' Through this Constitutional petition, Water and Power Development Authority (WAPDA), its Chairman and three other functionaries have assailed orders, dated 16-7-1994 and 29-12-1992 respectively passed by the Advisory Board, Government of the Punjab (respondent No,1) and the Electric Inspector (respondent No,2).
2. The facts giving rise to litigation between the parties related to Meter Reference No,931400- 130019/24 installed by WAPDA at Re-rolling Mill of Muhammad Shakeel (respondent No,3) through an agreement of 1996. On 16-1-1989, respondent No,3 applied to WAPDA to discontinue and disconnect the supply of electric energy. WAPDA gave a final bill of meter's electric power consumption up to 22-1-1989 for Rs,45,958. This bill was admittedly paid by respondent No,3 and supply of electric energy thereto was discontinued. Respondent No,3 closed his Re-rolling Mill and by a registered sale-deed sold and transferred the premises to Muhammad Afzal son of Haji Abdul Qadir on 20-6- 1 990 . Even the sundry bills for service/meter reading sent by WAPDA for Rs,254 (for industrial meter) and Rs,2 (for commercial meter) were also admittedly paid and a clearance certificate, dated 25-8-1990 was also issued by WAPDA.
3. On 20-8-1990, above-said purchaser Muhammad Afzal through his brother Muhammad Ashraf applied to WAPDA for grant of an industrial connection at the said premises. Whereupon, WAPDA, despite disconnection of the meter and closure of mill, sent two bills i.e, for Rs, 1,20,345, for fixed charges from February 1989 to June 1989 payable by 9-9-1990 and the second bill for Rs, 72,207, for fixed charges for the period April 1989 to June 1989 payable by 10-10-1990. As per respondent No,3's application to learned Electric Inspector, bill for Rs,1,20,345 was waived and only bill for Rs, 72,207 for three months fixed charges was demanded. This amount, as per WAPDA's Petition, was deposited by the above said purchasers Muhammad Ashraf/Muhammad Afzal against the old Meter Reference No,931400-130019/24 in the old account of respondent No, 3 on 1-11-1990. However, the ex-owner, Muhammad Shakeel (respondent No,3) on 18-11-1990 applied to learned Electric Inspector for directing WAPDA to refund Rs,72,207 for having been overcharged and overbilled to respondent No,3 contrary to law and agreement applicable between the parties. The learned Electric Inspector accepted application of respondent No,3 by order, dated 29-12-1992. Appeal of the petitioners against the said order before respondent No,1 also failed as per order, dated 16-7- 1994. Both the said orders respectively passed by respondents Nos.2 and 1 on 29-12-1992 and 16-7- 1994, have been challenged by the petitioners in the present petition.
4. The learned counsel for the petitioners states that respondent No,3 ceased to be WAPDA consumer as per definition of consumer given in section 2(c) of Electricity Act, 1910, after sale by him of the premises On 20-6-1990 to Muhammad Ashraf/Muhammad Afzal and that the said purchasers, who actually deposited Rs,72,207 in the old account being the only available account, have not come forward to claim this money. Wherefor, respondent No,3 has no right to seek refund of the same. Learned counsel further contended that respondent No,3, being the ex-owner, could neither deposit nor did he deposit the said amount with the petitioner and misrepresented the fact of deposit. It has further been forcefully asserted by learned counsel on the basis of dictum laid down by the Hon'ble Full Bench of this Court in the case of "WAPDA v. Mian Muhammad Riaz and others as reported (PLD 1995 Lahore 56) that the learned Electric Inspector had no jurisdiction to hear and decide reference/application of respondent No,3 and consequently the learned Advisory Board i.e respondent No, 1 also erred in upholding order passed by respondent No,2 in this matter. It was also argued that the jurisdiction in the matter vested in the Court of plenary jurisdiction i.e, the Civil Court and not in the Tribunals under the Electricity Act.
5. Contrarily, learned counsel for respondent No,3 has submitted that for the purpose of recovery of illegally charged amount, respondent No, 3 continued to be a consumer to have access to the forum of Electric Inspector and the amount of Rs,72,207 was paid by respondent No,3 in the account of his old meter. Therefore, he could seek refund thereof. It was further asserted that having issued the clearance certificate after the first payment of Rs,45,958 petitioners could not raise a further demand for 72,207 and recover the same from respondent No,3 at any pretext.
' The learned counsel for respondent No,3 agreed with the petitioner's counsel that in view of Full Bench judgment in the above cited case, learned Electric Inspector could only entertain and decide the matters under section 26(6) of the Electricity Act relating to meter's correctness and consequent determination thereto and not disputes as to charges under section 26-A of Electricity Act for dishonest abstraction or consumption of energy or any charges claimed by WAPDA.
6. Having heard the arguments and perused the record, I am of the opinion that the decisions of all the issues raised by the learned counsel for the parties are dependent upon decision relating to the core issue of learned Electric Inspector's jurisdiction in the matter. Although, question of jurisdiction was neither raised in reply before the learned Electric Inspector not in the appeal before the Advisory Board by WAPDA in terms and in the manner raised in the writ petition and in arguments. Normally,, question not argued before the special forms should not be allowed to be raised in the Constitutional petition. The sequence of events and pronouncement of judgment by the Hon'ble Full Bench of this Court on 31st May, 1994 in the above referred case titled "WAPDA v.
Mian Muhammad Riaz and others" as repofted PLD 1995 Lahore 56, adequately justifies consideration of question of jurisdiction at this stage. Respondents Nos.2 and 1 had rendered their decisions respectively on 29-12-1992 and 16-7-1994 when or around the said time in 1994, the said Full Bench judgment was pronounced. Furthermore, since the question of jurisdiction settled in this judgment is germane to the whole controversy and relates to the basis of exercise of powers by the Special Tribunal, therefore, it is appropriate to consider the effect of this judgment on the question involved ifi the present case.
7. The Hon'ble Full Bench in the said judgment pronounced the law and interpreted sections 21, 24, 26(6) and 26(a) of the Electricity Act viz the jurisdiction and powers of the Electric Inspector in the matters, differences/disputes between the licensee and its consumers. It was held that: "These provisions thus do not cover the amount of charges determined as payable under section 26-A for dishonest abstraction of electricity. The amount assessed and determined under section 26-A cannot, therefore, be disputed before the Electric Inspector by invoking provisions of subsection (2) of section 24 as no right of reference of the dispute to the Electric Inspector is contemplated by the said subsection." and "A bare perusal of subsection (6) (of section 26) would show that this subsection does not provide for reference to dispute the amount of charges demanded in a bill sent to the consumer for payment; it rather provides for seeking determination of the dispute as to whether the measuring apparatus is or is not correct, though the finding that matter etc., is not correct, would result in granting the consequential relief in respect of the amount charged for supply of energy to the premises. This is obvious as the very purpose of supplying a meter, maximum demand indicator or other measuring apparatus in the absence of any agreement to the contrary is to ascertain the amount of energy supplied to consumer of the electrical quantity contained in the supply. The correct ascertainment of either of the two is obviously for the purpose of charging correct amount from the consumer."
8. In view of the above, matters referable to Electric Inspector have to fall within the provisions of section 26(6) of the Electricity Act and must relate to the correctness or otherwise of the meter or the measuring apparatus. As such, the present dispute of Rs,72,207, recovered by WAPDA as fixed meter charges or otherwise, does not relate to the difference or dispute falling within the limited scope of section 26(6) of Electricity Act. The subject-matter of litigation between the parties in the present case does not relate to the question regarding meter's correctness or otherwise or that of any other measuring apparatus. Instead, the controversy relates to charges raised and recovered by WAPDA after disconnection of supply of electric energy. Where for, I am of the opinion that learned Electric Inspector i.e respondent No,2 had no jurisdiction to entertain and decide the list involved in the present litigation. The appropriate remedy for respondent No,3 was under the general law in the Court of plenary jurisdiction i.e, the Civil Court.
9. In view of the above findings, WAPDA's constitutional writ petition is accepted and the impugned orders, dated 16-7-1994 and 29-12-1992 passed by respondents Nos.1 and 2 are declared to be without lawful authority and of no legal effect. The parties are, however, left to bear their own costs.