' Petitioner ' company is a mills, which is run on electricity. It was enjoying a sanctioned load of 7705 -KW until 1996. It is asserted that in order to overcome shortage of electricity the Federal Government framed an energy policy, which permitted generation of electricity by persons/body/consumer, other than WAPDA. Petitioner claims to have installed its own power plant in the year 1996. It is stated that after installation of the power plant the need to obtain electricity from WAPDA-respondents was reduced and in the circumstances, the petitioner applied for reduction of load to 5006 KW. This request was summarily rejected on 25-4-1997, which rejection was called in question through Writ. Petition No,19690 of 1997, filed in this Court. This Court held that WAPDA has to record reasons for granting/refusing the application and further that it must hear the petitioner in support of its claim. The case was remitted. This time the petitioner was heard and vide order, dated 26th September, 1997, the request was once again rejected. The perusal of the impugned order shows that rejection has taken place on the ground that in fkt there is no reduction in load. According to the impugned order reduction can only take place if some machinery is physically removed. In other words it has been reasoned that merely because the petitioner is utilising the alternative source of self-generation, WAPDA is not bound to grant his request.
2. It is argued that the reasons adopted by the respondents are untenable. The petitioner installed its owl, power plant in pursuance of the policy of the Federal Government. Petitioner cannot be penalised for self-generating the electricity. It is also stated that it is the consumer, who is best judge of its requirement and in this case if it is meeting its requirements from its own plant, WAPDA cannot insist on reserving the same amount of power for the petitioner and charging the petitioner for reservation of supply, which in fact it does not need nor it utilises. Reliance has been placed on Messrs Ilyas Marine and Associates Ltd. v. Karachi Electric Supply Corporation Ltd. (1994 CLC 596) and WAPDA v. Government of Sindh and others (PLD 1998 Kar. 209).
3. In reply learned counsel for the respondents has supported the impugned order and has argued that petitioner cannot compel the respondents to 'enter into a fresh contract as request of the petitioner to reduce the load amounts to novation of contract. Reference has been made to sections 19-A to section 25 of the Electricity Act, 1910 in particular section 23(4). Reference has also been made to section 12 Of WAPDA Act, 1958.. It is also suggested that the petition is not maintainable as the rights and the liabilities of the parties are flowing out of contract. In rebuttal learned counsel for the petitioner has relied upon Messrs Airport Support Services v. The Airport Manager, Quaid-i-Azam International Airport, Karachi and others 1998 SCM12,2268 to show that the Constitution petition is maintainable.
4. Taking the objection of maintainability first, complete answer to the same is provided by the judgment of the Supreme Court in Messrs Airport- Support Services (supra). I may add that the present one is not a case of contractual rights simplicitor. The case involves the examination of the powers of the respondents to deny the claim for reduction, keeping in view the relevant statutes like Electricity Act, WAPDA , Act, 1958, the rules, framed thereunder as also the instructions having statutory force. The preliminary objection is, therefore, overruled.
5. None of the learned counsel has pinpointed any statutory provision governing the situation.
Section 23(4) of, the Electricity Act, 1910 enables the licensee to fix the rates in accordance with the consideration stated therein but as Mr. Masood, Advocate himself has shown this provision is not applicable to respondents vide. Section 12 of the WAPDA Act, 1958. In my view, even if section 23(4) is applicable to WAPDA, the same does not help in answering the present question. No condition of the relevant contract has been pointed out; which may help in answering the question. This much, however, is true that initially 7705 KW was fixed and supplied to the petitioner. The question, therefore, is whether the reservation is unchangeable for all times come, even if the need of the consumer is reduced.
6. The reasons of the respondents that reduction in load cannot be allowed unless some machinery is physically removed does not seem to be fair. ,There was time when WAPDA was short of electricity and particularly in summer season, it had to resort to long periods of load-shedding, which resulted in suspension of work in factories and so on. If, in term of policy of the Government the petitioner installed its own power plant it does not seem fair and equitable on the part of the respondents to insist that it will charge the petitioner on the basis of originally sanctioned load. The argument against this view is that WAPDA will suffer loss as under its contract it has to purchase electricity from private power producers, but this argument is equally available to the petitioner..
Should the petitioner be condemned to pay for something, which it never utilises and therefore, suffer loss? To my mind this argument does not help the respondents. The two judgments from Karachi jurisdiction relied upon by the learned counsel for the petitioner, may not be-strictly relevant but the case reported as Messrs Ilyas Marine and Associates Ltd. v. Karachi Electric. Supply Corporation Lt,d. (1994 CLC 596) does indicate that the licensee was not entitled to charge the consumer on the basis of sanctioned load of 150 KW, after the request of the consumer to reduce the load to 50 KW. The licensee was directed to refund the amount of fixed charges for the period of two years that the licensee kept the request for reduction under consideration. In fact the consumer was granted the amount of interest on this amount.
7. For what has been stated above I accept this petition and declare the impugned decision dated 27th September, 1997 as without' awful authority and consequently of no legal effect. Respondents are directed "to accept the request for reduction of load w,e,f, 26-9-1977 the date of impugned decision and to adjust the account accordingly w,e,f, the " said date. No order as to costs.