties, it was ordered that the same will be disposed of finally, if need be after,having been admitted to regular hearing.
2. All the aforesaid Constitutional Petitions have been filed by the petitioners, who are the customers of respondent KESC -for supply of electricity against the meters installed at the premises of the petitioners.
3. The grievances of the petitioners, which led them to file the aforesaid Constitutional Petitions are the notices issued by respondent KESC calling upon them to make payments for providing extension of the Sanctioned Load. System Development Charges in pursuance to the extension of the Sanctioned Load and fresh Security/Cash Deposits. In some of the cases, the petitioners have themselves applied for extension in the Sanctioned Load of electric supply, whereas in other cases respondent KESC on having come to know that the petitioners had installed and were using electric machines, appliances and other electrically operated gadgets, the operation of which required higher load issued notices to such petitioners for extension in the Sanctioned Load together with the costs/payments which they were required to make for the facility in extension in the Sanctioned Load. System Development Charges and fresh Cash/Security Deposits. This was done in order to safeguard and provide safety to the installations of respondent KESC as use of appliances, machines apparatus, which were likely to consume load over and above the Sanctioned Load, was likely to cause damage to the system of supply of electricity, feeders, sub- station and pole-mounted transformers.
4. It was submitted by the petitioners that in cases where the petitioners have themselves applied for extension in the Sanctioned Load, respondent KESC did not take any action and completely ignored and overlooked the requests of the petitioners for extension in the Sanctioned Load but all of a sudden they sent the impugned notices demanding huge amounts for extension in the Sanctioned Load, System Development Charges and Security/Cash Deposits on the false claim that on inspection of the premises , it was found that extra electricity operated appliances, machines and gadgets were being used. The petitioners further submitted that such demands made by respondent KESC towards System Development Charges, charges for increase in the Sanctioned Load and the Security Deposits were without lawful authority as respondent KESC has been stripped of its power to levy, determine, modify or revise the rates, charges and terms and conditions for generation of electric powers transmission, interconnection, distribution services and power sales to consumers after promulgation of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (hereinafter referred to as the Act of 1997) and the rules framed thereunder. It is the case of the petitioners that respondent KESC had no authority or power to determine the charges for increase in the Sanctioned Load, claim System Development Charges and fresh Cash/Security Deposits and on being informed of that after promulgation of the Act of 1997 that they had ceased to have the power to levy; determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, they started threatening the petitioners to disconnect the electric supply in case the demand notices sent by them were not complied with and the payments referred to therein were not made. Hence, the aforesaid Constitutional Petitions.
5. Mr. Kamal Azfar, the learned Advocate, who appeared in Constitutional Petition No. D-04/2001 assisted by Mr. Neel Keshav, Advocate, on behalf of petitioner Standard Chartered Bank advanced detailed arguments on behalf of the petitioners. The learned Advocates appearing on behalf of the petitioners in other petitions adopted the arguments of Mr. Kemal Azfar. Additionally, they also raised some other points. On behalf of the respondents, Mr. Raja Qureshi, the learned Advocate- General, Sindh advanced the leading arguments. His arguments were adopted by M/s. A.R. Akhtar and Sohail H.K. Rana, the learned Advocates for respondent KESC. Mr. Syed Zaki Muhammad, the learned DAG, representing the Federation also adopted the arguments of Mr. Raja Qureshi and also made certain additional arguments.
6. Mr. Raja Qureshi vehemently objected to the maintainability of the aforesaid Constitutional Petitions on the ground that the Act of 1997 had provided an alternate, adequate and efficacious remedy to the petitioners for redress of their grievances and it was a settled principle of law that when a Statute provides a forum and/or remedy to an aggrieved party for redress of his grievance, then the aggrieved party has to resort to the said legal forum of obtaining the remedy. In this connection, he drew our attention to Section 3 of the Act of 1997, which deals with the establishment of authority namely National Electric Power Regulatory Authority (NEPRA) consisting of a Chairman, to be appointed by the Federal Government and four members, one from each Province, to be appointed by the Federal Government after considering the recommendations of the respective Provincial Governments. He then drew our attention to Section 46 of the Act of 1997, which has empowered NEPRA with the approval -of the Federal Government by Notification in the official Gazette to make rules for the purpose of carrying out this Act especially to determine the rates and charges of electricity consumption, procedure for metering, billing and collection of electric .Power charges by the licensees as per Section 46(2)(e) of the Act of 1997. He also drew our attention to Rule 3, which lays down in detail the procedure to be followed by NEPRA in respect of the complaints, applications, grievances brought to its notices by an aggrieved party and the authority of NEPRA to pass appropriate orders, thereon. He finally concluded that in view of 'the above legal position the petitioners were precluded from invoicing the Constitutional jurisdiction of this Court and ought to have approached NEPRA for redress of their grievances. In support of his above contention, Mr. Raja Qureshi placed reliance on the following 'cases:-
(1) Messrs H.M. Abdullah v. The Income Tax Officer, Circle V, Karachi and 2 others (1993 SCM R 1195);
(2) Income Tax Officer and another v. M/s. Chappal Builders (1993 SCM R 1108);
(3) The Commissioner' of Income Tax, Karachi-and 2 others v. Messrs N.V. Philip's Gloeilampenfabriaken (PLD 1993 S.C. 434); and
(4) Commissioner of Income Tax, Companies-II and another v. Hamdard Dawakhana (Waqf), Karachi (PLD S.C. 847).
7. Mr. Kamal Azfar on the other hand refuted the objections raised by Mr. Raja Qureshi with regard to the availability of an alternate, adequate and efficacious remedy being available to the petitioners for redress of their grievances and submitted that the law on the subject is very clear and well- settled that if a public functionary in exercise of the powers conferred on it by a Statute had acted illegally, in excess of jurisdiction, assumption of jurisdiction illegally had failed to exercise jurisdiction or had committed any other illegality which has rendered the order as absolutely illegal and void, then the aggrieved party was not under an obligation to have recourse to the alternate, adequate and efficacious remedy provided under the Statute and could straightway invoke the Constitutional jurisdiction or this Court on the ground that the order was absolutely illegal, without lawful authority and void ab initio. In support of his above contention, Mr. Kamal Azfar placed reliance on the following cases:-
(1) Nagina Silk Mill, L yallpur v. The Income Tax Officer, A-Ward Lyallpur and another (PLD 1963 S.C.
8. 322);
(2) Water and Power Development Authority and another v. M.M. Steel Rerolling Mills and 23 others (1999 SCM R 494);
(3) The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others (PLD 1972 S.C. 279); and
(4) Adamjee Insurance Company Ltd. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 Others (1993 SCM R 1798).
9. We have considered the respective arguments advanced by Mr. Raja Qureshi, the learned Advocate-General, Sindh and Mr. Kamal Azfar, the learned Advocate for the petitioner in C.P. No. 4/2001 as well as the case law relied upon by them in support of their respective contentions.
10. We do not deny the contention of Mr. Raja Qureshi that a rule has been established, by virtue of which a party aggrieved of any order of a public functionary has to seek remedy through the forum provided under the Statute under which the public functionary was exercising powers, it a forum is provided thereunder . It is only after the legal remedy, available to an aggrieved party has been exhausted that he would have the right to invoke the Constitutional jurisdiction of this Court. We are also in respectful agreement with the - pronouncements and observations made by the Supreme Court in the cases relied upon by Mr. Raja Qureshi, However, an exception has been made to this general rule of resorting to alternate, adequate and efficacious remedies. This exception relates to an action and/or order of a public functionary, which on the face of it appears to be illegal, unlawful and void as propounded by the Supreme Court in several cases, which will be examined hereunder.
11. The first case is that of Nagina Silk Mill, Lyallpur v. The Income Tax Officer,. A-Ward, Lyallpur and another (PLD 1963 S.C. 322). In this case, the Supreme Court was pleased to pronounce that bar for invoking the writ jurisdiction of this Court would not be applicable where the impugned order was challenged on the basis of lack of jurisdiction. In the case of The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 S.C. 279), the Supreme Court while dealing with the question of entertainment of a writ petition when other appropriate remedy was available made a pronouncement that it was not an absolute rule of law barring jurisdiction but a rule by which Court regulated its jurisdiction and further that if the order of the statutory body was challenged o.n the ground that it was wholly without authority, partial, unjust and mala fide then the High Court would not refuse to exercise its jurisdiction inspite of the fact that the aggrieved party had appropriate or adequate remedy available to him for correction thereof. A similar observation was made by the Supreme Court in the case of Lt. Cola Nawabzada Muhammad Amir Khan v. The Controller` of Estate Duty and others and other appeals (PLD 1961 S.C.
12. 119). In the case of Adamjee Insurance Company Ltd. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others (1993 SCM R 1798), the Supreme Court observed that interference by this Court in a Constitutional Petition was possible, if the impugned order sought to be challenged was palpably illegal, mala fide and beyond jurisdiction irrespective of the fact that alternate statutory remedy was available to the aggrieved party. In the case of Gatron Industries Ltd. v. Government of Pakistan and others (1999 SCM R 1072), the Supreme Court observed that a Constitutional Petition would be maintainable without exhausting all the available remedies if the order was passed by a forum or authority, by exceeding its jurisdiction. In the case of Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCM R 1881), the Supreme Court observed that if the order of action complained of was so patently illegal, void or wanting in jurisdiction that any further recourse to alternative remedy may only be counter productive and by invocation of Article 199 the mischief could forthwith be nipped in the bud then in such matters existence of alternate remedy would not bar the exercise of Constitutional jurisdiction by this Court.
13. Examining the facts and circumstances of this case in the light of the pronouncements and observations made by the ,Supreme Court in the aforecited cases relied upon by the learned counsel for the parties, it is apparent that after promulgation of the Act of 1997, the legislature has conferred the power of determining the rates, charges, and terms and condition's for generation of electric power, transmission, interconnection, distribution services and power sales to consumers on authority namely NEPRA established under Section 3 of the Act of 1997. It was submitted by Mr. Raja Qureshi that the Act of 1997 did not repeal the Electricity Act, 1910 (hereinafter referred to as the Act of 1910) which was in the field before the promulgation of the Act of 1997 and also continues to be in the field and further that the conferment of the powers to determine the rates, charges; and terms and conditions for generation of electric power, transmission interconnection, distribution services and power sales to consumers by the Power Generating Industries/Units also continue to remain in force as they were not in conflict with and contrary to any provisions of the Act of 1997 so as to be deemed to be impliedly repealed. This contention of Mr. Raja Qureshi will be dealt with subsequently while dealing with the question as to whether the two provisions, one contained in the Act of 1910 authorising the power generating units to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers and the other contained in the Act of 1997 authorising NEPRA to determine the rates , charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, would continue to exist side by side as they operate in different spheres as contended by Mr. Raja Qureshi or the provisions of the Act of 1910 would give way to the similar. Provisions contained in the Act of 1910 on account of the fact that the Act of 1997 being the later Act would prevail upon any inconsistent provision in the earlier Act. A bare reading to the two different provisions, which are contained in provisos three and four of clause VI of the Schedule of the Act of 1910 and Sections 7(3)(a) and 31 of the Act of 199.7, leads to a probable presumption that after promulgation of the Act of 1997, respondent KESC has been stripped of its power to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales of consumers and the said powers have been conferred on NEPRA.
14. The question which requires determination in all these Constitutional Petitions is whether respondent KESC has the power to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers in exercise of the powers conferred on it by clause VI, provisos three and four of the Schedule to the Act of 1910 or that it has been stripped off of such powers after promulgation of the Act of 1997.
15. Mr. Kamal Azfar submitted that after promulgation of the Act of 1997, whereby the powers to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to, consumers were conferred on the authority namely, NEPRA by virtue of Sections 7(3)(a) and 31 of the Act of 1997, all the Power Generating Units including respondent KESC have been deprived of their powers of determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers and any determination by the Power Generating Units including respondent KESC would be absolutely illegal and void. He further submitted that according to the principles of Interpretation of Statutes when a subsequent Statute is promulgated relating to a particular subject, which was being dealt with by an earlier existing Statute, then the presumption would be that the provisions of the new Statute would prevail and would override the provisions of the old Statute insofar as they are in conflict with or contrary to the provisions of the later Statute.
16. Elaborating his arguments further, he submitted that clause VI proviso three and four of the Schedule to the Act of 1910 conferred authority on the Power Generating Units to determine the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, whereas the Act of 1997 by virtue of Sections 7(3)(a) and 31 conferred this power on NEPRA, an authority established under the Act of 1997, with the result that there were two inconsistent and conflicting provisions in the two Statutes relating to the exercise of powers for the purpose of determining the rates, charges, and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers and both of their could not remain in force and acted upon as such a course would lead to chaos, uncertainty and absurdity and in order to avoid this chaos and uncertainty, it has to be declared that the provisions contained in clause VI provisions three and four of the Schedule to the Act of 1910 stood impliedly repealed and the field was occupied by Sections 7(3)(a) and 31 of the Act of 1997. Mr. Kamal Azfar also drew our attention to Section 45 of the Act of 1997 and submitted that the language of Section 45 of the Act of 1997 was sufficient to conclude that all the provisions of the Act of 1910 or any other law, which were not consistent with or were in conflict with or contrary to any provisions of the Act of 1997 would not be enforceable inasmuch as the provisions of the Act of 1997, rules and the regulations made and the licenses issued thereunder have been given overriding effect by use of the word "Notwithstanding".
17. Mr. Raja Qureshi, vehemently controverted the arguments advanced by Mr. Kamal Azfar and submitted that the arguments advanced by him would be applicable only in respect of the provisions of the Act of 1910, which were contrary to, in conflict with or inconsistent with any of the provisions of the Act of 1997 and further submitted that the provisions contained in clause VI of proviso 3 and 4 of the Schedule to the Act of 1910 and Sections 7(3)(a) and 31 of the Act of 1997 were in no way inconsistent or in conflict with each other as both of them dealt with the question of conferment of authority for the purpose of determining, modifying or revising the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers for electric power, services. He further submitted that the provisions of clause VI of the Schedule to the Act of 1910 and Sections 7(3)(a) and 31 of the Act of 1997 related to the authority and powers of two different institutions/establishment, one dealing with the power and authority of Power Generating Units and other dealing with the power of NEPRA, an authority established under the Act of 1997 and both of them would continue to operate simultaneously in their< different fields. He further submitted that the principles of Interpretation of Statutes referred to by Mr. Kamal Azfar were not applicable to the facts and circumstances of this case inasmuch, as there was on inconsistency in respect of any provision of the two Statutes nor the provisions of clause VI of the Schedule to the Act of 1910 were in any manner inconsistent or in conflict with the provisions of Sections 7(3)(a) and 31 of the Act of 1997, therefore, the question of implied repeal of the provisions of clause VI of the Schedule to the Act of 1910 did not arise and the same would continue to operate in its field and spheres without in any manner being effected by any provision of the newly promulgated Act of 1997.
18. Before promulgation of the Act of 1997, the power to determine, modify or revise the rates, chargers and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers vested in the Power Generating Units by virtue of clause VI provisos three and four of the Schedule to the Act of 1910 and they continued to enjoy this power without any restriction,' limitation from any quarter. In 1997, the legislature promulgated the Act of 1997 in 'which the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers is regulated by Sections 7(3)(a) and 31 of the Act of 1997. By the aforesaid two sections of the Act of 1997, the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers has now been vested in National Electric Power Regulatory Authority (NEPRA), an authority established under the Act of 1997. By promulgating the Act of 1997, the legislature had made a departure from the past position inasmuch as the power to determine, modify or revise the rates, charges and. Terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers has been away from the Power Generating Units and has been vested in NEPRA, thereby stripping the Power Generating Units of their powers to determine, modify or revise the rates, charges and terms, and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers unless they are permitted to do so by NEPRA on a proper application being made to it by the Power Generating Units. In order to appreciate as to whether the two provisions dealing with the power and authority of the Power Generating Units and NEPRA to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers are not inconsistent or not in conflict with or contrary to one and another, it will be advantageous to reproduce clause VI proviso 3 and 4 of the Schedule to the Act of 1910 as well as Sections 7(3)(a) and 31 of the Act of 1997. The relevant provisions are reproduced as under:- Act of 1910 VI. Requisition for supply to owners or occupiers in vicinity. -(1) Where after distribution mains have laid down under the provisions of clause IV or clause V and the supply of energy through those mains or any of them has commenced a requisition is made by the owner or occupier of any premises situate within the area of supply requiring the licensee to supply energy for such premises, the licensee shall, within one month from the making of the requisition or within such longer period as the Electric Inspector may allow, supply, and save in so far as he is prevented from doing so by cyclones. Floods, storms or other occurrences beyond his control, continue to supply, energy in accordance with the requisition:- Provided firstly.................. Provided secondly................ Provided thirdly, that the maximum rate per unit of time at which the owner or occupier shall be entitled to be supplied with energy shall not exceed what is necessary for the maximum consumption on his premises, and, where the owner or occupier has required a license to supply him at a specified maximum rate, he shall not be entitled to alter that maximum except after one month's notice in writing to the licensee, and the licensee may recover from the owner or occupier any expenses incurred by him by reason of such alternation in respect of the service lines by which energy is supplied to the property beyond one hundred feet from the licensee's distributing main, or in respect of any fittings or apparatus of the licensee, upon that property; and Provided fourthly, that, if any requisition is made for a supply of energy and the licensee can prove, to the satisfaction of an Electric Inspector.
(a) that the nearest distributing main is already lbaded upto its full correct carrying capacity; or
(b) that, in case of larger amount of current being transmitted by it, the loss of pressure will seriously affect the efficiency of the supply to other consumers in the vicinity, the licensee may refuse to accede to the requisition for such reasonable period not exceeding six months, as such Inspector may think sufficient for the purpose of amending the distributing main or laying down or placing a further distributing main.
(2) Any service lines laid for the purpose of supply in pursuance of a requisition under sub-clause
(1) shall, notwithstanding that a portion of it may have been paid for the person making the requisition, be maintained by the licensee.
(3) Where any difference or dispute arises as to the amount of energy to be taken or guarantees as aforesaid, or as to the cost of any service line, or as to the amount of the expenses incurred under the third proviso to 'sub-clause (1), the matter shall be referred, on the application of 'either party, to an Electric Inspector who, within a maximum period of ninety days from the date of such application and after affording the parties an opportunity of being heard, shall decide the matter; and where the Electric Inspector fails to decide the matter within the said period or where either party declines to accept the decision of the Electric Inspector, the matter shall be referred to the Provincial Government whose decision shall be final.
(4) Every requisition under this clause shall be signed by the maker or makers thereof and shall be served on the licensee.
(5) Every requisition under this clause shall be in form to be prescribed by rules under the Electricity Act, 1910; and copies of the forms shall be kept at the office of the licensee and supplied free of charge to any applicant.
19. Act of 1997 7. Powers and functions of the Authority. (1)
(2) (3) Notwithstanding the provisions of sub-section (2) and without prejudice to the generality of the power conferred by subsection (1) the Authority shall--
(a) determine tariff, rates, charges and other terms and conditions for supply of electric power services by the generation, transmission and distribution companies and recommended to the Federal Government of notification;
(b) review organizational affairs of generation, transmission and distribution companies to avoid any adverse effect on the operation of electric power services and for continuous and efficient supply of such services;
(c) encourage uniform industry standards and code of conduct for generation, transmission and distribution companies;
(d) tender advice to public sector projects;
(e) submit reports to the Federal Government in respect of activities of generation, transmission and distribution companies; and
(f) perform any other function which is incidental or consequential to any of the aforesaid functions.
31. Tariffs. -- (1) As soon as may be, but not later than six months from the commencement of this Act, the Authority shall determine and prescribe procedures and standards for determination, modification or revision of rates, charges and terms and conditions for generation of electric power, transmission, inter-connection, distribution services and power sales to consumers by licensees and until such procedures and standards are prescribed, the Authority shall determine, modify or revise such rates, charges and terms and conditions in accordance with the directions issued by the Federal Government.
(2) (3) (4) Notification on the Authority's approved tariff, rates charges, and other terms and conditions for the supply of the electric power services by generation transmission and distribution companies shall be made, in the official Gazette, by the Federal Government upon intimation by the Authority.
20. A perusal of the provisions of clause VI of the Schedule to the Act of 1910 and Sections 7(3)(a) and 31 of the Act of 1997 would reveal that there are several provisions, which are inconsistent with each other or are in conflict with each other. The first inconsistency is that under the Act of 1910, all the powers enumerated in clause VI of the Schedule tto the Act of 1910 have been conferred on Power Generating Units. These powers include the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, whereas Sections 7-(3)(a) and 31 of the Act. Of 1997 which deal with in relation to the same subject-matters and issues which were previously dealt with by Clause VI of the Schedule to the Act of 1910, whereby powers exercised by the Power Generating Units have been taken away from them and have been conferred on the authority namely, NEPRA. The provisions referred to herein above of the two Statutes cannot be said to be consistent or in conformity with each other. A perusal of the aforesaid two provisions is also sufficient to come to the conclusion that both the aforesaid provisions of two different Statutes cannot stand side by side and cannot be acted upon simultaneously. As a matter of fact, it would just not be possible to act upon both the aforesaid provisions of the two Statutes as that would result in complete chaos, uncertainty and absurdity inasmuch as the Power Generating Units relying on the provisions of the Act of 1910 would claim to have the power to determine, modify or revise the. Rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers, whereas NEPRA relying on Sections 7(3)(a) and 31 of the Act of 1997 would claimed to have the authority to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers.
21. To avoid the chaos, uncertainty and absurdity, which would be caused if the aforesaid two provisions of both the Statutes are admitted to be alive and are to be acted upon in their different spheres as suggested by Mr. Raja Qureshi, resort will have to be made to the principle of Interpretation of Statutes dealing with the implied repeal of the provision of an old Statute which is inconsistent and in conflict with any provision of a newly enacted Statute.
22. It is an admitted fact that the act of 1997 has not repealed the Act of 1910 or any -provision thereof and the same or any part thereof can only be said to have been impliedly repealed. Implied repeal of an earlier law -or a provision thereof can be inferred only where there is the enactment of a later law which had the power to override the earlier law or any provision thereof when the two laws or some provisions thereof when the two laws or some provisions thereof are totally inconsistent with each other, that is to say where the two laws or some provisions thereof cannot stand together.
23. According to the principle of implied repeal, the later laws abrogate earlier contrary laws provided that the later law is capable of taking the place of the earlier law. According to the doctrine of implied repeal, it is to be presumed that the legislature was aware of the existing law and by enacting the new law to the contrary did not intend to create any confusion in the law by retaining conflicting provisions on the Statute book. Usually, the presumption of repeal by implication cannot be presumed readily in the absence of the repealing provisions in the later Act but such presumption is to be inferred and a repeal is to be interfered when the provisions of the later law are so inconsistent with or repugnant to the provisions of the earlier law that they cannot stand together. Repeal by implication is to be inferred in the absence of an affirmative expression of repeal of the earlier law if the provisions of the two Acts are found to be irreconcilable conflict or the later Statute or any provision thereof, covers the whole ground occupied by the earlier Statute or any particular provision thereof and it was the intention of the legislature to substitute the earlier Statute with the later, Statute or any provision of the earlier Statute by a provision of the later Statute.
24. PLD 1996 S.C. 77). It will be appropriate to reproduce the relevant portion from the cited judgment as under:- The effect of the amendment in the Schedule to the first Ordinance on the provisions of Section 32 'bid have to be juxtaposed. In this context, the maxim, leges posteriors priors contrarias abrogant would be attracted which means that later law repeal earlier laws inconsistent therewith. Section 32 of the second Ordinance was enacted alongwith the second Ordinance on the 5th May, 1985 whereas the Corporation, as stated earlier, was added in the Schedule to the first Ordinance on the 1st of January, 1986. The rule of interpretation is well-settled that if the provisions of a later Act are so inconsistent with or repugnant to those of an earlier Act that the two cannot stand together, the earlier stands impliedly repealed by later. We are, therefore, clear in our mind that provisions of Section 32 ibid whereby the Corporation was not deemed to be a Banking Company for the purposes of Banking Companies Ordinance, 1962, stand repealed by amendment in the Schedule and in view of provisions of Section 13 of the first Ordinance, it shall have effect accordingly. The inevitable outcome is that notwithstanding he categorical provisions of Section 32 ibid taking out the Corporation from the definition of the Banking Company, it would be such a company in view of the later amendment in the Schedule to the first Ordinance and the Banking Tribunal constituted under Section 4 of the first Ordinance shall have the jurisdiction to entertain the plaint filed by the Corporation against the petitioners.
25. The Supreme Court of India in the case of Municipal Board Bareily v. Bharat Oil Co. (AIR 1990 S.C.
26. 548) while considering the principle of implied repeal of an earlier Statute or any provision thereof inconsistent with and repugnant to the provisions of a later Statute observed that a repeal by implication could be affected when the provisions of the later enactment were so inconsistent with or repugnant to the provisions of an ,earlier Statute that the two could not stand together.
27. Halsbury in his book "Laws of England" 4th Edition Vol. 44, para 966 has laid down the following requirements for repeal of a Statute or provision thereof:- i
(1) If its provisions are plainly repugnant to a subsequent Statute;
(2) If the two standing together would lead to wholly absurd consequences ; and
(3) If the entire subject-matter of the first is taken away by the second.
28. Applying the principles of repeal by implication to the facts and circumstances of this case, if is to be observed that the provisions contained in clause VI dealing with the authority and power of the.
29. Power Generating Units to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power- sales to consumers are absolutely in conflict with the relevant provisions enacted in the Act of 1997, whereby such power/authority has been conferred on NEPRA. The provisions of the above two Statutes relating to the authority and powers of the Power Generating Units and NEPRA are absolutely inconsistent, conflicting and contrary, to each other. Resultantly, it would not be possible for the two to stand together and in the circumstances, the provisions of clause VI of the Schedule to the Act of 1910 insofar as they relate to the power of respondent to 'determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution, services and power sales to consumers being inconsistent with the relevant provisions of the Act of 1997 be inferred to have been impliedly repealed and such power now vests in NEPRA else it would lead to Chaos, uncertainty and absurdity. Thus, we are in agreement with the contention advanced by Mr. Kemal Azfar that the provisions of clause VI of the Schedule to the Act of 1910 relating to the power of respondent KESC to determine, modify or revise the rates, charges and terms and conditions for generation of electric "power, transmission, interconnection, distribution services and power sales to consumers have been impliedly repealed and respondent ' KESC has no authority to levy the charges for the purpose of extension of Sanctioned Load. System Development and Security/Cash Deposits.
30. It may also be pointed out that Section 45 of the Act of 1997 provides that the provisions of the Act of 1997 shall have effect notwithstanding anything to the contrary contained in any other law, rule or, regulation for the time being in force and such law, rule or regulation shall to the extent of any inconsistency cease to have any effect from the date this Act comes into force. A plain reading of Section- 45 of the Act of 1997 is sufficient to lead to an inference that the legislature has in clear terms expressed its intention that the provisions of the Act of 1997 shall have overriding effect over the provision of any Statute, which is inconsistent, conflicting or contrary to any provision of the Act of 1997 and further that any provision of any Statute for the time being in force which is inconsistent, conflicting or repugnant to any provision of any Statute would cease to have effect from the date of promulgation of the Act of 1997.. Where any provision starts with or< contains non-obstante clause, i.e. The word "notwithstanding anything to the contrary", then it is to be presumed that the legislature intended that such provision should prevail over all other contrary provisions contained in any Statute and further that in case of inconsistency between non-obstante clause and any other provision of the Statute, non-obstante provision would prevail over other provisions. This proposition finds support from the judgment of the Supreme Court in the case of M/s. E.F.U. General Insurance Ltd. v. The Federation of Pakistan and others (PLJ 1997 S.C. 1672). The object of the non-obstante clause was also considered by the Supreme Court in the case of Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 S.C. 582) and it was observed that the object of the non-obstante clause in any provision or section of the Statute was to exclude any provision of the Statute, which was inconsistent with the provision which contained the non obstante clause. Thus, in view of the above, we hold that the provisions of clause VI to the Act of 1910 relating to the power of respondent KESC to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers ceased to be in force from, the date the Act of 1997 was promulgated and they were barred from taking actions in the nature which they had taken relating to the determination of charges/tariffs for extension in Sanctioned Load, for System Development and demanding fresh Security/Cash Deposits.
31. Mr. S.A. Samad Khan, the learned Advocate for the petitioner in C.P. No. D-15 of 2001 had also argued that where powers were conferred on a public functionary to pass an order take a decision in relation to any dispute or issue dealing with the public at large, then it was the duty of such public functionary or the decision maker to make a balanced, just and fair order/decision. In other words, his contention was that he should not lien in favour of the institution or establishment to which be belonged and should take into consideration the general interest of the public coming in contact with his institution/establishment. He further submitted that normally such public functionaries were provided with the discretion to act or make order but such discretion was 'to be exercise diligently, honestly, legally and without any 'malice and only, then an order of the public functionary could be held to be legal, valid and fair order. In support of his contention, Mr. S.A.
32. Samad Khan placed reliance on the following cases:-
(1) 1982 1 AER 129;
(2) 1947 2 AER 680;
(3) ,1962 1 AER '385;
(4) 1969 1 AER 208;
(5) 1982 3 AER 1124;
(6) 1992 2 AER 321;. And
(7) PLD 1987 S.C. 442.
33. An examination of the aforecited cases would have been warranted, if we had come to the conclusion that respondent KESC had the power to determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, interconnection, distribution services and power sales to consumers for the purpose of regularization of the excess in the Sanctioned Load, System Development charges and Security/Cash Deposits and only then it would be required to be examined whether the rates determined by respondent KESC for the purpose of demanding payments from the petitioners for the purpose of regularization of extension in the Sanctioned Load, for System Development and Cash/Security Deposits were fixed on some proper basis or were determined arbitrarily.
34. Upon consideration of the above facts and discussion, we are satisfied beyond any doubt that respondent KESC had ceased to have the authority to levy, determine, modify or revise the rates, charges and terms and conditions for generation of electric power, transmission, .Interconnection, distribution services and power sales to consumers and to issue notices calling upon the petitioners to make payment for extension in the Sanctioned Load, System Development Charges and Security/Cash Deposits at the rates determined by it, which powers cold only be exercised by NEPRA. The above Constitutional Petitions carry weight and require consideration. Accordingly, we admit them to regular hearing and allow the same. The notices issued by respondent KESC calling upon the petitioners to make payments for the purpose of extension in the Sanctioned Load, System Development Charges and Security/Cash Deposits are declared to be without legal authority and of no consequence. The parties are left to bear their own costs.